Legal, Ethical Issues and Application of Libel Laws in Broadcast Media

David Indeje is Khusoko’s Digital Editor, covering East African markets.
BETTING and Licencing Board bans radio stations from running lotteries and prize competitions following rampant fraud.

The entry of private players (early 1990) brought revolutionary changes. This was the emergence of the media liberalization. Notably, the change of programs increased. An interactive culture emerged to completely democratize the electronic media space that was hitherto a preserve of the political elite. The increasing number of media outlets especially in the broadcasting sector as well as the cutthroat competition among media outlets, has increased plurality of information.

Despite these positive changes, concerns have been raised regarding the level of professionalism and the ethical conduct of those involved in the sector. This has led to the utter disregard of the basic rules of reportage by most of the players. Indeed, most of the FM radio and television stations are hiring people who are not trained. This has worsened the situation.

Moreover, the rapid growth of the electronic media in Kenya and the need for trained and qualified personnel has led to mushrooming of third rate back street mass communication schools in Nairobi and major towns whose curriculum and training facilities cannot be vouched for. The result has been the production of half-baked presenters, reporters, camera operators and video editors.
Tumber H. (2000) Media Power, Professionals and Policies, notes that, in their every day lives, journalists make decisions that could have legal or ethical implications whether they are conducting an interview, processing a platform, editing news footage for the bulletin or pressing the delay button during a talkback radio program, journalists are exercising a discretion that might need to be defended in court. They do it because their work involves bringing important news to the public within tight deadlines.
Consequently, this raises our eyebrows, despite these positive changes, concerns have been raised regarding the level of professionalism and conduct of those involved in the sector. Many are concerned that these new stations seem to be trivializing journalism by doing what is fashionable instead of what is right. The Executive Director, Media Council of Kenya, Esther Kamweru, notes that, while some have felt that the media is doing a good job, others have increasingly raised concern over what they see as inaccuracies in reporting, a lack of balance in media stories, dirty language especially through radio and too much focus on the elite singling out the Fm stations and their lack of social responsibility as defined by the profession.
Through FM stations, it is said that the reporting culture, premised on gathering and verifying the information is being increasingly overrun by sensational programme formats. Concentrating on information rather than gathering it; chat, speculation, opinion, argument, controversy and punditry as they cost for less than the rigorous process of gathering news – the economics of the new media
Primary values of journalism stress accuracy, truthfulness, fairness and balance. These seem to have been disregarded by the new media stations. Presenters are not interested in verifying facts. The principle of keeping facts separate from suspicion and analysis is no longer honoured

.Mutegi Njau, in his, Proliferation of FM radio stations and the danger of Libel and Defamation, justifies this case; the growth of the electronic media has not been concomitant with the development of the training of staff who man the broadcasting stations. This has created challenges in the quality of broadcasting and programs and increased the danger of incurring serious libel and defamation suits.

