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CIVIL LIABILITY OF THE MEDIA

media

Freedom of expression and equality enhance the growth and vitality of civil society. It is important for the media to have free expression. The preamble to the Universal Declaration of Human Rights states that every individual and every organ of society shall strive to promote respect for the rights to freedom of expression and equality and secure their universal and effective recognition and observance. However, this freedom is subject to some regulation in Uganda. The laws applicable that create civil liability of the media are

• The 1995 constitution of Uganda
• The Penal Code Act Cap 120
• The Copyright and Neighbouring Rights Act, 2006
• The Electronic Media Act Cap 104
• Article 19
• The Abuja Declaration Abuja, April 3,4, 2000
• Resolution on the adoption of the declaration of principles
on freedom of expression in Africa

According to the preamble of Article 19 equal and inalienable rights of all human beings is an essential foundation of freedom, justice and peace. Further more according to its preface information is the oxygen of democracy information allows people to scrutinize the actions of a government and is the basis for proper, informed debate of these actions. However, though the media is allowed this freedom to disseminate information there is some civil liability attached to this freedom of publication. The Electronic Media Act in its fourth schedule under professional code of ethics, the first code states no journalist shall disseminate information or an allegation without establishing its correctness or truth.

According to section 182 of the Penal Code Act any publication of defamatory matter concerning a person is unlawful within the meaning of this chapter, unless
a) the matter is true and it was for public benefit that it should be published or
b) it is privileged on one of the grounds mentioned in this chapter
The definition of defamatory matter according to section 180 of the Penal Code is matter likely to injure the reputation of any person exposing them to hatred, contempt or ridicule, or likely to damage any person in his or her profession or trade by an injury to his or her reputation. For civil defamation to be proved there various requirements that must be proved the first being it deals with injury to somebodys reputation using false statements, by reputation we mean the esteem in which an individual is generally held within a particular community. In the case of
Sejoba V Rwabigoni (1977) HCB 37 it was held

A statement that has a tendency to injure the reputation of a person to whom it refers by lowering him in the estimation of right thinking members of society generally in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem or which tends to make rightful members of society shun or avoid that person.

There two major forms of defamation that is slander and libel. Defamation is actionable perse so is libel, slander is however actionable only on proof of special damages. Libel is a defamatory statement in its permanent form its defined in the Penal Code under section 179 as Any person who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, commits the misdemeanor termed libel.

In the case of Opoya V AG (1972) HCB 84 the plaintiff claimed damages for libel statements broadcast over the radio in a song in japadhola claiming the plaintiff had murdered somebody it was held a defamatory statement transmitted over the radio in a broadcast reaching as it may an audience of many millions is calculated to cause as much if not more damage than written report in a newspaper however large its circulation.

Damages are assumed to flow naturally from libel, that’s why its actionable perse slander cant succeed unless you show that you suffered actual damages. The claimant must prove the material which he complains of is defamatory,it referred to him and that it was published by a third person. Once this has been established the defendant must prove the imputation was true, it was fair comment on a matter of public interest.

A statement is defamatory if it exposes the claimant to ridicule and contempt. There is a distinction between imputation of guilt and statements of reasonable suspicion of guilt. In the case of Bendzel V Kartar Singh (1953) 20 EACA 53 it was held
“a statement may be defamatory although the recipient may know its unfounded. Further in Hough V London Exp.N.P ltd (1940) 2 KB 515 Quoth Goddard L. J. held If words are used which impute discreditable conduct to my friend, he has been defamed to me,although I do not believe the imputation and may even know that its untrue.”

The 2nd requirement is refrence to the plaintiff. The plaintiff should be able to show that the defamatory words to refer to them and the statement may refer to a person even though it was intended to refer to a person even though it was intended to refer to simply a fictious character another person whether his name is mentioned or not. Therefore a statement may be said to you even if it wasn’t intended to refer to another person. In the case of E .Hutton and Co V Jones (1910) AC 20 it was held the intention is irrelevant, the use of a fictious character is no defence. It need not answer 100% description of the plaintiff before it can be said to refer to them. The plaintiff was a barrister and the article referred to a church warden it was held a person charged of libel cannot defend himself by saying that he didn’t intend to defame the plaintiff. Thus there need not be express neither is it necessary for any key or pointer in the statement to indicate the claimant the test is whether the ordinary sensible reader in the light of the special facts would understand the words as referring to the claimant. He/she is entitled to rely on a subsequent publication to prove it was him referred to.

