MEDIA -LAW.

INTRODUCTION.
a) The law of defamation protects an individual/ person from defamatory statements made
about him to a third party without unlawful justification.
b) Of all the legal probums impinging upon the writer or broadcaster bringing news and
information to the public it is defamation, specifically vibes, which is the most common
problem as work as the most expensive.
WHAT IS DEFAMATION?
1) As statement is defamatory if it tend to lower the claimant in the estimation of right
thinking members of society general.
2) In order to prove defamation, the claimant must show defamatory language by the
defendant which:-
Identifies or refers to the claimant,
Is published to a third party.
3) The burden of establishing the truth of the statement or any other defense is on the
defendant.
4) Defamation actions are held by a judge and jury.
5) The real skill of writer and broadcasters and their editors or producers is determining when
statements which may be construed as tending to lower the claimants in the estimation of
right thinking members of society generally can be published with a reasonable degree of
safety.
6) Consolation should be given to the following.
 Is the point true?
 Can it be proved to be true?
 If not, is it covered by one of the other defenses to defamation?
 Is the subject of the piece likely to sue?
LIBEL AND SLANDER
Defamatory language is placed into two groups. 1. Libel 2. Slander
1. LIBEL
 Is defamation in writing or some other permanent form, such as tapes or video recording
 Radio and TV broadcasts and computer generated transmission are defined as libel.
2. SLANDER
 Is spoken defamation or defamatory language in temporary from?
 Journalists need to be conscious especially those working as investigative journalist who
need to check allegations of wrong doing or confront the wrong doers in person.
Slander and libel can be distinguished in the issue of damages. In cases of libel, damage is
presumed while in slander it is the claimant to prove actual loss.

JOURNALIST SHOULD AVOID SUCH MISTAKES THAT ARE ASSUMED TO BE LIBEL.

1. An allegation that a claimant has committed a crime punishable by imprisonment.
2. An allegation that the claimant is suffering from a contagious or infectious disease.
3. An allegation that the claimant Is an unchaste woman who has committed adultery
4. An allegation that it is likely to change the claimants business or profession.
Malicious falsehood.
 It is a statement that does not damage the claimant’s recitation but causes the claimant
financial loss intentionally.
 It must be proved that the statement is false.
 It was published maliciously.
 It cost financial loss towards the claimant business/profession.
Who may be sued?
Any person who causes or is responsible for the publication of a defamatory statement can be
sued. Ie Writers, broadcasters, editors, producers, publishers, programme makers, printers,
distributors, newsagents and booksellers.
WHAT MUST A CLAIMANT SHOW TO ESTABLISH AN ACTION OF DEFAMATION?
Qz: Assess what a claimant must show to establish a beach of confidence.[20] March 2014
 What is defamatory language?
 An allegation by the claimant that the defendant’s statement tends to lower the claimant in
the thinking members of society generally.
1. The construction and meaning of words.
 It must be considered how the statement will be perceived by an ordinary reasonable
person to what it actually means.
 A seemingly innocent statement can convey a defamatory meaning to those who have
knowledge of certain facts or circumstances that are extra news to the offending statement.
There are two distinct types of meaning.
1. Natural and Ordinary meaning.
 It includes both the ordinary literal meaning and any obvious inference that could be taken
from the statement.
 There should be no suspicion instead the direct, clear meaning that the words complained
off are defamatory.
Innuendo or implication.
 A statement may convey suggestions or imputations over the above their natural and
ordinary meaning.
 Words may have technical or Slang meaning known to people to whom the story has been
published.
 The statement here has a defamatory meaning that is not obvious to all recipients
(innuendo)
Identification.
 To prove an action for defamation the claimant must demonstrate that the ordinary,
reasonable person would understand that the defamatory statement referred to the
claimant.
 Identification can be done through maiming, description, photograph, or other
characteristic information.
Publication.
 It may be through; writing or spoken that is published to the third party because reputation
exists entirely on the belief of other people about the claimant.
 If a statement is read, heard or seen by the claimant a lone ever it is defamatory this is not
actionable but if it gets to the hands of the third parties then it can be sued for defamation.
DEFENCES.
Qz: Analyse the main defences to an allegation of libel. [20]June 2014.
There is freedom to voice an honest opinion that is of public interest.
These are seven main defenses to libel, but the first four are the most common.
1. Justification.
 The defendant must prove that the defamatory statement is true in both sub and fact.
 Truth and accuracy should be the first by words for professional journalist.
 The defeasance should be able to prove that the piece is true and have evil to support the
plea of justification.
They are two type of justification.
1. Substantial justification.
2. Partial justification.
 Substantial justification.
 It is not necessary for the defendant to prove every minor detail of facts. Although he must
prove those allegations that effectively cause defamation to be true. I.e. if an allegation is
that the claimant rubbed Equity Bank in Bungoma at 11am last Tuesday, the defendant’s
justification plea will not fail if it is established that the claimant did rob the bank but in fact
did so at 3.30pm last Monday.
 He only needs to prove if the claimant robbed the bank, the time day does not matter.

 Partial justification.
Qz: In the law of defamation analyse: A) partial justification [10]. B) Aggravation. [10] June 2014.
 Where a publication alleges a whole series of allegation against a person, the defendant
may have a complete deface if the court proves the truth of all the allegations
 Defense will succeed if the unjustifiable matters do not materially injure the claimant’s
reputation having regard of the remaining matters. i.e. if a musician is portrayed by a try
station as being a regular user of narcotic drugs and a heavy drinker but it can only prove
the fist allegation but not the second one then defense will succeed since taking of narcotics
is illegal and considered to be a greater vice than alcohol consumption.
 If the unjustifiable allegations have libelous meanings of their own the defendant is likely to
pay damages to the claimant in respect of those allegations.
 Media houses should be caution because a claimant can decide to see in respect of only
some of the allegations made against a series of allegations.
 Aggravation.
1. A claimant can argue that the defendant not only publish deformation material and refused
to apologize, but also persisted in the demanding and libelous allegation right up to the
moment the jury delivered its verdict.
2. It is a reason to ward greater amount of damages then would otherwise be call for.
3. Media are free to drag up and publicize any unsavory incident, from a person’s distant past
but relying on fairly old incidents to support an allegation of present misbehavior many fail
i.e. if a person was a thief but changed. Accusing such a person basing on his/her past may
cause more damages to be paid.
FAIR COMMENT.
1. Allows a person to publish a statement of opinion or comment on a matter of public
interest provided it is done without malice.
2. It protects freedom to voice on honest opinion.
3. In order to raise the defense of fair comment.(the comment must be on a matter of public
interest , recognizable as a comarent, based on facts that are true or privileged, fair as
judged objectively and it must not be motivated by malice)
4. It must base on the style, manner and prominence of publication.
5. Personal grudges or ill will between the parties will be looked into.
6. Refusal to retract or apologize for the offending publication can be used against him as
evidence.