Read: The media we want: The Kenya media vulnerabilities study

On the other hand, the long history of newspapers in the country, mainstream newspaper journalists are relatively more thoroughly grounded in libel and defamation laws than their broadcasting counterparts.
Libel and invasion of privacy Libel and invasion of privacy are two very important issues dealing with broadcast media. The two are very similar but different from each. Libel is a statement in written or in permanent form, whereas invasion of privacy deals with how the information was actually gathered. Both have laws to regulate and influence what kind of information is gathered and, how it is actually obtained Libel simply is defamation of character by published word, the publishing of falsities to hurt a person’s reputation or standing.
However, now it is not limited to the printed word as in newspapers or magazines. Slander, which is defined as defamation of character by verbal statement or gesture in transient form is now portrayed as a form of libel because of the abundance and power the broadcast spoken word can have as in radio and television.
On the other hand, libel has a stronger penalty than that of slander because print is seen to have a much more long-lasting effect, and once something is on paper you cannot take it back. Conversely, with tape recordings and the fact that any spoken defamation can de be saved and distributed, radio and TV most times fall in the libel category.
Invasion of privacy has developed along with false light, private facts and misappropriates. Journalists need to understand that the public’s right to know often to be weighed against the privacy rights of people in the news. Inquiries into an individual’s private life without the person’s consent are not generally acceptable unless public interest is involved. Public interest must itself be legitimate and not merely prurient or morbid curiosity. There are four types of violation of someone’s privacy:
 The first one is called intrusion, which is the actual physical violation of someone’s privacy, as in trespassing to obtain information.
 The second is appropriation, which is the commercial exploitation of a person’s image or likeness without consent.
Thirdly is false light, portrays someone in false light or gives false pretences. Lastly is information on private facts, that are actually true but private, and that will severely embarrass or hurt someone’s reputation.
Libel is a more serious issue with broadcast media. The worst possible thing a journalist or media outlet can do is to ruin the character of a private person. That is to say it is a much more serious offense to publish false information about some one who is not in the public eye. Subsequently, it is much harder for a public figure to prove libel because he or she must prove actual malice that the medium actually intended to hurt the person with these words.
Moreover, libel is worse because it is the actual publishing or broadcasting of the information that can hurt a person and once it is published you cannot take it back. However, because of this, the idea of false light, private facts and libel are very closely connected here. It’s easy to see and understand the ideas of intrusion and appropriation.
In fact, many media slightly encourage their reporter to dig up dirt by either trespassing or sneaking around to get information, and as well to use a person’s picture without consent. However the two more serious of the privacy laws are very much like that of libel.
Above all, it is the media’s job to publish what is true. It is its job to give the audience news and that of truthful news. The most serious concern with the media is that what they reveal to the audience must be true because as a society we are greatly influenced by what we read, hear, and see through the press. This is why libel is more serious than privacy issues.
 Publishing false or inaccurate information directly is the biggest and most devastating thing a journalist or media can do. That is the underlining factor of the two. Publishing private and true embarrassing facts may hurt someone severely, but journalists feel that it is a right for a person in the audience to know the truth. Ethically, the journalist must give the facts. Journalistic ethics understands that the worst possible thing is to give false information. Not only is it ethically wrong, but also, through the law, libel is a bigger problem. In actuality most initial invasion of privacy suits, especially in false light are changed to libel suits because they are more damaging.
Libel suits are very expensive, upwards to millions of shillings just for the cost to defend against a suit. For instance, the Nation Media Group (NMG) had to pay 14 million to Mathioya MP Joseph Kamotho and his sons because of a defamatory matter that was initiated by a caller to the radio breakfast show in 2002. The caller claimed that there was some accident somewhere in the city which involved Mr. Kamotho’s sons who took off from the accident scene. Without verifying the facts, the show presenter went ahead to vilify Mr. Kamotho’s sons in unpalatable terms. Mr. Kamotho and his sons sued the media and won the case.
Often libel and defamatory landmines waiting to explode in on radio and television stations live call-ins are where presenters or journalists call other journalists or news sources in the field.
Broadcasters usually say many things “on-air” which are not easy to check and verify to minimize defamatory content in electronic media emanates from the many live “call-ins” that radio and television stations take during interactive talk shows.
Such call-ins are in many cases not vetted or monitored and can be dangerous, particularly if the callers and those being called are not properly grounded on the laws of defamation and libel.
