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Illegalities linked to Corporate & Commercial Speech

What is the difference between a commercial speech  and communicated information expressing opinion, recited grievances, protested claimed abuses or just pubic opinion?

In Kenya, unfortunately we have been over concentrating on defamation in line with political public speakers. Little do we know that there can be defamatory speech also in corporate and commercial speech. Making any false statement about a product owned by the manufacturer can lead to defamation lawsuit. For instance, alleging that a certain food product is causing brain tumor in the consumers, you make such speech or document it in a manner to cause damages and injuries to the owner of copyright, then you can be charged of illegality. If found to be malicious and false, then you can be charged of defamation.

By extension, even misusing the logo, trade mark or business name of a company with intent to damage the reputation of the business owner then you can be charged of defaming the company and lawyers in such cases must prove beyond reasonable doubt that your intent was to cause damages and injuries to the complainant. If the claimant wins, then the defendant could be compelled to compensate for damages and injuries caused to the claimant by a law court.

By saying in public, through a recorded speech that people should not go to university X because it lacks academic credentials, the university X has the rights to sue the speaker in any law court for defamation.

Strange enough, even misspelling the name correctly can lead one to court. The name owner can make claims for awards and if wins the case, compensation can be given in that regard. So, libel and slander are not only related to politicians as we have been discussing for the last one month. Even the body corporate is a legal personality with rights to sue and can be sued in the law court.

This story is meant to widen our horizons in the social media platform. Remember the intellectual property and how ideas are also protected. Even the ideas published by media houses are protected by Intellectual Property rights and if one is found to be illegally and without permission using such idea, the claimant can easily move to file a civil lawsuit against the presumed offender under the tort law.

Such includes the use of images and photos, including, designs or pieces of art work authored by others. Simply by using such images in your work can lead one to commit illegality and if the claimant raises the issue in any law court, then the case will be admissible by all effects.

Plagiarism is a common phenomenon today. It simply means that I am using someone’s ideas without appraising or recognizing the source of that information. I am obliged under the law to properly recognize the source and if possible to make clear and correct references to show that the work am quoting does not by right belong to me. Am only using it for academic and research purposes and with no malice attached to it. If I quote someone’s work with intent to damage his reputation and work and to cause him damages, losses and injury, then the author has the rights to take legal action on plagiarism.

Plagiarism is an extension of copyright but much more serious and regulated by copyright law. Using images, products from others in advertisements can as well lead to illegality under the IPR (Intellectual Property Rights).

Remember whoever seeks justice under equity must do it with clean hands. Prove to equity justice that you are not guilty in order to be given amnesty under the rule of equity. Well, even this is a bit problematic. How sure are you that you are legally correct?

Remember, in any judicial process, evidence of facts is vital. You must have evidence to prove your case whether in offense of in defense. It is a waste of time and money to move to any law court if you lack evidence or your evidence is weak. You better settle such disputes outside court to avoid some technicalities and unnecessary expenses.

Even the statements made by companies can amount to illegality. Statements made in effort to advertise certain products must not be construed to defame other companies or defame their products. Companies can sue other companies on defamation.

If you have cases to share with the participants of media law and ethics in mass communication, please go ahead and share. It is very important for us to know that defamation is not only a concern or a construct of politicians but even others.

About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

189 comments

  1. Plagiarism or misappropriation of another’s intellectual or creative work is a recurrent problem today. How do we demonstrate plagiarism?

  2. If talking ill of other institutions is libel, then many teachers and lecturers are culpable. How to sue them is a story for another day.

    • Anne you are very right. However, there is academic autonomy under the University Education Act. When a lecturer is making certain references with the intent to facilitate the learning, then this would not amount to illegality. Illegality simply means that you are doing something that has been prohibited by the law. I still need to inquire if there is any law restricting the freedom of teachers, lecturers unless they publish what they say. Remember that it must be broadcast, printed, or sent through any electronic media in bad faith and with intent to defame. Thanks for your remark and valuable contribution.

    • ESTHER N. MACKENZIE

      I cannot support you fully Anne, here’s why. These teachers and lectures might speak ill of the other institutions, yes to discredit them, but you cannot sue them, neither can your fellow classmates. This is because you are already a student of their institution.
      However, if you went to a school and you are still weighing whether to join the school or go to the other, then the teacher or the lecturer talks ill of the school you consider going to, this would possibly proceed to the court of law. But finding a side to stand on would be quite difficult.
      Would you sue the teacher for giving you misleading information or would you sue them for discrediting the school?

  3. Some individual take it lightly when talking ill about companies especially on social media. Some bloggers are not even aware what their actions can land them into. For instance, this year, blogger Cyprian Nyakundi was charged for statements that he posted on his blog that were considered defamatory towards National Bank of Kenya (NBK).

    Unfortunately, some of these bloggers are paid to drag in the mud the name of other companies in the name of bad competition.

    K50/87018/2016

    • Thanks Irungu. Assi Agency is using this platform to create more awareness and to educate the social media users on matters related to illegalities. Kenyan society is getting increasingly complex and certain offenses will not go unpunished. Am happy that many people are now following this website and get the right information from our users and bloggers. It is informative and formative site. Thanks for your valuable comment.

  4. Hi Mwaliumu, I remember at one time PLO Lumumba was being sued for Plagiarism and intellectual theft. Wachira Maina accused Lumumba of plagiarising an article he wrote, which was published in the East African newspaper.

    The article by Lumumba was published in the Law Society of Kenya Journal.
    Maina says PLO wrote a 10,000-word essay titled ‘From Jurisprudence to Poliprudence: with nearly 5,000 words lifted from an article he wrote.

  5. I agree with you defamation involves even others and I quote Mutahi Ngunyi on twitter. “I will sue PAUL ACHAR and NATION MEDIA for calling me DISHONEST.Calling me Intellectually ARROGANT is Ok. Calling me DISHONEST is DEFAMATION”

  6. In another case involving a corporate entity, Safaricom’s current and former CEOs have sued blogger Cyprian Nyakundi for defamation over articles in which he said the telecommunications giant is exploiting Kenyans.

    • Assume that you were the defense lawyer and you have the evidence and proof to defend Nyakundi. What would you use in defense to prove the innocence of your client? Share more on this. It is very interesting.

      • @AssiAgency

        I would first ask the claimant to show evidence on when and where the publication was done. I will also also the claimant lawyers to explain why they served the notice through newspapers instead of handing it over to Nyakundi himself. I would base my arguments on recent cases of Communication Authority accusing Safaricom of noncompetitive practices and instances of customers complaining about being over charged. In addition I will defend my client stating that he only repeated a statement which has been made by other Kenyans hence he is not the first person to publish.
        K50/88725/2016

        • ESTHER N. MACKENZIE

          Cyprian Nyakundi is one intelligent blogger and Social Media strategist. He has more followers on Twitter than the Deputy President of Kenya and just seven hundred thousand shy of the President’s followers. His followers as of today is a million and three thousand.

          This makes it difficult for these corporate companies who find themselves at the wrong side of Nyakundi’s wrath.

          Defending Cyprian Nyakundi puts one in a catch 22 situation; one because he fights big wars with big companies with the financial muscle to pursue justice via the court system. On the other hand, Cyprian Nyakundi ha facts that makes the cases somewhat complicated.

          Unknown to many, before Cyprian Nyakundi was expelled from University, he took Actuarial Science, and he was good at it. That explains why he confidently speaks against what he calls ‘daylight robbery’. The argument that he might be funded by competitors and/ or rival companies sells because how else would you explain where lawyers that defend him in court come from? Who pays them? It is only once that his followers on Twitter raise money to assist him in covering the costs of a lawyer when he attacked Safaricom the first time.

          Again, his sources are somewhat dependable. Recently, he posted an article, with evidence, of how Safaricom is ‘stealing’ its customers’ credit by automatically subscribing the network users to some Huawei Technologies-supported games. These game charged an average of ten shillings per day but for some it was more. If by any chance you noticed your credit has been ‘stolen’, Safaricom replies by giving you a ‘bonus’ for misusing your credit. Cyprian Nyakundi did investigation, with the help of anonymous persons, infiltrating Safaricom employees and got answers. Hot shared a formulae; *100*5*4# then unsubscribe. This way you would see all subscriptions you have done. Most of his followers tried this and on finding these out they sent him tonnes of evidence that Safaricom cannot proceed to prosecute.

          However, there are some who say Nyakundi is a shrewd ‘blackmailer’ who uses his Social Media following to arm twist the big companies to pay him or he spills any beans he has concerning the company.

          To some he is a savior, to others he is Robin Hood but to others, those that have been mentioned in his Twitter account consider him as ‘the devil of the corporate world’.

  7. Controversial blogger Cyprian Nyakundi has been taken to courts so many time. Weeks after he was sued by Safaricom for defamation, the blogger has been served with a law suit by Bidco Oil Refineries.

    • Has any court concluded Nyakundi’s case? Can you share more about the pronouncement of the court on the matter if any? May be some of the filed cases are still on-going since court process sometimes takes too long to end. There is what would be referred to as repeated offense on one individual… in practice, that becomes a habit and can justify the claimant’s position making the defense even stronger. Try to follow what the court has ruled on this matter and share. Many viewers are really interested in such stories.

      • Nyakundi is a serial offender in regards to rubbing companies or individual the wrong way. Some quarters believe the blogger is paid to run a negative campaign against other companies or individual. Most of his cases are still pending in court such as that between him and Safariom where he was sued for publishing libelous articles on his blog. However, he was prohibited by the court from publishing further information against Safaricom.
        The other major case is the one where he was sued by the National Bank of Kenya for publishing libelous articles on regards to its operations. He was also prohibited by the Court from publishing information on NBK.

        K50/87018/2016

  8. Sophie Adhiambo Otieno

    In 2014, safaricom filed a complaint against orange kenya over an advert that the later had been running in the media to try and highlight that Orange had better calling rates across networks than Safaricom had within its own network. The advert showed green sim cards against orange sim cards showing the prices in between. Safaricom sued Orange for using their corporate colours to imply to the public that the “other network” was of course, Safaricom. Orange was then ordered to either withdraw the advert or edit it.

    • Sophie, share more about this particular case. What has the court determined on this matter? Try to follow it more because it may appear as an offense under competition law and not defamation. Share more it is very interesting. Cite the case number if you have it and tell us the court and the presiding judge. Continue with the discussion.

      • Sophie Adhiambo Otieno

        I do agree with you ,this is might be an offence under the competition law radher than defamation. Safaricom claimed that Airtel was attempting to ride on the back of M-Pesa, its ubiquitous money service, in an attempt to attract interest to its much smaller competitor.
        As per June 2015 the two networks had not reached any agreement yet. Safaricom wrote to Airtel, asking it to stop using its brand on advertising and other promotion material. Airtel responded by denying any knowledge of the adverts but said it would investigate and report back in four days but failed to do so. Instead Airtel wrote to Safaricom, seeking a meeting to discuss the best way forward. Safaricom argued that this action proved that Airtel intended to misrepresent to consumers of competing mobile money services that the two rivals were co-operating, when they were not.

      • I’m told in law it’s called frivolous litigation where one starts or carries out a law suit that, due to lack of legal merit, have little to no chance of being won. Could this be the case of the many cases lost that touches on Multi-billion companies? Or is the system corrupted hence people buying the system?? Where does this leave our qualified lawyers?? How far does one “comment” on an issue without being regarded as having defamed??

  9. Corporations can sue for defamation when false statements are made about their businesses or companies. However a business cannot sue if honest, unflattering remarks are made about them despite statements damaging their reputation. A business cannot sue one for expressing their opinion or fact about their experiences. For instance, Company X is poor in customer service based on my experience’. This would not be a basis for filing a defamation suit.
    However, it is interesting to note a defamation suit can be filed against you even if you are not the original ‘publisher’ of false statements. Social media users , i think , are a victim of passing on defamatory statements. This gives us something to think about before choosing what to share or forward to others online.

    • Writing that something is bad and good is under ethical concern. By claiming that a company is bad in public relations and how it handles customers…if it cause the company some damages and losses, of course, the company has a right to take an offense against the publisher. It could amount to defamation. Thanks so much Lydia. Carry on with your investigations. They are helpful and many people are reading these stories.

