defamation

BFM Podcast: I DUNNO, I’M JUST FORWARDING

India wants to monitor, intercept and track WhatsApp messages in a bid to curb the spread of misinformation. As you can imagine, this has caused quite the furore but you might be interested to know that some good could also come from the move.

Produced by: Sumitra Selvaraj
Presented by: Tee Shiao Eek, Sumitra Selvaraj, Sharmilla Ganesan



Bread & Kaya: 2018 Malaysia Cyber-Law And IT Cases – Cyber-Defamation


By Foong Cheng Leong
April 26, 2019

  • In cyber-defamation cases, the High Court has granted damages between RM50K to RM100K
  • Court assumes that you have published something if it originates from your email, Facebook, etc

IN THIS second, of a four-part series, I will talk about the rise of cyber-defamation. The number of cyber-related tort cases filed in the Kuala Lumpur High Court in 2018 increased to 60 over from over 50 cases. Most of these cases were related to cyber-defamation.

The Court dealt with numerous defamatory online postings that went viral. In these cases, the High Court has granted damages between RM50,000 to RM100,000.

In Datuk May Phng @ Cho Mai Sum & 2 Ors v Tan Pei Pei [2018] 4 AMR 784, HC, the High Court was tasked to assess the damages to be granted to the Plaintiff against the Defendant for publishing defamatory statements in an email to at least four recipients.

It was not disputed that the said email has been circulated among the public via the internet to as many people as possible and the Defendant invited the recipients to read and spread its contents as widely as possible.

The Court held that the said e-mail was not an ordinary email directed to one person, but the said e-mail was written in the context to address the public, to have the said e-mail widely circulated among the public. Therefore, the Court was of the view that the said e-mail had been widely circulated and/or presumed to be so.

The Defendant’s attempt to prove that the e-mail was sent only to the four individuals named therein or five individuals as a whole as contemplated by the Plaintiffs does not change the scenario or fact that such publication in the internet via email is deemed to be wide circulation because the Defendant intended the wide circulation of the said e-mail based on her statements in the said e-mail where the Defendant requested the public to circulate the said e-mail.

The Court held that it is practically impossible to prove exactly to whom the said e-mail had been circulated, there is a presumption by law that such circulation over the internet is presumed to be wide publication and the onus is on the Defendant to prove the limited publication as alleged.

The High Court granted RM80,000 as general damages.

In Mohamed Hafiz Mohamed Nordin v Eric Paulsen and Another Appeal (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-1668-08/2017), the Plaintiff filed an action against the Defendant for defamation arising from an article published on the internet via the website of Portal Islam & Melayu at www.ismaweb.net which went viral on social media.

The Plaintiff is the executive director of ‘Lawyers for Liberty’, a human rights lawyers’ non-governmental organisation, and a well-known human rights lawyer and activist in Malaysia.

The Defendant is a member of the Pertubuhan Ikatan Muslimin Malaysia (Isma), a non-governmental organisation established in 1997. Isma’s main focus is Islamic propagation in the country.

The Plaintiff alleged that the Defendant had uttered a defamatory statement which was published in an article entitled “Jangan Biar Eric Paulsen bebas tanpa perbicaraan” on www.ismaweb.net.

The High Court found that the Plaintiff had failed to prove that the impugned statement was defamatory as he had failed to prove that his reputation has been adversely affected and tainted. The High Court also dismissed the Defendant’s defence of justification and fair comment.

On appeal, the Court of Appeal found that the impugned statement is derogatory, calculated to incite hatred and anger amongst the multi-religious groups and ethnicity in Malaysia.

The impugned statement not only described the Plaintiff as a fraudster, a liar who incites hatred of the Islamic religion, but also as a person funded and supported by foreign entities, such as the United States of America and the European Union.

