The internet has undoubtedly revolutionalised the way we communicate.
Kenya is estimated to have about 22.3 million internet users and it can be said that the country is definitely up there with the rest of the world when it comes to usage and presence on the web.
The biggest advantage and allure of new media is the instantaneous speed with which information is shared and the use of pseudonyms by internet users.
These features, however, make the internet a double-edged sword, as can be seen in the increasing number of internet defamation cases filed in court.
A MONKEY WITH A GUN
Because of its borderless nature, an individual has, in 140 characters, greater potential to damage the reputation of individuals. Corporations have also not been spared.
Trade libel is defamation against the goods or services of a company or business. Because of its unique features, internet defamation has been distinguished from the traditional form.
Unfortunately, most internet users give a premium for the thrill for speed over accuracy and decency.
The use of pseudonyms coupled with the ignorance and obstinacy of most internet users make them think that they can post anything, unaware that defamation laws apply to what is published on the internet and limits what people can post online.
A ‘BORDERLESS’ MEDIA
The courts in Kenya still approach internet defamation the way they do traditional defamation in conventional media like newspapers and this has compounded the problem.
There is also the issue of jurisdiction because the internet is borderless and different countries protect the right to freedom of expression differently.
In assuming jurisdiction, what are the tests to be met? Is defamation located at the place where the reputation is damaged or is it where the defamatory material is downloaded and read?
Is it where the action would be heard conveniently? These are questions the Kenyan courts will grapple with.
However, not all suits filed in our courts and labelled or classified as defamation suits are indeed such.
STRATEGIC LAWSUITS
They may in the real sense be filed to stifle public debate on crucial matters such as insecurity, corruption, and rising cost of living affecting ordinary mwananchi.
In other jurisdictions, they are called strategic lawsuits against public participation (Slapps). Often the plaintiff does not have a strong case and the objective of these lawsuits is not necessarily to win but to intimidate a critic or silence criticism through fear of costly litigation and the possibility of having to pay large damages upon losing a lawsuit.
Slapps are also used to gain the identity of an anonymous critic from an Internet Service Provider (ISP) or website owner. Those who use Slapps usually have more resources to pursue a lawsuit than their targets, making them an effective tool for the wealthy to muzzle their critics.
COURT IMPARTIALITY
Our courts must, therefore, exercise a delicate balancing act and must not be perceived to be aiding the rich in their onslaught against freedom of expression by dishing out injunctions and transforming public debate into lawsuits.
At the same time, it should not be free rein on the internet where modern-day charlatans post malicious posts under the guise of freedom of expression and protest.
“Twitterfamation” is what I call it and it must not be left unchecked.
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