PRIVILEGE.
It comes into two forms: 1. Absolute. 2. Qualified.
 Statement made in certain situation should have immunity from civil proceeding even if
they are untrue and damaging.
 Absolute Privilege:
1. No action for defamation may succeed irrespective of the honesty or motive of the writer or
broadcaster (whether intentional or malicious).
2. The categories must likely to affect the media are:-
 Statement made in, or as part of the course of parliamentary proceedings
 Statement made in the course of judicial proceeding (witness, lawyers, judges, all
document)
3. Fair, accurate and contemporaneous reporters of judicial proceedings.
4. Confidential communications between lawyers and their clients.
5. Official reports published by order of either houses of parliament.
 Qualified Privilege:
1. It covers areas that are clearly defined with reasonable particularly.
2. It may also rely on the existence of some duty or interest in the making of a statement that
is said honestly even if it is inaccurate and defamatory.
3. Statement that are open and honest communication both of a public and private nature
that are of general interest to the society are protected.
4. Qualified privilege will arise where a person whose character or conduct has been attacked
if entitled to answer back.
5. The categories to which qualified privileges will apply are:
 Statements made where there is a moral, legal or social duty of interest in communicating
the relevant information (reporting suspect to the police is protected)
6. Fair and accurate reports of a parliamentary proceedings and extracts from parliamentary
papers.
7. Fair and accurate reports of judicial proceedings where never and however made.
8. Offer to make amends under section 2 of the defamation act 1996.s
9. It provides an alternative defense to a defendant who has made an innocent mistake and
does not wish to rely on a defense of justification, fair comments or qualified privilege.
10. It is also called qualified offer.
11. It is an offer to make and publish a suitable correction and apology and to pay any
compensation and costs, the amount which is agreed between the defendant and claimant
and is determined by two judges.
12. If the claimant accepts the offer to make amends, his defamation case comes to an end.
 Leave and license.
13. If a person consents to the publication of certain statements he is not then entitled to sue
for libel because of the publication.
14. The evidence of consent must be clear and unequivocal.
15. Innocent dissemination under section one of the defamation Act 1996.
16. It is defense to a distributor who can show that:
17. He did not know and had no reason to believe, that what he did caused contribution to the
publication of a defamatory statement.
18. He took all reasonable case in relation to the public complied of.
19. The defense applies to those with secondary publication responsibility, such as printers,
distributors and retailers or live broadcasters who can show they had no editorial control
over the primary publisher and no knowledge of the offending material.
20. Once a case contains defamatory material there are two ways through which the court can
decide towards it: 1. The Action 2. Injunction.
The Action.
 The pre-action outline the steps each party should take to seek information from and
provide information to the other about a prospective legal claim.
 The objectives of the pre-action protocols are to:
1. Exchange early and full information about the perspective legal claim.
2. Enable the parties to avoid litigation.
3. Support the efficient management of proceeding where litigation cannot be avoided.
Injunction
1. It is important before a story is published in which a person might claim to be defamed to
properly confronts the individual concerned and seek his reaction to the allegations.
2. This is to try and work out what can be done to prevent the publication.
TYPES OF DAMAGES.
Qz. Analyse the types of damages that may be awarded for defamation.[20] March 2014
1. Compensatory damages.
2. Aggravated damages.
3. Exemplary damages.
 Compensatory damages.
 Are aimed at putting the claimant back in the position he/she would have been in had the
defamatory material not been published.
 Claimant recovers the monetary equivalent of every he/she has lost and suffered as a result
of the defamation.
 The two type of compensation.
1) Special damages: - amount to a sum equal to actual financial or material loss suffered by
claimant.
2) Damages for distress and injury to reputation:- which are intangible loss and difficult to
calculate.
 Aggravated damages.
 Are awarded where the behavior of the defendant has somehow added to the hurt and
injury to the claimant that resulted from mere publication of defamatory words ie a
campaign to continue hurting even if allegations are true.
 Failing to offer the claimants denial or explanation, or making no attempt to the defamatory
allegations with him.
 Also failing to apologize and persisting in a plea of justification.
 Exemplary damages.
 It is when the jury decide, that the defendant should be liable not only to complainer the
claimant for the wrong doing but should also suffer punishment for his behaviors.
 It is aimed to make an award for exemplary damages.
 They are purely punitive that is awarded if the defendant showed cynical disregard by
knowingly publishing defamatory material to profit him-self.
 Partial …………………………………………………………

BLASPHEMY SEDITIOUS LIBEL AND CRIMINAL LIBEL.

Those in the media can face criminal prosecution for the ancient offices of blasphemous libel,
seditious libel and criminal libel.
 Blasphemy (blasphemous libel).
1) It states, “To spear, or otherwise publish, any matter blaspheming God e.g. by denying his
existence or providence, or contumelious reproaching Jesus Christ, or vilifying or bringing
into disbelief or contempt or ridicule Christianity in general or any doctrines of the Christian
religion or the bible.”
2) If found guilty of blasphemous libel the penalty will include a fine or life imprisonment and
both.
3) Blasphemous libel only protects the Christian religion, especially in Anglican form.
 Seditious Libel.
1. It consists of a statement, in either spoken oral or written form which is seditious content
and published with a seditious intent.
2. Seditious content includes promoting hatred or ridicule against:
 The government.(language that promotes hatreds not respecting prime minister and
his/her cabinet )
 The house of parliament.(houses of common and house of lords)
 The sovereign or his heirs or successors.(king, princesses, queens and those who work for
them )
 The administration of justice. { judges, magistrate in regaled to court proceeding}
3. The law does not inhibit serious and honest criticism of the law, the government or the
sovereign even where the words are forceful or extremer.
4. News paper reporters of parliamentary proceedings and judicial proceedings are privileged
against prosecution providing they are fair and accurate.

 Criminal libel.
a) The objective of this law was to prevent the uttering and dissemination of the stories that
tend to arouse the people against their masters or cause a breach of the peace.
b) A criminal libel must be in a permanent form. The words must tend to vilify a person and to
bring them into hatred, contempt and accurate.

 Defending Criminal Libel Actions.

1) The defendant will have a good defense if he establishes that the words complained of
were true and were published for the public benefit.
2) The defendant will have a good defense if the words were published under absolute in
qualified privilege.

 COPY-RIGHT.
1. Copyright is in intellectual property right.
2. An intellectual property right protects things that are created by a person’s skill, labour and
investment of time and money.
3. The law of copyright prevents a person from copying the work of another without his
permission .it is an exclusive right to use material in a certain way.
4. The law of copyright protects two kinds of labour or investment;
 The labour of the author in his own material, such as articles programmes, scripts or songs.
 The investment those who provide the technology necessary to publish the material, such
as newspapers, broadcasted, times or records.
 Importance of copyright law to the media.
1) It determines the extent to which a quotation or the work of a third party can be used in an
article or broadcast.
2) It established the right of a writer, newspaper or tourisms company to exploit his own
work or the work of the company and prevent others from taking benefit from it.
 OTHER INTELLECTUAL PROPERTY RIGHTS
1) Trademarks: - prevent a person from taking unfair advantage of the goodwill of
established businesses.
2) Patents:- protects scientific developments.
3) Passing off:-prevent a person representing the marks, packaging or other feature of goods
of another as his own.
4) Law of confidence:- protects the information that is confidential; including secret
processes invention and trade secrets.
 GENERAL PRINCIPLE OF COPYRIGHT WORK.
1. Copyright does not protect ideas, news or information from being copied, instead, it protect
the material form or manner of expression of that idea or information.
2. In order for copyright to exist in a work, it must fall within one of the following categories.
 Original literary, dramatic, musical, or artistic works.
 Sound recordings, films broadcasts or cable programmes.
 The typographical arrangement of published editions.
 Original literary, dramatic, musical, or artistic works.
1) Literary works
 Includes almost any words that are written down or recorded, including newspaper or
magazine articles or features, books, plays song’s lyrics, pomes, film scripts articles, or
features published on the internet.
 Letters or emails written to a newspaper are subject to copyright.
 Spoken words that are recorded by any means become literary works and therefore qualify
for copyright protection.
 Some works may be too short to be protected by copyright.
2) Dramatic works
 Plays, choreographed work, dances, stage musicals, and mimes are dramatic works.
3) Musical works.
 Copyright exists in an original musical works ones it is written down.
 If music is recorded without being written down, it may only be protected as a sound
recording. e.g. If a recording is made of musicians improving.
4) Artistic works. Is define as:
 A graphic work, photograph, sculpture or collage, irrespective of artistic quality.
 A work of artistic craftsmanship.
 A work of architecture be it a building or a model of a building.
: This includes paintings, drawings, diagrams, maps, charts or plans, works of architecture for
building or model for buildings, cartoons, photographs, sculptures and works of artistic
craftsmanship.
 Sound Recordings, Films ,Broadcasts or cable programmes.
 Copyright also exists in sound recording, films and broadcasting by television or radio or
cable programme.
1) Sound recordings:- it is a recording of sounds, from which the sound may be produced or
the recording of the whole of any part of a literary, dramatic or musical work. From which
sound reproducing the works or part may be produced regardless of the medium on which
the recording is made or the method by which the sounds are reproduced or produced.
2) Film:- is a recording on any medium from which a moving image may by any means be
produced.
-: video recording are included as films.
3) Broadcast and cable programmes:
 Are for distributing a work and protect the act of transmitting or sending visual images,
sounds or other information.
 The copyright in a broadcast is owned by the person making the broadcast.
 The copyright in a cable programme belongs to the person providing the cable service
4) The typographical arrangement of published editions.
 The copyright in a published edition of the whole or any part of one or more literary,
dramatic or musical works protects the copying of a work that has no copy right but attracts
copyright in the typographical arrangement of the edition.
WHO OWNS COPYRIGHT?
Qz: Review the issues that need to be considered in determining who owns
copyright of published works.[20] March 2014.
1. Copyright in literary, drama, music and artistic works:-
Belongs to the author of the work, this means the person whose skill and effect
produced the work i.e.(the writer of a book not the secretary who typed it out).
2. If two or more people joint together to create a work and their contribution are
indivisible, then unlike the tune and the lyric in a song, copyright is own jointly.
3. Where work is produced with the aid of or is generated by computers, the person
who undertakes the arrangements necessary for the creation of the work is the
author.
Photographs
1. I nicely the person who owns the film in the camera is the one who owned the
photograph.
2. If someone commissioned a photograph and agreed to pay for it, the photograph
produced belongs to the person who commissioned it not the photographer.
3. If a photographer using his owned the copyright in photographs take on the spur of
the moment, but he did not own the copyright in photographs commissioned by
another person or a publication.
4. The person who creates the photograph owns the copyright in it.
5. Only the owner can give permission to use photograph permission must be obtained
from the right person, whose identity it may not be easy to establish.
6. Wedding photographs must be seeks permission from husband and wife.
Sound recording, films, broadcasts and cable programmes.
 The owner of the material on which the recoding was made or the person who
commissioned it was the owner.
 Copyright in sound recordings and films are now owned by the person who makes
the arrangement necessary for making of the recording or film. Record company,
producer not the artist or director.
 Copyright in broadcast is now owned by the person who makes the broadcast.
 Copyright in individual pre-recorded programmes that are broadcast may be owned
by the programme maker.
 The copyright in cable programmes belongs to the person providing the cable
services.
Employees.
 Where someone in the course of his employment produces a work, the normal rule
is that the employer owns the copyright. However, there must be a contract of
employment or contract of service.
 Copyright will only belong to the employer if it is part of employee’s duties to produce
the work i.e. the employer of a computer programmer will own copyright in all
computer programs produced at work.
 Anyone who works for himself owns the copyright in any works he produces unless
he assigns it to someone else.
Newspaper employees.
 Newspaper reporters are in the same position as all other employees. The proprietor
of the news paper owns the whole copyright.