Television news production can also be a source of defamation cases if the reporters and video editors are not careful. Ignorant reporters assume that if they “up sound” a news source in news clips making defamatory statements, they are not liable. Similarly, the choice and editing of video clips may result in a libel suit if the pictures in the clip depict a person in bad light.
Therefore, virtually every story is potentially libelous enough to make any reporter timid. It does not grow from hard-hitting, aggressive reporting of matters of monumental importance. Majority of suits evolve from –to use the newsroom vernacular stupid, idiotic mistakes, such as failure to copy information correctly from public records. Example, John Jones is found not guilt of aggravated assault, but the reporter hurriedly skims the court records and writes that Jones was found guilty of aggravated assault. (Bruce Itule and Douglas Anderson 2003:389-40)
Moreover, certain explosive words, categories of words, defamation by implication and quotations. Red flag words all lead to libel litigation because harm to reputation is apparent – fawning sycophant, intimate, smuggler, prostitute, mafia among others. Journalists ought to steer clear off many libel suits by scrutinizing the meaning of the words and sentences they write. This is especially to libelous words which include: (1) words imputing the commission of a criminal offence; (2) Words that impute infection with a loathsome communicable disease of any kind that would tend to exclude one from society; (3) words that impute inability to perform or want of integrity in the discharge of duties of office or employment and (4) words that prejudice a particular person in his or her profession or trade.
Reporters and the news medium should know that they are responsible for statements aired or printed.
Freedom carries concomitant obligations; and the press which enjoys a privileged position under our government is obliged to be responsible to society for carrying out certain essential functions of mass communication.” – Theodore Peterson in; Four Theories of the Press
Therefore, the news medium must assume responsibility for the statement if it is used. Misquotations can defame not only third parties whom a speaker mentions but also the quoted speaker. Example, the US Supreme Court ruled in 1991 that deliberate misquotations may injure reputation by attributing harmful assertions to the speaker if the misquotations result in a “material change” in the meaning intended by the speaker.
This aspect implies that the fact that information was provided by a source does not necessarily mean that it is correct. Journalists should not rely on second hand information, they must verify, check and double-check, failing to do so, the reporter invites a libel action. In addition, the journalist should be aware of off-the-record tips passed along by sources; even high ranking officials or law enforcement officers. Always confirm potentially libelous accusations. Prefacing an accusation with the word alleged will not help when you get to court. Example; 
NOT – Police said that the alleged crook is in custody.
YES – Police Said that the man charged with crime is in custody.
in conclusion, one issue that complicates the question of libel cases in the broadcast media is the very rapid rate of technological change. The media are constantly being transformed by technical innovations and forms of technology which were once distinct are now fusing together. For instance; if television programs are watched via the internet, for example, what type of media regulation applies? Gary Krug (2005:19), as technology alters the world in which people live, so also it changes their perception, their thoughts and hence the viability of the previous symbolic orderings of their world. Technology outruns the capacity of law, regulation and other brakes to slow it down.
Priscilla Nyokabi in “Defamation law and press freedom in Kenya”  the problem arises when defamation law is abused. Government and its officials may abuse and misuse defamation law to suppress criticism of official wrongdoing, maladministration, misconduct in office and corruption to avoid public scrutiny. The law as applied may offend international principals and standards and also the constitution. Our Defamation Act is cap 36 of the laws of Kenya. It is an act of parliament to consolidate and amend the statute law relating to libel, slander and malicious falsehoods.
Further, she says that, there is no reason to have criminal libel as it serves to intimidate journalists and gives the state a crime under the penal code to use levy charges against the journalists who touch on sensitive issues. Journalists and the media generally have been brought to court under defamation laws. The courts have been known to award huge awards on defamation suits, awards larger than those awarded for personal injury claims. This serves to muzzle and gags the press. Another way defamation laws lead to curtailment of press freedom is the hanging threats of suits; journalists end up shying away from covering public interest matters for fear of defamation laws.
Frank Ojiambo Wanyama, in “Zero Tolerance on Defamation Unavoidable”,  journalists should also undergo professional training, must-read widely, research widely, consult widely and they must fully understand the laws of the land and in particular the law of defamation, for failure will only encourage the government to continue to regulate the media.
David Indeje is Khusoko’s Digital Editor, covering East African markets.

In my role as Community Engagement Editor For Khusoko, I care about our audience. engaging them, getting news delivered to them across a variety of platforms, and expanding the diversity of voices on our website.

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