NAME: NIKITA DASS
ID NUMBER: 647962
COURSE DESCRIPTION: MEDIA LAW
COURSE CODE: JRN3003
INSTRUCTOR: DR. JOSEPH NYANYOTI
DUE DATE: NOVEMBER 14TH 2018
QUESTION: The role of media law is to protect the work of media practitioners and at the same time control the media. Select 3 media laws that protect journalists and other media practitioners work and three law that control the media work.
Media Law is a legal field that relates to legal regulation of the telecommunications industry, information technology, broadcasting, advertising, the entertainment industry, censorship, and internet and online services among others.
The role of media law isessentially to protect the work of media practitioners and at the same time control the media. In this paper, I will be discussing three laws that protect and the laws that control the media. The lawsI will be looking into are: Intellectual property, defamation, the media council act (2013), the constitution (article 34 and 35)and the First Amendment (media freedom)
The first amendment is said to have given birth to media freedom in 1971, when it allowed journalists to practice their moral duty. It allowed them to educate, inform and entertain members of the society.In addition, it does not only help by journalists alone but media houses and citizen at large. Our very own 2010 Kenyan constitution has modelled its media and other freedoms from it. Therefore it is a very important basis of media law in the world as it is, what laid out the privileges and protection that media has. It has also enabled the media council act to be in place as it give the media a body to govern in by promoting, protecting, accrediting, setting media standards and at the same time ensures the provisions of article 32 of the constitution are safeguarded.
In terms of defamation, it is the act of communicating false statements about a person that injure the reputation of that person. Defamation may come in form of libel or slander and is an abusive attack on a person’s character through a false accusation of an offence or a malicious misrepresentation of someone’s words or actions. In the context of mass media, defamation may be present in broadcasts (radio, television, and podcasts) or in print articles such as books, magazines or as is the case here, newspapers.
Lastly, intellectual property covers statutes that govern copyrights, patents, trademarks and plagiarism. However it majorly surrounds the copyright law, which is an act of parliament that makes provision for literary, musical, artistic, audio-visual, broadcasts and sound recordings, in preventing materials from being copied without permission of the owner. The intellectual property law is meant to protect citizen’s intellectual creations.
In terms of defamation, there was case between Miguna Miguna and the Standard Group Limited. The Standard Newspaper, Standard Online, Standard Digital and the Standard Mobile all owned, printed, distributed and published on 19th February, 2013 a story titled, “Miguna in assault drama with house girl”. This article is defamatory as it is referring to the plaintiff and damaging Miguna Miguna’s reputation. Moreover, it had been published on all platforms for the Standard group thus reaching a big number of readers both locally and internationally. It falls under the category of libel defamatory as it is written down.
In addition, the article accused Miguna for assaulting his house girl by saying, “Police have questioned Miguna Miguna after his house girl claimed he had assaulted and dramatically chased her from his Runda home in Nairobi. However, Miguna outrageously claimed he kicked out the girl after learning she was planning to poison him. He also claimed his life is in danger and asked police to provide him with 24-hour security. Miguna told journalists he learnt the house help had been paid Sh. 1 million by bodyguards of two ministers to poison him.” In this particular statement it is accusing Miguna for being a criminal, being violent, irrational, outrageous, and dishonest andaccuse of physical assault all together thus damaging his reputation as a right thinking man in society.
In terms of controlling the media, it can be seen as a way of helping the media get in check, in order to avoid yellow journalism. In other words, the law helps journalists narrow down gossip and perform their moral duty. This is because, if there was no law protecting citizens then journalist could cover the story the way they wanted, as they could sensationalize stories making it falsely attractive to the reader. Therefore, the law protects the citizens so as to avoid damaging ones reputation from false reporting. For the case of Miguna Miguna, he is able to fight against being accused of violence, dishonesty etc. and get damages from the media for defaming him.
