By FAUSTINE KAPAMA-Judiciary
THE Court of Appeal has
saved the Public Service Social Security Fund (PSSF) from paying 70m/-
compensation to her former employee Siriel Mchembe for allegedly publishing defamatory
statements against her through social media, Jamii Foums and Mzalendo Forums.
Justices Ferdinand
Wambali, Lugano Mwandambo and Ignas Kitusi ruled against Ms Mchembe, the
respondent, after allowing appeal lodged by the PSSF, the appellant, to
challenge the decision of High Court, which confirmed findings of Commission
for Mediation and Arbitration (CMA) over the matter.
“In the circumstances,
we find that the sole ground of appeal has been substantiated by the appellant.
Consequently, we find the appeal meritorious and hereby allow it. Considering
the nature of the dispute in the instant appeal, we order that parties shall
bear their respective costs,” they declared.
During hearing of the
appeal, the counsel for the appellant had contended that the High Court failed
to subject the evidence on record by the respondent to judicial scrutiny.
In their judgment
delivered recently, the justices pointed out that there was no dispute that the
alleged defamatory statements against the respondent, some senior members of
the management and staff of the appellant were initially published and posted
in Jamii Forum.
According to the record
of appeal, they noted, the defamatory statements were later posted on Wazalendo
Forums after the contributors alleged that Jamii Forum platform had been compromised
by the appellant's management.
The justices further
noted that there was also no dispute that the information contained in the
defamatory statements was directed to not only the respondent but also to
senior members of the management and staff of the appellant.
“It is however,
unfortunate that though the CMA in its finding found that the appellant is
responsible for the publication of the defamatory statements against the
respondent, it did not find whether on the strength of the evidence on record
the respective statements were true or false,” they said.
They added, “The CMA
simply concluded that the respondent's reputation was injured in the eyes of
her fellow employee, the family, the church and the public at large as the
information was accessed by many people who visited the respective social media
platforms.”
The justices noted from
the testimony of the respondent who stated in her evidence in chief that though
she did not know the person who authored the information, she was convinced
that the same was authored by the appellant as it was her computer which was
used.
“It is a requirement of
law that the respondent had burden to prove the allegation on a balance of
probabilities that it was appellant or its officers duly authorized who
published defamatory statements and posted on Wazalendo Forums with intention
to inflict injury on her reputation,” they said.
On the contrary, the justices said, the
respondent did not discharge such burden. They differed with the argument of the
respondent’s counsel that malice was implied on the appellant's failure to
control the use of her computer considering the complexity of detecting the
author of the defamatory statements and the existence of so many unknown
persons who made contributions in Wazalendo Forums.
“We are settled that
the respondent was supposed to present sufficient evidence before the CMA to show
and satisfy that the appellant or its employee was maliciously responsible for
posting the alleged defamatory statements and were intended to injure her
reputation,” the justices said.
In the circumstances, they
agreed with the counsel for the appellant that the High Court did not
critically analyse the evidence of the parties as a whole in line with the law
with regard to online defamation through social media platforms, particularly,
Wazalendo Forums before confirming the CMA finding.
Moreover, the justices
were settled that apart from the High Court's failure to revaluate the evidence
properly, it also failed to subject the available evidence to the applicable
law concerning the tort of defamation.
As a result, they said, the High Court ended
in an erroneous legal conclusion that the appellant was responsible for the
publication and posting of the online defamatory statements against the
respondent in Wazalendo Forums allegedly because it failed to control its
computers against the use by its staff.
“Thus, while the
statements might seem defamatory of the respondent, yet, since the active
involvement of the appellant was not proved as required by law, the respondent
could not be entitled to the awarded damages resulting from online defamatory
statements,” the justices said.
The respondent, Siriel
Mchembe, was an employee of the Parastatal Pensions Fund (PPF), which was
succeeded by Public Service Social Security Fund (PSSF), the appellant, from
October 1, 1995 until 2011 when her employment was terminated.
After the respondent
worked for the PPF for fifteen years, rising from the rank of Executive
Assistant to Contributions Manager, their relationship turned sour leading to
her termination. Consequently, the respondent instituted before the CM a labour
dispute the appellant for unfair termination.
The respondent also
claimed compensation of 100m/-from the appellant for allegedly being
responsible for publishing defamatory statements, initially in Jamii Forum and
later in Wazalendo Forums basically accusing her of being possessed with an
evil spirit of prostitution and adultery at work place.
A panel of three
Arbitrators heard the evidence for both sides and at the end issued an award
requiring the appellant to reinstate the respondent without loss of remuneration
and compensation of 70m/- for being liable for publishing and posting the
defamatory statements on the social media platforms.
Hakuna maoni:
Chapisha Maoni