An unwarranted restriction to Kenya Laws mandate to publish judicial decisions amounts to an attack on the development of jurisprudence in Kenya.

Brief facts

The applicants accused the respondent (National Council for Law Reporting) (Kenya Law) of breaching their right to privacy and thereby exposing the applicants to reputational damage in their business by publishing the decision of the High Court rendered in San Electricals Ltd Vs Tumaz and Tumaz Enterprises Ltd & 2 Others[2020]eKLR reported by the respondent at http://kenyalaw.org/caselaw/cases/view/190727. The applicants claimed that by such publication, the respondent acted maliciously and negligently, that the respondent should have verified the decision first and that the publication significantly affected the applicants revenue streams as it had succeeded in chasing away the applicants investors and customers to the competitors.

The respondent admitted reporting/publishing the decision of the court and contended that the publication of court decisions was its statutory mandate under the enabling legislation, National Council for Law Reporting Act and that such publication was not malicious as the respondent was not expected to edit or verify decisions send to it by the superior court judges. Further, the respondent contended that to be injuncted from publishing the decision would be to curtail the publics right to access information and would also curtail the growth of jurisprudence.

Issues

1. Under what circumstances would a breach to the right to privacy be actionable in a court of law?
2. Whether the right to privacy was absolute.
3. Whether the publishing of judicial decisions by the National Council for Law Reporting (Kenya Law) from superior courts of record breached the right to privacy of the parties featured in the cases.
4. Whether the National Council for Law Reporting (Kenya Law) was expected to edit or verify judicial decisions before publication.
5. Whether the National Council for Law Reporting (Kenya Law) had a statutory mandate to publish judicial decisions from superior courts of record.
6. Whether Kenya Law had the discretion to refuse to publish judicial decisions from superior courts of record.
7. Whether the publication of court decisions by Kenya law was dependent on any specific requests.
8. Whether the National Council of Law Reporting (Kenya Law) was duty bound to pull down a judicial decision on request of either of the parties of the case.
9. What criteria did Kenya Law utilize in anonymizing judicial decisions?
10. Whether the grant of an injunction against the National Council of Law Reporting (Kenya Law) estopping it from publishing judicial decisions would curtail the publics right to access information and the growth of jurisprudence.
11. Whether judicial decisions and laws of the land could be subjected to copyright protection.

