In Summary
  • Specialists in media law have lauded it as one of the "most significant decisions in defamation law for many, many decades".

  • This new defence “is available to all who publish material in any medium, and is not part of the rubric of qualified privilege”.

  • Kenya has been struggling to redefine the laws of defamation and extend the frontier of freedom of expression.

  • The High Court in 2016 awarded Justice Alnasir Visram Sh26 million in a libel suit against The Standard newspaper.

A landmark ruling in the Court of Appeal in New Zealand has for the first time recognised the existence of a new “public interest defence to defamation claims” arising from mass publications — which gives journalists more room to handle stories and extra immunity from possible suits.

Previously, the only recognised privileged information was what was contained in court and parliamentary proceedings and public interest was not taken as a defence to defamation.

Specialists in media law have lauded it as one of the "most significant decisions in defamation law for many, many decades".

The court held that the qualified privilege as previously recognised in the Lange V Atkinson, an established case law on qualified privilege and whose authority was previously cited in defamation cases in Kenya, has now been set aside.

POLITICAL ISSUES

“The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern,” the New Zealand court ruled in a case now referred as Durie Anor V Gardiner and Anor.

Building on new developments in the English and Canadian laws, the New Zealand court has concluded that time has come to strike a new balance between the right to protection of reputation and the right to freedom of expression by recognising the existence of a new defence wider than that in the Lange v Atkinson decisions.

“The new defence requires the subject matter of the publication to be of public interest, and the communication to be responsible. Both are to be determined by the judge,” a statement from the court on the landmark decision said.

This new defence “is available to all who publish material in any medium, and is not part of the rubric of qualified privilege”.

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