This part of the code begins by making a lengthy suggestion that a fair opportunity to reply to inaccuracies be given to individuals or organizations when reasonably called for. It says that if the request to correct inaccuracies in a story is in a form of a letter, the editor has discretion to publish it in full or in its abridged and edited version, particularly when it is too long. But the remainder should be an effective reply to the allegations. The code also suggests that the editor should not omit or refuse to publish important portions of the reply/rejoinder which effectively deal with the accuracy of the reply/rejoinder.
The code says if the editor doubts the truth of factual accuracy of the reply/rejoinder, it should be his duty to publish it with liberty to append an editorial comment doubting its veracity. The code suggests this should be done only when this doubt is reasonably founded on unimpeachable evidence in the editor’s possession. The editor should not, says the code, in a cavalier fashion without due application of mind, append such a note as: “We stand by our story.” It suggests that in this context, these standards also apply to electronic media.
There is a very thin line between this part of the ethical principles and the new section of The Defamation Act (Cap 36) which came as an Act of Parliament to make minor amendment of the Statute law in 1992. The new section which was inserted immediately after section 7 is known as the Right of Reply and is now Section 7A. (1). It says any person or body of persons shall be entitled to a right of reply to any factual inaccuracy affecting them which has been published in a newspaper and which is damaging to the character, reputation or good standing of that person or body of persons . In subsection 2 the Act says where a person or body of persons is entitled to a right of reply under subsection (1) a correction shall be printed in the next possible edition of the newspaper.
Subsection (3) says the correction shall be printed free of charge and be given similar prominence as the item complained of and appear at a similar place in the newspaper. Subsection (4) says the correction must be of such length as is necessary to identify the original item and subsection (5) says any person or body of persons seeking to exercise the right of reply under the provisions of this section shall do so in writing to the editor or publisher of the newspaper within a period of fourteen days from the date of publication of the damaging material provided that the right of reply shall be exercisable after a period of six months from the publication of the relevant damaging material . Subsection (6) says in any civil proceedings for libel, the court, unless it is of the opinion that any reply under this section is either irrelevant or unreasonable in all the circumstances of the case, shall be at liberty to award an additional amount of damages for defamation where the publisher has failed or refused to publish a correction or failed to give it the prominence required by this section. Subsection (7) says in any civil proceedings for libel instituted by a person or body of persons entitled to a right of reply who or which failed to exercise such a right in accordance with this section the court shall, in the even of it having found in favour of the plaintiff, be at liberty to reduce the amount of damages which it would have otherwise awarded by such sum as the court considers appropriate having regard to all circumstances of the case.
I do not recall anyone using this section of the Defamation Act to demand the right to reply sighting both the public’s right to know or / and the protection of the rights of an individual . But in a system of self regulation which is promoted by the Kenyan Code of Ethics opportunity to reply becomes a cornerstone of ensuring the often unnecessary interference with freedom of expression is not imposed by the law. As the British code of practice sums it up in one sentence, a fair opportunity for reply to inaccuracies must be given when reasonably called for. Full stop! Where punitive press laws exist opportunity to reply undergoes a metamorphosis and becomes the right to reply which is more or less similar to what we have in our own Defamation Act Cap 36 quoted above.
In my humble opinion our Defamation Act could be successfully used to suppress freedom of expression. According to Brian Martin, Associate Professor in Science and Technology at the University of Wollongong in New South Wales, Australia, defamation law is an extremely slow, expensive and unreliable way to address injuries to reputation. In Australia, he says, cases often take years to progress through the legal process and if they run in court, can cost hundreds of dollars. He rightly says decisions are often dependent on esoteric legal points rather than the substance of what happened. Finally, says the professor, the normal remedy for successful litigants, a payment to the defamed party, does not in itself redress the injury to reputation. The reality, he says, is that defamatory comments occur all the time but the law is seldom effective means to obtain redress. The professor suggests that many people who are defamed would like most of all to be able to reply promptly to the same audience that was exposed to the defamatory comment. The Opportunity to Reply in the Kenyan code of ethics suggests the same.
