Not every negative comment is defamation, and not every statement labelled an opinion is legally protected. Here is how to tell the difference.
Social media has made it easier than ever to speak publicly about our experiences, challenge public figures, review businesses and call out behaviour we consider unacceptable. But when an online disagreement escalates, one question often follows: Is this freedom of expression, or is it defamation?
The distinction matters, particularly as content creators, influencers and ordinary social media users increasingly use their platforms to discuss personal disputes, business dealings and the conduct of other people.
In Kenya, the Constitution protects freedom of expression while requiring people to respect the rights and reputations of others. Article 33 recognises the right to seek, receive and share information and ideas, but also establishes this responsibility.
The challenge is understanding where legitimate criticism ends and potentially defamatory publication begins.
What is defamation?
Defamation generally involves publishing a statement about an identifiable person that damages their reputation. In a typical civil defamation claim, the court considers matters such as the meaning of the words, whether they refer to the claimant, whether they were communicated to another person, whether they are false and whether they have a defamatory effect. The precise legal requirements and available defences depend on the circumstances.
In the online environment, publication can take several forms, including a TikTok video, Instagram post, Facebook update, YouTube commentary, podcast, livestream or WhatsApp message shared with other people.
For example, imagine a content creator publicly accuses a business owner of stealing customers’ money. If the allegation is false and damages the business owner’s reputation, it could raise a defamation claim.
The fact that the allegation was made in a video rather than a newspaper does not automatically put it beyond the reach of defamation law.
What counts as criticism?
Criticism is the expression of dissatisfaction, disagreement or an unfavourable assessment of a person, their work, their conduct or a service they provide.
For example, a customer might say, “I had a terrible experience with this business. My order arrived late, and the company did not respond to my messages.”
A content creator might also say, “I disagree with how this influencer handled the situation. I think they should have been more accountable.”
These statements communicate negative experiences or opinions. They are not automatically defamatory simply because the person being discussed dislikes them.
However, context matters. A statement presented as an opinion may still carry an implied factual allegation. Calling someone a fraudster, for instance, may suggest that the person has engaged in dishonest conduct rather than merely expressing a difference of opinion.
The wording, evidence, context and overall impression created by the publication all matter.
There’s a difference
1. Sharing a personal experience
A customer says: “I paid for a dress, but it was never delivered. I contacted the seller twice and did not receive a response.”
This is a report of a personal experience. If accurate and presented fairly, it may be legitimate criticism. The customer should retain payment records, messages and other supporting evidence.
2. Making an accusation
A creator says: “This seller is a thief who steals from customers.”
This goes beyond describing a failed transaction and may imply criminal or dishonest conduct. Whether it is defamatory depends on the facts, evidence, context and applicable legal principles.
3. Expressing an opinion
A viewer says: “I think this creator handled the disagreement poorly.”
This is generally recognisable as an opinion. It does not automatically become defamation because the creator feels offended.
4. Sharing an allegation as established fact
A creator says: “This person has been scamming people for years,” without reliable evidence.
The statement could seriously damage someone’s reputation. Presenting an allegation as fact without a reasonable evidential basis may expose the publisher to legal risk.
5. Commenting on a public controversy
A creator discusses a publicly known dispute and raises questions about the conduct of those involved.
Public interest can be relevant, but it is not a blanket licence to repeat unverified allegations. Responsible commentary should distinguish confirmed facts, allegations and personal opinion, and should avoid implying that an unproven allegation has already been established.
Does saying “in my opinion” protect you from a defamation claim?
No. Adding phrases such as “in my opinion”, “allegedly” or “I am just asking questions” does not automatically protect a person from legal action.
A court may consider the meaning conveyed by the entire publication, including what an ordinary audience would understand from the words and their context.
For example, a creator who says, “In my opinion, this person is stealing from their clients,” may still be communicating an allegation of dishonest conduct.
The substance of the statement matters more than the disclaimer attached to it.
What if the statement is true?
Truth can be an important defence in defamation proceedings, but a person should not assume that every online allegation is lawful simply because they believe it to be true.
Evidence matters. A person making a serious allegation should be able to support it with relevant material, such as correspondence, receipts, contracts or reliable records.
There may also be other legal considerations depending on how the information was obtained and published. Truth should not be confused with permission to disclose private information indiscriminately.
Kenya’s Defamation Act also recognises legal defences, including justification and fair comment in the circumstances set out by law.
Can a content creator sue someone for criticising them?
A person may seek legal advice or initiate proceedings if they believe their reputation has been unlawfully damaged. However, threatening to sue does not establish that defamation has occurred, and filing a case does not guarantee success.
The court must assess the actual publication and the applicable law. It is not enough to establish that a comment was embarrassing, unpleasant or damaging to someone’s feelings.
Equally, having a large following does not give a content creator immunity from responsibility for false and damaging allegations.
Creators should also remember that reposting, repeating or amplifying another person’s allegation can create its own legal risks, depending on the circumstances.
What should you do if someone publishes a potentially defamatory statement about you?
If you believe your reputation has been damaged by an online publication, consider the following steps:
- Preserve the original post, video, comments, links and relevant dates.
- Take screenshots and retain the full context rather than relying on isolated excerpts.
- Record evidence of any factual inaccuracies and the impact of the publication.
- Avoid retaliating with fresh allegations that could create a separate dispute.
- Consider requesting a correction, clarification or removal where appropriate.
- Seek advice from a qualified Kenyan advocate before making legal threats or commencing proceedings.
Anyone publishing allegations about another person should take similar precautions: verify facts, distinguish evidence from speculation and give appropriate context.
Criticism is not a free pass to damage someone’s reputation
The right to criticise, disagree and discuss matters of public interest is important. So is the right to protect one’s reputation from false and damaging claims.
The distinction is not simply between saying something nice and saying something negative. It is about what was communicated, what it meant in context, whether it was true or false, and how the law applies to the circumstances.
Before publishing a video about someone, ask yourself: Am I describing what I experienced, expressing an opinion, or making a factual allegation that I may struggle to prove?
And before threatening to sue someone for criticism, ask a different question: Has this person merely expressed a view I dislike, or have they published something that may unlawfully damage my reputation?
Understanding that difference can help make online conversations more responsible, reduce unnecessary legal disputes and protect the space for legitimate criticism.
This article is for general public information and is not a substitute for legal advice. Anyone facing a potential defamation claim should consult a qualified advocate in Kenya.
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