A US District Court in Virginia on March 21, 2022 dismissed a defamation case brought before it by a Ghanaian Politician, Kennedy Ohene Agyapong against a US-based Ghanaian Investigative Journalist, Kevin Taylor and his media house, Lound Silence Media LLC.
The Assin Central lawmaker on October 29, 2021, filed a writ at the US District Court for the Eastern District of Virginia saying the journalist has defamed him hence seeking US$9.5 million dollars in damages to be awarded against Mr. Kevin Taylor.
The New Patriotic Party (NPP) bankroller told the Court in a fifteen-paged suit his action was influenced by a series of “false and defamatory statements in a series of videos and an email correspondence published by Defendants (Kevin Taylor and Loud Silence Media) via Facebook, YouTube, and other social media platforms about Plaintiff”
“Agyapong further alleges that these false and defamatory statements have caused severe harm to his personal, business, and political reputation. He has also suffered severe embarrassment and personal humiliation due to Taylor’s defamatory statements.
The judgment according to the court presided over by Justice Liam O’Grady said, “The Plaintiff [Mr. Agyapng] has alleged that Taylor has made several defamatory statements on this show [With All Due Respect] and further alleges that these false accusations were intended to humiliate and disparage the integrity of the Plaintiff”
”The first alleged defamatory statement that the Defendant made was an accusation that Agyapong is connected to the 2016 murder of a Ghanaian member of parliament [JB Danquah Adu]. Taylor has accused Agyapong of being responsible for the murder of a journalist who had reported on corruption in the Ghana Football Association. Taylor has accused Agyapong of using fake green cards to help Ghanaian citizens immigrate to the United State. Taylor has accused Agyapong of trafficking in illegal drugs. Taylor has accused Agyapong of being addicted to illegal drugs. Taylor has accused Agyapong of financial corruption.”
Reacting to the news of the lawmaker suing the social commentator in 2021, many Ghanaians took to social media to hit back at Mr. Agyapong saying he is the guiltiest when it comes to defaming people whiles they made references to the many insults, false accusations he hipped on Multimedia Group, Judges, former President John Mahama, Ibrahim Mahama and many other prominent and respected personalities in the Ghanaian society.
Prof. Kwaku Asare’s reaction to the news Agyapong v. Taylor:
Reacting to the news in November 2021 that Mr. Agyapong has sued Mr. Taylor for defamation, the US-based Ghanaian lawyer, Prof. Stephen Asare, aka Kwaku Azar is reported to have said that “Ken Agyapong’s suit against Kevin Taylor won’t go anywhere”. According to the Professor of accounting, it will be a tall order for Mr. Agyapong to prove he had indeed been defamed as claimed in his suit. He described the “Agyapong v Taylor et al is an interesting 3-count civil suit alleging (1) Defamation; (2) Defamation per se; and (3) Violation of Virginia Computer Crime’s Act. It seeks relief in the form of an apology, injunction, and damages in excess of $10M”.
“It will be interesting to see how far this suit goes where Americafuo [American] courts, unlike Ghanafuo [Ghanaian] courts, require a showing of actual malice by the defendant in defamation suits brought by public figures.” – Prof. Azar in his Facebook page
He emphasized that “Actual malice requires the plaintiff to show by clear and convincing evidence that the defendant either knew the defamatory statement was false or acted with reckless disregard as to whether or not it was true. Further, were the plaintiff able to show that he is not a public figure, the actual malice standard will still apply if the defamatory statements regard matters of public concern.”
He is explained that “Carrying the actual malice burden is so onerous that it effectively prevents public figures from pursuing defamation claims.”
“On the other hand, a private person suing on a matter of private concern need only show that the defendant was negligent. Negligence is a lower standard because it requires the plaintiff to only show that a reasonable person would have known that the impugned statement is false.” – He said
“You might be wondering why the status of the plaintiff matters. Why do the courts [in the USA] appear less willing to protect the reputation of public figures?
The courts have reasoned that it is in Americafuo’s best interest to openly discuss such figures. For instance, the courts believe that Americafuo [Americans] would be worse off if their politicians could prevent disclosure of corruption by threatening a defamation lawsuit.
