A tribunal has ordered a man to pay Sh850,000 as general damages for disclosing the HIV status of another person through a comment on a WhatsApp group.
|Mombasa
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Man to pay Sh850,000 for disclosing friend's alleged HIV status in WhatsApp group
The HIV and Aids Tribunal has ordered a man to pay Sh850,000 as general damages for disclosing the HIV status of another person through a comment on a political WhatsApp group and causing stigmatisation.
It has further issued an order restraining Mr FO, as identified in case documents, from disclosing Mr PMM’s HIV status, discriminating, stigmatising or harassing him.
The Tribunal ruled that FO’s actions amounted to a violation of the provisions of HIV and Aids Prevention and Control Act (HAPCA) and that he unlawfully and without consent disclosed Mr PMM’s status, real or perceived, to third parties who are members of the WhatsApp group.
The Tribunal led by its chairperson Carolyne Mboku noted Mr PMM’s testimony that word on his alleged HIV status got to his wife who in turn moved from their matrimonial bed and started sleeping in a separate bedroom and that people in his local church avoided sitting next to him.
Also Read: How do I tell him I am HIV positive?
“Taking into consideration the testimony of the claimant and the evidence tendered in support of his claim and the infeasibility of quantifying stigma, we do find that the claimant suffered discrimination and stigmatisation,” ruled the tribunal.
The Tribunal whose other members are Prof WG Jaoko, NW Osiemo, BO Yogo, JN Ngoiri &Dr S Musani further directed the respondent to pay Mr PMM Sh3,000 as special damages for counselling costs.
Mr PMM had told the court that at all times together with FO they were members of the same political WhatsApp group (relating to a political party’s team in Western region).
He said that on July 3 last year, he was engaged in a political discussion on the WhatsApp group where he posted a comment that was divergent from FO’s view of the person likely to win as the Member of Parliament of a constituency.
In retaliation, Mr PMM said the respondent publicly posted a comment on the WhatsApp group that alleged that he was HIV positive and that the post was done in the presence of all members in the group and has caused him to suffer stigma and loss of dignity.
According to Mr PMM, he opted to send a private message to the respondent requesting him to stop insulting him and posting in various political WhatsApp groups false allegations of his HIV status but he (respondent) was unapologetic for his actions.
Mr PMM told the tribunal that he also faced discrimination in the group and other groups where some people resorted to mockery and talking about his status.
He told the tribunal that he felt rejected by his social peers to the extent that he does not have the freedom to freely express his views in the social forums to which he belongs.
Mr PMM argued in his case that he has faced many challenges ranging from social to psychological as a result of the respondent’s remarks and that he is currently undergoing counseling.
The claimant testified that he asked the respondent privately in his WhatsApp to stop and he (respondent) responded that it was nonsense.
In its decision, the tribunal noted that it has previously held that a person’s HIV status is a private affair and should not be disclosed to third parties without his/her consent as enacted in Section 22 of HAPCA.
The tribunal said that the HIV status as covered by Section 22 of HAPCA is both real or perceived and it matters not that the person disclosing it is unaware of the actual status of the person being offended.
The respondent never entered an appearance nor filed a response to the claim against him despite being served and the case proceeded in his absence.