Held

1. Privacy was the right to be left alone, right of a person to be free from unwarranted publicity. It was the right to live without unwarranted interference by the public in matters with which the public was not necessarily concerned.
2. Privacy was a facet of human right hence it was inalienable from the personality of a human being. The right to privacy was guaranteed under article 31 of the Constitution. Although the applicants did not specify what aspect of their privacy was violated, and neither did they cite the correct provisions under which the motion was brought, of article 31(c) of the Constitution guaranteed every persons right not to have information relating to their private affairs unnecessarily revealed.
3. The right to privacy was closely linked to the right to inherent dignity and the right to have that dignity respected and protected.
4. In determining whether the right of privacy had been violated the court had to establish whether the applicant or petitioner had demonstrated to the satisfaction of the court that the information was obtained in an intrusive manner, that the information was about intimate aspects of the applicants personal life; and that it involved data provided by the applicant for one purpose which was then used for another; that the said information as obtained by the respondent was disseminated to the press or the general public or persons from whom the applicants could reasonably expect such private information would be withheld.
5. The mandate of the respondent was derived from the National Council for Law Reporting Act (the Act). Section 2 of the said Act established the National Council for Law Reporting (the Council). Under Section 8(1) of the Act, the Editor was responsible for the preparation and publication of the Kenya Law Reports and for such other publication as could be approved by the Council under section 3.
6. Section 19 of the Act provided that every judge of the superior court of record was to as soon as practicable after delivering a judgment, ruling or an opinion cause to be furnished to the Editor a certified true copy of the judgment, ruling or opinion delivered by him. That was mandatory and it was one of the parameters that the superior courts were measured by in the performance measurement understanding evaluations which were undertaken on an annual basis for each and every judge. Such determinations or decisions had to be submitted to  Kenya within seven days of the delivery of the decision, whether it was a ruling or a judgment.
7. Under section 20 of the Act, returns were to be made by the registrars of the superior courts on a monthly basis, to the editor, providing him with a list of all judgments, rulings or opinions delivered by the High Court or the Court of Appeal as the case may be. Section 21 of the Act provided that Kenya Law Reports was to be the official law reports of Kenya which was to be cited in proceedings in all the courts of Kenya.
8. The right of privacy was the right of a person to be left alone, to be free from unwarranted publicity and to live without unwarranted interference by the pubic in matters with which the public was not necessarily concerned. An actionable invasion of the right to privacy was the unwarranted appropriation or exploitation of ones personality, the publicizing of ones private affairs with which the public had no legitimate concern, or the wrongful invasion into ones private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. It also included, usually, by statute, a constitutional right to be left alone from governmental intrusion into ones private affairs, although the rights and the needs of the government to provide protection to society were balanced.
9. To be actionable, the prying or intrusion into the claimants private affairs must be of a type which was offensive to a reasonable person, except in the case of wrongful appropriation of ones name or likeness where the act complained of need not be highly offensive to constitute invasion of privacy.
10. Public disclosure of private facts or affairs occurred when a person gave publicity to a matter that concerned the private life of another but it had to be a matter that would be highly offensive to a reasonable person and that it was not of legitimate public concern. In an action for invasion of privacy based on the alleged wrongful disclosure of private facts, the plaintiff/claimant had to show that the disclosure complained of was actually public in nature. There was no liability when a defendant merely gave further publicity to information about the plaintiff that was already public.
11. In an action for a privacy right violations, a claimant had to allege and prove:
    1. that there was an unwarranted invasion of the individuals privacy;
    2. that there was intentional intrusion on his her private concerns;
    3. that publication was without the claimants consent, where such written consent is required; and
    4. that the claimants name or picture was used for trade or advertising purposes, where privacy invasion is alleged by publication of ones name or likeness for trade and advertising purposes.
12. In actions for privacy right violations, truth was not a defence and it was not necessary to allege or prove special damage. A suit for damages or an injunction where damages would not adequately redress an injury was sufficient.
13. The Government could not be liable for privacy intrusion by communicating public information, if no malice on the part of the government was pleaded and proved. For example, the government or public entity will not be liable for releasing information regarding a persons criminal conviction to the public if the applicant:
    1. had discussed about the conviction in a letter to a newspaper;
    2. criminal conviction record was public information;
    3. was under probation supervision;
    4. put forth no evidence about confidential information release to the public.
14. The main suit between the parties in the reported decision was still pending before court. The application which gave rise to the published ruling was interlocutory in nature. It was heard in public and a ruling publicly pronounced. The applicants never sought for a private or in camera hearing or delivery of the ruling by the court in private. The applicants also never sought for any anonymity of the parties or parts of the Ruling. They never asked the court to consider the matter private although the dispute was between private persons/natural and corporate. No minors were involved in the dispute. It was not a matter involving sexual offences or family disputes. It was a commercial dispute between and among entities.
15. Nobody requested for publication. The court was duty bound by statute to send a certified copy of the ruling to the Editor National Council for Law Reporting for publication of the ruling. The editor, National Council for Law Reporting did not err in publishing the decision.
16. The right to privacy was one of the most cherished rights in the Constitution. However, privacy was not absolute or sacrosanct. It had to be balanced with the other rights and needs of the other citizens and the persons own actions in pursuing exposure or encouraging it.
17. There was no evidence to show that the respondent required consent of the applicants herein to publish the decision received from the court. There was no evidence to show that the respondent had malice in publishing the ruling. No particulars of malice were stated or disclosed by the applicants. The hearing of the application giving rise to the ruling having been done in public, the respondent only published information or the decision which was already public information, information which the public had a legitimate right to access.
18. There was no unwarranted invasion of the applicants privacy. There was no intentional intrusion on the applicants private concerns and that no consent, whether written or oral was required for the respondent to publish the decision which publication was in their statutory mandate.