TRANSFER OF OWNERSHIP.
1. Copyright can be transferred from one person to another like any other item of
property.
2. Copyright can pass as part of an estate on death or be assigned during the lifetime
of the owner.
3. The rules about ownership can be altered by agreement.
4. Any assignment of copyright must be in written/ writing.
Formalities.
 The owner of copyright does not need to go through any formalities such as
registration to protect a copyright work.
 No copyright notice need to appear on a work. However, the name of the copyright
owner and date of first publication must be placed on a work for international
protection under the universal copyright convention.
Infringement.
Any acts done without permission of the copyright owner amounts to a breach of
copyright.
Under infringement we have copying.
1.Copying:-
 Is an infringement of all types of copyright, if an article in one newspaper is
reproduced verbatim in another, it will be a clear infringement.
 Coping of and a substantial part of the original work will be an infringement of
copyright” i.e. the most significant or distinctive part if copied.
 A parody or pastiche may breach copyright i.e. the words of a song may be different
but the tone different especially in adverts.
 Parody is amusing imitation of the style of a writer, composer, and literary work.
Pastiche is a piece of music or writing in a style imitates another work, artist.
 Parodies that are political or humorous can be allowed than those solely for
commercial reasons.
 Some copying is not a breach of copyright i.e. if made a television or sound
broadcast for private purposes.
 Home taping of live programmes to keep in a private collection or to watch at a more
convenient time is also not an infringement to copyright.
Other infringement:-
1) Copies to the public.
 Is an infringement to issue copies of copyrighted work to the public?
2) Performance in public.
 Performing a literary, dramatic or musical work in public is an infringement act, as is
playing or showing in public any sound recording, film, broadcasts or cable
progrmme, includes using copyright work in lectures or speeches, or presentation
using film, recoding or broadcast.
3) Broadcast.
 Broadcasting a literary, music or dramatic work infringes copyright.
4) Adaptations.
 Making adaptation of literary, dramatic or musical works is an infringement of
copyright. i.e. Turning a play into a book or a book into a play, translating a work or
putting it into pictorial forms, are all adaptations.
5) Sale, hire and importation.
 Commercial music of copyright work is prevented by making the sale, hire or
importation of copyright works an infringement of copyright.

DEFENSES
The law provides various defenses to infringement of copyright.
1) Fair dealing.
 If acknowledges the wider interest of freedom of speech by allowing considerable
latitude in the use of copyright material for certain worthy purposes.
 There are limits to news reporting, criticism and review, and research and private
study.
News reporting.
 With the exception of photographs, use may be made of any sort of copyright work
providing it is for the purpose of reporting current events.
 In cases of newspapers, magazines and any sort of print media the reproduction
must be accompanied by a sufficient acknowledgment. That is proper identification
of the original work by name and author.
Criticism and review.
 Any sort of copyright work, including photographs, may be copied without liability.
 Providing the reproduction is made for the purposes of criticism and reviews
whether for print or broadcast acknowledgement should accompany it.
Research and private study.
 Use of copyright work for the purposes of research and private study is permissible.
 In identifying fair dealing the more of the published is observed.
 Secondly a genuine review of a work and genuine reports of current events are also
permitted as long as there is acknowledgement.
 Fair dealing also permits the reporting of matters of public interest.
 Lasting the fair dealing is relevant to investigative reporting in circumstances where
document are obtained i.e. government documents, local authority reports and
privet papers are the subject of copyright.
2. Incidental inclusion.
 Where a copyright work is included incidentally in an artistic work and recording film
broadcast or cable programme this will not a manta to infringement of coprolite not
deliberate.
3. Spoken words.
 The media can use considerable latitude of a report on others without infringing
copyright.
 The law allows a record of spoken words if made in writing or otherwise, for the
purpose of :-
i. Broadcasting or including in a cable programme service.
ii. Reporting current events.
  Use of the record or of material taken from is not an infringement of any copyright in
the words provided certain conditions are met. These are:-
i. The record is a direct recording of the spoken words and not taken from previous
records.
ii. The making of the recording was not prohibited by the speaker.
iii. The use made of the record or the material taken from it is not of a kind prohibited by
the speaker or copyright owner before the record was made.
iv. The use is by or with authority of the person lawfully in possession of the record.
4. Copyright is not infringed if works are copied for the purpose of judicial proceedings
or a report of judicial proceedings.
5. Public interest:- any material that is published due to public interest is not an
infringement of copyright and so a defense,
6. Where material is obtain for educational purposes by librarery.
7. Taking copies of material that is required by statute to be open to public inspection
including public recording and company records, is not an infringement.

DURATION OF COPYRIGHT.
 Copyright is a monopoly right that attempts to balance the protection of the author
and the need of a free flow of ideas and information in order to allow people free
access to works.
 Duration: - the copyright in all literary, dramatic, musical or artistic works lasts until
70 years for the end of the calendar year in which the author dies.
 Public domain: - once copyright has expired, the work enters the public domain.
Anyone is free to deal with the works as they choose. There is no need to pay a
license fee or obtain permission from the owner.

REMEDIES.
1. Injunctions
 Interim injunction and permanent injunctions are available in actions for breach of
copyright. Temporary stop or permanent or interim.

2. 3 Types Of Damages.
i. Infringement damages,
 Are intended to compensate the claimant for the damages done to his interest, it is
putting the owner in the position he would have been in had the copyright not been
infringed.
ii. Flagrant damages.
 Can be awarded in addition to infringement damages are aimed at deterring the
defendant i.e. if the claimant refused the defendant permission to publish something
but the defendant did so regardless in order to benefit himself financially, the court
might award additional damages to the claimant.
iii. Account of profits
 The claimed can choose to recover an account of profits instead of damages. The
amount is a calculated by reference to the profit made by the defendant, not the loss
suffered by the claimant (only profit is recovered)
3. Delivery up. The owner of copyright may recover infringing copies from anyone who
is in possession of them course of a business.

NEW MEDIA (INTERNET DEFAMATION)

 The rapidly changing world of new media technology presents the world with new
challengers.
 The internet now pure the most difficult question for the law
 It’s is the regulation free zone that is not subject to domestic law or international
regulation.
 There is no international body that can have or with the authority to interpretation or
create the law of the internet.
 Internet service providers are exuded from the definition of the publisher.
 Another challenge posed by the internet is that it is not easy to identify the centre of
anonymous defamatory emails. This is because emails may be sending on a false
name.
 With internet defamation it is also not easy to determine the harm/ damage that may
have been done by the article to the claimant unless it is keenly investigated.
 It is easy for an individual to remove /withdraw any posting that he/she had sent to
bulletin bolds emails or newsgroup.
 Many countries have not kept pace with the new technology therefore when a
challenge comes to internet deformation. The dangers in the law are judgment,
brought about as a result of litigation rather than government legislations.
 Countries have different legal principals of deformation i.e. unction for deformations
can be used in a county where the deformation statement is downloaded and pad on
the screen by 3rd parties but the same might not be defamatory in the country where
somebody published them/it.
 Global publication also raises the issues of enforcement of orders in other
jurisdiction. Many courts do not recognize judgments in other jurisdiction because
there is no reciprocal modernism in place or because the law is contrary to them-
selves.
 There are four main areas of internet publication that may give rise to an action for
deformation.
1. The World Wide Web (www.)
2. News group.(what-up face book )
3. Email.
4. Bulletin Boards.
5.
 The World Wide Web (www.)
1. It is important subdivision of the internet.
2. It links the largest system/group linking to more than millions of websites uses and
documents across the internet.
3. Publication of the web satisfies the requirement of communication to 3rd party.
4. Online newspapers and magazine are publishers and must avoid defamatory
statements in the same way as they would use traditional publishing format.
 News groups.
1. Are internet groups where subscribers post comments and discuss containing
subject.
2. As soon as the message is posted, it is published to a 3rd party.
3. Teachings guide (like emails but messages are sent and read by subscribers)
4. If a deframatiory message is posted then will be seen by sub scribers 3rd party.
 Email. {Electronic mails}
1. Sending an email to any person other than the subject of the defamatory statement
will amount to publication to a 3rd party under the English law.
2. A great care should be taken when forwarding an email which certain statements
may be defamatory.
3. Even if an email is only send to one recipient it may be publication to a 3 rd party if
it is send from a work place email a account where there is a policy of outline
monitoring of emails.
4. Organizations which are subject to email montering should be couscitrs not to send
difermatiory statement
5. Individuals / organization office email account should not be use to send
defeoamtiry messeges.
6. If the email is frowaded to 3rd part it becomes defro mation.
 Bulletin Boards.
1. Individuals subscribe to bulletin board to contribute to boards on a particular
subject; they are often used in business and academic communities.
2. Subscribers receive a copy of the posting there by satisfying the requirement of
publication to 3rd party.
3. They are internet groups that are use for education and sicitific purposes they send
messages to subscribers, once the message that defamatory is sent to sub
scribers{3rd party } then it becomes defamatory ie a scitisity sued a group after his
name was tunished in a message that was posted to sub scribers.

