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Justice Lenaola: Standard Media issue advisory to its journalists on tenets of journalism over rise in defamation cases

Standard Group headquarters on Mombasa road. PHOTO/COURTESY
The head of legal department at Standard Media Group, Ms Millicent Ng’etich, has asked journalists at the company to adhere to journalism tenets due to rising defamation cases against the company.
Ms Ng’etich issued the advisory following a story the paper published concerning a petition filed in court alleging secret communication between Justice Isaac Lenaola, Justice Philomena Mwilu and National Super Alliance (Nasa) lawyers ahead of the Supreme Court ruling that nullified the August 8, 2017 presidential election.

“We have since been served with a demand letter from Hon. Justice Lenaola who claims that his reputation has been brought to public scandal, odium and contempt, and has demanded an unqualified apology,” the advisory says in part.

Ms Ng’etich says that the legal team is in the process of assessing the claim and evaluating the defences available to them but asks journalists in the company to adhere to the Code of Conduct for The Practice of Journalism in Kenya.
The lawyer adds that Justice Lenaola’s demand letter is not an isolated claim as there are several demand letters and suits against the Group.

“We wish to dwell on the context of applicability of this defence to mitigate our exposure to legal action. The defence is provided under Section 7 of the Defamation Act,” she adds.

Ms Ng’etich says the specific matters to which this defence is available are outlined in the Schedule of the Act.

“However, the defence is not available if the publication is (i) made with malice (ii) prohibited by law and (iii) not of public concern and not for the benefit of the public,” the advisory adds.

Ms Ng’etich says the courts have held that the burden of proving the defences of justification or qualified privilege lies with the defendant.
“Where this defence is pleaded, we are always required to prove that the publication is a matter of public interest and lack of malice – this evidence should be supplied to legal at all times,” the advisory says.

Justice Isaac Lenaola has threatened to sue the Standard Media Group and President Uhuru Kenyatta’s head of digital communication Dennis Itumbi. PHOTO/COURTESY

Ms Ng’etich says the courts have also adopted the below non-exhaustive guidelines that a defendant should observe if wishing to argue that a publication was responsible and in the public interest:

  1. a)        The seriousness of the allegation, i.e. if the allegation is not true what will be the level of misinformation to the public and what will be the corresponding harm to the individual.
  2. b)       The nature of the information and the extent to which the subject-matter is a matter of public concern.
  3. c)        The source of the information and whether it is reliable or motivated by malice and/or avarice.
  4. d)       Whether suitable steps have been taken to verify the information.
  5. e)        Whether the allegation in a story has already been the subject of an investigation which commands respect.
  6. f)         Whether it is important that the story be published quickly.
  7. g)       Whether comment was sought from the claimant, or whether that was not necessary in the context of the story.
  8. h)       If the article or story includes the gist of the claimant’s version of events.
  9. i)         Whether the article or story is written in such a way as to amount to statements of fact, or whether it raises questions and is suggestive of the need for further investigation.
  10. j)          The timing of the publication.

“You are requested to observe the above thresholds whenever publishing articles of public interest. We also wish to reiterate the need to adhere to the Code of Conduct for The Practice of Journalism (Code) in Kenya,” she adds.

Lawyer Donald Kipkorir. He is representing Justice Lenaola. PHOTO/FACEBOOK
Ms Ng’etich says the key tenets of journalism as enumerated the code include accuracy and fairness which calls publication of fair, accurate and unbiased stories.
“In addition, comments shall be sought from anyone who is mentioned in an unfavourable context and evidence of such attempts kept. The right of reply is also a legal requirement under S.7A of the Defamation Act,” the lawyer says.
She has called for strengthening of gatekeeping and strict adherence to the Code and asked journalists at the Group to consult the Legal departments whenever they have any queries and to attend trainings on defamation conducted by the legal department bi-annually.
Justice Lenaola through lawyer Donald Kipkorir, formally wrote to telecommunication service provider Safaricom demanding to know how his private call records could have been accessed by Derrick Ngumu who filed the petition seeking his removal from office before the JSC.
In the letter, the judge also threatened to sue President Uhuru Kenyatta’s head of digital communication Dennis Itumbi and The Standard newspaper for spreading falsehoods through their respective platforms.

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