19. The applicants had not demonstrated to the court by way of evidence that the respondent was under any duty to verify or edit and to edit or verify what in particular, from the ruling of the court, before deciding whether to publish it or not. That court had also not been told that the decision as published had inaccuracies or errors committed by the respondent. Neither was there evidence that the respondent was under any legal duty to edit the decision upon receiving it from the court who was the author thereof. The court was not told whether the respondent should have rejected the decision and or sought for further permission from a court before publishing it.
20. Where a party has publicly participated in a public hearing and decision making and in a case which did not fall in the categories of cases where there was need for redaction of some material or anonymization, then that person could not turn around and claim that their privacy had been violated by the publication of the court decision. The facts disclosed in the ruling publicized were public facts and there was no scintilla of evidence to show that those facts in the ruling would be offensive and objectionable to a reasonable person of ordinary sensibilities.
21. If the applicants considered their case to be so private in nature and wanted the public including their customers and or competitors not to know that the applicants were involved in any of litigation history with other persons, nothing prevented the Applicants from applying to the National Council for Law Reporting, the respondent herein for anonymization of the part of the ruling. Failure to do so, the respondent could not be directed by the court to pull down a law report whose accuracy, as verbatim public information of court decisions had not been challenged. The instant court had not been shown what reputational damage the applicant had or stood to suffer by the ruling following its publication by the National Council for Law Reporting.
22. The State was the major guarantor of human rights and freedoms and that to injunct the respondent from disseminating court decisions to the public, without any proof of damage or injury that such dissemination would cause to an individual or public, was tantamount to curtailing the publics right to access information as guaranteed in article 35 of the Constitution and further curtailing the growth of jurisprudence in the country. Curtailing the publication of court decisions would erode the publics confidence in the courts.
23. For example, Section 52(1)(q)(iv) of the Indian Copyright Act provided that publication of court judgments did not constitute an infringement of copyright. That was because judgments and court orders were exempted from copyright protection and were in the public domain, the instances of compiling them off as original works were common place. Only the court could expressly bar the publication of a case or where the law bars such publication.  In Kenya, Section 2 of the Copyright Act excluded statutes or written laws and judicial decisions from being literary works that could be subjected to copyright. One could not claim that they owned a statute or a court decision and sought for its protection under the Copyright law.
24. The right to privacy had to be balanced with the right to access information held by the State. Access to public legal information was the property for the common good and therefore unwarranted restriction amounted to an attack on the development of jurisprudence in Kenya. Further, it would muzzle the respondents statutory mandate if parties who elected to participate in public trials turned out to sue the National Council for Law Reporting or even the superior court judges who were also mandated by law to submit their decisions for publication by the respondent.
25. The National Council for Law Reporting could not therefore modify or remove particulars from a case except in limited cases, involving children, sexual offences or in family matters such as divorce or adoption or where an application for anonymization was made and allowed or where the court had given such directions in a matter where, publicizing ones private affairs without a legitimate public concern would violate that persons right to be free from unwarranted appropriation of ones personality.
26. Article 50(1) of the Constitution guaranteed every person the right to a fair hearing and to have any dispute that could be resolved by application of the law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Accordingly, since the National Council for Law Reporting privacy policy was in place where it redacts cases in line with the law for redaction and anonymization, the applicant should have approached the respondent to invoke those provisions and not to seek to injunct the respondent from publishing a ruling submitted to it by the judge who was the author thereof, in compliance with the law.
27. Even that decision had to be submitted to the respondent for publication within the next seven days. It would be such a dangerous precedent setting for the superior court judges to be looking on their shoulders to see who was watching them and who would be reading their decisions before making the decisions themselves and deciding which decisions should be published and which ones should not, which was a negation of the principle of decisional independence of Judges.
28. The goal of publication of court decisions was two-fold:
    1. to inform society about interpretation and application of the law in Kenyan courts; and
    2. to ensure publicity, transparency and openness of the courts such that the publics right to freely receive and disseminate information which was part of the right to self-expression as protected under the Constitution was not curtailed.
29. The principle of legal certainty which was a sine qua non of constitutional democracy, made the duty of the State to ensure that courts worked in a predictable manner. The principle of legal uniformity implied that court decisions adopted by different courts or in cases of similar subject matter or causes of action would carry identical legal interpretation.
30. Publicity of court decisions was an instrument of social control and increased trust in Kenyan courts. That was not to say that publication was absolute. That was why the Data Protection Act and other laws like the Childrens Act provided for anonymization and redaction. Where restrictions (limitations) were provided in law, the limitation would be weighed and evaluated in line with the constitutional dictates. Publication of court or judicial decisions was in compliance with the freedom to receive/access information.
31. As everywhere in society, also to the judiciary, the internet had brought a revolution. Apart from the growing possibilities for on-line proceedings, by offering the opportunity to publish vast quantities of court decisions on-line, the judiciary can increase its visibility and transparency substantially.
32. Published court decisions were important base materials for legal professionals, academic researchers, journalists and private companies in the legal information market. In addition, it would be a violation of the right to access justice for those persons who could not afford private legal representation if they were curtailed from accessing court decisions and the only way to access those court decisions was by way of publication. Past court decisions assisted even the public spirited litigants
33. The Data Protection Act of 2019 was enacted to give effect to the provision of article 31(c) and (d) of the Constitution which guaranteed every person the right not to have information relating to the family or private affairs unnecessarily required or revealed and the right not to have the privacy of their communication infringed. The Act also created offences against persons or data controllers who failed to comply with various provisions of the Act.
34. The respondent had developed anonymization guidelines which the applicants should have taken advantage of and applied to the respondent, with acceptable reasons of course, to anonymize the decision and only when the respondent unreasonably declined the request, would the applicants seek intervention of the court. No such request was made by the applicants as required under section 52(1)(b) of the Data Protection Act.
35. The applicants failed to discharge the burden of proving that their privacy was violated by the National Council for Law Reportings publication of a court ruling in a matter which was heard publicly and the decision rendered publicly court, which decision or case did not fall in any of the categories of cases requiring redaction or anonymization.