In their natural and ordinary meaning, impugned statement meant and was understood to mean by reasonable and ordinary readers of the article that the Plaintiff is anti–Islam. Therefore, taking the bane and the antidote of the article published the defamatory statement had only one purpose, that is, to tarnish the plaintiff’s character and reputation.

The Court of Appeal granted damages of RM100,000.00.

In Mohd Khaidir Ahmad v. Mohd Iqbal Zainal Abidin [2018] 1 LNS 1150, the Court of Appeal upheld the High Court’s decision in finding the Defendant liable for defaming the Plaintiff on his Facebook page.

The Defendant had alleged that the Plaintiff, an Assistant District Officer of Temerloh, had abused his power and was corrupt, among others. One of the Facebook postings had an uploaded photograph of the Plaintiff, his son and car together with defamatory statements.

The Facebook postings attracted responses, negative ones at that, on his Facebook page. The allegation of abuse of power and corruption appeared to resonate with the netizens who posted their comments, generally agreeing with the same.

The Defendant denied that the words were defamatory of the Plaintiff, that they were fair comments and disclaimed responsibility for the negative comments by the netizens.

The Court of Appeal upheld the High Court’s decision in dismissing the Defendant’s defence and also upheld the damages of RM50,000 granted by the High Court. The Court of Appeal agreed with the High Court that the Defendant failed to prove that the Plaintiff had received bribes, and rejected the defence of qualified privilege as the postings were made without there being a duty to do so for they were done for his own interest, not that of the public.

Pre-action discovery – Finding out who defamed you

A pre-action discovery application is an action filed in Court against parties who are in possession of information of a wrongdoer. In usual cases, such an action is filed against a website operator, whose users had published defamatory comments, to divulge the identity of their user.

This is what had happened in the case of Kopitiam Asia Pacific Sdn Bhd v Modern Outlook Sdn Bhd[2018] MLJU 1450. The Plaintiff filed a pre-action discovery application against the three Defendants after it discovered a defamatory article relating to it on the websites connected to the Defendants. The Plaintiff stated that it intends to file an action for slander of goods against certain parties and required particulars of the said parties from the Defendants.

The 1st Defendant is a company dealing with activities related to payment and to up services via the internet portal industry. The 2nd Defendant is a company providing website registration services. The 3rd Defendant is the provider of the server where the website where the defamatory article was placed.

The 2nd Defendant did not object to the application subject to the information to be released being confined to only information in their possession and/or the release of the said information is within the ambit of law in particular the Personal Data Protection Act 2010.

The High Court granted the order against the 1st and 3rd Defendant as the Plaintiff had indeed stated the material facts pertaining to the intended proceedings which relates to a cause of action for slander of goods. They have also identified the persons against whom the order is sought and is likely to be a party in the subsequent proceedings in the High Court apart from specifying and describing the documents needed.

Other than a website operator, the High Court held that a domain name reseller can be compelled to divulge information of their customer.

In Nik Elin Zurina Binti Nik Abdul Rashid v Mesra.net Sdn Bhd (Kuala Lumpur High Court Suit No. WA-24NCvC-179-02/2018) (Unreported), the Plaintiff sought a pre-action discovery order against the Defendant, who was a reseller of Mynic Berhad, the sole administrator for web addresses that end with .my in Malaysia. The Defendant had assisted in the registration of the domain name Menara.my and the Plaintiff claims that Menara.my had defamed her through a few articles. The Plaintiff wanted the Defendant to divulge the identity of the owner, operator and registrant of the domain name.

The High Court allowed the Plaintiff’s application and ordered the Defendant to divulge the identity of the owner of the website.

Interlocutory injunction – Stopping a person immediately

An interlocutory injunction is an order restraining a person from doing an act pending the disposal of the matter in trial. A trial date is usually fixed a few months after a legal suit is filed. If a person wants a tortfeasor to stop publishing further defamatory statements immediately pending the disposal of the matter in trial, he can file such an application with the Court.

