Is Defamation about Reputations anymore?

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Uganda is a very corrupt country. So corrupt that we, Ugandans, barely believe in any official outcomes.

In fact, we even have a President, who many Citizens believe was not validly elected to that office despite the Supreme Court validating his electoral victory.

So why then do we believe huge Court monetary awards in defamation suits can repair tattered reputations?

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As a media enthusiast, I have keenly followed major defamation cases locally and globally and I can’t help but say the politics around defamation tilt more towards monetary enrichment than reputation reparations.

In Law School, we are taught no defamation can arise in a scenario where the subject has no reputation.

 

So, naturally, media publishers ride on people’s reputations to sell their stories – and it is even mathematical.

The more reputable a person is the more “copies” are projected to be sold in the case of “print media” and in the case of “digital media” and other media, the more “page views,” “eyeballs,” “ listens” among other media metrics will be registered.

It helps matters if the story is negative or at least controversial. So some media houses armed with a blind faith in “freedom of speech,” “media freedom,” charge at otherwise reputable people with whatever information (if at all) they have – verified/unverified, accurate/inaccurate, true/false, balanced/unbalanced, unfair/fair, legal/illegal, etc.

After all, the wheels of capitalism must turn.

“Libel and slander cases are notoriously hard to win, and those who feel themselves wronged usually decide against continuing the cases once they realize the expenditures involved. But to bring people to the point of consulting a lawyer is not in an INDEPENDENT blogger’s [insert Journalist] best interest.” writes Authors John Biggs and Charlie White.

On the other hand, a victim of defamation faced with a rabid media campaign [probably from a media house whose independence (if any) is compromised], will take a leap of faith in the Justice system, invest in lawyer fees and pursues the cause of getting the errant media to “pay” for his or her damaged reputation by praying for huge damages in Courts.

Some litigants in this sense are more ambitious that they pursue a “scorched earth” strategy aimed at impoverishing the media house in question all together.

This is how Nick Denton’s Gawker Media was driven into insolvency by the Billionaire Investor Peter Thiel after the tabloid website outed him as Gay and later published a sex tape of boxer, Hulk Hogan.



So you have a media that cares less about journalistic credibility in pursuit of revenues and litigants supported by a rigid Justice system who care less about what actually would repair their damaged reputations than they do about media sustainability – so much that they would pursue huge court awards whose effect is impoverishing the media and/or undermining news gathering as Journalists come to fear retribution.

“We need to support responsible Journalism that is when their positive role will be realized. Errant journalism should not be encouraged. We owe that to society.

” They have the capacity to investigate and get the right information about a subject matter but not to go on a wild goose chase hoping to stumble by default on the correct information. It is not their opinions that matter but the factual position.

” The stress and anguish they unleash on people must be atoned. AFTER ALL THEY EARN HEFTILY FROM SUCH. They should be checked or else with the resources available to them, that is, time and space they can ruin people’s careers and families.” Said Court of Appeal Judge, Justice Christopher Gashirabake in his judgment in the most recent major defamation case involving Judiciary Permanent Secretary, Mr. Pius Bigirimana against the Daily Monitor News Paper.

Ironically, the Court in this case (Daily Monitor case), found that the High Court Order for the News Paper to publish an apology in its pages for two weeks – at least twice a week was harsh and excessive but that the High Court order for the News Paper to pay Mr. Bigirimana 450 Million Uganda Shillings as damages – even when juxtaposed with an earlier case from the same Court in which an award of 350M to a retired Chief Justice was slashed to 150M for being excessive – was found to be appropriate.

The dissenting Judge in the Daily Monitor case, Justice Muzamiru Kibeedi could not help but wonder whether defamation was about making money or righting a wrong in besmirching a person’s character.

And no one is advocating that Courts should not award damages (general or exemplary) to the aggrieved in defamation cases but we need to be able to see a balance (at least) between punitive measures and corrective measures instead of outright punitive damages.

I don’t think Mr. Pius Bigirimana’s besmirched reputation will be repaired by a mere Court award.

As I have already stated, most Ugandans (Daily Monitor’s core audience) do not believe in Court processes and looking at the monetary award in this case, many would think it unfair and merely punitive instead of compensatory or both.

In any case, the Court Judgment has not been reported about by the News Paper at the time of this writing and therefore its audience is in the dark.

Defamation of Bigirimana by the Daily Monitor News Paper spanned three years – a long enough period for the Public to believe the defamatory stories about him.

So what would be required to inform the Public that the stories they read were not true?

As Court noted, in the eyes of his Boss President Yoweri Museveni, Mr. Pius Bigirimana did not fall out of favor as he would later be transferred from the Office of the Prime Minister where he was at the time the defamatory stories started to Gender Ministry and later to the Judiciary, where he is today – serving in the same office of Permanent Secretary.

It could be said that he did not lose any career opportunities and this could be factored in determining how much compensation he deserved.

What of the President who kept promoting a man accused of corruption by a “newspaper of record?” What did the Daily Monitor’s audience make of him?

Daily Monitor, as part of its digital offering, shares stories that appear in its print version on its website. This means they are available to read anytime – now or in the future – unless deleted.

So a person “googling ” about Bigirimana could see and read the defamatory stories if they are not deleted and in case new context factoring in this Court judgment is not added, it means Bigirimana’s searcher could consume false information about him.

Such are the angles Courts should be expected to take in determining appropriate action towards an errant media house.

“I just cannot understand why the same avenue used to damage the reputation of the respondent [Bigirimana] cannot serve a meaningful purpose when it comes to cleaning the mud thrown at the respondent’s reputation by the defamatory publications.” Justice Kibeedi said in his dissenting opinion.

“Monetary awards, though important, might not necessarily be adequate and effective to clean the soiled reputation.” He added.

“While Court has a duty to make orders which are intended to enforce responsible journalism and to protect the reputation of individuals by penalizing any transgressions appropriately, it should not in the process of penalizing transgressions make awards whose net effect is to economically kill the media houses and by extension reduce the space for media freedom and expression in the country.” Justice Muzamiru Kibeedi said.

And I agree with him on that.

It is also important for us to note that these huge awards have been made in cases involving government officials in relation to defamatory stories touching their governmental work.

An imputation that someone is corrupt – besides attracting criminal liability, can damage a person’s electability or chances to advance in public service.

At the same Corruption is so sophisticated that it is difficult for a media without resources including boldness to unearth it.

The question is; how do we support the media to play its watchdog role in our development agenda as a Country instead of turning it into a lapdog?


Benjamin Ahikiiriza is a Legal Writer And Digital Communications & Marketing Specialist majoring in Lawyers, Law Firms And the larger Legal Sector.

Benjamin currently Works as the Director of Content and Business Development At LegalReports.


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