The entry of private players (early 1990) brought revolutionary changes, marking the emergence of media liberalisation.
Notably, the number of programs increased. An interactive culture emerged to ultimately democratise the electronic media space that was a preserve of the political elite.
The increasing number of media outlets, especially in the broadcasting sector, and the cutthroat competition among media outlets have increased the plurality of information.
Despite these positive changes, concerns have been raised regarding professionalism and the ethical conduct of those involved in the sector. This has led to most players’ utter disregard for the basic rules of reporting. Indeed, most FM radio and television stations hire people who need to be trained, worsening the situation.
Moreover, the rapid growth of electronic media in Kenya and the need for trained and qualified personnel have led to the mushrooming of third-rate backstreet mass communication schools in Nairobi and significant 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 journalists make decisions in their everyday lives that could have legal or ethical implications.
Journalists exercise discretion that might need to be defended in court, whether conducting an interview, processing a platform, editing news footage for the bulletin, or pressing the delay button during a talkback radio program. They do it because they bring important news to the public within tight deadlines.
Challenges and Concerns
Consequently, this raises our eyebrows; despite these positive changes, concerns have been raised regarding the professionalism and conduct of those involved in the sector. Many are concerned that these new stations trivialise journalism by doing what is fashionable instead of correct.
The Executive Director of the 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, primarily 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 sensational programme formats are increasingly overrunning the reporting culture premised on gathering and verifying information.
Concentrating on information rather than gathering it, chat, speculation, opinion, argument, controversy, and punditry cost less than the rigorous process of gathering news – the economics of the new media.
The primary values of journalism stress accuracy, truthfulness, fairness, and balance, as per The Code of Conduct for the Practice of Journalism in Kenya.
The new media stations and platforms have disregarded these. Presenters are interested in something other than verifying facts.
The principle of keeping facts separate from suspicion and analysis is no longer honoured.
Legal and Ethical Issues
Mutegi Njau, in his Proliferation of FM radio stations and the danger of Libel and Defamation, justifies this case; the growth of electronic media has not been concurrent with the development of the training of staff who operate 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.
On the other hand, given the country’s long history of newspapers, 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 critical issues in broadcast media. The two are very similar, but different. Libel is a statement in written or permanent form, whereas invasion of privacy deals with how the information was gathered.
Both have laws to regulate and influence what kind of information is collected and how it is obtained. Libel is defamation of character by published words, publishing falsities to hurt a person’s reputation or standing.
However, it is now not limited to printed words, such as newspapers or magazines. Slander, defined as defamation of character by verbal statements or gestures in transient form, is now portrayed as libel because of the abundance and power the broadcast spoken word can have, such as in radio and television.
On the other hand, libel has a more substantial penalty than 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 spoken defamation can be saved and distributed, radio and TV usually fall into the libel category.
The invasion of privacy has developed with false light, private facts, and misappropriations. Journalists must understand that the public’s right to know is often weighed against people’s privacy rights 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 violations of someone’s privacy:
The first is intrusion, the physical violation of someone’s privacy, such as trespassing to obtain information.
The second is appropriation, the commercial exploitation of a person’s image or likeness without consent.
Thirdly, there is a false light, which portrays someone in a false light or gives false pretences.
Lastly, there is information on private facts that are true but private and will severely embarrass or hurt someone’s reputation.
Libel is a more severe issue with broadcast media. The worst possible thing a journalist or media outlet can do is ruin a private person’s character.
Publishing false information about someone not in the public is a much more serious offence. Subsequently, it is much harder for a public figure to prove libel because they must prove actual malice that the medium intended to hurt the person with these words.
Moreover, libel is worse because it is the actual publishing or broadcasting of information that can hurt a person, and once it is published, you cannot take it back.
However, because of this, the ideas of false light, private facts, and libel are closely connected here. The concepts of intrusion and appropriation are easy to see and understand.
Many media outlets encourage their reporters to dig up dirt by either trespassing or sneaking around to get information and using a person’s picture without consent.
However, the two more severe privacy laws are much like those of libel.
Above all, the media’s job is to publish what is true and to give the audience truthful news.
The most serious concern with the media is that what they reveal to the audience must be true. We are greatly influenced by what we read, hear, and see through the press. This is why libel is more severe 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 actual embarrassing facts may hurt someone severely, but journalists feel it is a right for a person in the audience to know the truth.
Ethically, the journalist must provide the facts. Journalistic ethics understand that providing false information is the worst possible thing. Not only is it morally wrong, but libel is a bigger problem through the law.
In actuality, the most initial invasion of privacy suits, especially in false light, are changed to libel suits because they are more damaging.
Case Studies
Libel suits are costly, 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 the late Mathioya MP Joseph Kamotho and his sons because of a defamatory matter initiated by a caller to the radio breakfast show in 2002.
The caller claimed an accident in the city involving Mr Kamotho’s sons, who had taken off from the accident scene. Without verifying the facts, the show presenter vilified Mr Kamotho’s sons in unpalatable terms. Mr. Kamotho and his sons sued the media and won the case.
Often, libel and defamatory landmines are waiting to explode on radio and television stations. Live call-ins are where presenters or journalists call other journalists or news sources.
Broadcasters usually say ” on-air ” things that are not easy to check and verify to minimise defamatory content in electronic media, which emanates from the many live “call-ins” that radio and television stations take during interactive talk shows.
Such call-ins are often not vetted or monitored and can be dangerous, particularly if the callers and those being called are not properly grounded in defamation and libel laws.
Television news production can also be a source of defamation cases if the reporters and video editors are not careful. Ignorant reporters assume that they are not liable if they “up-sound” a news source in news clips making defamatory statements. Similarly, the choice and editing of video clips may result in a libel suit if the pictures depict a person in a bad light.
Therefore, virtually every story is potentially libellous enough to make any reporter timid. It does not grow from hard-hitting, aggressive reporting of matters of monumental importance.
Most suits evolve from –to use the newsroom vernacular stupid, idiotic mistakes, such as failure to copy information correctly from public records.
For example, John Jones is found not guilty 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 are red flags that lead to libel litigation because harm to reputation is apparent—fawning sycophant, intimate, smuggler, prostitute, mafia, among others.
Journalists should avoid many libel suits by scrutinising the meaning of the words and sentences they write.
This is especially true of libellous words, which include (1) words imputing the commission of a criminal offence, (2) Words that impute infection with a loathsome infectious 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 their profession or trade.
Reporters and the news media should know they are responsible for aired or printed statements.
“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. For 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 a source provides information 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 libel action.
In addition, journalists should be aware of off-the-record tips passed along by sources, including high-ranking officials or law enforcement officers. Always confirm potentially libellous accusations. Prefacing an allegation 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 the man charged with the crime is in custody.
In conclusion, the rapid rate of technological change complicates the issue of libel cases in the broadcast media.
The media is constantly being transformed by technical innovations, and forms of technology that were once distinct are now fusing. For instance, what type of media regulation applies if television programs are watched online? Gary Krug (2005:19), as technology alters the world in which people live, it also 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”, states that 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 principles, standards, and 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.
Solutions and the Future
Further, she says there is no reason to have criminal libel as it intimidates journalists and gives the state a crime under the penal code to use levies against journalists who touch on sensitive issues.
Journalists and the media generally have been brought to court under defamation laws. The courts have awarded huge awards on defamation suits, more significant than those awarded for personal injury claims.
This serves to muzzle and gag 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,” states that journalists should also undergo professional training, read widely, research widely, and consult widely. They must also fully understand the laws of the land, particularly the law of defamation, for failure will only encourage the government to continue to regulate the media.