Any person who does not adhere to a Court order can be cited for contempt. In Maria Faridah Atienza v. Hadijah Mohamaed Mokhtar & Anor [2018] 3 CLJ 655, the High Court fined the 1st Defendant RM30,000 and sentenced the 1st Defendant to prison for two weeks after she had failed to pay the fine. The Defendant breached the Court’s injunctive order restraining her from making or publishing any statement against the Plaintiff. She had done so by publishing certain statements on her Instagram account.

In Dato’ Sri Mohd Najib Bin Tun Haji Abdul Razak v Tony Pua Kiam Wee (Kuala Lumpur High Court Suit No. WA-23CY-17-04/2017), the Plaintiff, the former Prime Minister of Malaysia, sued the Defendant, a member of Parliament of Malaysia, for defamation. The Defendant had allegedly uttered and published defamatory statements on a live video which was published as a post entitled “BN Govt abandons all Bills to give precedence to PAS RUU355 Private Member’s Bills” on his Facebook account. 

The Facebook post went viral with 82,434 video views. The Defendant has 310,256 Facebook followers. The Plaintiff also filed an application was interlocutory injunction to stop the Defendant from uttering or publishing the defamatory statement.

The High Court granted the said application and held that the Defendant did not deny that he had published those alleged statements, and such statements are indeed defamatory.

On appeal, the Court of Appeal in Tony Pua Kiam Wee v Dato’ Sri Mohd Najib Bin Tun Haji Abdul Razak [2018] 3 CLJ 522 upheld the High Court’s decision.

[Edit: 29 April 2019 – Leave to appeal to the Federal Court (Civil Appeal No. 08(i)-107-03/2018(W)) has been granted for the following questions-

(i) Whether the test for an interim injunction in defamation proceedings laid down in The News Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36 is good law given the freedom of expression guaranteed by Article 10(1)(a), Federal Constitution?

(ii) Whether in light of Article 10(1)(a), Federal Constitution, an application for an interim injunction in defamation proceedings to restrain the further publication of impugned statements must be dismissed where the defendant has:

(a) pleaded and particularized the defences of justification and fair comment on matters of public interest in his Defence; and/or

(b) stated, on oath, his belief as to the truth of the impugned statement, and his ability and willingness to justify the impugned statement?

(iii) Whether the fact that the Speaker of the House of Representatives had ex facie exercised powers under the Standing Orders of the Dewan Rakyat, precludes the entitlement of a plaintiff to establish at trial, the fact that the exercise of such powers was not bona fide, in private law proceedings that refer to such exercise of power?

(iv) Whether a court is entitled in private Jaw proceedings to treat the fact of the Attorney General not having commenced prosecution under Article 145(3), Federal Constitution and/or the explanation for such decision as exonerating the impugned conduct, and such as to allow the court to further conclude by way of judicial notice under section 56, Evidence Act 1950 that no wrongdoing was committed?

Electronic evidence

Presumption of publication – Court assumes that you’ve published it

In Thong King Chai v. Ho Khar Fun [2018] 1 LNS 374, the Plaintiff sued the Defendant for defaming him via email and a closed Facebook Group.

In determining whether the statements were published, the High Court applied the presumption of publication under s. 114A of the Evidence Act 1950. The High Court held that pursuant to s. 114A, the presumption of fact is that the email was published by the Defendant as it had originated from his email address. Similarly, there is also a presumption of fact that the Facebook posting was published by the Defendant through his Facebook account.

The High Court also applied the presumption of fact raising a prima facie inference that postcards and telegrams, in the ordinary course of events, have been published to third parties unless the Defendant proves otherwise (as held in the case of Matchplan (M) Sdn Bhd & Anor v. William D Sinrich & Anor [2004] 2 MLJ 424). Applying the decision in Matchplan to the internet age of publication by email and Facebook, the High Court found that the email and the Facebook posting were published to the persons named in the email’s address list and cc list and also to the persons who had access to the Facebook Group. The Defendant did not provide any evidence to rebut this presumption of fact.