  10. An interesting suit to consider is the Defamation suit by the former Devolution Cabinet Secretary, Waiguru against Google, its subsidiary Blogger Inc, and Daily post for a story published by a Kenyan blogger. The suit is to determine whether online carriers in this case Google can be held accountable for actions of their clients, the kenyan blogger in this case.
    In the US, for instance there’s a unique law governing accountability in cases relating to acts of online defamation. It absolves internet service providers(hosting companies, websites, developers etc) of defamation liability over user comments and content. It is the reason why companies like Facebook cannot be sued for defamation each time a user commits libel.
    K50/88726/2016

    • Lydia, this is a very good case to pursue. Well, Google Inc only provides the channel for its clients. The clients post their stories without Google’s restrictions whatsoever. How Google could be sued for an offense it has not committed is still problematic for lawyers. It may have what we call vicarious liability in the matter and may appear as secondary respondent in the charge list but perhaps not the first respondent. Find our the court proceedings and the conclusion on the matter. What did the court rule? Share with us.

  11. The New Kenya Co-operative Creameries (New KCC) sued Eldoville Dairies over the use of the name “Mala” on a rival brand of sour milk.
    New KCC holds in court filings that it has owned the “Mala” trademark since 1963, and that Eldoville has violated its ownership rights by using the disputed name to market a brand of sour milk.

    • However, KCC is obligated to provide valid evidence that it has protected its trade name of “Mala”. If it was not legally protected, then Eldoville may still succeed with the defense. Remember that such legal protections of copyright, trade mark, trade name, or even patented name, have duration that ought to be renewed. If such protection expires and the owner is not aware, then the violator can still win in the defense. Very smart argument Rajan.

  12. Germany’s defence minister Guttenberg resigned due to a scandal of plagiarism. He resigned days after he was stripped of his university doctorate following allegations that he had copied large parts of his work from others.

    • It is exactly like that Mr. Rajan. Cases of plagiarism could be that bad and the universities are now paying heavy prices due to students graduating with plagiarized thesis. Now there is a rule that every academic research for the university degree must be run through Anti-Plagiarism Check engine to ensure that you qualify for 15% and not beyond. Quality Assurance personnel is employed to do this work for students so to avoid the illegality.
      This is a great sharing Mr. Rajan.

      • You are right cases of plagiarism in our institutions of higher learning are many. Currently UON Master students are doing their defence lets wait and see what happens. Already I have heard a case of ine student who has plagiarised 80% of their project at UON.

    • Plagiarism is one of the serious civil offenses under IPR. It is true that body corporate pays so much when it loses the case of plagiarism. Universities are now put on notice not to approve any academic work that does not meet the threshold of plagiarism checks…quality assurance must be able to run the work and give an OK. University that proceeds to graduate one with a plagiarized work may run into serious lawsuit in court if one makes the claims.

  13. In 2010, Bungoma High Court heard a case of plagiarism suit from Anne Nang’unda Kukali (Applicant) against Mary A. Ogola (1st Respondent) and the University of Nairobi. This case was a first of its kind.
    In her application Ms. Kukali sought for a temporary injunction to restrain the University of Nairobi from including Ms. Ogola’s name in the list of for the graduation ceremony that was to be held on Sept 2010 or any other forthcoming graduation. Further she sought to restrain the UON from awarding Ms. Ogola with a degree certificate for the degree of masters in Arts in Project Planning and Management pending the hearing and determination of the suit. In 2009 Ms. Ogola submitted a research proposal to UON for the degree of MA in Project Planning and Management the same material that the Ms. Kukali had presented to Maseno University for the degree of Masters of Education in 2008. Ms. Kukali argued that at the time of the presentation, the Ms. Ogola was aware that the copyright to the work was held by Ms. Kukali.

    • This is a great landmark case. What did the court conclude? Find out from your research the decision made by Hon. Judge on this case.

      • HON JUSTICE F.N. MUCHEMI RULING, “I am satisfied that the Applicant has shown that in the event of her original work being used by the 1st Respondent in her degree course approval, the Applicant is likely to suffer substantial loss due to violation of her intellectual rights. A prima facie case has been made by the Applicant which justifies the granting of the orders sought. The application is meritorious and I allow it as prayed with costs to the Applicant. “

      • Sophie Adhiambo Otieno

        In the court’s ruling Lady Justice Florence Muchemi stated that the perusal of the annexed documents presented to the court showed that the Applicant’s topic was “An Evaluation of the Implementation of Safety Policy in Girls Boarding Secondary Schools in Bungoma East District.”while thesecond annexure which was the subject of the suit showed that the 1st Respondent’s topic for research was “Factors Influencing the Implementation of Health and Safety Policy in Public Boarding Secondary Schools in Kenya: A case for Bungoma South District.”

        In both cases the parties executed declarations to the effect that the research work was their original work and their respective research supervisor signaled their endorsement. After comparing the document against each other, Justice Muchemi noted that under the segment titled ‘Literature Review’ the 1st Respondent has reproduced almost word by word the Applicant’s original work save a few words, phrases and references.

        The same was true under when the sub-heading “Abstract” of the Applicant’s and the 1st Respondent’s works were compared. The court concluded that same material content has been reproduced in the 1st Respondent’s work under that same sub-heading with only a few changes in some words and rephrasing of sentences. The introductory paragraphs and the objectives of the study were similar. The court further observed that the research was based on boarding schools with the Applicant giving their number as fourteen and the 1st Respondents as ten. The method of data collection was the same being through questionnaires, interviews, observations and document analysis.

        The research methodology for both the Applicant’s work and that of the 1st Respondent was contained in Chapter III of the research proposal. The sub-headings and contents under the sub-headings were the same in both documents.

        The comparative analysis the Applicant’s work and that of the 1st Respondent and the express admissions by the 1st Respondent, left the court with no doubt that the Applicant’s intellectual rights had been violated by the 1st Respondent.

        With respect to the 1st Respondent‘s contention that she had submitted fresh work to the University which had been annexed to the replying affidavit, the court stated that the draft had not been endorsed by the supervisors to show that it has been submitted for approval. Further 1st Respondent had failed to furnish the court with any evidence to prove withdrawal of the copyrighted draft she had submitted earlier.

        The court therefore assumed that the copyright work was still in the hands of the University of Nairobi and that it may be used by the 1st Respondent as partial fulfillment of the Masters Degree course at any future graduation. The court being satisfied that the Applicant had shown that she was likely to suffer substantial loss due to violation of her intellectual rights in the event of her original work being used by the 1st Respondent in her degree course approval granted the orders sought accordingly.

      • Fidelys Resian Topoti

        According to the Kenya Law review files,The presiding judge argued that he was satisfied that the applicant showed that in the event her original work is used by the 1st respondent in her degree course approval,the applicant is likely to suffer substantial loss due to violation of her intellectual rights.The judge argued that the orders sought are justified.

  14. Industrial property and copyright issues in Kenya are many. Everyone wants to protect their company and their work. I think am thinking if suing the Nation media also. Once I visited their library, I saw my photos that were to be sold about 5000 ksh each. I had given those photos to them to use in their paper for free, but now they have taken my copyright right. Wah..

    • The technician Timothy is fixing the problem urgently. He is still setting the system. Such posts end up in our letter box.
      It should start operating normally very soon.

    • Usually defense lawyers use appropriation right of the media house to argue their case. If you gave the photos for free and now you realize they are on sale, then the seller has appropriated them and is now the owner of the copyright. The best way would be, you needed to sign with them a copyright document to protect your intellectual property right.

    • Florence Anam K50/86828/16

      What were the agreements when you gave them the photos? did you sign a release for their use? was is a conditional or an open one? Once photographers can be able to prove through their unique camera stamps that the photo’s plagiarized are their own i see a number of companies paying up or engaging in out of court settlement.
      To be on the safe side however, always watermark your pictures. I guess that helps.

  15. 3 of my comments have dissapeared mwalimu. 2503 of 1995. Macmillan Kenya Publishers Ltd (plaintiff) v Mount Kenya Sundries Limited (defendant). Facts
    The Plaintiff claims copyright infringement of its maps “Kenya Tourists Map” .

    • Actually they don’t disappear, they go to our mail box which is technically incorrect. Timothy is fixing the problem and hopefully, very soon the system will be alright.

  16. Share more about the decision of the court on this matter. Copyright protection meant for artists such as musicians is very serious. Many musicians cry foul as they make no income out of their art. The piracy of pieces of music is a serious civil offense under the Intellectual Property Rights and the violators can incur heavy compensation meant for the Plaintiff in such cases. Share with us the court ruling.

  17. MULEI LILIAN KAMBUA

    The High Court Roselyne Aburili ordered Nation Media Group (NMG) to pay a judge Sh 20 million damages for defamation in June. NMG was punished on June 29 this year for questioning why Lands and Environmental Court judge Samuel Mukunya’s name was left out of a list of those who had applied for the position of judges in the High Court and the Supreme Court, based on an email which was claimed to be from Mount Kenya Law Society.
    The regional bar association however disowned the email. Nation had asked the court to settle the case at Sh 2.8 million, saying that the Sh 32 million prayer by the judge was excessive. The judge instead settled the dispute at a cost of Sh 20 million, noting that the kind of article written by senior reporter Alphonce Shiundu depicted a misleading, biased, partisan and destructive press. “What I have reproduced in this judgment as published and disseminated by the defendants concerning the plaintiff is in my view not suggestive of a fair and or responsible or objective press. It is suggestive of a misleading, biased, partisan and destructive press. It is a press that does not respect and or protect the dignity of persons,” the judge ruled. She noted that her colleague had built a reputation in the society over the years but the article meant that he was a person who could only get into a State office through favoritism.
    The Nation carried out two articles on Mukunya. Aburili said that the second piece was justifying the earlier one instead of an apology. Nation, however, told the court that the article was based on truth, justification and public interest.

  18. In 2009, OXFORD UNIVERSITY PRESS (E.A) LIMITED sued LONGHORN PUBLISHERS (K) LIMITED and 4 others.

    The plaintiff claimed that it was the co-authors and publishers of “Kamusi Ya Kiswahili Sanifu and Kamusi ya Shule za Msingi” In the suit the applicant claimed that they are the owners of the copyright in respect of those books.
    On the other hand the defendant had published ‘Kamusi Kamili ya Kiswahili’ which contained words, definitions, notes, summaries and illustrations which are an imitation and were directly copied from the plaintiff’s books.

    In its ruling the Court restrained the defendants from further publishing and selling their works which imitated the plaintiff’s works. The Court further ordered the defendants to make appropriate undertaking to compensate the defendant for damages

  19. @Mwalimu, how do one correct a post after posting?

  20. A constitution Human Rights lawyer Mr. Wachira Maina sued the former Ethics and Anti corruption commission Prof. P L O Lumumba for ‘Plagiarism’, intellectual theft. The alleged plagiarized was titled ‘From Jurisprudence to Poliprudence: The Kenyan Presidential Election Petition 2013. The article was published in the LSK journal. The lawyer accused PLO of lifting 5000 words from his piece which was published by East African Newspaper on April 20 2013.

    He claimed PLO behaved unethically.

    “PLO has plagiarized the intellectual property belonging to Mr. Maina and has breached the constitution as expected of the state public officer,this court needs to restrain him from performing his duties temporarily,”Mr. Imanyara said. (As quoted in the newspaper).

    The case which will be mentioned on December 13 before Judge Joseph Odunga with a view of recording a settlement

  21. This reminds me of a corporate battle between Safaricom and Orange Telkom in an ad that seemed to convince viewers that Safaricom were stealing from customers until it was stopped by the courts. However, the court only stopped the ad from running but imposed no damages. Seemingly, even a competitor can use malicious corporate communications to another company and escape the hands of the Law. Hmm, what if the allegations of the corporate messages looks as if true to a large extend?? like the case of Safaricom anyway.