2. THE FIRST AMMENDMENT:
Media freedom has its basis in the first amendment as it allows media to distribute information, ideas, news and opinions. Therefore allowing them to perform their duties as journalists. It also protects the receiver of the information and not the speaker alone.
On Wednesday March 27th 2018, some journalists were covering a story at the Jomo Kenyatta International Airport when the General Service Unit officers attacked them and injured some journalists. The journalist were covering the story of Mr. Miguna as he was still being held after he refused to apply for a visa and to apply for citizenship and to be allowed back into the country.
The next day, many newspapers covered the incident including the Nation Media Group and they wrote, “Nation Media Group condemns police attack on journalists at JKIA”. Knowing what happened in the incident went against media freedom and was against what was in the first amendment or even the constitution. Unfortunately, the law sometimes may control the media as there was the argument of the journalists defying the police orders. State House Director of Digital Communications, Dennis Itumbi had a post titled, “Kenyan Police have done well”, where Mr. Itumbi accused the media of breaching rules by filming at the airport. He went on to say “On that I must say police did well. You will never see such stuff in other airports. It took a bit long, but great decision”.
This therefore shows that no matter how much freedom journalists are given, in one way or another it controls them as well. Many journalists from the media houses were hurt physically, a Nation TV cameraman was left bleeding and his camera and live broadcast equipment damaged while Citizen TV reporter Stephen Letoo was assaulted by the officers. Their claim was that under the law, you are not allowed to have camera access at the Jomo Kenyatta International Airport. Yet, when they were setting up while waiting for Mr. Miguna to arrive no one did anything until his arrival.
3. THE 2010 CONSTITUTION- ARTICLE 34(FREEDOM OF MEDIA) AND ARTICLE 35 (ACCESS TO INFORMATION)
A constitution is the supreme law of the land. In Kenya,the 2010 constitution is very popular with media practitioners as it includes the media freedom and freedom of association from chapter 34 to 36. I will be looking into article 34 and 35 in the constitution specifically.
In the recent events of the elections held in Kenya, there was an incident where the media was covering the event on January 30th 2018 of the swearing in of Raila Odinga, “thepeople’s president”. In the event of covering the footage, the broadcast was cut off making popular stations Royal Media Services Limited, Nation Media Services Limited and the Standard Media Group Limited go air.
Since the Communications Commission of Kenya (CAK) had put these broadcasts off air, the media houses had gone back to the constitution and petitioned against CAK. When taken to court, that it was a violation against article 34 and 35 of the constitution.
Therefore in this case, article 34 and 35 of the constitution protected the work of media practitioners as in less than a week they were able to go back on air and broadcast again freely. If it weren’t the constitution, the media houses wouldn’t have any law that was helping them practice their work and therefore meaning it gave them an edge to be able to fight for their right to broadcast.
1. INTELLECTUAL PROPERTY:
The intellectual property law can protect the work of media practitioners and the media at large. In a case of intellectual property, specifically copyright that can be seen as controlling the media, is between Incognito Productions Limited African Artist Development and Initiative Limited versus Nation Media Group.
The Plaintiffs say that on 8th March 2017, the Defendant asked them to shut down the Project and close the discussions about the radio/TV show Lit 360 and thus they took it as if it was the end of the deal. However, the Plaintiffs are found out that on 3rd May 2018, the Defendant released a media statement announcing the launch of a media Label under the name Lit 360 with no inclusion of the plaintiffs.
The first episode of the Show was ran on Nation TV on 3rd May 2018 at 10.00pm .It is therefore a scenario where the plaintiffs weren’t given any credit or included and the show that was initially theirs was aired without them knowing. In this case, it controlling the media as Nation Media Group despite its impact or influence in the industry, it shouldn’t have stolen the show and aired it without informing the original creators. Therefore, with the copyright law, it helps in controlling and keeping the media in check with what they can air. It allows the citizens to have rights over their work and their creations. In this case, Nation Media Group has infringed the rights of the plaintiffs as they were part of the content creating and they has falsely left them out under the basis of dropping the project only to do it alone.