Kenyan editors, like their counterparts in many parts of the world, are extremely reluctant to offer opportunity to reply to errors either broadcast or published by their media houses. What they want to know whenever a complaint is made is whether the complainant intends to sue and if they get any letter from a lawyer threatening to sue for libel permanent enmity is established with instructions from very high up in the editorial department to black list and black out whoever is threatening to sue. With such attitude no one can hope to be given an opportunity to reply. Yet when followed properly this code could keep many libel cases out of courts.
The code says if the editor doubts the truth of factual accuracy of the reply/rejoinder, it should be his duty to publish it with liberty to append an editorial comment doubting its veracity. The code suggests this should be done only when this doubt is reasonably founded on unimpeachable evidence in the editor’s possession. The editor should not, says the code, in a cavalier fashion without due application of mind, append such a note as: “We stand by our story.” It suggests that in this context, these standards also apply to electronic media.
There is a very thin line between this part of the ethical principles and the new section of The Defamation Act (Cap 36) which came as an Act of Parliament to make minor amendment of the Statute law in 1992. The new section which was inserted immediately after section 7 is known as the Right of Reply and is now Section 7A. (1). It says any person or body of persons shall be entitled to a right of reply to any factual inaccuracy affecting them which has been published in a newspaper and which is damaging to the character, reputation or good standing of that person or body of persons . In subsection 2 the Act says where a person or body of persons is entitled to a right of reply under subsection (1) a correction shall be printed in the next possible edition of the newspaper.
Subsection (3) says the correction shall be printed free of charge and be given similar prominence as the item complained of and appear at a similar place in the newspaper. Subsection (4) says the correction must be of such length as is necessary to identify the original item and subsection (5) says any person or body of persons seeking to exercise the right of reply under the provisions of this section shall do so in writing to the editor or publisher of the newspaper within a period of fourteen days from the date of publication of the damaging material provided that the right of reply shall be exercisable after a period of six months from the publication of the relevant damaging material . Subsection (6) says in any civil proceedings for libel, the court, unless it is of the opinion that any reply under this section is either irrelevant or unreasonable in all the circumstances of the case, shall be at liberty to award an additional amount of damages for defamation where the publisher has failed or refused to publish a correction or failed to give it the prominence required by this section. Subsection (7) says in any civil proceedings for libel instituted by a person or body of persons entitled to a right of reply who or which failed to exercise such a right in accordance with this section the court shall, in the even of it having found in favour of the plaintiff, be at liberty to reduce the amount of damages which it would have otherwise awarded by such sum as the court considers appropriate having regard to all circumstances of the case.
I do not recall anyone using this section of the Defamation Act to demand the right to reply sighting both the public’s right to know or / and the protection of the rights of an individual . But in a system of self regulation which is promoted by the Kenyan Code of Ethics opportunity to reply becomes a cornerstone of ensuring the often unnecessary interference with freedom of expression is not imposed by the law. As the British code of practice sums it up in one sentence, a fair opportunity for reply to inaccuracies must be given when reasonably called for. Full stop! Where punitive press laws exist opportunity to reply undergoes a metamorphosis and becomes the right to reply which is more or less similar to what we have in our own Defamation Act Cap 36 quoted above.
In my humble opinion our Defamation Act could be successfully used to suppress freedom of expression. According to Brian Martin, Associate Professor in Science and Technology at the University of Wollongong in New South Wales, Australia, defamation law is an extremely slow, expensive and unreliable way to address injuries to reputation. In Australia, he says, cases often take years to progress through the legal process and if they run in court, can cost hundreds of dollars. He rightly says decisions are often dependent on esoteric legal points rather than the substance of what happened. Finally, says the professor, the normal remedy for successful litigants, a payment to the defamed party, does not in itself redress the injury to reputation. The reality, he says, is that defamatory comments occur all the time but the law is seldom effective means to obtain redress. The professor suggests that many people who are defamed would like most of all to be able to reply promptly to the same audience that was exposed to the defamatory comment. The Opportunity to Reply in the Kenyan code of ethics suggests the same.
Kenyan editors, like their counterparts in many parts of the world, are extremely reluctant to offer opportunity to reply to errors either broadcast or published by their media houses. What they want to know whenever a complaint is made is whether the complainant intends to sue and if they get any letter from a lawyer threatening to sue for libel permanent enmity is established with instructions from very high up in the editorial department to black list and black out whoever is threatening to sue. With such attitude no one can hope to be given an opportunity to reply. Yet when followed properly this code could keep many libel cases out of courts.
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