However, the High Court dismissed the action on the ground that the statements were not capable of bearing defamatory meaning and are in fact not defamatory of the Plaintiff. Even if the statements are defamatory of the Plaintiff, the Defendant would be able to rely on the defence of justification and/or the defence of fair comment.

Admissibility of Screenshots

In Norazlanshah Bin Hazal v Mohd Dziehan Bin Mustapha (Kuala Lumpur High Court Suit No. WA-23CY-14-03/2017), the Plaintiff sued the Defendant for defaming him on Facebook.

The Defendant disputed the authenticity of the screenshots which contained the alleged defamatory Facebook posting. However, the learned Judicial Commissioner refused to admit the screenshots as evidence as no evidence was led as to the maker of the contents of these screenshots and none were called to testify, no testimony as to how the screenshots were produced although there as admission that the documents were computer generated and no attempt to admit those screenshots under s. 90A of the Evidence Act 1950.

Part 3 which focuses on cyber-crime cases and other cyber offences will be published on May 3.

First published on Digital News Asia on 26 April 2019

When social media rants can land you in court

I was featured in The Star Newspaper’s article entitled “When social media rants can land you in court” on 5 January 2018 on the issue of reviewing a business online. I said the following:-

Meanwhile, Bar Council cyberlaw and information technology committee co-chairman Foong Cheng Leong told The Star that a person was free to post a review of a restaurant, on Facebook or elsewhere.

However, he said such a review should not be defamatory.

“Defamatory statements would mean the statement would expose the plaintiff to hatred, ridicule or contempt in the mind of a reasonable man, or would tend to lower the plaintiff in the estimation of right-thinking members of the public generally,” he said.

Nonetheless, Foong said sometimes it is hard to differentiate between what is defamatory or not.

“Generally, insults, negative reviews, or statements of opinion are fine. I can always say a restaurant food is terrible. It is fair comment.”

The interview by The Star Newspaper was a follow up of a decision by the High Court of Malaya in the case of Champ’s Express Heritage Sdn Bhd & Anor v Pak Loo Ke (Kuala Lumpur High Court Suit No. 23NCVC-94-12/2015). The High Court held that the Defendant had defamed the Plaintiffs when she published a posting on the 1st Plaintiff’s Champ’s Bistro, BSC. The Facebook posting had questioned the level of hygiene of the Plaintiffs’ food and also the 3rd Plaintiff, who is the founder of the 1st and 2nd Plaintiffs, among others. The same posting was made the Defendant’s Instagram account. The Defendant was a kitchen helper for 2 weeks before she published the alleged defamatory postings.

The Star Newspaper reported that the Plaintiff had succeeded in proving defamation, and the Defendant had failed in her defence of justification and fair comment.

BFM Podcast: LANDMARK #4: FACEBOOK

Subsequent to my update on the Malaysian 2016 cyberlaw cases, I was interviewed by BFM Radio to talk about general laws applicable to social media in Malaysia on 13 April 2017. I also covered the rules applicable to your digital data after your death and how to manage them in preparation of your death.


Who owns the pictures you post on Facebook? Can comments you post on Facebook be used against you in court, even after it is deleted? How is defamation defined on social media? On this episode of Landmark, a series exploring how the law shapes society and vice versa, lawyer Foong Cheng Leong talks us through recent rulings involving the social media platform and explains where the law currently stands when it comes to Facebook.

Your browser does not support native audio, but you can download this MP3 to listen on your device.

Minimising the risks in blogging

Published in The Star Newspaper on 8 January 2009.

BLOGGING has become the new way of life of Malaysians. It is without doubt a new form of media where a large number of the public refer to these days in addition to the mainstream media.

With this comes responsibility. It is settled that bloggers are liable for what they say and for what other people post on their blogs. The following laws are applicable to bloggers:

> Civil and criminal defamation;
> Sedition;
> Communication and Multimedia Act 1998; and,
> Copyright infringement.