The third requirement is words may be defamatory in their natural or ordinary meaning or they be defamatory only when combined with extrinsic facts known to those to whom the words were published. This is affirmed by section 181(2) of the Penal Code Act which states it is not necessary for libel that a defamatory meaning should be directly or completely expressed, and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from extrinsic circumstances or partly by the one and partly by the other means. The technical difference between a legal innuendo constitutes a separate cause of action additional to any defamatory imputation in the natural and ordinary meaning of the words and it must be specifically pleaded and proved by the claimant.
The fourth requirement is in regards to publication such a statement must be published where publication means effective communication to any other person than the plaintiff

• ¬leaving documents where they might be read by others, putting letters in the wrong envelope. Speaking so loudly that others are likely to overhear amount to publication
• Defamatory material displayed on premises under the defendants control
• An unauthorized repetition is considered to break the chain of causation unless there is repetition of the sting. Each repetition is a fresh publication creating a new cause of action.
A disseminator will not be held liable if he proves
A) he didn’t know the work contains libel
B) Imputation of existing contagious disease
C) The imputation of unchastity or adultery
D) Imputation of unfitness, dishonesty, incompetence, in any office calling or trade or business

According to Principle 9 of Article 19 it is suggested even where a statement of fact on a matter of public concern has been shown to be false, defendants should benefit from a defence of reasonable publication. This defence is established if it is reasonable in all the circumstances for a person in the position of the defendant to have disseminated the material in a manner and form he or she did. In determining whether dissemination was reasonable in the circumstances of a particular case, the court shall take into account the importance of freedom of expression with respect to matters of public concern and the right of the public to receive timely information relating to such matters.

The Article is advocating for recognition of reasonableness defence or an analogous defence based on the ideas of due diligence or good faith due to the harsh nature of the traditional rule according to which defendants are guilty whenever they disseminate false statements, 0r statements which they cannot prove to be true. This traditional rule is particularly unfair for the media, which are under a duty to satisfy the publics right to know and often cannot wait until they are sure that every fact alleged is true before they publish or broadcast a story. For the media, acting in accordance with accepted professional standards should normally satisfy the reasonableness test.

There various defences that a member of the media fraternity can call upon to justify his publication one of them being justification one must prove that what was published was true honest and reasonable belief that the statement was true isn’t sufficient if he cannot prove that it was true. In the case of Ssejoba V Rwabigonji (1977) HCB 137 Allen j held the defence of justification placed a burden on the defendant to prove the truth of the statements.

According to principle 2(5)(b) of Article 19 Defamation laws cannot be justified if their purpose or effect is to protect individuals against harm to a reputation which they do not have or do not merit, or to protect the reputations of entities other than those which have the right to sue and be sued. In particular, defamation laws cannot be justified if their purpose or effect is to;
i. Prevent legitimate criticism of officials or the exposure of official wrongdoing or corruption;
ii. Protect the ‘reputation’ of objects, such as state or religious symbols, flags or national insignia;
iii. Protect the ‘reputation’ of the state or the nation, as such;
iv. Enable individuals to sue on behalf of persons who are deceased ; or
v. Allow individuals to sue on behalf of a group which does not, itself have status to sue.

