the fesmedia Africa blog
Tuesday 07 of February 2012
Next time you want to blast someone on Twitter, think again, it can cost you - by Peter Mwaura
Many people believe they can, with impunity, defame, malign, and vilify anybody on Twitter, Facebook, MySpace, and other social media and blogs on the World Wide Web (www).
Such thinking seems to be part of the “online anonymous culture”.
They believe they can make disparaging statements online without repercussions, using false names, aliases, codenames, or fake social media accounts.
Such belief is false. Anonymous Internet users can be hunted, tracked down and hauled before the courts. They can hide but they can’t run.
While the laws regarding defamation on the Internet are not entirely settled as to how they apply to the fast-emerging world of social media, the consensus is that defamatory statements made on sites such as Twitter can be actionable.
Defamation, whether on the www or in the local newspaper, radio or television, is actionable. Such defamation is even more unjust on the Internet because its reach is global.
So most jurisdictions allow legal actions against defamation in the Internet, though this is still a growing and complex area of law.
In the United States, for example, Internet service providers and website owners are generally not liable for the content posted by other people.
That means that you cannot, for example, sue Facebook for defamatory material posted by an individual, but you can sue the poster.
In Kenya, however, you can sue both Facebook and the poster. But the US courts won’t enforce the judgment against Facebook, because it is contrary to the US law.
Kenya’s Defamation Act came into force on June 17, 1970, four years before the term Internet came into use.
It does not, therefore, take into account online defamation. But online defamation is constructively actionable in Kenya.
In October last year, Safina Party leader and lawyer Paul Muite and human rights activists Hassan Omar, Maina Kiai, Ndung’u Wainaina and Wambugu Ngunjiri, said they would sue PNU activist Moses Kuria over comments he made on Facebook.
The five complainants said Mr Kuria defamed them by posting on his Facebook wall a commentary which claimed witnesses for the International Criminal Court prosecutor Luis Moreno-Ocampo’s case against the six Kenyans suspected of post-election violence were fake witnesses coached by the activists.
Mr Kuria, however, was undaunted. He wrote on his Facebook wall: “I look forward to defend myself and the power of social media in court… see you in court.”
Those who post defamatory material on the web must be able to prove it is true, as they could face defamation action.
Defamation, in law, is a statement that makes a claim, expressly stated or implied to be factual, that gives an individual, business, or group, a negative image.
Another form of defamation recognised in law is invasion of privacy, i.e. public disclosure of private information that is not of public concern.
And truth is not a defence for invasion of privacy, unlike in other forms of defamation.
Defamation, in law, is a tort, an injury, or a wrongful act done wilfully, negligently, or in circumstances involving strict liability, for which a civil suit can be brought.
Strict liability means that you are legally responsible for the damage and loss you cause regardless of culpability, i.e. whether you have an excuse or not.
In tort, strict liability means you are liable without a finding of fault, such as negligence or tortious intent.
The person you have defamed need only prove that the defamation occurred and that you were responsible for the defamation.
Therefore, you can’t just say anything you want on the Internet, because what you say may well come back to haunt you.
The law is clear. If what you say tends to lower a person in the estimation of right-thinking members of society that may well be defamatory.
And the person you have defamed does not have to prove that the words are defamatory. You, have to prove they were not.
So, while it may be tempting to attack someone on Facebook, pause for a moment and think. Are you defaming him or her? If so, think again, it can cost you.
February 03, 2012 by Peter Mwaura
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Source: www.nation.co.ke/oped/Opinion/Next+time+you+want+to+blast+someone+on+Twitter+think+again/-/440808/1319512/-/item/1/-/63kvbc/-/index.html (Accessed: 07.02.2012)
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