First published on 10 August 2009
CIVIL SUIT NO S6-23-95-2008 (HC)
Arachnid Sdn Bhd (“Arachnid”) provides web development and related services. In 2003, Bristol-Myers Squibb (M) Sdn Bhd (“Bristol-Myers”) engaged Arachnid to set up a website, www.meadjohnsonasia.com (“the website”). Arachnid thereafter also provided maintenance services for the website.
The website hosts a forum known as the Asian Mom Network (“the forum”), a platform for Asian parents to share tips and views on parenting.
In 2007, Stemlife Berhad (“Stemlife”) brought an action against Arachnid for online defamation, alleging the latter was responsible for certain defamatory statements made by users of the forum.
Arachnid sought to strike out Stemlife’s suit on the basis that it disclosed no reasonable cause of action or was frivolous, vexatious and an abuse of process of the court.
The High Court in Kuala Lumpur struck off the claim by Stemlife. This case highlights the extent of liability for online defamation in Malaysia.
The court held that Stemlife’s suit had no reasonable cause of action on the grounds that:
a) Arachnid’s role was simply to set up and maintain the website for Bristol-Myers. Arachnid is Bristol-Myers’ web agency and the website belongs to Bristol-Myers;
b) Arachnid was not the author and editor of the words complained of. Stemlife had identified the authors as being the forum users, and one of the defamatory statements did not appear on the website but through a hyperlink to another website. Therefore, Arachnid could not be the publisher of the words complained of; and
c) Arachnid, which merely provides the service of setting up and maintaining a website, could not be held responsible as a “publisher” under the law of defamation.
Further, the suit by Stemlife was frivolous, vexatious and an abuse of process of the court in that:
(a) Arachnid was engaged by Bristol-Myers to set up the website;
(b) Arachnid provided maintenance services, including providing updates and upgrades upon the instruction of Bristol-Myers. The court held that it was not sufficient to attach liability on the part of Arachnid;
(c) There was no participation by Arachnid in the promotion of the forum;
(d) The contents of the website would not be within the knowledge of Arachnid, unless informed by Bristol-Myers;
(e) Arachnid did not control content posted on the forum, nor did it moderate or monitor the forum. Any postings on the website would only be removed upon the instruction of Bristol-Myers; and
(f) Stemlife had not shown as to how Arachnid contributed to, or was “knowingly” involved in, the publication of the words complained of.
The court also held that Arachnid had no control over the contents of the website, and had never played an active role in respect of the publication. Neither would Arachnid have knowledge of the contents of the words posted on the website.
Based on the above reasons, the High Court allowed the application by Arachnid to strike out Stemlife’s writ and statement of claim, which it dismissed with costs.
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