Moreover, such public figures generally have much greater access to the media and can use that access to rebut defamatory statements. Private citizens have less access and thus are more likely to need the courts to defend their reputation.
Another reason why status matters are that public figures seek out public attention and must accept the attention that they get, whether good or bad.
Do not be perplexed by Counts 1 and 2. The latter arises where the alleged defamatory statement is so inherently damaging that damages are presumed to exist from the mere fact the statement was made. That is, in Count 2 plaintiff does not need to prove damages while damages must be proven in Count 1.
Falsely accusing someone of committing an infamous crime will be an example of the type of statement that may very well trigger a claim for defamation per se.
Count 3 is also an interesting one because it is unclear that the Act in question creates a civil cause of action.”
The Ruling
Like Prof. Azar pointed out, the Court thew out the case. The court said, “As a public figure, Agyapong must demonstrate that Taylor made the allegedly defamatory statements with ‘actual malice to recover the damages for defamation”. According to the judgment, “Actual malice does not mean that the defamatory statements were spitefully made, but rather it means that the statement was made with knowledge the statements were false or the statement was made with a reckless disregard their veracity”.
The Court further said, “A reckless disregard is shown when the statements are published with ‘a high degree of awareness’ that the statements are likely to be false”.
To the court, “Agyapong has not plead sufficient factual material to show that the statements were made with actual malice”
It added that “Agyapong alleges that Taylor knew the statement regarding the murders were false because other individuals were arrested for the murders and Taylor has not verified a video that was published on his YouTube show” but the Court shut down Mr. Agyapong’s assertion saying “It is true that avoidance of the truth can demonstrate actual malice, but a mere failure to investigate does not demonstrate actual malice”.
“Other persons were arrested for these murders does not imply Taylor was avoiding the truth. It is apparent from the statement that Taylor is referencing that he believes Agyapong is responsible for the murders, not that Agyapong pulled the trigger himself. In addition, the YouTube video referenced into threats that Agyapong made to other journalists. The materials referenced in the Amended Complaint and the Amended Complaint itself demonstrate that Taylor had at least some factual basis for his political commentary.” – the Court emphasized
Honourable Liam O’Grady in his ruling suggested that Mr. Agyapong has no basis for demanding $9.5 million dollars in damages awarded to him.
“It is undisputed that Agyapong is a public figure and Taylor’s statements were made regarding matters of public concern. The Amended Complaint does not plead any factual material that demonstrates Taylor’s disputed statements were published with actual malice.
Therefore, Agyapong has not adequately pleaded an actionable claim. Further, the Amended Complaint does not plausibly state a claim under the Virginia Computer Crimes Act. For these reasons, the Motion to Dismiss the Amended Complaint (Dkt. 13) is GRANTED and the above captioned civil action is DISMISSED. The Plaintiff has 60 days to file a Second Amended Complaint if that filing would meet the requirements discussed in this Order,” the Court ruled.
Defamation cases in Africa against journalists:
In many other African countries particularly Ghana, Nigeria, Kenya, journalists, and media houses are often threatened with court actions, and or cases are filed at the courts by the politicians, businesses offering questionable services to government intuitions to stop the publication of mostly corruption-related issues, abuses of office and other wrongdoings.
It is very factual and public knowledge now that judges across Africa and or African laws on defamation issues have not put public figures in a position that “requires a showing of actual malice by the defendant in defamation suits brought by public figures” but rather put much premium on the image or reputation of the public figures far ahead of issues of serious public interest hence appears to be protecting the reputation of public figures.
Like Prof. Azar explained “The courts have reasoned that it is in Americafuo’s best interest to openly discuss such figures. For instance, the courts believe that Americafuo [Americans] would be worse off if their politicians could prevent disclosure of corruption by threatening a defamation lawsuit.” – this appears to be the opposite in many African countries hence the daily records of horrifying cases on corruption in the public sector.
Ghana:
In Ghana, the Court slapped Kevin Taylor with GH¢3m damages added to Ace Ankomah over Mr. Taylor’s allegation and linking the lawyer to the Menzgold saga which has become a huge national disaster.