RIGHT CLEARANCES.
1. When producing an original programme publication or one that in cooperate pre-
existing material, it is vital for the producer for editor to see clear any rights belongs
to the 3rd party contributes.
2. Failure to clear such right will result to the copyright moral right or perturmens rights
of the contributor and they result in legal actions and financial liability.
3. Right clearances involves satisfying ones copyright by
a) Assignment copyright or license.
b) Performance rights e.g. actors or singers dancers and musicians by consorts to
exploit, it can also include interviews.
c) Moral rights –by waiver / partiality and integrity
Assignment of copyright license.
Qz: Analyse: (a) Assignment of copyright, [10] June 2014.
(b) Licenses of copyright. [10]
1. The law of copyright prevents a person from copying the work of another without her
permit ion.
2. A producer or editor must ensure that underlined words such as a script of books upon
which the program is best music used in the program are clear with the copyright owner
and appropriate fee is paid.
3. This is done though assignment of copyright of licenses of copyright.
Assignment of copyright.
This is the most complete form of right clearance to show transfer of copyright. Taking an
assignment of copyright will give the editor or producer the right to use that work in the
proposed or publication and the right to control any further exploitation of the finished product
However, the exploitation will be restricted by the time the copyright is assigned.
1. The length of time in which copyright is usually to be reproduced is the period of the
copyright assignment.
2. It’s the essential of an assignment to leave no absolute doubt that a license took place.
3. The wording of assignments must cover all the right in the work that presently exists and
also other rights that might be confined in the future.
4. In law an assignment of copyright must be in writings and must be signed by the person
assigning his or her copyright.
A license of copyright.
1. In many cases a producer will obtain license in other work permission to use certain words
rather than the right of a copy, when pre-existing materials are involved such as photograph
and films then the license will be granted to the same.
2. A license can include the following right:
 Copy the work to make further copies to show to the present the work in public and to
broadcast a piece to work or adopt the work.
3. The producer or the editor should keep in mind that the license or permission can be
withdrawn any time.
4. A license needs not to be in writing so as to be effective.
Assignment of copyright.
1. Gives the editor to produce and use the product.
2. Permeates transfer of ownership of copyright.
3. Time is full time and not snatched.
4. It must be in written form a agreement.
5. It cannot be terminated.
License of copyright.
1. Can be withdrawn any time and used as per what was agreed on.
2. Temporary most to have written document.
3. Can be withdrawn or terminated.
Intellectual property right
1. Copyright
2. Right clearances
3. New media.

Section 3
PRIVACY LAWS.
1. Breach of Confidence.
  The law protects an individual from misuse of personal information about him under
common law and statuette.
 The common law of breach of confidence provides information that is confidential.
 It protects an individual from accessing and using the information without your
consent.
 An action for breach of confidence and an injunction (temporary stoppage) is the
most appropriate method for an individual to prevent publication of confidential
information about you.
Element of the breach of confidence.
What must a claimant show to establish a breach of confidence?

 In order to establish a breach of confidence, a claimant must show that:
i. Quality of confidence.
The claimant must show that the information has the necessary
 It seems obvious to say that in order to be confidential.
 Information must be secret since that is the whole idea of confidence, any
information whether in writer or oral from can be confidential. This includes ideas.
 The law of confidentiality also include unauthorized photography
 The information was revealed without permition.
 If has been or will be an othorize use of information.
 If the claimant did not give the permit ion to use information to use legally .
 if the information was obtain illegally
ii. The information was imparted in circumstances which imposed an obligation
of confidence.
 Agreement.
 What suctance imposening oblication of confidence?
 An obligations of confidence can and by the terms of agreement whether in written
or oral form.
 If 2 people decided to have information in confidence then they sing an agreement
to it then they are not expose such information
 Private employees
 A contract of employment may contain terms that expressly prevents unemployed
from disclosing information during the course of employment especially secret
information.
 There is need not to disclose trade secrets and confidential information about your
employees.
 During the whole period of employment and attar the course of employment, it’s
important that information be retained as confidential.
 The duty of confidence applies to a member of the media who takes a job in order
to find out from the inside how a particular business or company works.
 Government employees.
 The government can also prevent employees giving information about their work to
the media or to suppress embarrassing or politically sensitive facts.
 Successive governments are especially keen to prevent a blanket of silence about
security and intelligence services.
  Civil servants and members of the armed forces and secret services do not have
written contacts of employment, but do owe a duty of confidence.
 Relations of confider and confidant.
 A relationship should always be confidential but the information imparted should
also have the necessary quality of confidence.
1. Husband and wife.
 The law will not permit the revelation of anything confident by one spouse to the
other during marriage.
2. Other sexual relationship.
 Most people would regard information relating to their sex liters as lush on their list
of confidential matters i.e. lesbianism and guys’ and adultery
3. Doctor and patient.
 Medical records should be confidential.
 Medical confidentiality prevents a doctor from revealing that a patient has Aids, even
to another member of the patient’s family who may be affected by the illness.
4. Other confidential relationships
a) 3rd parties
 A 3rd party who recovers information which is confidential may also be prevented
from publishing the information.
b) The media and sources
 The obligation of confidence extends beyond the original parties involved to any 3rd
person who receives the information knowing of the bridge of confidence.
 Information given by clients to their lawyers is confidential and should be protected
by legal privilege.
 Also information provided by a parishioner to a priest.

Defances to breach of confidence.

Qz: Analyse the defences available in a claim of breach of confidence.[20] June 2014
 The information was not confidential because it was in the public domain.
(information was already known by the public)
 The owner of a consent publication his permitted.
 The information discloses iniquity.
 The public interest requires publication.
Public domain.
 Confidentiality will not generally attach to the information that it’s already general
public knowledge or in the public domain.
Concent.
 If the owner of the information concents to its publication he cannot later attempt to
restrain his disclosure.
 It’s important to obtain concent from the right person.
Iniquity.
 It’s also called defense to public interest,
 Iniquity is a wrong doing or an act of weakedness .it includes crimes suspected
criminals conduct, financial male- practice and police corruption.
 In cases of iniquity it’s necessary for the defendant to prove that the allegation were
true. Although before publication the media should:
1. Access the authencity of the source.
 2. Carry out any possible investigation to correbrede.(something to match with)
3. Give due ways to the tindings of any investigation that had already taken place in
the allegations.
Public interest.
 It includes not only detecting or exposing crime but also protecting public health and
safety and preventing the public from being misled by some statement or actions by
a person or an organization.
Procdure

The action.
 It’s the same action as the action for deformation.
Intenm injunction
 The claimant can apply for an interim injunction.
 The court is always prepared to prevent publication by way of infferim injunction
perding trial.
 Very few actions for breach of confidence actual precede trial.
 Victory at the injunction stage is usually deciding which is why evidence and
arguments should be really at the earliest possible moments.
 It the claimant fails to obtain an injunction and the information is published, the
action is likely to go away.

Differences between Breach of confidence and deformation.