Principle2(5)(c) goes on to say Defamation laws cannot be justified on the basis that they serve to protect interests other than reputation, where those interests, even if they may justify certain restrictions on freedom of expression, are better served by laws specifically designed for that.
Principle 5(a) suggests the procedure for civil defamation laws should be the limitation period for filing a defamation suit should, except in exceptional circumstances, be no more than one year from the date of publication. Further 5(b) Courts should ensure that each stage of defamation proceedings is conducted with reasonable dispatch, in order to limit the negative impact of delay on freedom of expression. Its not necessary to prove the literal truth of a statement if the material facts are proved to be true in substance. The defendant need only prove the facts which justify the sting of the charge. Where there several charges the defendant had to prove the substance for each charge.
Another defence is that of fair comment , a fair comment on a matter of public interest is a fair defence to a matter
The matter commented on must be of public interest
The publication in question must be an expression of opinion and not an assertion of fact
Such a comment must be fair.
It was held in BBMB FINANCE hongkong ltd V EPA holdings (1990) WLR 49 it was claimed that the treasurer was suffering from an infectious disease and unfit for duty
• Whether such a statement was a fair comment
• If the words can damage ones reputation then the publisher must prove that they are a fair comment
• Must not go to a mans private and domestic life
It was held that he should be removed from his office because he suffers a heart disease is not a fair comment and the publisher must be held liable. Furthermore in Adok Nekyon V Tanganyika standard ltd c.s 393/1964 it was held
a fair comment must not mistake facts because a comment cannot be fair which is built on facts which are not truly stated.
Must appear as a comment and must not be mixed up in the facts that the reader cannot distinguish between what is a report and what is a comment
A personal attack made part of a clear comment upon given facts truly stated if it is warranted by those acts
The objective test is could a fair minded man have been capable of writing this objective test
The third defence is privilege there two forms of privilege the first being absolutely qualified privilege according to section 183(1) of the Penal code Act the publication of defamatory matter is absolutely privileged and no person shall in any circumstances be liable to punishment under this code in respect of such publication, in any of the following cases_
a) if the matter is published by the president, the Government or parliament;
b) if the matter is published in parliament by the Government or by any member of that Parliament or by the Speaker;
c) if the matter is published by order of the President or the Government;
d)if the matter is published concerning a person subject to military naval or air force discipline for the time being, and relates to his or her conduct as a person subject to such discipline, and is published by some person having authority over him or her in respect if such conduct;
e) if the matter is published in the course of any judicial proceedings by a person by a person taking part in them as a judge, magistrate, commissioner, advocate, assessor, juror, witness or party to the proceedings;
f) if the matter published is in fact a fair report of anything said done or published in Parliament; or
g) if the person publishing the matter is legally bound to publish it.
According to 182(2) of the Penal Code Act where a publication is absolutely privileged, it is immaterial for the purpose of this Chapter whether the matter is true or false, and whether it is or is not known or believed to be false, and whether it is or is not published in good faith; but nothing in this section shall exempt a person from any liability to punishment under any other Chapter of this Code or under any other written law in force in Uganda.
Therefore the protection it affords is qualified the plaintiff must prove malice. In Simon Mukiibi V Rukanshonga (1982) HCB 35 the defendant accused the plaintiff of having commited a serious crime of stealing a vehicle from an employer. The words were defamatory
1. The letter was written to the defendants superior officer who had an interest in the matter the defendant certainly had an interest in communicating with the officer on the subject. To that extent the letter was privileged and the defence of qualified privilege applied
2. Where the occasion was of a qualified privilege the action for libel must fail on absence of evidence that the letter was written the defendant was actuated by malice.
Another form of privilege is qualified privilege in Adam V Ward Lord Atkinson held
“an occasion where the person who makes a communication or has an interest or has a duty legal, social, or moral to make it to the person to whom it is made has a corresponding interest or duty to receive it” the reciprocity is essential.
Mistaken belief that the occasion was privileged is not sufficient to make it so. The information communicated must be related to the occasion which gives rise to the purpose of the privilege.
According to the Electronic Media Act section 30(1) a disciplinary committee is established in which according to section 31(1) of the electronic media Act a complaint or an allegation against a journalist, which if proved would constitute professional misconduct, may be made to it and it should be reduced into writing.
Article 19 suggests various remedies, it states disproportionate remedies or sanctions can significantly limit the free flow of information and ideas. As a result, it is now well established that remedies or sanctions, like standards, are subject to scrutiny under the test for restrictions on freedom of expression. Principle 13(b) states the overriding goal of providing a remedy for defamatory statements should be to redress the harm done to the reputation of the plaintiff, not to punish those responsible for the dissemination of the statement.
Another form of civil liability of the media is copyright, this is a legal device that gives the creator of literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies.
