Online defamation: Balancing reputational harm and the freedom of expression and the media
Awinja, Joy Mvatie
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Legal remedies for reputational injury have come a long way since the slicing of one’s tongue. Reputational damage finds in the law a single refuge: Defamation. Black’s Law Dictionary defines defamation as ‘the offense of injuring a person’s character, fame, or reputation by false and malicious statements.’ This common law tort may manifest in the form of spoken words (slander) or written statements (libel). Much of libel laws’ evolution has been through common law. Although this has allowed for flexibility in doctrinal development, it has also resulted in multiple inconsistencies that have not evaded criticism despite the benefit of age. Consequently, defamation law has been described as one laced with ‘anomalies and absurdities’ for which no legal writer has ever had a kind word. While long standing principles have been easy to apply in libel suits involving print media, recent developments bring new concerns. One of these developments is the increasing recognition of the State’s responsibility to respect human rights. Concerning the freedoms of expression and media, this obligation is heavily guarded in a free democracy, important enough to be explicitly recognized under Kenya’s 2010 Constitution.