Qz: What are the differences between breach of confidence and deformation?
1. The truth of the information being published is irrelevant.
The court may grant entering information regardless of the truth of the information as
long as the elements necessary for a breach of confidence action is made out.
2. Historical, the courts have been more willing to grant information to restrain
breaches of confidence rather than to prevent damage to a person’s reputation.
3. Any damages for a beach of confidence will be decided by a judge rather than jury.
Other Remedies.
The claimant is usually more interested in an injunction than any other remedies.
The other available remedies to a breach of confidence are:
1. Damages.
On issues concerning trade secrets or business information the claimant may recover
damages for market value of the information.
2. Account of profit.
Mostly available to book publisher. The claimant can recover all profit generated by the
defendant by use of claimant secret.
3. Delivery up.
 The court can order that the defendant return to the claimant all the claimant
confidential document.
THE DATA PROTECTION ACT (DPA) 1998
 Breach of confident protects information while the data protection act protects data.
 The law protects an individual from the misuse of information about him or her. The
data protection act of 1998 protects person data whether is stored in manual or
computerize information.
 Any personal or organization holding data about a living individual who can be
identified from the information or information consideration of personal data in
conjunction with other information in the possession other personal organization is a
subject to the provisional DAP 1998.
 Dif
DATA.
 Includes information in a computer systems as well as manual papers or best
records, they are recorded to relevant filling system.
Personal Data.
 This is information that can identify a personal by itself or in combination with
another sconce that is in possession or is likely to come into the procession of the
data controller.
 It also includes an ex-pernsion or opinion about the individual and any indication of
data controller or any other personal in respect to an individual.
Sensitive personal data.
 Consist of personal relating to such matter as race, political opinion, and health,
sexual and criminal proceeding.
Processing.
 Extends to obtaining recordings or holding data or carrying out any operation set on
data, these includes, organization, adapting , uttering , revealing, using or even
erasing the data.
Obligations of a data controller.
Qz: what are obligations of data controller?
1. Notifying the Data Protection Commissioner of his identity and provide a description
of the personal data processed and the purpose of processing.
2. Processed person data in compliance with the data protection principles.
3. Provide the person who is the subject of data with access to it.
Data protection principle.
Qz: what are the principles of data protection?
The primary obligation on data controller is that all protection should be fair and lawful.
In addition, there are eight data protection principles.
1. Personal data should be processed fairly, accurately and lawfully this means certain
information including identity of data controller and the purpose for which data to be
processed must be provided for the substitute of the data by time data is being
obtained.
2. Personal data shall be obtained only for one or more specified and lawful purposes
and shall not be further processed in any manner in compatible with that purpose or
those purposes.
3. Personal data shall be adequate and relevant excessive in relation to the purpose or
purposes on which the information is to be processed.
4. Personal data shall be accurate and where necessary be kept up to date.
5. Protection data processed for any purpose shall not be kept for longer than it
necessary for that purpose it was intended for.
6. Personal data shall be processed in accordance with the right of the subject under
D.P.A ie right to information/ right to privacy.
7. Appropriate technical and organization measure shall be taken against an
authorized or in lawfully processing of personal data and against accidental lose or
distraction of or damage to personal data.
8. Protection data shall not be transferred to the country outside the European Union,
unless that country ensures an adequate protection of the right of freedom in relation
to the protection of data.
Fair and lawful processing.
All personal data must be obtained fairly and without deception. Certain information
including the identity of the data controller and the purpose for which the data is to be
processed. Must be provided to the subject of the personal data at the time the data is
obtained. This applies whether the personal data has been obtained from the subject
himself or from another person or organization.
Schedules 2and 3.
The schedules provide minimum standards only. Compliance with the schedules not
automatically render processing fair and lawful, nor will it affect whether any passing
breach other statutes or common law principles such as the law of confidence.
Schedule 2.
It provides that processing will be unlawful under the DPA unless the subject personal
data has given his consent to the processing; it is necessary in order to contact. Comply
with a legal obligation or the administration of justice or protection interest of the subject
of the personal data.
Schedule 3.
At least one of the conditions set out in schedule 3. Must be met when processing data.
1. The data subject has given his explicit consent to the processing of the personal
data.
2. The processing is necessary under employment legislation.
3. The processing is necessary in order to protect the vital interests of the data.
Of another person, usually replied on by the data controller if consent conot be on
the behalf of the subject of the personal data.
4. The processing is carried out in the course of legitimate activities by a non
profitable , philosophical, religious or trade union body or organization in relation to
member body or those connected with it.
5. The information contained in the personal data has been made public are
deliberately taken by the subject of the personal data.
6. The processing is necessary in connection with legal proceeding legal data right.
7. The processing is necessary for the administration of justice.
8. The processing is necessary for medical purposes.
9. The processing is of sensitive personal data consisting of information relating to
ethnic origin necessary for identifying equality of opportunity or treatment.
Data protection (processing of sensitive personal data) order 2000.
The most important conditions for media organization and journalist are:
 Condition 3, which concerns the disclosure, with a view to publication, of sensitive
personal data connected with unlawful act, dishonest or malpractice , unfitness or
incompetence, or for the purposes of journalist, literature or art , in circumstances
where the data controller reasonable believes such publication is in the public
interest.
 Condition 9, which relates to the processing of certain limited types of data for
research purposes.
Right of subject of personal data.
1. Right of access.
A person who is the subject personal data is entitled to apply to the data controller in
writing, for information as to whether personal data is being processed by or on
behalf of data controller. The information must be provided within 40 days.
2. Right to prevent processing/ damage or distress.
A person is entitled at any time to write to a data controller requesting, the data
controller not to begin processing of his/her personal data information because it
may cause damage or distress.
3. Right to prevent automatic: decision making.
One is entitled at any time write to the data controller requesting the signification
effect on the subject best solution on the automatic processed personal data.
4. Right to rectification; blocking erasure and distraction.
One may apply to the controller that the data controller should be rectify blocks
erase or destroyed. The personal inaccurate data.
5. Compensation right.
If a data controller contravenes (does not bear) any requirement of DPA and
personal suffering and personal suffering and at the reside its entitled for the
compensation by the data controller for the lose.
Media organization may be liable to pay compensate even when no daily
6. Right to an assessment.
Also one has a right to make a request for an assessment as whether the
processing in compliance with DPA may be made to the data protection
commissioner by any person believes to be. Directly affected by any processing of
personal data.
EXEMPTIONS TO PEOPLE IN THE MEDIA.
 The process is being undertaken with view to the publication by any personal of any
journalistic, literary or artistic material.
 If the data controller reasonably believes, having regard to the importance of
freedom of expression, that the publication would be in the public interest.
 If data controller reasonably believes that circumstance that compliance with the
provision of the DPA with would be in compatible will journalist act or literature.
Use and exploitation.
The producer or editor may not at the outset that only certain rights need to be cleared
in order to allows specific use of the program or publication on territorial basis ie
producing a program on TV which is to be broadcast in a country. Only and shouldn’t be
sold to a distributer or broadcaster oversees.
Further use and exploitation.
 A producer or editor may only be able to clear certain right because of budgetary
restraints.
 In such case , he will clear and pay for specified right as well as obtain permission in
principle from the rights owner for other use of exploitation on condition that he pay a
specific amount for additional use.
Rental right.
 Exclusive rental and landing rights are granted to author of literally, musical and
dramatic works and most artistic work.
 When an author film production enter in an agreement, the author exclusive rights in
the films presumed to be transfers to the producer unless the contact states
otherwise.

THE NEW RIGHT TO PRIVACY.

A person who claims his right to privacy has been infringed can bring an (editor) action
against defendant’s breach of confident trespass of defamation.
 Tress pass. – Going into some body’s land or property without permission, taping
some body’s home voice, taking photography.
Common love rights.
No for t of privacy.
The common law has been somewhat ambiguous when it comes to the protection of
privacy.
They have also been occasions where the court recognized privacy and above other
legal protection.
1. Breach of confidence.
The law of confidence offers some protection or authorized confidential information ie
taking of photograph or filling or films of a person.
2. Tress pass.
Trespass to learn or property may be claimed in a variety of situation. Any person
entering to another land to observe or plan a listening device will be guilty of trespass.
3. Defamation.
A publication that is defamatory will give rise to a cause of actions and damages.
A defamatory statement that tends to lower the claimant in the estimation of right
thinking member of the society in general.
Trade marks.
The identify products or services .they use the symbol T.m. if the trade marks is not
registered speed rule applies simplifying the way it can be protected.
A trademarks must be capable of represented graphically and must distinguish the
product of serving from one business to another.
Cull cutter committee.
It was a government committee on privacy on related matter that was chaired by David
Cull Cutter in 1990.
Infringement of privacy – untruth; something that is false.
General principles.
It was meant to protect freedom of speech and freedom of information.
Definition and scope.
The cullcutte committee had to consider what privacy itself and composed and
circumstances in which the public interest disclosure would.
Overriding social /needs.
The cullcutte commission consideration of whether a statutory right of privacy was
focused upon two questions.
 Now large is a problem?
 How adequate is the exiting legal protection?
In relation to the 2nd question concerning the external of existing protection, cullcutte
explore the range of remedy available to the individual against the press. There are law
offering protections in the following areas.
1) Untruth.
 The lebel law and those relating to malicious falsehood are reliable against much
focus of publication trusts. Especially those of partial or damaging nature.
2) Confidential information.
 It offers information against abuse or un authoresses’ use of (information)
confidential information’s.
3) Private property.
 The law of trespass is there to enforce the individual’s right to decide who remains
on his property.
4) Private correspondents.
 Interference with letters and communication is afforded wide protections of copyright
and confidence.
5) Family matters.
 In he rant powers relating to ward ship and the guidship over minor judges are
usually willing to protect children and their families against publicity and press
intrusion cases on divorce matters.
6) Interceptions and bugging.
 Apply criminal junction against those who plant listening bug or who intercept
telephone communication.
 The callcutte committee found that there was a particularly processing social need to
protect individuals vulnerable to exploitation by virture of age immaturity infinity
grieve or need undergo medical treatment.
The Human Right ACT (HRA)1998.
 The right to privacy by the HRA has propagated a more tangable right to privacy.
 The HRA is starting to trigger a new culture where by the court determine where the
acts of public authorities and parliament are compatible.
Public Authorities’.
 The HRA imposes aduty to public authority to observe the night privacy
 Under the HRA section 6 renders it in-lawful for a public authority to act in
compatibly with any conventions rights.
Private parties.
 In recent judition interpretation. It is reasonable to speculate that the widely
anticipated development of unexpected protection of the right to privacy speed to the
private sector.