    • Elizabeth Njuguna k50/87543/2016

      I agree with you James that at times some illegalities have no legitimate grounds, However, when such scenarios are reported, they always have some truths.We should not undermine the fact that being in the corporate world competition is very high.Companies make sure that what belongs to them is protected and their ideas should not be imitated or absorbed by any other company.

  22. (SEE LINK FOR THE THE IMAGES)

    In the first caption, we see a woman allegedly drugged, she received some posters along Uhuru highway traffic jam, she apparently shouted for help, and the pictures are from the people responding to her call for help. The second caption is the said poster. Mark you all were trending on social media on what up on 26th October at about 12.41pm the n exactly 1.40pm the claim is countered as the third caption depicts. During that one hour this campaign strategy had been totally disqualified people commenting were already wary of this company and more so any other posters and hawkers, the woman victim bearing in mind this happened when the other story about a woman drugged by matatu tout was still hot the public consumed it with conviction. By the time, the third caption was going out to do damage control it was already too late. This is from social media, let us discuss.

  23. (SEE LINK FOR THE THE IMAGES) https://marthamuthere.wordpress.com/2016/10/31/illegalities-linked-to-corporate-and-commercial-speech/

    In the first caption, we see a woman allegedly drugged, she received some posters along Uhuru highway traffic jam, she apparently shouted for help, and the pictures are from the people responding to her call for help. The second caption is the said poster. Mark you all were trending on social media on what up on 26th October at about 12.41pm the n exactly 1.40pm the claim is countered as the third caption depicts. During that one hour this campaign strategy had been totally disqualified people commenting were already wary of this company and more so any other posters and hawkers, the woman victim bearing in mind this happened when the other story about a woman drugged by matatu tout was still hot the public consumed it with conviction. By the time, the third caption was going out to do damage control it was already too late. This is from social media, let us discuss.

  24. Sophie Adhiambo Otieno

    On November 2014 Belgian-owned Vermont Flowers sued a company formed by its former Kenyan employees Waridi Creation for infringing in the printing of there flower vases the same way the later does.The company claimed that the floral vases are made from plant stems, and Vermont claims to have partnered with artists from Belgium, France, Denmark and the UK to manufacture them. Waridi has claimed in its response that Vermont’s chairman Peter Lambert had in a criminal suit said his firm does not own any patent in Kenya so they had no right to sue them.
    as per my knowledge Flowers do not have copyrights….you can only infringe on the patents.. copyright infringement relates to musical, audiovisual, sound recordings, pictures and such forms of intellectual property….otherwise, this case will contribute to IP enforcement and protection in Kenya and the plaintiff had no right to sue the defendant since they had no patent in Kenya.

  25. Sophie Adhiambo Otieno

    Perhaps the most notable case of plagiarism was by Kenyan media Personality Caroline Mutoko who in her weekly column in the Star newspaper of September 3rd 2012 , lifted every word from a post titled ‘Letter to My 20-Something Self’ that had appeared on a blog run by the Crunk Feminist Collective. She didn’t even bother to change the title. In an even more ironic twist, she ended her post with the warning-The internet never forgets.This is so shameful and illegal and ought not to be done.

  26. Sophie Adhiambo Otieno

    Names, photos and gory details of the Kenyan socialites were unknown before Ghafla – a lifestyle site that started off as a blog 3 years ago. Anyone who knew the existence of the blog Media Madness knows that the idea for Ghafla is not a new one. It was however able to get good traffic to attract investor funding .

    There have been numerous accusations online from other content creators, mainly blog owner, of plagiarism by some the Ghafla creators. The site, which is known to wallow in the glory of exposing the mainstream media on plagiarism (Caroline Mutoko, K24) has now become the subject of concern by other bloggers.

    In their post on ‘how to copyright your work’. They went ahead and copied the full article from the Kenya Copyright Board website without any attribution to the original source as though the ‘writer’ thought everything on that article. When, it was pointed to them, they never even bothered to edit the page.

  27. CIVIL CASE NO. 823 OF 2010, PASTIFICIO LUCIO GAROFALO S.P.A versus DEBENHAM & FEAR LTD. The Plaintiff’s claim against the Defendant is that of passing off and trademark infringement of its trademark and products.
    The plaintiff stated that “The Defendant is selling and has been selling from or about the year 2008 pasta products in Kenya bearing the mark “Santa Maria” which mark and/or colour of package and/or configuration and/or general appearance is identical to the Plaintiff’s pasta products bearing the name “Santa Lucia” trademark as to be likely to deceive or cause confusion to the purchasing public by mark is passing of “Santa Maria” pasta as “Santa Lucia” pasta;

    The Court, cognizant of the fact that the Defendant caused, whether or not intentionally or by deceit, the infringement and passing-off of the Plaintiff’s trade mark and/or get-up, is to be prevented from continuing with the same.

    • Staff poaching should be covered under the employment Act and it is contractual. Some companies shall include a clause in their contract that an employee should not work for another company at the same time when the contract is still charged. Then another clause, an employee should not leave the company before the contract expires. After the contract, the employee should not use any intellectually property of the company for a period of time or for ever and should not engage in a competitive business.
      So, be careful about the contract content because any violation of the contract is prosecuted in court. It is breach or infringement of the terms and conditions in the contract. So many professionals are charged in the industrial courts for violating the terms and references stipulated in the contract. Contract is a real binding agreement and the topmost civil offenses.

  28. Very enlightening piece here. One question though. Where is the place of staff “poaching” in the media industry? In Kenya, several senior news anchors have been known to hope from one station to another ostensibly having been offered greener pastures. Apart from the normal contractual agreements between the employer and employees, is there any corporate law governing this? Are news anchors free to move across the board as they please?

    ONGALA MAURICE

    • Maurince, i think that is the practice not only in media houses but also in other private and public entities. The employee has a right to seek greener pasture as long as one does not breach the contract agreement with the employer. Therefore, i believe news anchors have a right to move to wherever they please especially where there is no contract bidding one to stay.

      • Florence Anam K50/86828/16

        I agree with you Simon, where there is no binding contract one is allowed to move. Legally any of the two parties to a contract can terminate it within certain periods and tenets of agreements set within the contract. In some instances one can also buy out of an existing contract like when Moha (Jicho Pevu) moved back to KTN from NTV.

  29. Each person has a right to how his or her identity or image is used by someone for instance in advertisements and branding.The company or person who wish to advertise or brand his or her product using one’s image must seek permission.Without doing so,you can be filed a civil lawsuit under law of tort.For example a case where Ms Jessicar Clarise Wanjiru was claiming that her image was used by Davinci ,Aesthetic and Reconstruction Center for advertisement without her consent.She asked for compensation from the plastic surgery cancer for allegedly using her photo on the billboard and its website.She said the adverts that were giving a different picture of what she is since she has never for plastic surgery nor for cosmetics from that place.She sued the surgery center and Nairobi County Government for licensing the advert

  30. This is quite informative, with social media replacing the main stream functionality it is time that the relevant authorities came up with well defined social media policies that clearly defines the blacks and white . I feel that what was previously office canteen and elevator gossip can land an employee into a legal battle. what is private conversation? is it going too far by an employer filing a law suit against such? or is this a grey area on defamation laws?
    K50/86100/2016

  31. K50/87619/2016
    In a system where a Blogger declines to obey a court injunction against his defamatory statements like in the case of Nyakundi against Safaricom where a permanent injunction was issued against him, he refuses to apologize,then we are headed on a very dangerous path.Defaming somebody(as an individual,or a corporate) should just be treated as a very serious crime.But wait who controls bloggers?? We seem to have concentrated so much and only on political hate speech!
    Who remembers the case between Keroche Breweries and Kenya Bureau of Standards with Naivasha MP John Kihagi,when they issued some statements after “raiding” the multi-Billion factory?? How far did it go?

  32. NAHASHON KIOKO MUTUNGA

    The more we have bloggers and social media users face the law after defaming others, the more awareness would be created and have social media users being careful while using this forums. Initially social media users had the notion that whatever they posted was in secrecy. Any post can be traced from the first person who generates. K50/88698/2016

  33. K50/88164/2016
    Cases of defamation attract hefty penalties.Recently,high court judge Roselyne Aburili ordered Nation Media Group to pay 20 million to judge Samuel Mukunya who is a Lands and Environmental court judge for publishing libelous articles on the judge.Nation media group in defense told the court article was based on truth,justification and public interest

  34. Plagiarism and copyright issues have been a challenge to many artists. A good example is with the musicians who have tried even to register their music with the Music Copyright Society of Kenya (MCSK) to ensure that their music is protected. However,the copyright has not been of great help. Songs are being used in local programs and the artists are never compensated. When they follow up with the MCSK, it does so little for them.Plagiarism and copyright cases have been in court but they are never resolved.

    • @Jane.This is all over in the streets whereby you find hawkers selling musician’s music without permission.This is a challenge to music industry.Someone just harvesting without sweating.

  35. in 2013 Keroche moved to court alleging that another brewer known as Tona Millers infringed on its trade mark by launching and packaging its product in a similar bottle and name.
    The brewer claimed Tona Millers was manufacturing ready- to- drink Viara Ice, which is almost similar to its alcoholic drink Viena Ice.
    Keroche feared that it could face compensation claims from its customers who confused and used the Viara Ice and in the process suffer.
    Keroche claimed that it would also spoil their reputation.

  36. Elizabeth Njuguna k50/87543/2016

    In the marketing world, companies have had problems with copyrighting.The issue of the use of a company`s corporate color.A few years back there was a case of two supermarkets that were claiming to have shared their corporate color which basically created brand misidentification.
    I believe for one to have a stable brand identity some serious considerations have to be put in place not exempting the corporate color of any given company.

  37. Dear mwaliumu, I think plagiarism is very serious offense so far many people are misusing without permission idea, name, and logo, by the way in the world that issue is dangerous and defamation original idea however, for example in Kenya some of company such as media house were accused theft idea so my question about how to possible to stop or elimination for fraud.

  38. Fidelys Resian Topoti

    The Elani band recently raised an issue with the Music Copyright Society of Kenya (MCSK) for fleecing them of their royalties.Many artists came forward to tell similar stories.Awareness among many musicians cited as the reason why most of them are not benefiting from their music being used as skiza tunes,ringtones and airplay on radio and television.

  39. Hey
    I finaly understand why sometime back in 2013 Uniliver was involved in a law suit with Airel over ,the One wash campaign advert that was airing during prime time almost on all channels. Uniliver had moved to court alleging that the advert was factual and unlawful

  40. Irene Kerubo Nyakoiro K50/87708/2016

    Anyone who reproduces copyrighted material
    improperly can be prosecuted in a court of
    law. It does not matter if the form or
    content of the original has been altered — as
    long as any material can be shown to be
    substantially similar to the original, it may be
    considered a violation of the Copyright Act.

    • Rhoda thanks for the question stated above. This problem is contractual and it is covered under the law of contract. It is not plagiarism nor copyright violation but breach of contract. Any written contract is bound by the law of contract and is civil offense. In this case you can sue under civil offense was complainant on the breach of contract. Ensure that there was written contract and it is signed by the parties privy of the contract.

  41. Hi Sir, am not sure if this is defamation. What of a case where a producer of a show comes to an agreement in a written contract with a Television station that they will have revenue share before the show airs, during the show and after the show has aired. unfortunately it come to books that the person in charge at the TV Station does not abide to the stipulated contact that was signed by the two parties. The producer of the show then decided to sue the station stating that she was not paid as agreed all her dues as required.

  42. Early this month PLO Lumumba was sued of plagiarism by Mr. Macharia Maina a Lawyer by profession for allegedly stealing his intellectual property in the Law Society of Kenya Journal as his own work by plagiarizing his article from a local weekly newspaper to a journal. His Lawyer Mr GItobu Imanyara insisted that the matter be, certified urgently, heard on a priority basis and that PLO, KSL, the Laws Society Kenya as well as the Law Africa Publishing company be barred from disseminating contents of the said journal.

    The article with the alleged plagiarized was titled From Jurisprudence to Poliprudence: The Kenyan Presidential Election Petition 2013.The article was published in the Law Society of Kenya’s ( LSK’s) journal. But the lawyer accuses PLO of lifting nearly 5,000 words verbatim from his piece Prof. PLO wrote a piece titled: From Jurisprudence to Poliprudence: The Kenyan Presidential Election Petition 2013 which was published by the East African newspaper on April 20, 2013 .Mr Wachira Maina now demanded for compensation for the offense which he described as unethical behavior.