Also, a High Court judge, Justice Kyei Baffour, about whom social media commentator Kevin Taylor, made some alleged derogatory remarks, has issued a warrant for the latter’s arrest by the Inspector-General of Police (IGP), the National Security Secretariat and the Bureau of National Investigations (BNI).
Several other journalists including Manase Azure Awuni have been sued and injunctions filed at the Courts by public officials in an attempt to stop his publications.
Nigeria:
In Nigeria, the publication of information that appears not to be true is criminal like in Ghana.
Some journalists were charged with criminal defamation, and breach of peace on On October 24, 2019 by a magistrate court in Asaba, the capital of Nigeria’s southern Delta State.
“The charges stem from a complaint filed by Sam Ogri, a businessman named in an October 14 Big Pen Nigeria report, according to the charge sheet seen by CPJ and Ogbodu. The paper reported that recent violence in Uzere, a community in Nigeria’s southern Delta State, was in response to oil revenue corruption in which Ogri was allegedly involved and that the businessman financed the youths behind the violence”
Nigerian blogger, publisher jailed on defamation charges:
Nigerian Police on March 15 arrested Welson, the publisher of the Port Harcourt tabloid newspaper Rivers Today, after the newspaper republished the letter, according to Phoebe Fawehinmi, who is representing both journalists. The legal document lists the date Rivers Today published the document as “on or about” February 20.
On March 15, police drove Omololu-Olunloyo more than 600 kilometers (373 miles) across the country, from Ibadan to Port Harcourt, where a court ordered her and Welson jailed in a maximum-security prison, pending trial on charges of criminal defamation and false news, according to news reports and the legal document.
Police on March 13 arrested Omololu-Olunloyo, who runs the blog HNN Africa, at her house in the southwestern city of Ibadan, for publishing on Instagram a letter purportedly from a churchgoer accusing a woman of using juju to convince a pastor and other men to sleep with her and to give her gifts, according to media reports. The post has since been removed from Instagram, but a legal document CPJ has reviewed indicates it was published first “on or about” February 17. When she published the letter, Omololu-Olunloyo wrote that neither the pastor nor the woman had responded to her request for comment.
Kenya:
It was reported that “ARTICLE 19 Eastern Africa is concerned about the worrying trend in Kenya where courts are issuing exorbitant damages in civil suits against media organizations and individual journalists. On 28 July 2021, the High Court issued a KES. 22 million($200,732) judgment against the Star Newspaper, and its journalist, Felix Olick, which has a chilling effect on freedom of expression and threatens media sustainability.
The Plaintiffs, a director of a company and the company, Mbingo Enterprises Ltd, sued the Star newspaper for publishing an article in September 2018, which they claimed was defamatory to their reputations. In finding that the article was defamatory to the plaintiffs, the judge in Homabay High Court awarded KES.10 million($91,241) to each plaintiff, in general damages, KES.1 million($9,124) exemplary damages to each plaintiff against the defendants jointly and severally as well as the costs of the suit adding up to KES 22 million. The judge further issued a permanent injunction restraining the defendants from publishing articles defamatory to the plaintiffs now and in the future.“
Ghana, despite repealing the criminal liable law, still maintained Section 208 of the Criminal Offences Act, 1960 (ACT 29) which criminalizes the publication of fake news.
The arrest of journalist and social activists:
Recently, journalist Bobie Ansah was charged for publication of false news after accusing the first lady of Ghana of appropriating state lands, Oheneba Boamah Bennie who accused President Akufo-Addo of accepting to influence judges was also convicted for 14days on contempt of court charges.
Social activist, Mensah Thompson of ASEPA was also arrested, detained and charged for publication of fake news with he alleged that relatives of President Akufo-Addo had used the Presidential Jet for chiasmas shipping in the UK.
Onua TV’s Captain Smart was also arrested and charged in court over statements he made that bothered on national security.
Most these of arrests and enforcement of Section 208 of the Criminal Offences Act, 1960 (ACT 29) in Ghana is done when such publications are against top state officials.
Will the African legislators, and judges learn any lesson from the ruling on the case of Agyapong v Taylor et al to help enhance accountability from public officials?
By: Efo Korsi Senyo,
Investigative Journalist and Host of The Watchman Show
Accra-Ghana