The Standard Group has issued a raft of legal guidelines its journalists will be required to adhere to to reduce the media house’s exposure to defamation suits, potentially threatening to limit its braveness as captured by its ‘Kenya’s Bold Newspaper’ slogan.
According to Millicent Ngetich, the Head -Legal at the Group, the move follows a threat by Supreme Court Judge Isaack Lenaola’s to sue over a story the newspaper published that indicated he and Deputy Chief Justice Philemona Mwilu held secret meetings with lawyers representing NASA leader Raila Odinga when the apex court was seized of his petition that eventually led to the nullification of President Uhuru Kenyatta’s win.
The publication of the story split the newsroom with a section of editors supporting the writer, Mwaniki Munuhe, and another questioning the motive, claiming it was planted by the Jubilee administration.
However, in a response to Justice Lenaola, The Standard Group stood by the story, saying there was no need to apologise since it only reported a fair and accurate statement that was a matter of public interest with no ill intentions to tarnish the judge’s reputation.
“Our publication merely reported a petition submitted to the Judicial Service Commission for Investigation and Removal from Office of the Supreme Court Judge- Justice Isaack Lenaola submitted by one Derrick Malika Ngumu on 18th September 2017.”
“Rather, in publishing the allegations in the petition, our client only discharged its legal, moral and social duty to the people of Kenya who would be interested in receiving such information,” the media house’s lawyers, TRIPLEOKLAW Advocates, wrote to Justice Lenaola’s lawyer Donald Kipkorir.
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Internally, Ms Ng’etich has asked Standard Group journalists to adhere to the Code of Conduct for The Practice of Journalism in Kenya, noting that the media house has received several other demand letters and suits.
“We wish to dwell on the context of applicability of this defence to mitigate our exposure to legal action. The defence is provided under Section 7 of the Defamation Act… However, the defence is not available if the publication is (i) made with malice (ii) prohibited by law and (iii) not of public concern and not for the benefit of the public,” the advisory reads in part.
Ms Ng’etich says the courts have held that the burden of proving the defences of justification or qualified privilege lies with the defendant. Insiders at Standard say the media house is reeling under a mountain of libel suits arising mostly from its newspapers – The Standard and The Nairobian as well as KTN.
“Where this defence is pleaded, we are always required to prove that the publication is a matter of public interest and lack of malice – this evidence should be supplied to legal at all times,” the advisory says.
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Ms Ng’etich says the courts have also adopted the below non-exhaustive guidelines that a defendant should observe if wishing to argue that a publication was responsible and in the public interest:
- a) The seriousness of the allegation, i.e. if the allegation is not true what will be the level of misinformation to the public and what will be the corresponding harm to the individual.
- b) The nature of the information and the extent to which the subject-matter is a matter of public concern.
- c) The source of the information and whether it is reliable or motivated by malice and/or avarice.
- d) Whether suitable steps have been taken to verify the information.
- e) Whether the allegation in a story has already been the subject of an investigation which commands respect.
- f) Whether it is important that the story be published quickly.
- g) Whether comment was sought from the claimant, or whether that was not necessary in the context of the story.
- h) If the article or story includes the gist of the claimant’s version of events.
- i) Whether the article or story is written in such a way as to amount to statements of fact, or whether it raises questions and is suggestive of the need for further investigation.
- j) The timing of the publication.
“You are requested to observe the above thresholds whenever publishing articles of public interest. We also wish to reiterate the need to adhere to the Code of Conduct for The Practice of Journalism (Code) in Kenya,” she adds.
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Ms Ng’etich says the key tenets of journalism as enumerated the code include accuracy and fairness which calls publication of fair, accurate and unbiased stories.
“In addition, comments shall be sought from anyone who is mentioned in an unfavourable context and evidence of such attempts kept. The right of reply is also a legal requirement under S.7A of the Defamation Act,” the lawyer says.
She has called for strengthening of gate-keeping and strict adherence to the Code and asked journalists at the Group to consult the Legal departments whenever they have any queries and to attend training on defamation conducted by the legal department bi-annually. This story was originally reported by Daily Reporter.