  43. Esther muthoni k50/88712/2016

    The issue of showing one product as superior to another, is a culture that has been ongoing in the Kenyan market. An example of such a case is one between the leading telecommunications providers; safari come and airtel; Where they try to outdo each other. On the business platform it can be interpreted as competition. It is therefore in the preserve of the government through the relevant department to ensure that the laws and ethics are adhered to, so as to eliminate instances where such advertisements /competitions can amount to injurious statements.

    • Esther thanks for the insights, but I am just curious to know how and why the government should step into a conflict of business interest say between Safaricom and Airtel if any of the two has not raised defamation claims against the other.

  44. Esther muthoni k50/88712/2016

    On the other hand, the business/corporate entities, may have subscribed to Darwins theory of natural selection where he argues that the most fit species will survive while the unfit will die. Therefore, the entities try to make themselves relevant to survive in the market at the expense of being sued for libel/slander.

  45. First let me comment the case of vimal shah and his company bidco vs cyprian nyakundi, the court declines vimal request to compel google and twitter to pull down blogger nyakundi’s posts. So the case goes for trial withinin 12months.

  46. What I can remember about Safaricom vs the blogger Nyakundi is that, The court gave an injunction against him mentioning Bob Collymore and Michael Joseph.
    The blogger had on several occasions breached the injunction by naming the two on his Twitter account especially touching on alleged corruption at the telco.
    Nyakundi was summoned to appear in person before Justice Lucy Njuguna in civil suit no; CC.159/16.
    His lawyer Anne Nderu pleaded with the court for leniency affirming that he will abide by the court’s injunction until the case is heard and determined.

    • The cardinal principle in defamation Law is “He who alleges must prove their allegations”. I therefore concur with Rajan that in Nyakundi case against Safaricom, Nyakundi has the obligation to prove that for sure Safaricom is stealing from the citizens based on the true evidence tabled in court. If the the judge is convinced based on the evidence, then this is not defamation.

  47. Safaricom termed Nyakundi’s articles as unsubstantial, unsupported and portrayed Safaricom as fraudulent. To defend him I will need the evidence to show that Safcom is stealing from its subscribers. I will ask for witnesses who will be ready to testify how there money has been lost in the transactions. Also, those Safcom employees who were fired because of illnesee will also my witnesses in my case. Most of them wil be more than willing to volunteer and give evidence as they were fired. We know the courts rely on evidences and here we are good to go. Will also certify the case as public interest.

  48. In Law talking the truth is not defamation, With the evidence before me, I would produce it before a court if Law. And you know mwalimu, if I am able to prove with facts that whatever Nyakundi posted on twitter was true, in that safcom steals and fired the sick employee then that is not defamation. I may ask the sick employee to even bring certified letters from hospitals to show that they were really sick.

    • Thank you Rajan for the insightful comments. But one thing for sure is that sometimes the law tend to favour the who haves of the society. In this case Safaricom will be well equipped to hire the most efficient lawyers who might argue their cases well against Mr Nyakundi to make the defamation case stand. What if the said evidence is not available from the perceived sick employee?

  49. In my case, I sent the photos to all media house for them to use in their papers because it was newsworthy. However, some of them decided to use the photos and went ahead to say photo by Nation, others put their photoman name. That is how low Media houses have sunk. They deliberate dont say photo courtesy or by the owner What if all the media house start selling the same photo which is not theirs? Wananchi will be confused.

  50. In June this year we had the media reporting on Melania Trump plagiarizing Michelle Obama’s speech. This was blamed on the staff tasked with the responsibility of preparing such speeches. But my question is, did Michelle take legal action? and if she did not, can another party sue on her behalf?

    • Parts of excerpts of Melania Trump speech were lifted from Michele Obama Speech of 2008. According to New Jersey governor and Donald Trump ally Chris Christie, only 7% of the speech was plagiarised which is universally accepted. Michelle did not take legal action. Even if she did, it could open a long protracted court battle, which in my thoughts is not necessary.

    • Catherine, it would have been a very ugly case if Michelle Obama took Melania Trump to court especially during this very sensitive time. However that is not to say that FLOTUS did not get justice, because she did. It was clear for the whole world to see that Mrs Trump had Plagiarized her speech, Media houses all over the world reported about it. But i was particularly pleased with the response on social media, for lack over a better word the issue went viral, with funny memes being created about the issue most of which were showing clear disapproval for trump. If nothing else that particular ordeal opened the question of Trumps ability to be a leader and it has been downhill since then. I am proud to say that in the world we live in where thanks to social media where things have became extremely transparent you can get justice on an issue without necessarily going to a court of law because now the public is the judge and in my opinion there is no better justice than that.

    • It would have been a very ugly case if Michelle Obama took Melania Trump to court especially during this very sensitive time. However that is not to say that FLOTUS did not get justice, because she did. It was clear for the whole world to see that Mrs Trump had Plagiarized her speech, Media houses all over the world reported about it. But i was particularly pleased with the response on social media, for lack over a better word the issue went viral, with funny memes being created about the issue most of which were showing clear disapproval for trump. If nothing else that particular ordeal opened the question of Trumps ability to be a leader and it has been downhill since then. I am proud to say that in the world we live in where thanks to social media where things have became extremely transparent you can get justice on an issue without necessarily going to a court of law because now the public is the judge and in my opinion there is no better justice than that.

  51. 2014 samsung international company was accused after the South Korean company guilty of copying key features of the iPhone in creating its own line of smartphones, so far this samsung compay used idea and copying product from apple at time of end ,Federal jury founds Samsung guilty, after dispute Samsung was ordered to pay Apple $119.46 million after a Silicon Valley jury found the South Korean company guilty of copying key features of the iPhone in creating its own line of smartphones, this example series incident so I support plagiarism is bad idea and big guilty , however i suggest if have law strong about illegal , may be possible decrease for the used unlawful idea .

  52. This happened in May this year..NTV Kenya’s YouTube channel has been terminated following multiple incidents of copyright infringement.

    The channel, owned by Nation Media Group, was terminated on Friday after several complaints about content posted on the channel.

    On access trial, the channel read: “NTV Kenya has been terminated because we received multiple third-party claims of copyright infringement regarding material the user posted.”

    A message by the management said auto-detection software found music posted on the channel.

    “The music is from bumpers, montages, and sound effects for some features,” the message added.

    NTV Kenya received several copyright strikes, and are working with Google, and the complainants to resolve the matter.

  53. K50/89019/2016
    Thanks CATHERINE , I support you idea, but last Melania Trump’s speech had total Plagiarism and taken past Michelle Obama’s speech so far the question is why Melania Trump used for another speech?
    I think Melania Trump the reason to used for that speech , she wanted like Michelle Obama because Plagiarism is worst idea .

  54. Simon Kigamba Mungai

    Companies have also been caught on the wrong side of the law. Last month, a law court in Eldoret ordered a security firm to pay its former employee Ksh. 2 million for defamation after publicising that he no longer worked for it. Eldoret chief magistrate Charles Obulutsa ruled that Security Group Kenya should pay Mr Samuel Itotia the amount for publishing a notice on June 24, 2013, in one of the dailies, warning its clients that he no longer worked for the firm. The magistrate found that the notice was meant to tarnish Mr Itotia’s character and reputation. Since Itota proved his case against the defendant, he was entitled to damages. Such notices are common in the dailies.

  55. Earlier this year, Safaricom was dragged into a dispute between pay-per-use solar energy provider M-Kopa and an import-export firm claiming exclusive rights to the trade name Mkopa. Mkopa investments sued Safaricom, M-Kopa solar and it’s parent firm Mobile Ventures Kenya Limited claiming the firms have infringed the trade name it has owned since December 1997. Mkopa investments wanted Safaricom and Mobile Ventures Kenya Limited barred from using the name M-Kopa Solar. Patrick Kimani Kamau who owns Mkopa investments wanted the two companies to pay him all the profits they have made under the name. Safaricom on its part claimed that Mr. Kamau did not raise any objection when mobile Ventures Kenya Limited registered the name M-Kopa Solar and that the businessman is simply trying to cash in from the solar business. The businessman claimed that the infringement of the trade name caused him losses.

  56. Many celebrities make headlines for their wealth and success. However, media is always looking for the bad side of such celebrities. Nothing gets the media’s attention more than a celebrity trying to cover their tracks.

    Gossip columns often lead to celebrities becoming the subject of false rumors that can damage their reputation. So, contacting a libel and slander lawyer about defamation gives celebrities the opportunity to sue those that have hurt their status.

    Therefore, when writing something about a celebrity, it is crucial to get the facts right to avoid being dragged into a defamation case. Although there are several gossip sites, professional media houses should focus on what they can prove.

    K50/87018/2016

  57. I would like to share another example involving Safaricom. In this case it was Safaricom versus a blogger. In June this year, Safaricom’s current CEO Bob Collymore and his predecessor Michael Joseph sued a blogger Cyprian Nyakundi for publishing articles they termed as defamatory. The articles insinuated that the telecommunications giant is exploiting Kenyans. Nyakundi was served by lawyers represeinting the claimants, Bob Collymore and his predecessor Michael Joseph. Collymore and Joseph asked to serve the controversial blogger through newspapers saying tracing him was difficult. They cited the part 1 – 16 series of “offensive” articles by Nyakundi which they said were unsubstantial, unsupported and portrayed Safaricom as fraudulent. Nyakundi accused Safaricom of firing staff for falling ill. It was further stated that he published articles concerning matters being addressed in court. Part 1, of the series was titled ‘How Safaricom steals from Kenyans with third parties’, part 2, ‘Your privacy and Safaricom are two different things‘ and part 3, ‘Time to put Safaricom back in its box before it seriously hurts Kenyans‘.
    Nyakundi was issued temporary injunction by Milimani laway courts stopping him from publishing articles about Safaricom.

  58. isabela kwamboka K50/86100/2016

    Does the case of Justice Nicholas Ombija versus kenya commercial bank fall under commercial defamation cases?
    Justice Ombija sued KCB for subjecting him to considerable amount of distress, agony, mental torture, humiliation, scandal, and contempt in the eyes of the public when his visa card was rejected despite having a enough money, forcing him to return his shopping one by one to the shelves.
    He was awarded a 2.5 million compensation.

    • @isabela. This an important case you have highlighted.
      http://kenyalaw.org/caselaw/cases/view/58036/
      Given the position of the person in question, this becomes even complicated. This amounted to defamation, more specifically, libel.

      In her ruling one of the key considerations that Lady Justice Khaminwa put into consideration was the high position the Judge in question holds in the society.

  59. I know of a very unique case where a lawyer sued the Standard newspaper over a story in their gossip collumn. The story was about how this lawyer (they never mentioned his name) married to a daughter of a billionaire DJ and his fortune has changed since the marriage.The lawyer argued that his friends automatically would know that it was him mentioned in the story and therefore his reputation was soiled as a result of the story.He claimed that he was a lawyer of repute and made enough money that he didn’t need the father in law to uplift him.The judge agreed with him and awarded him damages of Sh5 million.

  60. K50/87448/2016
    Commercial defamation is in existence particularly with the competing enterprises. A claim for false advertising may only proceed when a plaintiff sufficiently alleges that the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another’s product; the misrepresentation is material, in that it is likely to influence the purchasing decision; the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience. Defamation is such an important part of the law for journalists as being successfully sued for it can be very expensive. Damages in defamation cases are usually decided by juries; as a result, they are very unpredictable, and can be extremely high. One careless piece of research or unchecked statement could end up costing a publisher tens of thousands of money in damages – sometimes even hundreds of thousands – and as
    much again, sometimes more, in legal fees. Big national papers can absorb such losses (though decreasing circulations mean even they find it difficult), but for smaller magazines, losing a libel case can be disastrous. This was the case with The magazine Living Marxism in the UK which was actually forced into liquidation after being ordered to pay damages of £375,000 in a libel case in 2000.

