We do not often consider the impact of our words, at least not in the strictly legal sense. Yet, across centuries and cultures, the value of reputation has been universally acknowledged. As Shakespeare's Iago astutely observed in Othello, reputation “is an idle and most false imposition; oft got without merit and lost without deserving”.
The law of defamation, governed by the Defamation Act 1957, seeks to provide an avenue to redress the frequently superfluous and unprovoked harm done to one’s reputation. Generally, three elements must be fulfilled for such a claim:
(a) The words or content must be defamatory
(b) The words or content must refer to the claimant
(c) The words or content must be published
Distinction Between Libel and Slander
Defamation distinguishes between libel, a publication made in permanent form and slander, a publication that assumes a more transient form. Broadly speaking, libel involves publishing written or printed defamatory words, whereas the act of slandering a person or entity is to speak defamatory words of them to another. In practice, however, one may come to find that these distinctions are not so easily made.
For example, under English law, reading out a defamatory letter or script to an audience would be considered libel, as would theatrical performances. Even more confounding, where a person dictates a defamatory statement to another, and this statement is later written, it is still considered slander, as it was not in writing when it was ‘published’.
Traditionally, defamatory statements would primarily be published through newspapers, blogs, magazines and books.
Defamation And The Digital Age
In the contemporary landscape, however, the law has adapted in tandem with the evolution of the digital age and the rise of social media platforms. The ubiquitous nature of networking sites such as Facebook, WhatsApp, Instagram, TikTok and Twitter (now X) has revolutionised the way individuals communicate and share information. This unprecedented immediate access to worldwide audiences has also given rise to novel and complex legal challenges that practitioners and the judiciary alike have had to grapple.
Intermediary Liability
The far-reaching consequences of publications on social media have blurred conventional boundaries between publishers and user-generated content, prompting a necessary reassessment of intermediary liability and the responsibilities of online platforms. Intermediaries that may be liable include Internet access and service providers, search engines and portals and social networking platforms.
The Federal Court case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652, although more concerned with the issue of contempt of court, is particularly insightful in this regard. In this case, the 1st respondent, Mkini Dotcom Sdn Bhd and its editor-in-chief, the 2nd respondent, published an article titled “CJ orders all courts to be fully operational from July 1” which also included comments by third party online subscribers that scandalised the judiciary and the Chief Justice.
The Attorney-General (i.e. the applicant in this matter) commenced committal proceedings and submitted that the respondents facilitated the publication of the impugned comments and as such the presumption under Section 114A of the Evidence Act 1950 would be invoked. Pursuant to Section 114A, three categories of persons are presumed to have published or republished the contents of the publication unless the contrary is proved:
(a) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication.
(b) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from.
(c) Any person who has in his custody or control any computer on which any publication originates from.
The court allowed the application against the 1st respondent, stating that the 1st respondent must have a system in place that was capable of detecting and promptly removing offensive comments and held that the 1st respondent was liable to pay a fine of RM 500,000.00. The claim against the 2nd respondent was dismissed.
The very notion that one could be held liable for third-party comments on their own social media platforms shocked the public. However, this was not the first instance of such a ruling in Malaysia. The precedent was set earlier in the case of Stemlife Berhad v Mead Johnson Nutrition (Malaysia) Sdn Bhd & Anor [2014] 1 LNS 1398, where a website owner was found liable for postings made by an anonymous blogger using a pseudonym. Notably, the court was not inclined to award the plaintiff aggravated damages due to their ‘inaction at the material time’ and the fact that they had done little to stop the publications.
These decisions emphasise a publisher’s duty to implement robust oversight and moderation mechanisms to ensure the responsible and proper dissemination of content. Equally, it places a form of obligation on the claimant to also take proactive steps to stop or limit the publication and republication of the defamatory content.
Third Party Comments
In GS Realty Sdn Bhd v Lee Kong Seng [2018] MLJU 1902, the plaintiff, a company carrying on business as a real estate agent, commenced a claim against the defendant in respect of defamatory publications posted on the defendant’s Facebook page. The impugned statements were also reproduced and published by the defendant in several other Facebook pages, many of which were related to real estate. There were also responses by third parties to the impugned statements (i.e. secondary statements) as well as further postings and responses by the defendant himself.
The court subsequently found the defendant liable for publication of the secondary statements that were posted on the defendant’s Facebook page, stating that the defendant was clearly well aware of the secondary statements and did not remove them. The court considered factors such as the behaviour of the defendant and the effect of the publication in awarding the plaintiff aggravated damages.
Commentary
As social media continues to reshape communication dynamics, the law must evolve and progress to address the legal challenges that will inevitably follow. Given the ease and availability of access to social media combined with the often lackadaisical expression of grievances online without due consideration for its profound implications, it is necessary to strike a balance between the right to defend one’s reputation and the constitutional right to freedom of expression. It is evident from the above cases that not being aware of defamatory statements made is rarely a defence available to the publisher and it is therefore important to maintain a holistic moderation system for these online platforms.
19 April 2024