On the other hand, it also protects the work of media practitioners. The plaintiffs are both part of production houses, which in one way or another makes them fit under the banner of media practitioners. They were part of the process and idea generation of the show. Yes, ideas may not be copyrighted but it was already a show that was set to be aired but later on done without the other parties consent. The media law in this case is protecting the work of the plaintiffs as they are able to claim their work.
Moreover, in general, the media law also helps journalists by protecting their work. This can be seen as news is one of the things that can’t be copyrighted as there is no copyright owner that can claim it. Therefore, with news there are no implications with the copyright law.
2. MEDIA COUNCIL ACT 2013 AND 3. DEFAMATION:
The Media Council Act 2013, is essentially there as a guide for media practitioners as one of its functions is to promote and protect media freedom. However, like any other law there is always a thin line when it comes to privilege and control.
On 29th October 2012, there was a case that involved the Standard Limited, Ben Agina and David Ohito were against Dr. Christopher Ndarathi Murungaru. It was based on two publications in the Standard on Sunday of 5th June 2011 and the Standard of 11th July 2011, based on the scandal in Kenya called “Anglo Leasing scandal” which is the focus of the British journalist, Michela Wrong’s book, “It’s Our Turn to Eat: The Story of A Kenyan Whistle Blower, (Fourth Estate, 2009).”
Dr. Christopher Ndarathi Murungaru, who was the cabinet minister in charge of internal security at the time of the scandal, claimed that the two publications were defamatory. The media council act came to the rescue for the newspaper and the two journalists as it protected them.
The media council act was able to also protect the two journalists and the standard newspaper as they were able to ensure the protection over journalists are they were performing their duties as journalists by covering the story that was making a buzz in the country.
In terms of defamation, they defended themselves with justification, fair comment and qualified privilege. Justification was to agree with what they covered as the statement is true and therefore there was no need of an apology. Fair comment is where by a journalist is entitled to express their opinion on matters of public interest but the statement must be proved to be honest and not an assertion of a fact. It therefore must be fair with no malice. Lastly, qualified privilege is a defense of defamation as it is a statement made in the presence of legal, moral and social duty.
Looking at the laws covered, it is clear that with any law, especially the media law, it protects and controls the work of media practitioners. However, it depends on the scenario of the situation. The media law is there to guide media practitioners to be able to know where the boundaries are so when doing their work they don’t have an implication with the law. Often times, law is said to have escape roots or loops holes because when they are made they look perfect. However, when put to practice they are difficult to adhere to as they are complex to understand and to follow.
Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulations (2002) article 19. (n.d.). Retrieved November 18, 2018, from http://kenyalaw.org/caselaw/cases/view/101689/
(n.d.). Retrieved November 18, 2018, from http://kenyalaw.org/caselaw/cases/view/129386/
(n.d.). Retrieved November 18, 2018, from http://www.kenyalaw.org/lex/actview.xql? =No. 46 of 2013
(n.d.). Retrieved November 12, 2018, from https://www.hg.org/media.html
(n.d.). Retrieved from http://kenyalaw.org/caselaw/cases/view/118765
(n.d.). Retrieved November 13, 2018, from http://kenyalaw.org/caselaw/cases/view/154292
Police attack journalists at JKIA, Nairobi – PHOTOS. (2018, March 27). Retrieved November 13, 2018, from https://www.nation.co.ke/news/Police-attack-journalists-as-they-cover-Miguna-drama-at-JKIA/1056-4359400-o8qj3iz/index.html
State House director cheers police attack on journalists at JKIA – PHOTOS, VIDEOS. (2018, March 27). Retrieved November 13, 2018, from https://nairobinews.nation.co.ke/news/itumbi-cheers-police-attack-journalists-jkia-photos-videos/