  61. Irene K. Nyakoiro K50/87708/2016

    In June 29,2016, the High court Judge Roselyne Aburili ordered Nation Media Group to pay Lands and Environmental Judge Samuel Mukunya sh.20 million damages for defamation. The NMG was punished for leaving out the name of Judge Samuel Mukunya out of a list of those who had applied for the position of Judges in Supreme court and High Court.
    The rulling judge stated that the article written by senoir reporter Alphonce Shiundu was biased, misleading, partisan and destructive press. “What I have reproduced in this judgment as published and disseminated by the defendants concerning the plaintiff is in my view not suggestive of a fair and or responsible or objective press. It is suggestive of a misleading, biased, partisan and destructive press. It is a press that does not respect and or protect the dignity of persons,” the judge ruled

  62. In September 2013, Keroche Industries had moved to court alleging that Tona Millers infringed on its trade mark by launching and packaging its product in a similar bottle and name. The brewer claimed Tona Millers was manufacturing ready- to- drink Viara Ice, which is almost similar to its alcoholic drink Viena Ice. Keroche feared that it could face compensation claims from its customers who confused and used the Viara Ice and in the process suffer.

    Keroche claimed that Viena Ice is an intellectual property and its own invention, which needed legal and constitutional protection.

  63. Do you know a tweet can lead into an expensive defamation lawsuit? Most of illegalities in corporate and commercial utterances takes place in form od libel libel on social networks and blogs

    In most countries around the world, saying or writing something that’s untrue and harms the reputation of another person is a civil offense.

    Nowadays, anyone with a Facebook or Twitter account can theoretically reach the entire Internet-using population. If the message being shared is defamatory, there might be a very expensive lawsuit.

    K50/87018/2016

  64. Criminal defamation laws are inherently disproportionate and have a chilling effect on free expression. individuals face being arrested, held in pre-trial detention, subjected to expensive criminal trials and then saddled with a criminal record, fines and imprisonment. criminal laws are often used to punish legitimate criticism of powerful people rather than to protect the right to a reputation.
    The civil defamation laws should be formulated in a way that allow proper defence and sets reasonable limits on compensation

  65. Have also posted about 4 comments n they are not showing.Kindly check.K50/88164/2016

  66. High Court dismisses petition filed by an activist to prosecute Boniface Mwangi over comments he made against DP William Ruto. This was that case of defamation.

  67. One very recent and rare case of plagiarism is when Tokyo Olympic organizers were forced to scrap the logo for the 2020 games following allegations that its Japanese designer used copied material. The logo faced scrutiny after a Belgium designer took legal action saying it resembled one of his works that was created for a theater in Belgium.

  68. Kalamka Ltd, the publisher of “The People Daily”, was sentenced to pay Biwott Kes 10 million in compensatory damages and a similar sum in exemplary damages, following the publication of an article implicating Biwott in underhanded dealings involving the award of tenders for the construction of the Turkwell Gorge Hydro-Electric Power project.
    High Court Judge Joyce Aluoch barred “the publisher, its agents and servants” from further publishing any defamatory articles on Biwott, Minister of Trrade and Industry. Furthermore, the judge instructed the newspaper and its former editor-in-chief, George Mbugguss, to pay the cost of the lawsuit with interest.

  69. Some business entities seem to thrive in making false statements about their competitors maybe because they know the damage done is irreversible, and they will have made profits by the time the court case comes to an end (if at all there will be a case)
    I have seen messages going around social media to avoid certain products, like one that was going round sometime ago that read:
    Please, don’t buy or drink any bottled water called “DEW”. Customs says it was shipped into Nigeria from Tanzania where it has killed 180 people and now finding its way into South Africa. It is said to contain ebola. Please pass this on and save millions. If you don’t believe check google for “DEW bottled water.
    This was a business war. There was no evidence that the water had killed anyone, let alone evidence of shipping. There are similar hoaxes passing around social media and it becomes hard for the businesses that have been defamed to even follow up on who initiated it. Consumers on the other hand, are not able to verify what is true and what is malicious.

  70. I was particularly pleased to see this article because it is an issue i had given a lot of thought to and have had several discussions with young and upcoming colleagues in my field over the years and it is our worst nightmare. As young media producers fresh out of campus we have amazing television program ideas but no capital to produce the television programs themselves, but because we are so passionate about the ideas and would want nothing but to see them come to life we draw up proposals and approach ‘reputable” media houses with our proposals. Interestingly, they are all too willing to listen to what you have to say. In fact during the pitch because of the large group of people who convene to listen to your pitch you feel that maybe just maybe this might be your break through. You leave them with your proposal and await to hear from them, but you never do and you automatically assume that your idea was not good enough. A few months down the line you are seated in your living room and are watching a show and it feels a bit too familiar, a bit too close to home. You think to yourself it can’t be .. they couldn’t have stolen my idea you go back to your script and it all downs on you that they did steal your idea. unfortunately because you had no capital to film a pilot the only evidence you have is your proposal, that basically means you have no evidence to prove that for sure that idea was yours and of course they were ‘brilliant’ enough to tweak a few things here and there. I will tell you this there are very few things that are as painful as seeing your idea having been brought to life, the characters that you spent so many sleepless creating who in the process you became very close to being taken away from you.

    • Catherine, it would have been a very ugly case if Michelle Obama took Melania Trump to court especially during this very sensitive time. However that is not to say that FLOTUS did not get justice, because she did. It was clear for the whole world to see that Mrs Trump had Plagiarized her speech, Media houses all over the world reported about it. But i was particularly pleased with the response on social media, for lack over a better word the issue went viral, with funny memes being created about the issue most of which were showing clear disapproval for trump. If nothing else that particular ordeal opened the question of Trumps ability to be a leader and it has been downhill since then. I am proud to say that in the world we live in where thanks to social media where things have became extremely transparent you can get justice on an issue without necessarily going to a court of law because now the public is the judge and in my opinion there is no better justice than that.

    • @Bilha, this is unfortunate, moreso in our country, where instead of mentoring our upcoming practitioners we are out to nip then in the bud.

      This being an issue of intellectual property, in my opinion, i think one should first patent it before sharing it out. As this will prevent others from making, using, selling or importing the ideas/invention.

  71. Elizabeth Njuguna k50/87543/2016

    Copyrighting in the Kenyan music industry is also one of the common illegalities.Many Kenyan artists have had issues with MCSK whereby there have been claiming for their rights and share.It is evident that copyrighting is a very high illegality in the country.Last year a music group called Elani whose music had hit the pick but unfortunately they did not get their share after claiming it from MCSK.Defamation ,plagiarism and copyrighting are all over and it affects people in social,corp[orate and the political world.

    • @Elizabeth, this has been on ongoing debate for a long time. Even when the government collects royalties on behalf of the artists, what reaches then is very little.

      The other issue is PIRACY. artists don’t get to enjoy the fruits of their labour due to piracy.

  72. CocaCola Country Boss Darly Wilson Sues Cofek for exposing him. Seen on Facebook with a Kenyan woman known as Queentar Mercy, appears literally half nude and over-exposed for public view. Justice Mbogholi Msagha has certified the suit as urgent and barred COFEK from publishing any materials in relation to Daryl.

  73. Irene K. Nyakoiro K50/87708/2016

    Sometime last year the Nairobi Governor, Evans Kidero, sued two media houses for linking him to the financial mismanagement of Mumias Sugar Company. The High court issued a ruling which barred Standard Group and Nation Media Group from publishing articles linking Dr. Kidero to a draft report by audit firm KPMG, which had alleged financial misappropriation.

  74. Commercial speech is information printed, broadcast or on the Internet that advertises a product or service. I am in the electronic broadcast industry and radio to be specific and one many times,I have been a victim of this although most of the time unknowingly… this happens mostly when airing commercials may they be live or recorded programmes. There are regulations that a media house needs to follow especially when booking this commercial materials lest the continuity announcer finds him/herself in problems like airing commercials from competing companies back to back, the later will be seen to be more important than the former AND WILL OBVIOUSLY SUE YOU, others are like airing on the wrong time or even commenting after airing the commercial. All these are infringement of commercial speech.
    JOAN BETT K/50/87843/2016

  75. I reckon what mwalimu’s blog is saying is that blatant abuse of other people’s creativity should be prosecuted. However, the proper and authorised use of existing information is acceptable and even encouraged. Research is defined as the search for knowledge. We search for knowledge to build on an already existing body of knowledge. This body of knowledge be it Art, Music, Publications etc primarily belongs to someone who also built on another persons style, work or invention. That is why there is a limit (20yrs) of protection for copyrighted inventions. This allows others to better the technology borrowing from the existing innovation. In short, too much of protection may be retrogressive.

  76. Who owns the rights to a photo?

    A Kenyan rapper by the name Wangechi discovered that Tecno was using her image in their campaign without her knowledge or consent. She claimed that they pulled down images and visuals after eight weeks of her image doing the rounds. She was speaking up not only to call out Tecno on their conduct but also to seek compensation, since they utilised her image for commercial purposes.

  77. There is also a case sometime last year when the Daily Nation from the Nation Media group used a picture from You-tube in the front page of the newspaper. The reporter of the story was claiming that the photo was taken in an area within Uasin Gishu county. This is plagiarism since the reporter did not even acknowledge the source of the photo. The reporter claimed that the photo was his or hers.

  78. Bernard Kimani - K50/88197/2016

    Blogger Cyprian Nyakundi has in the recent years been sued by Bidco, National Bank and Safaricom for defamation in separate incidents. In the Bidco case, he had alleged there were human rights violations by Bidco’s against Kenyans. In the case of Safaricom, he was issued with a permanent injunction barring him, his blog, agents or any other blog from publishing any posts on his blog on Safaricom that border on the litigation matters. In his most recent brush with the law, Nyakundi has been sued by National Bank of Kenya (NBK) and has subsequently been served an interim injunction restraining him or any other contributors to his blog from writing anything about the bank.
    This are just some of the examples of how corporate defamation can lead one into problem. Any time you post anything against the wishes of an organization you may be summoned in a court of law to account to your allegations.

    Bernard Kimani – K50/88197/2016

  79. Lynnette Nasirumbi

    K50/87027/2016

    I think the purpose for the speech is perhaps the key difference between political and commercial speech. Political speech focuses on the public good, but commercial speech only benefits a single private entity — the seller of the product or service advertised. While commercial speech aims at your wallet, political speech aims at your mind. Because functional democracy depends on the ability of the people to openly debate public issues and criticize government officials without fear, free political speech is judged to be more important than free commercial speech.

    Safaricom sued blogger Cyprian Nyakundi for defamation. In a paid advertisement in the Nation, dated 24th June 2015 on page 51, Honorable Justice then ordered Nyakundi to do among others;
    1. Pull down all posts in his blog that are defamatory to Safaricom.
    2. A permanent injunction was issued against him, his blog, agents or any other blog, publish any posts on his blog on Safaricom that border on the litigation matters. This injunction also applied to future publications on his blog that would be deemed defamatory to Safaricom.
    The court had the liberty to decide how damages, if any, would be adduced. Arguing on damages is considered based on issues like distribution reach and popularity of the medium used. In this case, online distribution is worldwide and Nyakundi’s blog quite popular. Safaricom was most likely to use google ranking to know or tell how popular the blog is globally and in Kenya hence argue for higher damages in addition to other punitive measures like permanent injunction against defamatory posts about Safaricom.