The future of privacy laws.

1. Companies.
 Company’s licenses and firms may be able to assert a right of privacy.
 They have expressly stated that privacy should not be excluded in relation to
professional or licenses activities.
2. Surveillance and interception of communications.
 It is illegal to intercept communication such as telephone or email unless it is
necessary for specific purpose such as national security preventing or detecting
crime or preventing disordered or in the interest of public safely.
3. Impact on media.
 The HRA will have a major impact on the media.
 Proper protection should provided to complains to avoid damages or an injunctions
 Check if the information infringes into somebody’s privacy.
4. A privacy ACT.
It remains to be seen whether the court will be able to develop the law of privacy as full
of other junsdictions.
The court will be mindful soul of the concern heightened by the cal cutte report and in
recent cases before the court.
The court will have to implement what has been communicated.

COMMENT ON COURT PROCEEDING.

Reporting restriction.
 The law requires that court proceedings be held opening and in public.
 While the proceedings may be, open to the public and the media.
 The court may order that media be prevented from reporting on the case.

The most important of these orders of prevention by the media are.

1. The power to postpone the reporting of proceedings.
2. The power to prevent the publication of the names of parties involved in a case.
3. Restriction on publication of information relating to children.
4. Documents made available on disclosure.

The open court Rule.

 Publicity is the very soul of justice and the surest of the all guards against improbity.
 It keeps the judge himself while trying, under trials.
 The majority of hearings in criminal proceeding are heard in public.

Proceeding held in private.

 At common law, the court has the residual power to sit in private.
 If it is necessary, for justice to be done or possibly in order to prevent the
proceedings being destructed by disorderly conduct.
 The authority to sit in the civil proceedings is found mainly in the civil procedure
value and the administration of justice act 1960.
Civil procedure rules/value.
The civil procedure value sets out when a hearing or part of it may be held in private for
Example which.
Qz: when according to the civil procedure rules may a case or part be held in private?
1) If Publicity would defeat the object of the hearing.
2) If it involves matters relating to national security.
3) If it involves confidential information and publication would damage that
confidentiality.
4) If it is necessary to protect the interest of a child or patient.
5) If it is a hearing made without notice and it would be unjust to any respondent to
have the case made in public hearing.
6) If it involves contentious matters arising out of the administration of a trust or estate.
7) The court considers it necessary in the interest of justice.

Administration of justice Act 1960.

The general rule is that the publication of information relating to proceeding before any
court sitting in private shall note itself be contempt of court except in cases.
There are those who are allowed to be reported but are contempt.
1. If it is reporting to minor, ward ship adoption residence guardianship main finance or
right of access to a child.
2. Involving application made under the mental health act 1959.
3. Where the court sits in private for secret process discovery or invention that is in
issue to the proceeding.
4. Were the courts expressly prohibits publication of information relating to the
proceedings.

Proceedings or Causes held in chambers.

 A small amount of criminal court work and an enormous amount of civil court work is
conducted in chambers.
 Hearings held in chambers are dealt with for reasons of speed and administrative
efficiency ie family courts.
 What happen during proceedings held in chambers is not confidential or secret and
can be subject of a media report if it does not substantially prejudice the
administrative of justice.
 Proviced that there is no sign on the door of the court or judges room indicating that
the proceedings are private, members of the media may be admitted where practical

The powers to postpone the reporting of proceedings.

The court may orders the postponement of publication of any report relating to
proceeding for any period; it thinks it is necessary to avoid a substantial risk of prejudice
to the administration of justice
………………………………………………………………………
Definitions of terms.
 The court. – includes any tribunal or body exercising the judicial power of the state.
 Necessary.- implies more than merely convenient and must be specifically related
to the avoidance of the described risk.
 Substantial risk. – In considering whether the risk of prejudice is substantial. The
court will consider the length of time between the publication and the proceedings.
 Proceedings.-may be those actually before the court or any other cause that is
pending or imminent.
 For any period of time.-any postponement order should be for a specific period of
time that should be defined by reference to the test of necessity.

Discretion why a case may be postponed.

 The court has an overriding discretion whether to make a postponement order.
 A postponement order is regarded as normal practice often because the strict
liability contempt rule might not apply unless there is an order for postponement in
three situations.
 The three situations are as follows,
1. Where a prejudicial matter is heard by the court which the jury absent known as a
trial within trial.
2. Where the accused is awaiting a further changes or trials for other matters.
3. Where the separate trial or trials of other people i.e. codefendants’ is likely to be
prejudiced by material arising during the proceedings.
Terms of order.
Order made under section A[2] must be formulated in precise committed in writing and
kept in permanent record for later reference, it must be clear and brief and also state the
reason why it was made and the time at which it shall cease to have effect.
The power to prevent the publication of the names of parties.
 The court has the power to restrict the publication of maternal including the names of
participants, arising out of proceedings held in open court.
 Names can be with hold to the public and to the media.
 Orders for anonymity cannot be made in respect of a ‘name or matter’ that has
already been spoken in open court.
 It should only be involved in circumstances where the interest of justice would be
harmed if the name or other matters were made public.
 Common instance where names will be withheld are black mail proceeding to ensure
that victims of blackmailed will not be frightened about reporting the crime. Ie for
students- icc cases facing Kenyan leader.
 An individual can apply to court for an order in writing and should state its precise
scope, the time of which it shall cease to have effect, and the specific purpose of
making it.
Restriction on the publication of information relating to children.
QZ. Discuss the powers of a court to restrict the publication of information related to children.
1. The court has powers to restrict the publication of the information relating to children
not to protect the child but to protect the administration of justice.
2. Section 39 of the children and young person’s Act 1933 states.
3. Cases concerning children are held in privet, chambers, that is Juvenal cells.
4. Children under the age of 16 are always protected by the court.
5. Whether as a witness, accused or defendant. The child needs protection from the
court.
6. The court can direct no newspaper report of the proceeding that shall reveal child’s
name, address or school should never be identified. Because can lead to
victimization. If in cause concerns family matters.
7. No picture shall be published in any newspaper as being or including a picture of
any child or young person.
8. No picture shall be publish in the news paper if it is on cause of sexual harassment
indentcenecly either the child is a witness, accused or defendant.
Ward ship proceedings.
 They are heard in chambers.
 The media cannot attend or report on such hearings the purpose is to protect the
ward ship proceedings not the confidentiality of the child himself.
 When dealing with stories about wards of court the media should take case to check
whether an injunction is in force that affects publication.
 Ward ship – is about children or young persons under the care of a guardian or the
protection of a law court.
Legitimacy and maintenance.
 It is under section 2 of the domestic and appellate proceedings [restriction of
publicity] Act in 1968.
 It restricts the reporting of proceedings that relate to declarations of legitimacy.
 The reporting of applications for maintenance is restricted to those matters that may
be reported, namely.
1. The name, addresses and occupations of the parties and witnesses.
2. A concise statement of the changes defences and counters – charges in support
of which evidence has been given.
3. Submission on any point of law arising in the course of the proceedings, the
decision of the court their on.
4. The judgments of the court and observation made by the judge in giving
judgment.
 Maintained is an order requiring either party to mange to make periodical payments
to the other for his or her maintenance.
Young offenders .
 Young people under the age of 18 who are the subject of criminal charges appear
before youth courts.
 Youth courts are closed to the public but they are open to represent of newspapers
and news agencies. Reporting in youth courts is restricted.
 No respect shall be published which reveals the names. Address or school of any
child or young person, concerned in proceedings [in a youth court] or includes any
particle likely to lead to the identification of any child or young person consumed in
the proceedings and no picture.
Defences by media concerning to young offenders cases.
1. A member of the media will have a defense to a charge of breaching the youth
justice and criminal evidence. Act if the young person is not the accused or a
witness to the offences. ….If the young person you have identifying is not the
accused .
2. If he can show that, the restrictions imposed a substantial and unreasonable
restriction on reporting the offence.
3. Have the written consent of the young person or guardian at the publication.
4. Then he/she can have defense to a change of breaching if he can show that he did
not suspect innocent or have reason to suspect that a criminal investigation had
begun or that his report contained material that would breach any restriction.
Prohibition
 may be applied on the media against reporting the name, address, identification of
any educational establishment attended to by the witness. Identification of place and
having any still or moving picture of the witness.
 When exercising the discretion, the court must take into account the following.
1. The nature and circumstances of the offence.
2. The age of the witness.
3. The social and cultural background and ethnic origins of the witness, the domestic
opinions of the witness, if the court considers it relevant.
4. Any behavior the witness by the accused, the family or associated of the accuses or
any other person who is likely to be accused or a witness in the proceeding.
5. The views expressed by the witness.
6. The public interest in avoiding unreasonable restrictions on the reporting of
proceedings.