The above list is not exhaustive and it is hoped that the following will serve as a short guide to minimise the risks of blogging.

One of the most common actions brought against website owners (which include a blogger) is a defamation suit. The definition of defamation is not a static concept.

It has been defined that a statement may be defamatory when it tends “to lower a person in the estimation of right-thinking members of society generally” or “to cut him off from society” or “to expose him to hatred, contempt or ridicule”.

Defamatory statements may not only arise from written postings but also from videos (embedded in the blog), pictures/drawings/graphics, sound and even hyperlinks. Recently, a Malaysian High Court held that a website owner is liable for a hyperlink posted by a commentor that links to a website containing a defamatory statement.

The consequence of being liable for defamation is grave. It can drain you financially and make you a bankrupt. It can even put you in jail if it falls under criminal defamation. Even a food review blogger can be subject to a defamation suit. Thus to avoid such problems, the following steps are recommended:

> Avoid potentially defamatory statements;
> Moderate comments;
> Identification of commentor’s details;
> Warning to commentors;
> Disclaimer;
> Disable Cache; and,
> Anonymity.

The most obvious, and the most important, step to take from being slapped with defamation action is to avoid defamatory statements.
Always ensure that what you write is true. If you are unable to verify the truth of a statement on your blog, junk it. Avoid criticising other people on your blog, as sometimes the criticism can be taken as defamatory.

Another type of entry you should avoid is rumour-based entries. It is advisable not to repeat a rumour made by others, unless you can prove it.

As mentioned earlier, what got many website owners into trouble is what their readers posted. And website owners are liable for comments made by other parties published on their website.
In this regard, website owners can be subject to an application to the court compelling them to reveal the identity of the commentor. It should not be much of a problem to website owners to reveal the identity, but sometimes the order goes a bit further than that.
For example, there were cases where website owners were compelled to reveal Malaysian identity card numbers of their commentors, and also slapped with costs payable to the complainant.

Thus, it is useful to set up a system to filter comments and require commentors to register themselves before they can submit comments. Alternatively, the website owner may have in place a stringent approval system where comments will only be posted upon approval.
Further, you may also reveal the details of the commentors such as their Internet Protocol (IP) address, time of posting and e-mail address on the website upon the posting of the comment.
By revealing such details, the commentors can be traced through their Internet service provider, etc. This may restrain commentors from posting malicious comments.

It would also be useful to place a warning stating that commentors are liable for what they say or that you will reveal their details to the authorities upon request. The warning can be fortified with a disclaimer, which could be useful to discourage defamatory statements.

The disclaimer can go along these lines: “The comments contained on this blog reflect the views of the author and do not in any way represent that of the owner of this blog.” This serves as notice that the views of the commentors are not shared by the blogger.
Many consider websites such as WayBack Machine and Google Cache as God‘s gifts to computer geeks. These websites keep a record of your website and are quite useful when you lose the contents of your website. You can retrieve some of your lost documents from there.

But this also means that anyone can retrieve anything deleted from your website, including defamatory statements that had been removed. But not to fear, for there is also a special option where you can stop these websites from keeping a record of your website.
If all the above fail to avoid a letter of demand or you just wish to have a carefree blog, then try blogging anonymously. This would include setting up a blog using a pseudonym with no trace of the person’s identity on the blog. Some do it for their own protection, and some do it so that they cannot be found.

Although distasteful, this allows bloggers to avoid being discovered and to post entries without any restriction. But if caught, they will suffer grave repercussion. In a recent Canadian court decision, anonymous electronic postings of defamatory material were not only actionable but would also warrant a high damages award.
With the upcoming High Speed Broadband (HSBB) rollout, we can expect more content-rich blogs. With this, the dissemination of information may expand to methods which are unknown to us now. There will therefore be new laws and challenges ahead.

Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.

 Scroll to top