    • Putting up a fight with some of these influential personalities in court can be a bit of a challenge. A case scenario would be the case of Safaricom’s CEO Bob Collymore against a lead Local Blogger @Cnyakundi who was arrested on alleged defamatory remarks against Bob Collymore. Bob’s net worth being somewhat substantial compared to Cyprian’s, one could easily conclude how that case would be concluded. My insinuation is that money can buy you freedom or rather can get you the best of the best in legal representation. Despite the fact that Cyprian is known in the social media sphere for being controversial, he is still known for breaking some critical information that are of public interest. Here is an example of how their case transpired in regards to defamation in the corporate world according to Nairobi News.
      http://nairobinews.nation.co.ke/jobs/safaricom-boss-sues-blogger-cyprian-nyakundi/

    • LYNETTE NASIRUMBI
      The difference between political and commercial speech borders around regulation, protection and public interest. Political speech deals with issues of public interest or social concern—is entitled to full protection. It may be limited by government only rarely and under very limited circumstances. Commercial speech, however, is given much less protection. It may be regulated by the government in cases where political speech would be protected.
      K50/88725/2016

  80. It is evident that majority of us know the consequences of sharing copyrighted work without permission e.g books, music, movies, softwares etc yet majority of us especially the Kenyan students are the leading culprits. The royalties that book writers are getting is way low than the expected simply because it is so okey for us the Kenyan students to reproduce their knowledge without paying then a cent or without their consent. It is so sad that the educated elite commenting on this post are the most notorious infringers of the copyright act. The Kenyan law should be enforced so as to ensure that any copyrighted work is given the due security it deserves. I choose not to be an intellectual thief.

    • I totally agree with you Duncan Rono. We know the repercussions of copyrighting someone’s work yet we still do it especially the university students. The Copyright Act that places the onus of responsibility for Kenyan content illegally downloaded, squarely on local internet service providers,Our Kenya’s film industry talks of making it and catching up with countries like Nigeria, whose movies have become huge throughout Africa. Making good money from the film industry. I concur with all this. Copyright laws should be heavily enforced and implemented to the later. Yet if you come to think of it, it is funny how if you actually look at why the Nigeria film business became so successful, it was actually because of a lack of copyright enforcement that helped create informal distribution and promotional channels across Africa.

  81. Lawyers also have been accused of having a preference of being defensive lawyers for big corporate organization since they can pay good money and with lots of ease compared to struggling artistes. In some instances these lawyers even receive money from rightful copyright owners in the name of representing them only to be compromised to do a shoddy job and lose the case. Basically speaking lawyers are known for being after client’s money and less concerned about their moral obligation of representing their client’s best interests.

  82. The problem with plagiarism and which I have seen occur is when you copy paste a piece of work that has a case going on in court.
    You will find a blogger, or a reporter, for example copy paste somebody’s story not knowing the original writer has been sued over the same content the blogger or the reporter is plagiarising
    And what happens is that the person who plagiarizes the work risks being sued, or can be sued for the same amount of money the original writer is being sued for, and that is quite catastrophic. A mistake that could have been avoided

    • k50/89045/2016
      Plagiarism has become a matter of concern in our Universities. Students given work to research tend to copy paste from the internet and claim it is their work. It makes the students lazy and incompetent. They own other people’s work making it their own. This results to half baked students when they leave the university with their certificates.

  83. I think that for a case on corporate defamation to be successfully won the claimant has to demonstrate that the defendant had all the intentions of causing injury to the organization. While it is enlightening to note that commercial companies have a way in which they can seek legal redress in view of an insinuation that their products or services are, for instance, substandard. Looking at the recklessness on social media platforms by a majority of Kenyans one is right to state that most corporate entities allow too much filth to be thrown to them. Either they are unaware that such provisions exist or they choose to let it slip

  84. The fact that national corporations in Kenya run to seek legal action against people who use writing of reporting against them means that there could be something wrong somewhere. The Blogger Cyprian Nyakundi might have been sued by Bidco, National Bank and Safari-com and even other large companies but that does not mean that in all occasions, he is always trying to defame and spread slander against these companies. There is a high chance that these companies are included in exploitation of Kenyans since it is no doubt that we live in a society that is corrupt. Take an example of the Nation Media Group exposing the recent corruption case of sh 5.3 Billion in the ministry of health. NMG has been sued by the government itself (cabinet secretary Joe Mucheru). Now, I believe it it was Cyprian the blogger, the nature of the case would still be the same. I know there are intricacies involved in cases of libel and defamation, but honestly, our system is corrupt, maybe our bloggers and media houses are simply trying to act in any way possible to hold big corporations and government agencies accountable for their actions. NMG might be sued for slander and asked to release where exactly they acquired information that health ministry official were involved in stealing the 5.3 B but it all arose from the auditors’ office. IN Kenya, truth is always taken for defamatory or libel remarks and met with a court order summon.
    K50/87001/2016

  85. According to Kent State University professors Frances L. Collins and Timothy D. Smith, the phrase commercial speech came from a U.S. Supreme Court decision in 1942 when the owner of a World War I-vintage submarine sued the City of New York over a statute that forbade him to pass out flyers advertising tours of his boat. The high court labeled the flyers “purely commercial,” even though they had an editorial on one side complaining about city policies. The term “commercial speech” refers to speech—printed, broadcast or on the Internet—that advertises a product or service.
    K50/88725/2016

  86. Mwalimu,
    I posted a comment on plagiarism by Nigerian President Buhari and Donald Trumps wife but I see they never went online.

  87. Speech and any other remarks made by anyone must be carefully examined and measured. Words are like bullets, once said they can’t be retracted. Perhaps the only thing that can be done is damage control or dealing with the consequences. It is for this reason that companies and entities intending to engage the public in any manner of communication must study communication and laws governing it thoroughly.

    Marketers and Public Relations officers, or anyone playing such roles either individually or on behalf of the other(s) must properly understand the impact of their actions before engaging. As such, laziness (leading to plagiarism) is completely unacceptable. Effective communicators must know their role well, respect other players and be as original as possible. Well, whenever one feels a compelling urge to use materials created by others, one ought to simply acknowledge.

    Ignorance is quite costly, and is never defense.

  88. The secret behind impersonation is someone talking false information and defamatory statements in many cases.One wants to pass information to others that tend to harm and lowering the victims in the eyes of the right thinking members of the public.For instance a student from Kenya Technical Training College who had impersonated former IG David Kimaiyo having a facebook account y by his name.So the intetion of impersonation is defamation.

  89. Alice Akinyi Gworo k50/88301/16

    My take is that bloggers ,writers, reporters and those with huge public influence have an obligation to give the right reportage on matters bordering on Corporate and commercial speech in order to be legally correct.
    With the invent of social media and its relations ,abuse and misuse of commercial rights have been on the rise by each passing day.
    The extent to which a plaintiff suffers should their company,product or even service be misconstrued is morally huge and has a high financial impact and this calls for responsibility for all within the company’s boundary in terms of know how to take cognisant of the effects.
    Most popular and highly mentioned case is the Safaricom vs Blogger Cyprian Nyakundis case,with the latter facing various such cases that are before the courts,among them one involving National Bank of Kenya.
    Safaricom’s current and former CEOs have sued blogger Nyakundi for defamation over articles in which he said the telecommunications giant is exploiting Kenyans.
    They cited the part 1 – 16 series of “offensive” articles by Nyakundi which they said were unsubstantial, unsupported and portrayed Safaricom as fraudulent.
    Suffice to say in the bloggers case,Nyakundi being a learned fellow,ought to have known better the extent through which he could write on a perceived problem.He was subsequently ordered to pull down the blog and desist from such in the future.
    However,some would argue on the plaintiffs and defendants financial muscle and societal social standing, and are of the view that the ruling would have definitely be a win for Safaricoms despite the fact that there might be some truths in the written blog.
    Most importantly its imperative that any writing, usage of a product or organisations by either parties in such instances should be underpinned on the legalities involved.
    K50/88301/16

  90. The most unfortunate thing in the Kenyan scenario is that very few people know of their legal rights especially on matters relating to Intellectual Property and Copyright laws. A good example would be artistes e.g. musicians who have their music being played non-stop on local FM stations yet they don’t get the right amount of royalties entitled to them. Advertising agencies that represent artistes and extort them of their hard earned money through hogwash contracts that absolves them from legal redress. Most of these agencies already have the muscles to get the best lawyers where as simple artistes can’t even afford legal fee for representation. This has left many people vulnerable and exposed to abuse and torment from such big corporates. One may have a strong case against a big corporate e.g. a leading mobile phone service provider using an artistes song but only beats around by claiming they have paid music copyright society. An example of some aggrieved parties on such technicalities would be Elani music group who got a significant amount of airplay only to be disappointed when they received a cheque not worth the paper it was printed on. Here is a link of how their case transpired for your perusal on what I am talking about because in the end they ended up being disappointed by the system.

    http://www.kenyanvibe.com/enough-is-enough-elani-demand-copyright-society-pay-their-artists-fairly/

    • @Jeff,i support your case. For the shops that are selling movies and music of other people at a cheaper price of even ksh 20.Is that against the copyright law?

      • I’m sure they are in breach of law by doing that because 99% of them don’t even seek approval from the copyright owners of the art work and are also not paying royalties to them thus making it illegal. The main issue would be in harmonizing or centralizing the system so that it favors copyright owners of the works being auctioned yet leaving these artistes poor. A good example is John Harrison Katana famed for the song “Jambo Bwana” which has gained international accolades yet the real owner is now blind and miserable just because the law is not being implemented.

  91. Cases of plagiarism in Kenya are on the rise. Our media houses are shamelessly plagiarizing their work too. Yet they write from an informed person’s point. They know wit is wrong and against the journalistic code of ethics. Maybe the most notable case of plagiarism was by Kenyan media Personality Caroline Mutoko who in her weekly column in the Star newspaper of September 3rd 2012 , lifted every word from a post titled ‘Letter to My 20-Something Self’ that had appeared on a blog run by the Crunk Feminist Collective. She didn’t even bother to change the title. In an even more ironic twist, she ended her post with the warning
    ‘The internet never forgets.’

    • @Vivianne,plagiarism in Kenya is a serious civil offence.It seems people do not understand what plagiarism is and its consequences.For example in colleges,students are victims of plagiarizing other authors works without acknowledging them nor asking for permission. My view is that plagiarism is at the rise since the law has not taken it serious.Lecturers too should inform their students that whenever they copy or use somebody s work ,they have to cite and reference.this will leads us somewhere by respecting other peoples works.

  92. Arthur Collins Nyakundi Ogeto K50/88214/2016
    Indeed in Kenya there is an overconcentration on defamation as compared to other legal issues arising from our contributions in the public sphere. This is mostly fuelled by the politicians who have made the legal corridors a perpetual battleground. Many of those cases do not meet the minimum legal threshold but in politics perception and reality tend to be the same. A case in point is a recent discussion on the popular show Jeff Koinange Live where one panelist (Miguna Miguna) put it to another (Margaret Wanjiru) that she had appropriated public property for personal gain while working in the Ministry of Housing. Miguna had a parliamentary report to back this assertion. In the face of all this evidence Wanjiru still declared her intention to drag him to court, but did so entirely in jest. This is a convenient way for politicians to appear to be law abiding when they lack any other defense. It’s also a good way for them to wash off the egg in their face considering ordinary Kenyans have neither appetite nor understanding of long, drawn out legal battles. By so doing they have blurred the line between defamation and politics and made it difficult for Kenyans to dissociate the two.

    • Another thing that is coming out from our discussions is that corporate and commercial related defamations cases are easier to prosecute as opposed to general defamation, moreso where politicians are concerned. From my research I can state that, we have more determinations on corporate and commercial defamation cases as opposed to the general defamation which mostly involves politicians and in one way or another they tend to manipulate the process of justice.

  93. “Willy Mutunga sues city newspaper for defamation” a headline on daily Nation dated Monday, 22 June 2015.

    In the story, the former chief justice claimed then, that the story in the Nairobian published last year,  was false, malicious and defamatory thus he was seeking damages from Standard. But Standard Group said the story constituted fair comment, not driven by malice.

     Dr Mutunga said, “the words used in the article that appeared in the Nairobian , a publication of the Standard Group Ltd, were meant to imply that he was a person who not only disobeyed court orders but was a serial defaulter in meeting his legal obligations.
    Which meant he had subverted the very Constitution he had sworn to uphold”.

    So its very important for one to really know the implications and interpretation of statements and words used. The interpretation often than not is what the courts look for. Whether one considers his/her thoughts to be an opinion or fair comment, one should be cautious of its implication on the subject.

    When one stand on a podium, s/he should know that his/her responsibility is to one, to maintain a high ethical standards. Secondly, ensure that you are enriching the life of the audience And finally take every speech s/he very seriously regardless of the audience i.e. whether big or small, the implication as I had said earlier can be a boomerang effect.