Copyright law in Uganda shows its development closely linked to the law of copyright in England. Uganda embraced copyright law long before independence under Britain’s Copyright Ordinance of 1915 and later the copyright Act of 1956. This British copyright Act was later repealed in Uganda by the 1964 Copyright Act.
Dick Kawooya in his Research Paper titled “Copyright and Access to Information in Uganda: a Critical review” argues that for a long time, the creators of intellectual property in Uganda were few; hence it is logical to assume that these legislations were to protect foreign authors. He says that legislations were of little relevance to the greater population, which relied on oral tradition and culture for information access.
However, this outdated Copyright Act of 1964 was repealed by the Copyright and Neighbouring Rights Act 2006. The objective of this was to update the copyright law to bring it in line with international standards and to also address the commercially significant changes in technology.
A copyright is initially owned by the author or authors of the work, except in the case a “work for hire”. A work for hire can arise in two situations;
1. Where an employee creates a work within the scope of his or her employment, in which case the employer owns the copyright to the work upon its creation;
2. Where two parties enter an agreement designating the creation as a work for hire and the work falls within one of the specified categories of work designated by copyright law. If the work does not fit one of the specified categories, it will not be a work for hire even if the parties have called it one.
Copyright affords an author a number of exclusive rights. They include the exclusive right to reproduce or copy the work, the exclusive right to prepare new works that derive from copyrighted work, the exclusive right to distribute the work to the public by sale or other arrangement, the exclusive right to display the work publicly.
The copyright law recognizes a copyright not only in a publisher’s collective work, but also a separate copyright for each author’s contribution to the work. With the growth in the use of electronic data bases, some freelance authors began to object to their articles being sold to companies that produced the databases. The Supreme Court in the New York Times V. Tasini, 2001, held that the US Copyright Act protects the copyrights of the writers, rejecting the argument by the publishers that the conversion of the original works to an electronic format constituted a revision of the collective work which would be permissible under the copyright Act.
Copyright protects an author’s original work in any tangible medium of expression, known or to be known in future. The Copyright and Neighbouring Rights Act provides that Literary, scientific and artistic works such as articles, books, pamphlets, lectures, addresses, sermons and other works of a similar nature are eligible for copyright.
Ideas, concepts, procedures, methods or other things of similar nature are not protected. Copyright does not also extend to works such as Acts, statutes, Decrees, statutory instruments or other law made by the Legislature or other authorized body.
Under the Copyright and Neighbouring Rights Act 2006, section 13(1) copyright protection of an authored work extends through the life of the author and to fifty years after the author’s death .
Even in the original provisions of the United States Copyright Act of 1976, copyright protection of an authored work extended through the life of the author and to fifty years after the author’s death. However, congress extended these copyright terms in 1998. Under the 1998 US copyright Act, duration of copyright law was extended for all copyrighted material. Protection extends through the life of the author plus 70 years.
European countries also in 1995 extended their copyright protection to life of the creator plus 70 years.
Copyright infringement involves any violation of the exclusive rights of the copyright owner. It may be intentional or unintentional. Infringement of copyright is usually established through circumstantial evidence since evidence of direct copying of an authored work is difficult to obtain. Such evidence must show a substantial similarity between the original and the copy as well to prove that the copier had access to the original.
If infringement is established, the court can grant preliminary and permanent injunctions, or court orders that restrain the offending party from continuing to infringe the copyright. A court may also award monetary damages as a remedy for copyright infringement.
This is an affirmative defence that can be raised by an individual who is sued for copyright infringement. It is a judicial doctrine that refers to the use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder. It is an important and well established limitation on the exclusive right of copyright owners. Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defence to prove that the his or her use of the copyrighted work of another should be legally permitted, notwithstanding the copyright owner’s exclusive rights in his work.
The Copyright and Neighbouring Rights Act 2006 under section 15(2), establishes a four part test to determine fair use according to the following factors:
(a) the purpose and character of the use, including whether the use is of a commercial nature or is of for non-profit educational purposes;
(b) the nature of the protected work;
(c) the amount and substantiality of the portion used in relation to the protected work as a whole; and
(d) the effect of the use upon the potential market for value of the protected work .
Fair use thus includes making of video recordings of broadcast television or films by individuals for certain private, non commercial use. If this is done for commercial purposes, it is not fair use. Arguments like this were presented in the US in a 1999 court case involving a website called “Free Republic” that hosted a forum where users regularly posted the full text of news articles from major news websites and offered their own comments. The Los Angeles Times and the Washington Post sued the operators of the site for copyright infringement. The court ruled that even though the site didn’t charge user fees, it could be considered a commercial operation because it solicited donations and posted advertisements for other politically oriented sites. As such the court ruled that posting articles was a commercial use of copyrighted material which violated the rights of the news organizations.

