Navigating Legal Challenges in Digital Journalism Landscape

Digital media in Kenya has radically altered the landscape of public expression, allowing individuals to leap over traditional newsroom barriers and embrace citizen journalism and activism. With social media as the new town square, varied voices contribute to public debate and hold authorities accountable, fostering a dynamic and pluralistic media environment.

Yet, in this digital expanse, journalists confront myriad challenges. Misinformation and hate speech can distort public dialogue, while threats to privacy and extensive online harassment can compromise journalist safety. These risks necessitate diligent information verification to safeguard journalistic integrity and circumvent defamation risks.

Amidst concerns, regulatory voices advocate for equitable moderation of digital platforms, ensuring these mediums serve as constructive channels for dialogue rather than misinformation conduits. Failure to properly validate facts can lead to legal challenges, such as defamation claims impacting both reputation and emotional tranquility of the involved parties.

To prove defamation, a plaintiff must show that a defamatory statement was falsely made against them, published, and caused harm. The Onama v Uganda Argus Ltd case EA 92 explains that the defamatory nature of words depends on their reasonable interpretation by individuals familiar with the topic.

Defendants, however, have defenses like truth, qualified privilege, public interest, and fair comment. Fair comment is for public interest matters and requires factual bases. Qualified privilege covers statements made in good faith out of duty or interest, as long as they are lawfully published and concern public matters. Lord Denning, in Fraser v Evans & Others (1996) All ER 6, emphasized the right to truth and fair comment, underscoring the essentiality of free speech and expression.

As digital avenues burgeon, so too must respect for privacy and adherence to stringent data regulations. The consent of data subjects for the use of their personal information is foundational. It should be freely given, express, well informed, unambiguous and specific to the news item being published. A misstep here can lead to privacy violations or data breaches.

Kenya’s digital journalists also face the delicate balance of preserving source anonymity against legal obligations to disclose certain information—potentially in court or for national security. Failing to verify information properly can lead to defamation suits, damage to credibility, and reputational harm. Further, making false statements crafted to damage the individual’s reputation, can have far-reaching consequences including emotional distress, humiliation, loss of jobs and opportunities and even friendships. Behind the stories are real people, worthy of having their dignity respected, and spreading false information violates this right.

Digital platforms offer opportunities for whistleblowers and anonymous sources to come forward with sensitive information. However, journalists should balance the need to protect the identity of their sources, with legal obligations to disclose information in certain circumstances, such as court proceedings, national security reasons, the disclosure is not made for personal gain other than any reward payable under any written law; the person does not violate any law when making the disclosure; and if the person makes the disclosure in good faith. Kenya introduced The Whistleblower Protection Bill, 2023 which is aimed at protecting whistleblowers in Kenya. If passed into law, it will allow journalists to freely rely on information from such whistleblowers, within the confines of the law.

Online harassment and threats is a menace affecting journalists working in the digital realm. They are often subjected to trolling which could be content, personal, raids, or gender-based. Content trolling occurs when a person pretends to share opinions of others, which are often inflammatory designed to cause conflict. Personal trolling occurs when harassment goes beyond the screen, like receiving messages of threats, and following one to their homes. Raids entail multiple people planning personal attacks at someone, and gender trolling entails gendered and sexualized language and threats, usually to women, intended to silence them. Understanding these forms of harassment is imperative for journalists, as they would understand the motives of these targeted attacks  and allows them to respond objectively.

Journalists also face challenges regarding copyright ownership when using digital content such as images, videos, and articles from other sources. Social media has made it easier for people to share and republish content which has led to widespread copyright infringement, and journalists must ensure that that they have the necessary permissions and licenses to use third-party material to avoid legal battles. Social media platforms like YouTube and Instagram have a strong framework in which they alert users if the content is copyrighted. Similarly, an owner can file a complaint against content that us used without the necessary consent. As such, copyright infringement could result in loss of social media pages and brand image.

Recent developments in social media have seen digital journalists creating content on social media accounts owned by others. For instance, Eve Mungai, a digital journalist, was recently removed from her director’s social media accounts, which were then renamed. While her content was not infringed upon, this raises concerns about copyright ownership and its impact on both the platform and her online audience. It emphasizes the need for clear delineation of interests in contractual agreements governing the operation of social media accounts to safeguard everyone involved.

In summary, while digital media has empowered citizen journalism and expanded public discourse in Kenya, it also brings challenges like misinformation and online harassment. Journalists must navigate the legal complexities, including defamation suits, privacy issues, data protection laws and copyright issues to uphold integrity.


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