    • This observation in one way really hits the nail on the head. Essentially you try to explain what happenswhen opinion or fair comment is perceived to weigh down on the wrong side of the scale i.e becames defamatory. The law then sets in to try and shed light on the whole issue. In the end we should judge comments based on their intended effect. Ethics also needs to be a factor in judging defamatory comments, not the law alone.

    • Maureen you are very right on persons giving speeches taking each audience seriously. This should especially be practiced by politicians who see their electorates as valueless insulting and calling them names, until elections time when they change to rosy speeches to woo them.

  94. K50/87448/2016
    On 21st June 2016, the National Bank of Kenya filed a defamation case against blogger Cyprian Nyakundi. In March this year, the National Bank of Kenya (NBK) asked the Governor of the Central Bank of Kenya and the Cabinet Secretary for ICT to intervene in cases of online defamation of banks. The bank expressed concern over social media users spreading malicious and false information about banks and other commercial organisations in Kenya as the economy faces challenging times. One of the articles in question alleges looting at the bank by senior executives. NBK suspended six top executives including its CEO earlier this year to allow for an audit following an increase in bad debt. On June 6, the court granted an interim injunction and allowed NBK to furnish the blogger with a court summons through newspaper advertisements, email and the blogger’s WhatsApp account. The order reads: “Pending the hearing and determination of the application inter partes, an interim injunction is hereby granted restraining the defendant (Cyprian Nyakundi) whether by himself, his agents or his employees from publishing or causing to be published any statements defamatory of the National Bank of Kenya, its shareholders, directors and or employees in any manner whatsoever on his blog page, Twitter handle or any other of his social media platform accounts whatsoever”. However, my concern is whether Nyakundi’s case is of a blogger-for-hire being deployed in inter-corporate wars in Kenya or an innocent economic analyst being targeted by big companies to serve as an example to other bloggers and social media users writing stories on economic topics.

    • in the case of CFC Stanbic Bank Limited Consumer Federation of Kenya (COFEK) Being sued through its officials namely Stephen Mutoro & 2 others [2014] eKLR by Justice Odunga stating that “accordingly, I import in this case the holding in the Wishart and Murray case an apply the same accordingly”
      Publication of defamatory statements in social media i therefore actionable in the country

  95. K50/87781/2016
    From the onset, it is my considered view that the use of the word ‘charged’ in this post is erroneous. Charge, in law, is used to connote a criminal act. A charge is a criminal offense contained in the charge sheet prepared by the prosecution as a formal complaint presented to court as against the accused. Thus, to use it in the defamation field, a civil arena, is in my opinion improper. However, for purposes of this discussion, i believe the same has been used as a synonym for ‘sue’.

    Recent developments in the legal jurisprudence saw the misuse of telecommunication devices being considered a criminal offense. Formerly, section 29 of the Kenya Information and Communication Act, Cap 411A stated as follows;

    A person who by means of a licensed telecommunication system—

    a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

    b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.

    This had been seen as a cure to libelous articles currently mushrooming all over the social media. However, the section was dealt a blow when Justice Ngugi, in the case of Geoffrey Andare v Attorney General & 2 others [2016] eKLR, held that the section was unconstitutional stating that “In this case, the Court was concerned with the constitutionality of section 29 of the Kenya information and Communication Act, and has come to the conclusion that the section is unconstitutional for being couched in overboard and vague terms that violate or threaten the right to freedom of association guaranteed under Article 33 of the Constitution. I have, however, not found a violation of the petitioner’s rights under Article 50(2)(n)”

    With the ‘demise’ of section 29 of the Act, the portent recourse to a person feeling defamed by a publication is through defamation suit. In an action for defamation, the claimant must establish three things. Firstly, that the words complained of are defamatory, that is, they tend to lower the claimant’s reputation in the estimation of right thinking members of society; secondly, that the words refer to the Claimant and finally, that the words are malicious.

    It is now imperative to note that posts on social media that are defamatory can cause the publisher or the owner of the ‘group’ to found liable. In a New zealand case of Ian Wishart vs Christophe Murray, the court held that ” “I consider that the notice board analogy is apt in considering publication via Facebook. The host of a Facebook page has established what is, essentially, a notice board. It may be a public “notice board”, on which anyone can post comments. It may be a private “notice board”, available to a specified group. In either case, he host had the power to control the content by deleting postings. The host also has the power to control those who post on the site by blocking users. Those blocked may include potential plaintiffs, affected by what is posted but unable to see the offending content and complain. Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will be regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory”

    This case has been upheld in the Kenyan court in the case of CFC Stanbic Bank Limited v Consumer Federation of Kenya (COFEK) Being sued through its officials namely Stephen Mutoro & 2 others [2014] eKLR by Justice Odunga stating that “accordingly, I import in this case the holding in the Wishart and Murray case and apply the same accordingly”

    Publication of defamatory statements in social media is therefore actionable in the country

    • Dear Rono, the most effective posts are the short ones. Long stories tend to bore readers at some point. Try to make the long stories shorter.

  96. A case of illegalities linked to commercial and corporate speech that come to mind is a suit filed by Pastificio Lucio Garofala an Italian based spaghetti manufacturer against Debenham and Fear Limited, an Iranian spaghetti manufacturer in 2013.
    In the suit, Pastificio Lucio Garofala, which trades under the trademark brand Santa Lucia, sued Debenham and Fear Limited for copyright infringement.
    Debenham and Fear Limited, had at the time launched a spaghetti brand trademarked as Santa Maria, a move that angered Pastificio Lucio Garofala, causing them to move to court under certificate of urgency. In the suit, they claimed that the Iranian company had coined their name from its brand, therein causing confusion among customers.
    Furthermore, the colour and design of the product packaging Debenham and Fear Limited used on its product was comparable to that of Santa Lucia.

    • This is all about competition. Which is very good for the consumer but very damaging for the companies, it creates business rivalry, sabotage and can lead to unending court battles which are very expensive.

  97. Irene Kerubo Nyakoiro K50/87708/2016

    It is important to distinguish between plagiarism and copyright infringement. The key distinguishing factor is the use intended. A copyright infringer copy-pastes, performs, broadcasts, reproduces, translates your work in order to derive some commercial benefit. On the other hand, a plagiarizer copy-paste, performs, broadcasts, reproduces, translates your work in order to assume your identity as the author for purposes of recognition and attribution. Therefore every case of copyright infringement can also be plagiarism but not all cases of plagiarism amount to copyright infringement. So the law rightly recognizes copyright infringement as a criminal offence but not plagiarism.

    Plagiarism is however widely considered as unethical and is a serious offence in all institutions of learning as well as within most professions. Therefore, the responsibility is on the copyright owner to show that the case of plagiarism complained of also amounts to copyright infringement by showing that the work is being used for commercial gain without the copyright owner’s consent.

  98. K50/82566/2015
    In 2012 the case of Njeri Wangari v Oxford University Press (E.A) The Judge decided to dismiss the claims of copyright infringement.The court acknowledged though that Njeri Wangari a Kenyan poet had copyrighted the poem,it however failed to award compensation based on a technicality.

  99. In Civil Case No. 65 of 2012 Rukia Idris Barri versus Mada Hotels Ltd
    The Plaintiff’s accused the Defendant of publishing her picture (“taken several years ago for advertisement”) in the Kenya Airways Limited inflight “traveller magazine” Msafiri, Edition 78, November–December 2011
    The issue was that the said publication was without the Plaintiff’s knowledge, consent or authority; that the publication was thus illegal and a gross invasion of the Plaintiff’s constitutional rights of privacy and dignity of the person; that in making the publication the Defendant was solely motivated by greed and the need to earn maximum profits; The Plaintiff sought the main reliefs of an appropriate injunction and general damages.
    Justice HPG Waweru awarded her Kshs. 300,000/00 being general damages for the invasion of her constitutionally guaranteed rights of human dignity and privacy.

  100. I must say that this article is an eye opener to to me and many others who are ignorant of illegalities linked to corporate and commercial speech and their consequences. Although the article highlights just but a few examples, it is a true reflection of how utterances made out of ignorance can land someone is big trouble with the law.It is important for Kenyans to understand the law and consequences of illegality offences arising from corporate or commercial speech because as they say ignorance is no defense in a court of Law.

  101. In October, 2014, Justice F. Gikonyo awarded C Mehta & Co. Limited. (the Plaintiff) a global sum of Kshs. 3,000,000 for breach of contract and disrepute to its credit and reputation. The plaintiff had moved to court and sought for damages for breach of contract, general damages for defamation together with costs.
    The case arose when Standard Bank Limited. (The defendant) dishonoured the plaintiff’s four (4) cheques drawn in favour of the Plaintiff’s suppliers and service providers. The cheques were ‘referred to drawer’ by the Bank for reason that there were no funds in the account. Yet there were funds, because of this the company lost reputation, the suppliers stopped the supplies and services they offered to the company, the company was affected. The company lost both business and customers.

  102. Being professional journalist should be typically based on duty to inform rather than persuade, and duty to be a watchdog rather than partake. Failure in these two has made journalists their own worst enemies.

  103. ESTHER N. MACKENZIE

    Defamation is used to discredit competitors, however the laws seem to be different in different parts of the world, for instance, the competition between Pepsi and Coca Cola is usually bare-knuckled. For such companies, both have resorted to counter-actions and so no one easily sues the other.

    In Kenya, a few years back, Airtel, a communication company stirred a war of networks with Safaricom, a telecommunication giant. The gist was, every time a caller called someone in a green T-shirt (denoting Safaricom), there would be no network unless you climb the tallest tree in your village. The tag line of the advert was, ‘hama mtandao usiokuwa na network’ (do not subscribe to a client who cannot guarantee network connectivity).

    Safaricom took Airtel to court and since then, Airtel stopped advertising by mocking characters dressed in Safaricom’s green color. So, libel can also spring from using colours that define a certain brancd.

  104. My take is that Corporates have to exercise some restraint in their communicated information expressing their opinions particularly on their products to avert communicating a message that may be slanderous or may defame a product from a competitor in the market.
    For instance in 2013, Unilever Kenya, the company that manufactures Omo detergent filed a case at the High Court, Civil Suit No 370 of 2013 citing defamation of their product by Ariel by portraying their product as inferior and that it could not wash stains in one wash. Omo claimed there was no independent research to prove that it was only Ariel that could remove stains in one wash. Omo claimed the advert was misleading, false and misleading to the public.
    Unilever further argued that the advert by Ariel was a counter advert to their own long running advert that passed the information that ‘Dirt is good’ and one needed not to be worried of it if they got Omo. Ariel prided their detergent as the only one that could wash away dirt in one wash, a position that Omo refuted and asserted that it was meant to demean and malign them.
    The judge temporarily ordered Ariel to stop running the advert pending the hearing of the case.

  105. My take is that businesses exist to make profit. Companies go to great lengths, both legal and illegal, to ensure their products are dominant or successful in the market. It therefore is a great violation of good trade practices for a rival company to besmirch their competitor’s products and such acts may be prosecuted under relevant laws. It may not be under the defamation laws, l stand guided though. Take, for instance the amount of money and time that Safaricom has invested in marketing Mpesa Service, the company would be right to sue any other company that would want to disregard or put into disrepute the successes of the service. The penalties attracted may be hefty upon successful prosecution of such a case.
    Equally, Kenya trade laws and marketing policies do not allow companies to make profits out of exaggerated positive messages about their products. For instance you cannot say that a paracetamol tablet can fix a fracture. That kind of marketing misleads and can attract heavy penalties against the promoter. The essence is that while the manufacturer enjoys their rights, the consumer is also protected against arbitrary trade practices.

  106. K50/87001/2016
    Corporate and commercial speeches in Kenya mostly lead to heavy penalizing when a certain company, unaffiliated to the government, is accused of plagiarism or defamation and the media tends to capitalize on the issue. It is true that politics finds its way into everything in Kenya including corporate matters and this might influence how a case is handled. For instance, Uniliver suing Airiel for defamation was met with ridicule and termed as a counter-advertisement and assertively, the law never prevailed since Uniliver never got paid for the amount of losses incurred. It is indeed politics as usual.