********************8

1. Partial justification.
 Where a publication alleges a whole sense of allegations against a person and the
defendant has a complete defense.
 If the defendant cannot prove the truth of all the allegations.
 If the unjustifiable do not injure the claimants having regard to the truth of the
matter.
 Example: if you can publish an article on a primary school teacher and claim he/she
smokes bhang and is a drunkard and the defendant is able to prove the indeed the
teacher smokes bhang but cannot prove that, he is a drunkard then partial
justification will apply because smoking bhang in Kenya is more illegal compared to
being to being drunk.
2. Aggravation.
 There is nothing about a person private life that cannot be published with virtual
impurity as long as it is true.
 With aggravation, it means that the media may rely on history to report on things that
are present.
 The claimant should be able to prove that they desisted from the past behavior in
order to win a case.
 Where the jury decides to award a greater amount in damages because maybe the
defendant persisted in the damage and did not apologies.
 Ie if the defendant published an item on a personal that may be he said the claimant
is a thief because maybe he/she was a thief in the past.

Committal proceeding before he magistrates court.

 All criminal proceeding starts in the magistrate court the preliminary hearing where
by the magistrate exam sis the magistrate against the defender to determine where
there is a case to answer and whether the case should be commited to trial in the
crown court [high court] is what is called committal proceeding.
 Its lawful to publish the following details in the committal proceedings before the
magistrate :
1. The identity of the court and names of examining justices.
2. The names addressed and occupation of the parties and witness, and the ages of
the accused and witness.
3. The offence or offences of a summary of them.
4. The names of counal or solicits engages in the proceedings.
5. Any decision of the court on the disposal of the case if any accused is committed.
6. The charges in which the accused is committed or a summary of them, and the
court to which the accused was committed.
7. If there is any adjournment, the next date and place of hearing.
8. Arrangement regareling bail, e.g. the amount of any surety.
9. Whether legal aid was a ranted.

Hearing concerning sexual offences and indecency.

 The sexual offences [amendment] act 1976 applies to:
1. Rape.
2. Attempted rape.
3. Aiding or abetting either of the above.
4. Conspiracies will intent to rape.
5. Burglary with intent to rape.
 The sexual offences [Amendment] Act 1992 applies to:
1. Indecent assault on a man or woman.
2. Buggery and assault will the intend to commit buggery.
3. Incest lay a man or a woman.
4. Intercourse with a girl under the age of 13yrs or between 13yrs and 16yrs.
5. Intercourse with or procurement of a mentally handicapped person.
6. Indecent conduct towards a child.
7. Procurement of a woman by threats.
8. Administering drugs to obtain intercourse with a woman.
9. Enactment by a man of his granddaughter, daughter or sister under the age of 16 to
commit incest with him.
Divorce cases.
 Husband and wife dispute has always been a good source of good copy for reporter
who works at the popular end of the media market.
 In recent years, there has been restriction towards publishing of information relating
to divorce, nullity or judicial separation.
 The restriction can be put in place.
1. Name, Address and occupation of the parties and witness.
2. Concise statement of the charges defences and counter in support in which
evidence has been given.
3. Submission on points of law and rulings of the court there on.
4. The judgment of the court and observation by the judge in giving judgment.
 An allegation that has no evidence should not be reported unless it is referred to by
the judge in his judgment.
 The court may grant an injunction to prevent report arising out of proceedings.
 In proceeding of nullity [nullifying] of marriage evidence on the question of sexual
capacity will be heard in private unless it is interest of justice that should be heard in
public.
Press challenges to reporting restriction.
The courts may sometime make orders restricting the reporting on proceeding in
appropriate cases.
When an in appropriate order restricting publication is done, the media can challenge it
using three ways:-
 Application to the originating coast.
 Judicial review.
 Appeal under section159 in the criminal justice act 1988.
1. Application to the Originating Court.
- It is the cheapest, quickest and most effective way to challenge an order restricting
publication by raising the matter with the court that made the order.
- Magistrate and judges should allow representation to be made by or –behalf of the
media.
- If the reporter in court believes that an order restricting reporting has been wrongly
made, the following two options exist.
a) Use of Informal Notes.
 The media company can set out its relevant objection and arguments in a note and
hand it to the court clack to pass to the magistrate, or judge.
 They might argue about a name that was bound earlier or luck of time limit.
 Upon receipt of such a note the court is likely to look carefully at what the statues
(Law -Sheria)
b) Legal Representation.
 If the information note fails, the media company might instruct its lawyer to make
representation to the court on the pro priestly of the order.
 They should be organized in 24 hrs.
2. Judicial Review.
 The high court has power to review working and orders of inferior courts.
 Despite these, there are drawbacks {limitations} to an application to the judicial
review.
a) It is not available to challenge orders of the crown –court relating to trials or
indictment.
b) The process can be slow so as the time such an application is heard the relevant
report is already stale(Expire)
3. Appeal under section 159 in the criminal justice Act 1988.
 It gives any person a grieved the right to a peal to the criminal division of the court of
appeal against the following orders made by the crown court judge.
a) Contempt of court Act.
b) Restricting public access to all or part of trial to an indictable offence.
c) Which restrict reporting of all or part of proceedings e.g.:- children and young
people
 The media as a greaved person must serve a notice within 14dys after an order has
been made to the clerk prosecutor or judge.

INTER VIEWING JURORS.

 It is content of court to obtain disclose or solicits any particulars of statements made,
opinion expressed, arguments advance or votes cast by members of a jurors in the
cause of deliberation in any legal processing’s.
 These apply to the media and the jurors equally.
The use of tape recorders, photographs and sketches.
1. Tape recorders.
 As well as the limitation placed on the content report, there are also certain
restriction on how those reports are gathered :-
a) The use of tape recorders in court or onnging them court for use is contempt unless
permission is granted by the court.
b) The use of any such recording in contraventions of any permission granted by the
court.
c) Publishing a recording of any legal proceeding made by any instrument or any
recording deviser directly or indirect from such an instrument or any recording by
playing it in public.
d) Permission may be denied if the machine is noisy and if the recording is used to
brief future witness.
Photographs and sketches.
 No person shall take or attempt to take any court photographs or with a view to
publication, make or attempt to make in any court any portrait or sketch of any
person, being a judge of the court or witness, or a party to any proceeding before the
court whether civil or criminal.
 Publishing any photograph portrait or sketch take or made in contravention of these
section or any reproduction.
 It is also an offence to photograph or film witness while they enter or leave the
courtroom.
 Making sketch of a trial or its participants from memory after leaving the court and
publishing it is unlawful.
Restriction on Reposting in other courts.
1. Arbitration proceedings.
 They take place in private and all parties in arbitration case have an obligation to
respect the confidence of the proceedings.
 The duty of confidentiality of any information obtained during arbitration obtained is
subject to a number of objections.
a) If the disclosure is necessary under compulsion of law.
b) If disclosure is reasonably necessary in public interest.
c) If disclosure is reasonably necessary for fulfilling the recipients duties to others
person.
2. Inquests (investigation on death).
 They are held in open courts unless the corona orders that it be in the interest of
national security to exclude the public.
3. Employment tribunals.
 Media can freely attend and report on hearings before employment tribunals and the
employment appeal tribunal, unless the tribunal considers that a prevail hearing is a
prophote on the following grounds.
a) National security.
b) Disclosure will lead to contravention of publication imposed by legislation.
c) Disclosure would otherwise break a confidence.
d) Would cause substantial injury to the employers undertaking.
e) A witness will be seriously prejudiced.
4. Metal health review tribunals.
 It requires that mental health tribunals sit in private.
5. Licensing justices.
 License application for public houses and clubs are heard by magistrate court.
6. Planning inquires.
 Local authorities hearing concerning application for planning permission, and for
cement notices and compulsory purches of land take place in public.
 An order maybe made that it should not be opened t inspection if it relates to
national security and the measures taken or to be taken to ensure the security of any
property.
 The findings of a local public planning are usually made available to the media.
7. Medical displinary hearing.
 A displinery complaint against a doctor is fast considered in private by the
preliminary proceedings committee by the general medical council.
 If the preliminary proceeding committee finds there is a case to answer, the matter is
referred to the profession conduct committee, which sits in private.
 The PCC (profession conduct committee) may exclude the press and the public if it
is satisfied that the under prejudice if it does e.g. optician, pharmacy.

