DEFAMATION: AN ANALYSIS OF DEPP V HEARD - IMPLICATIONS OF THE DECISION OF THE COURT AND COMPARISON WITH DEFAMATION SUITS IN KENYA:
On, the 1st of June 2022, the court awarded Johnny Depp a whopping $15 million in defamation damages. This was a land mark case since it shapes the fate of future serious defamation cases and it calls for people to be careful before publishing any false information that may amount to libel or slander as the damages likely to be awarded might be heavy effectively bankrupting the publisher of the said falsehoods. This was the case in Johnny Depp v Amber Heard. In this article we look at what the ruling means and its impact as compared to the situation in Kenya.
Actor Johnny Depp sued his ex-wife Amber Heard for $50 million in connection with Heard’s 2018 Washington Post op-ed, in which she spoke out about being the victim of domestic violence. Heard’s article did not specifically name Depp but it relied “on the central premise that Ms. Heard was a domestic abuse victim and that Mr. Depp perpetrated domestic violence against her.”
From the facts of the case above, it is clear that although the victim was not directly mentioned in the said article, there was an indication that the article published in 2018 indirectly referred to Mr. Depp. Amber seemed to imply in the article that she was a victim of domestic violence which was contrary to the evidence before the court.
Looking at the Computer Misuse and Cybercrimes Act, 2018, it gives an indication that the perpetrators of such falsehoods in Kenya will not be spared either. A plain reading of Section 23 of the said Act shows that the courts will not take lightly any publication of such falsehoods likely to harm the reputation of the victim. The said section states that a person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos or violence among citizens of the Republic or which is likely to discredit the reputation of a person commits an offence and shall on conviction be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years or to both. This is an indication that defamation as an offence has been directly criminalized by dint of section 23 of the Computer Misuse and Cybercrimes Act,2018. However, the following three things stand out of that definition as read together with Section 195 of the penal code:
The publication must be a falsehood. This is to say that should the court come to a conclusion that what was published was not a falsehood, then there will be no damages to be awarded as that will not qualify as defamation no matter how bad it might portray the victim. In our case, the falsehood arises where Amber Heard published an article claiming that she was a victim of domestic violence which the jury concluded she was not.
The falsehood must then be or result in some sort of chaos or violence. This is to say that if the falsehood does not cause tension among the people, then it will not qualify as a defamation despite the fact that it is a falsehood. The 2018 article published by Amber Heard caused some sort of tension among the public and it can be argued that the tension qualified the falsehood as a defamation.
The falsehood must then discredit the reputation of the victim. This is to say that one must have a reputation to be destroyed for them to claim that they have been defamed. Being an actor who is largely admired, Johnny Depp had all reasons to a claim of defamation as his reputation was ruined in the eyes of the public.
It is now a settled matter that criminal defamation does in fact exist and victims can invoke Section 23 of the Computer Misuse and Cybercrimes Act to prove such. The publications by Amber Heard would thus qualify as such if we were to examine them under the Kenyan context. The Computer Misuse and Cybercrimes Act is a cure to the confusion that existed prior to its coming into force in 2018 with regards to whether defamation should be criminalized or not.
The Kenyan courts had previously done away with criminal defamation in Jacqueline Okuta & Another v. Attorney General & 2 others (2017). The court found that Section 194 of the Penal code, Cap 63 of the Laws of Kenya was unconstitutional and invalid to the extent that it covered the offences other than those contemplated under Article 33 (2) (a) to (d) of the Constitution of Kenya, 2010.
With the coming into force of the Computer Misuse and Cybercrimes Act, Section 23 directly reintroduces criminal defamation effectively nullifying the decision of the court in Jacqueline Okuta v AG (2017).
In conclusion, Amber Heard’s guilty verdict is a win for all men who have been wrongfully accused of sexual assault. If anything, this helped prove men can be victims of domestic violence too. It is thus likely that in future, false accusations will probably lead to heavy punishment on the part of the perpetrators of such accusations.
This article has been written by Mr. Wilson Ngao, an Intern at Kazi Advocates LLP
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