    • ALPHA i strongly agree with you that everything in Kenya has been politicized and you find that when private companies are sued most of the will pay a huge amount of money has a fine for hate speech this is because these companies mostly do not have politicians in it or any influence of the politicians. I think the reason why public corporations and parastatals are mostly not fined to pay is because government has a direct influence of it. Again most of the top management are appointed and therefore their posts are politicized.

  107. Many companies in Kenya are guilty of using slogans of other organisations. Take an example of a bus company that copies another’s that reads “we lead as others follow”. The only difference being in the spelling of the word FOLLOW as “FORROW”. What am not sure of is if such a case can go through under the laws discussed above.

  108. Inspectpr General of Police Boinnet warns anyone engaging in hate speech to prepare for consequences as security intensified ahead of elections. However, no one will be prosecuted…these are just talks in the air..The law is like it was made for the peasants.

    • Money talks, and it’s unfortunate that for one to get justice you have to buy it. It is alleged that most prisoners can not afford good defence lawyers. So it is mostly true justice is for those who can afford it.
      Our politicians do not care about what they say, if it’s hate speech or not after all they”ll get away with it. Nothing much will happen just a court case that will drag on for years and will probably be dismissed for a lack of evidence.

  109. K50/87567/2016
    The fact most of our politicians use dirty and defamatory words during their campaigns has made Kenyans to believe that commercial speakers cannot be found in defamatory cases.
    For instant, if a commercial speakers describes a competitors product as harmful its very difficult for their competitor to take them to court. This is because many people understand that defamatory words are mostly associated with certain people.
    Its important for everyone before making any statement whether about commercial products or cooperate, they ensure they will not cause harm to other people.

  110. K50/89045/2016
    The Kenyan Copyright Act is silent on image rights. Celebrities in Kenya are the most affected with the silence. In early June Tecno ran a campaign around a new phone using Wangechi the rapper’s image. Yet they did not seek the approval or consent of Wangechi and neither paid for her image. After 8 weeks of legal conversation they went silent and deleted all the images and videos associated with her. Rapper Wangechi has launched a social media campaign to compel Tecno Mobile to pay her for using her photo in social media adverts.

  111. Esther Ndunge Makenzi

    Some companies advertising their products often the term ‘ other brands’ and then go on to show how these ‘ other brands’ are of poor quality and how ineffective they are. They make sure to use a bland product with no logo but consumers know what ‘ other products’ are being referred to. For example, a Duracell advert showing other batteries running out after a ridiculously short amount of time. Everyone knows this is a sly dig at Eveready and other battery makers. is this actionable by law? Can the other companies sue and argue that Duracell is berating their products, albeit indirectly? K50/87095/2016

    • Esther thanks for the insight but I think that what Duracell are doing is not punishable. How will these corporates then make sales and profits if such advertisements are regarded as brand injurious to other corporates in competition? Thus I think Duracell are correct in their ad. Thanks.

  112. K50/87448/2016
    There are several legal theories in trademark that come in to play, “trademark infringement”, “trademark dilution” and “trademark tarnishment”. The most significant concerns for authors are with “dilution” and “tarnishment”. Xerox has been mounting a fight for decades to prevent all photocopying from being referred to as “xeroxing”, as has Kimberly-Clark been concerned with all facial tissues being generically referred to as “Kleenex”.

    More recently, Google has brought in their legal team to prevent their trademark from becoming an equivalent to the default word for searching the internet. Using a trademark, whether registered or not, to describe a product or service generically can draw attention to your work and create potential liability. Brand names should be reserved for describing that particular product or service offered by the company.

    When it comes to using a brand name in a negative light, authors walk a very fine line. Brand “tarnishment” is akin to defamation, and disparaging use of a brand name is often easier to find as publishing moves to the ebook and audiobook formats. Unless there is a compelling artistic reason to disparage a brand, creating a fictional brand would be prudent. If, however, you feel your story would be compromised without using the actual brand name, seek counsel to evaluate the risks and determine how best to minimize them.

    • I totally agree with you Kasaya, it is more challenging bringing an injurious falsehood claim than a defamation action. The responsibility of proof is greater than that that of malice and it is necessary to validate the loss your company suffered.A plaintiff must prove that the false statement caused actual loss for example did a customer cancel an order or did not continue to purchase goods or services.

  113. K50/87448/2016
    Injurious falsehood

    Different to defamation, the law of injurious falsehood is intended to protect a business against financial loss resulting from false and malicious statements directed at damaging the business.
    Generally, what is required here is that there must be the communication of a statement that has been proven to be false; the mere self-promotion by a competitor of his or her own goods to your clients will not ordinarily constitute a false statement. The comments must have also been malicious, and this is essentially a question of state of mind, and may not be easy to prove. Further, you must be able to prove financial loss to your business as a result of the comments made by your competitor. Realistically, satisfying these criteria of financial loss will in many circumstances be difficult to achieve as it may be hard to quantify how the comments directly contributed to the financial loss sustained by your business.
    As the legal requirements are complex and highly dependent on the facts, I suggest you see an expert who may assist you further based on your particular facts.

    • Betty Too K50/88280/2016

      This is easier said than done.Most of defamation cases hardly go to court for the fear of truth and media.Once it’s out in the public and the loose the case they might even end up loosing their clients. Its a catch 22 situation and a company can only pursue such a financial loss if they’re certain of winning the case and not denting their image

  114. Betty Too K50/88280/2016

    Corporate defamation at times works in the favor of the defamed.Case in point a mobile provider used to advertise that you choose them for making phone calls since their rates are cheaper. They end the advert by urging consumers to use the other line for sending money only.A critical look at it you may think they are asking customers to subscribe to then only but in the real sense they’re selling the other company’s product.Any publicity whether negative or positive works for any Corporate

    • In contrast Betty I think in Kenya it works in favour of the one defaming. If you defame another corporate and end up in court,what matters is how you argue out your points to prove whether it qualifies as defamation or not. Thus if the ‘defamor’ carries the day that would have just marketed the corporate.

  115. K50/87486/2016
    There was an issue with the McDonald’s franchise, a couple of years back, when they decided to sue a couple who went about with flyers outlining all the health hazards some of the ingredients incorporated into the hamburger may cause, even though there was a good amount of truth into the allegations, the courts still ruled in favor of the conglomerate, on the basis that the couple were purposely hurting their business using unfortunate isolated incidents, my question is, would this fall under injurious falsehood or defamation?

    • My take Juma this will fall under injurious falsehood. The couple were spreading the purpoted malicious claims to hurt the image and the brand of the company. In so doing I don’t think they were in direct competition or maliciously ‘plagiarising’ McDonald’s brand ideas.

      • I think the ruling in this case went against the defendant because the couples singled out McDonald’s in an industry that is dominated by several other fast food chains. There is nothing wrong with saying “fast food will make one fat or sick”, but it becomes injurious when you single out KFC or KenChick and say their food will make one sick. That’s likely to make customers avoid that brand and not others giving its competitors unfair advantage in the market.

        (K50/88467/2016)

  116. K50/89019/2016
    Many organization in world are using plagiarism idea of another institution special media house and journalism in world, for example in 2003 jayson Blair was increasing star in journalism and report for the new york times, though in 2003 an editor at the san Antonio Express-news had noticed similarities between a column by Jayson and an earlier ork by one of their reporters Hernandez, the times launched an investigation Blair and discovered that at least 36 of his 73 articles contained instances of plagiarism, construction or other unethical behavior.Blair resigned from the New York Times and, for a time, his name became equal with the word “plagiarism”.

  117. Esther N MacKenzie

    I agree with you, I also think that advertising companies need to get legal consultation on their projects to avoid violating a law they are not aware of K50/87095/2016

  118. 30th November 2012 a judgment was passed by Mr Justice Bean in a libel case brought by Tanzanian media magnate Reginald Mengi and a British solicitor, Sarah Hermitage. The judgment was in favour of Sarah Hermitage who was being sued on account of 5 blog posts and 2 emails she had written and made public concerning Mr Mengi’s influence over the output of newspapers controlled by his company, IPP Media. Specifically, this concerned an alleged defamatory campaign waged against Sarah Hermitage and her husband Stewart Middleton following a legal dispute with Reginald Mengi’s brother, Benjamin. Reginald Mengi claimed that he “was not responsible, not accountable and not answerable” for the editorial content of IPP publications. That claim was rejected by Justice Bean, who ruled:
    “I find that the campaign in the Guardian and Nipashe [newspapers owned by IPP Media] facilitated Benjamin’s corruption of local officials and intimidation of the Middletons and thus helped Benjamin to destroy their investments and grab their properties; and that Mr [Reginald] Mengi, since he either encouraged or knowingly permitted the campaign, was in that sense complicit in Benjamin’s corruption and intimidation. The allegation is thus substantially true, and justified at common law.”

  119. K50/89019/2016
    Plagiarism is a progressively large issue in modern community as access to other people’s information becomes more readily available. However, it’s not just students who plagiarize other people’s work. There’s a surprisingly large problem in many different areas of life. These are just a little of the many famous people who have been accused of plagiarism over the years.
    1. Germany’s Defence Minister Karl-Theodor zu Guttenberg caved in to overwhelming public and political pressure and announced his resignation after weeks of criticism over revelations that he plagiarised his doctoral thesis.
    2. The Da Vinci Code, written by Dan Brown, was both highly successful and highly controversial, not only due to its subject matter but also the plagiarism allegations that surrounded the book. Brown had a case brought against him on two separate occasions due to accusations that he had plagiarised other people’s work in the book.
    The first case brought against him was by Michael Baigent and Richard Lee, who claimed that Brown plagiarized their book The Holy Blood and the Holy Grail. This claim stated that Dan Brown had copied certain themes from their book. However, they eventually lost the case when a court decided no plagiarism had taken place.
    The second accusation came from Lewis Perdue, who claimed Brown had stolen from his novel Daughter of God, published in 2000. Although the Supreme Court declined to hear his case, in which he was seeking $150 million, he has not retracted the accusations.
    3. Nicki Minaj is no stranger to plagiarism accusations, having been accused of copying portions of her 2012 hit song “Starships” from a song written and performed by Clive Tanaka in 2011. However, a more recent, and much more unusual accusation of plagiarism has come from Terrence Davidson, who filed a lawsuit against Minaj for $30 million, claiming that she had stolen his wig designs. And, yes, stealing ideas for wig designs does fall under plagiarism, by definition, since it’s stealing ideas.
    Minaj, who is known for her wacky and unusual hairstyles, started selling her own brand of wigs on her website. Davidson claims that this line of wigs is based on designs that he had originally come up with, and which she had licenced and sold without his permission, and without sharing any of the profit. Although in September of 2014 the lawsuit against the superstar was dismissed, Davidson has not retracted the accusation.
    4. Bieber, along with singer, songwriter Usher were accused of plagiarism by Devin “the Dude” Copeland and Mareio Overton and sued for $10 million. The accusers claimed the song “Somebody to Love”, written by Usher and performed by Bieber, had been copied from their song with the same title released in 2008. Although the case was eventually dismissed, early in 2014, just over a year later the dismissal was overturned and the court case continued, starting what is bound to be a lengthy court battle to try and settle the matter.
    5. Few people are surprised to see politicians involved in scandals or having accusations made against them by political rivals, and Barack Obama, like most other political figures, has had his fair share of both. Among these was a plagiarism scandal during his presidential campaign in 2008, during which his main rival Hillary Clinton accused him of plagiarizing parts of a speech made in Wisconsin.
    6. It seems no successful book series is complete without at least one accusation of plagiarism, and the Harry Potter series is no exception. J.K Rowling, author of the hit book series, had a case brought against her in early 2010, claiming she had stolen ideas for the fourth instalment in the series from a book published in 1987, written by Adrian Jacobs, and titled The Adventures of Willy the Wizard. The estate of the late author claimed that the plot of Harry Potter and the Goblet of Fire had very similar plot points to that of his novel. The representative of the estate had claimed that the lawsuit would be a billion-dollar case.

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