Taking small quotations from an authored work and include them in another work is usually considered fair use. However, courts have found that such quotations are not fair use if the material is taken from unpublished sources. In Salinger V. Random House(1987), a federal appeals court blocked the publication of a book that used extensive quotations from unpublished letters of the author J.D. Salinger. The court ruled that the author retained copyright ownership of the expressive content of the letters, even when the letters themselves were deposited in university library collections.
The copyright and Neighbouring Rights Act 2006 thus needs further reform to widen its benefits to users of content. It should also be revised to protect authorship of traditional creations. Edgar Tabaro in his Research paper titled “copyright Reform in Uganda: Addressing international standards at the expense of domestic objectives” argues that while section 10 of the act provides for moral rights, the provisions are restrictive and eliminate indigenous works. He says that, It recognizes moral rights for authors, who are defined under section 2, thus; “author” means the physical person who created or creates work protected under section 5 and includes a person or authority commissioning work or employing a person making work in the course of employment. Tabaro says that by implication, the definition eliminates indigenous works which he says is a serious omission.
However, these civil liabilities limit the freedom of publication in Uganda. They also contradict many international declarations as shown below. The first one is the Abuja Declaration of April 3 and 4, 2000.
It states that all laws which inhibit the growth of a vibrant press, particularly those which provide very harsh penal sanctions for journalistic activity, including criminal defamation should be abolished forwith.
Public officials, servants and politicians should be susceptible to a higher degree of scrutiny of the media.
Statements of opinion or value judgments should not be subjected to the test of strict proof.
The prevalent culture of awarding damages in defamation suits should be discouraged. Damages awarded in such suits should be proportionate to the injury suffered.
Bearing in mind the importance of having the society well informed, media reports on matters of public interest should be protected from defamation suits.
The practice of responsible journalism should be upheld.
In the resolution on the adoption of the declaration of principles on freedom of expression in Africa, which reaffirms the fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms; in principle XII states
1. States should ensure that their laws relating to defamation conform to the following standards:
• No one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances;
• Public figures shall be required to tolerate greater degree of criticism; and
• Sanctions shall never be so severe as to inhibit the right to freedom of expression, including by others.
In conclusion, while the preamble to the Universal Declaration of Human Rights states that every individual and every organ of society shall strive to promote respect for the rights to freedom of expression and equality and secure their universal and effective recognition and observance, the civil liabilities attached to the media largely limit this freedom of publication in Uganda.
Published: 2009-11-07
Author: nyombi sam

About the author or the publisher
Name :nyombi mwebaza Samson
Tribe: muganda
Nationality: Ugandan
Religion: Protestant
Schools Attended
I had my primary school from Makonzi boarding primary school. Then I went to
Ndejje senior secondary school for my ordinary level from 2001 to 2005
There after I attended my advanced level from st mary’s boarding school kitende in 2006 to 2007
In 2008 I joined makerere university

www.nossam enterprise.org

Source: nossam writters assiociation (makerere university, uganda)



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