In this day and age, social media such as Facebook, Reddit and Twitter have become a fundamental part of our daily lives. This has made it easy for people to share their feelings, comments, or statements on social media. Lately, it has been a trend to see people “fame-shame” people online, often as a reaction to an unpleasant experience they encountered. For instance, when a person is bullied on a road rage incident, the keyboard warrior would take a photo of the offender and post it on social media with a long story of what the offender did.
Online Defamation
In this article, we’ll be discussing the key legal issues related to online defamation. Many will admit that they do not know the extent of their liability under the law of defamation. There is a misapprehension that the law of defamation does not apply to social media.
Criminal Law
Under Malaysian law, Defamation is a crime under criminal law.
Section 499 of the Penal Code[1] (in part) provides that whoever, by words, makes or publishes any imputation concerning any person, intending to harm the reputation and shall also be liable to fine of such person, is said… to defame that person.
The punishment for defamation under the Penal Code is ruled by Section 500 to be up to 2 years maximum in prison, a fine, or both.
Furthermore, Section 233 of the Communications & Multimedia Act 1998[2] makes online defamation an offence to use a network service or app for improper purposes.
Communications & Multimedia Act 1998 – Section 233 (in part):
(1) A person who—
(a) by means of any network facilities knowingly—
(i) makes, creates or solicits; and
(ii) initiates the transmission of,
any comment…or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; ……
commits an offence.
Yes, this includes posting or sharing defamatory remarks on social media. The punishment for such an offence is a fine of up to RM50,000, 1 year of jail, or both.
Civil Law
Defamation is also a cause of action under civil law – the Defamation Act 1957[3]. Keyboard warriors may be sued for defamation whereby compensation have, in the past, been claimed up to RM 100,000.00 or even a few million ringgit. However, each defamation case is unique to its own individual facts whereby, as a general rule, the more serious the defamatory remarks are and the more high-profile and/or prominent the person involved by the remark is in society, the higher the compensation will be.
For instance, In Mohamed Hafiz Mohamed Nordin v Eric Paulsen and Another Appeal[4], 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 Court of Appeal overruled the High Court’s decision and granted damages of RM 100,000.00.
Third-Party Posting
A third-party posting is a comment left by a third party on the defamatory statement, for example, comments left on a Facebook post. In fact, none of the Malaysian cases have considered this issue extensively until GS Realty Sdn Bhd v Lee Kong Seng[5] in late 2018.
The case of GS Realty Sdn Bhd concerned defamatory statements made by the defendant on his Facebook page. There were also secondary publications that included postings by third parties. The Court ruled that the defendant was liable for the third party comments because the evidence showed that the Defendant had actual knowledge and editorial control of them. As such, the Defendant was said to have caused the publication of the third party comments. He was therefore held liable.
Following from the above, it is now clear that you can also get into trouble for sharing a defamatory post in Malaysia. This applies whether you are a group admin or a normal user.
In Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor[6], the Court noted that cases of third party internet postings are not as legally straightforward as print media publications as third party internet postings do not pass through the usual editing process.[7] Nevertheless, it was held that Mkini was presumed to be the publisher of the comments under section 114A of the Evidence Act as its editorial structure demonstrated that it should have had knowledge of the comments posted on its website.
Conclusion
In summary, liability for online defamation can be seen not to be limited to respective individual publications. It extends to circumstances where one has knowledge of third party defamatory comments and control over its publication(s). In these situations, the law would deem that the party with the said knowledge and control, has allowed or authorised the publication of third party comments. Given the above, it goes without saying that netizens are to be more mindful before publishing, commenting or sharing statements on social media.
[1] http://www.commonlii.org/my/legis/consol_act/pc1997141/
[2] https://www.mcmc.gov.my/en/commons/viewdetail?docid=560
[3] http://www.commonlii.org/my/legis/consol_act/da19571983174/
[4] (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-1668-08/2017)
[5] [2018] MLJU 1902
[6] [2021] MLJU 242
End
Author: Tan Zhen Wen, LL.B. (Hons) Queen’s University Belfast (UK), Lincoln’s Inn.
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