CONTEMPT OF COURT
 Going against the law of court disrespect to the court.
 Is the improper interference with the administration of justice.
 The court must be free to decide on the matters before it unhindered by any outside
influence.
 The purpose of contempt of court law is to ensure respect for the legal process and
compliance with the remedies ordered by the court.
 It is illegal to undermine obstruct or interfere with quickly and vigorously.
 At a common law, there are three main offences of criminal contempt.
1. Interfering with pending or imminent court proceedings.
2. Contempt in the phase of the court.
3. Scandalizing the court.
4. Failing to comply with the court order.
5. Improper use of documents disclose during proceedings.
 Interfering with pending or imminent court proceedings:
 A person is guilty of contempt if he/she publishes material that is calculated to
prejudice or interfere with proceedings that at the time of publication were pending or
imminent.
 Criminal proceedings are pending where a person has been arrested and are about
to be charged.
 Contempt in the face of the court
 It is an offence to behave in courtroom in a manner that undermines the authority of
the court.
-i.e. insulting the judge,
- caring out demonstration.
- Directly insulting the judges to his face.
- Undressing.
- Phone ring while in court.
 Scandalizing the court.
 An oral or written statement is designed to bring the court or judge into contempt or
lower his authority i.e. publishing an attack on the integrity of a judge by accusing him
of being biased. Taking bribe or being asleep in court.
 In recent years, such attack on judgment with a libel action or a request for an
apology.
 Failing to comply with a court order.
 Failing to comply with a court order can lead to serious repercussions.
 If a breach is deliberate and has serious effect on the conduct of the proceedings to
matters may be rettered the attorney general for him to consider taking contempt
proceedings.
 Improper use of documents disclosed during proceedings.
 When document are disclosed during a civil proceeding under an obligation to the
court or other party to those proceeding, then any other use of the document for a
purpose collateral to those proceeding is a breach of the civil procedure rules.
 Only document read or referred to a public hearing should be used especially when
publishing a court hearing.
The strict liability rule.
 It applies to any application that creates a substantial risk that the course of justice in
the proceedings in questions is seriously impeded or prejudiced.
 There are four elements to strict liability rule.
1. Strict liability.
 It means that a publisher may be found guilty of contempt of court irrespective of
whether or not the intended to cause a substantial risk of serious prejudice.
 If the publisher creates a substantial risk or serious prejudice to proceeding that are
active, it is not defense that this was not what he in tented.
 The prosecution must prove that the editors intension was malicious, he was
reckless or negligence in publishing an article. i.e. an editor or producer would face
irrigation ever if he pleads to have taken care, took legal advice etc
 Whether you have good or bad intention strict, liability content will apply.
2. Publication.
 A speech, written, broadcast or other communication in whatever form which is
addressed to the public at large.
 Strict liability it applies to all the usual output of the media, i.e. newspapers
magazines TV Radio programmes and the internet.
 Play , concerts, and speeches at public gathering ,are also publications.
3. Active Proceeding.
 For a strict liability rule to apply the proceedings in question must be active.
 Criminal proceeding are active on.
a) Arrest without a warrant.
- [it is wrong to report on proceedings before the police confirms it even if there is
an arrest warrant something should not be reported ie his past cases]
b) The issue of warrant for arrest.
c) The issue of a summons to appear before the court.
d) The source of an indictment or other document specifying the change.
e) Oral change.
-The same criminal proceeding also becomes active at the conclusion by;
1. An acquittal or by sentence.
2. Any other verdict you are finding or other decision, which puts to the proceeding
3. Discontinue or operation of laws: proceedings remains active until sentence is
passed.
4. A substantial risk of serious prejudice.
 Strict liability rule only applies to publications that create substantial risk of serious
prejudice to the course of justice in the relevant proceedings.
 The following factors should be among these considered by the media when
assessing whether a feature is likely to be contempt.
1. The court.
2. Date of hearing.
3. Place of trials.
4. Content.
5. Speculation.
6. Undermining /intimidating of witness the parties or a juror.
7. Anticipating the verdict.
8. Civil proceedings.
Defences of contempt of court.
1. Innocent publication.
2. Fair and accurate contemporary report.
3. Discussion of public affairs (public interest)
Innocent publication,
 A publication is not guilty of contempt if at the time of publication (having taken
reasonable care) he did not know and had no reason to suspect that proceeding
were active.
 The burden of proof can also apply to a distributor.
Fair and accurate contemporary report.
 A person is not guilty of contempt of court if he published an article that is in respect
of fair and accurate report of legal proceedings held in public, published
contemporaneously and in good faith.
 Journalist should make sure that they observe:
1. Fair and accurate report,
2. Proceeding that are held in public,
3. Contemporary report.(during or as soon as after the hearing ruling you publish
something)
4. Your article is in good faith. (honest article without Altria motive)
Discussion of public a fairs.
It is a publication made as, or as part of a discussion in good faith of public affairs or
other matters of general public interest.
PENALTIES AND INJUNCTIONS.
 Contempt is the courts ultimate weapon and can even result in term of
imprisonment,
 An injunction applying prior strain to publication is the court order that is mostly
directed to the media.
PROTECTION OF JOURNALISTIC SOURCES.
 Long contact list of reliable sources is one of the most important valuable
commodities cherished by the media.
 They arcumstances where a person povictes accurate information on the
understanding that will not be compromised or named, because it is a cordial nite of
journalism that his identity remains confidential.
 A person will not be compiled to cliverge name or other information, unless ordered
to do so by a court of law, a tribunal of inquiry or parliamentary committee.
 The law recognizes the need for protection of journalist sources in a free and
democratic society, and creates a presumption in favor of journalist who wishes to
protect their sources.
There are four exceptions where disclosure of information (source) will be deemed
necessary.
QZ: Discuss the circumstance where disclosure of source information will be deemed
necessary?
1. In the interest of justice.
 Persons should be enabled to exercise important legal right and to protect
themselves from serious wrongs whether or not result to legal proceeding in a court
of law if it will be necessary to protect these objectives. I.e. if an employer of large
company is suffering loses because of one employee then he should know that
employee will suck him/her to continue making profit.
2. In the interest of national security.
 The maintained of national security requires that trustworthy servants in a position to
mishandle.
 Classified documents passing from the secretary of state for defense to other
ministers shall be identified at the earliest possible moments and removed from their
position.
 Information that threatens the security of a nation should be revealed to the police so
that they can act to protect the nation.
3. For the prevention of disorder in society.
 It is important that before we have a disorder in the society, and there is a journalist
who has important information towards that disorder, then he/she can be called to
render useful information to police to prevent such a disorder. Ie if a journalist has
 an information that doctors in certain information are incompetent and are still doing
their work /practicing
 Their duty then the journalist will be called to reveal his/her source so that the health
authority can prevent the publication of information and carry out investigation. Here
the public will not panic.

4. prevention of crime.
 If a journalist has important information in an impending crime, the he/she can be
called upon to give information that can lead to prevention of prevention of that
crime.
OFFICIAL SECRET.
 Section one of the official secret act of 1981 spy it states that it is an offence for any
person to:
1. Section 1a Aa1: Approach, inspect. Pass over or be found in the neighborhood of or
enters any prohibited place.
2. Section 1b B: Makes any sketch plan or model to be direct or indirectly useful to
any enemy.
3. Section 1c C: Obtains collects record or publishes or communicates to any other
person any secret official password or any sketch plan or model or article or other
document or information, which is calculated or might be intending or directly or
indirectly to enemy.

The Automatic Bans that restrict reporting relating to example.

1. Committal proceedings before magistrate court.
2. Hearing concerning sexual offences and indecency.
3. Divorce case. You will be prevented from motioning the names, children, and
occupation.
4. Documents made available on disclosure. If you report on this, it wills resuel on
Contempt of the court. Disrespect towards the court.

Qz: Discuss how a court will judge whether or not a publication posse’s substantial risk
of serious prejudice to the course of justice?
f)

QZ: How might a newspaper challenge restrict

 Media have a right to freedom of excretion. But sometimes in exzatquting their duty a court can make
awrong order restring publication.
 When such an order is made [wrongly] the media organization can callege it in 3ways.
1. Application to the original court,
2. It is the fasters and cheapest in 2 forms 1st informal note, ones wrong orede has been made the
media organization will write a letter. The letter should state the rezoinse to why the order was is
wrong. The letter should be given to the court cluc who will give to the magistrate.
3. Media org do not have an obsolute right to be hard, so it is dission of the jurge to look I to it.
2nd legal representation: the iintract it laur to challenge to challenge ibn a court of law.
Illegal
Judition review.
The high court has the powers to review the working of inferior courts.
Its dissagivagers because it is slow buy the time the case is hard /they finish the story is stall.
The high court cannot review the working of the crown court.
The juditiory reviw cour should within 48hr after the order has been made.
Appel under art under section 159 of the criminal act 1988.
Appel of the ruling should
It is slow by the time the story is hearing the story will be stall.

Discuss how a court will judge whether or not a publication poses a substantial risk of serious to the
course of justice.
Court
 A publication distracts the administration of justice. can pose series preduderise.
 Place of tral : publication is far from aplce of tral ie in London and the place of trial is new cause , the
risk of scias of prejudice is reduce.
 Date of herring: maight create
 If the sculetion is big is predudaice