MANY of us take to social media platforms such as Facebook, Instagram, Twitter or WhatsApp to share our thoughts, opinions, or even what we’re having for lunch. Some of us make remarks about others, not concerned about whether the comments made are true or untrue. Whether it’s a video of a road rage incident or bad customer service, the need to share such experiences with others are easier with social media.
Unknown to the maker though, this form of wide-open, instantaneous, interactive and largely uncensored communication is capable of exposing them to claims of defamation. This article will provide a brief guide to the elements of defamation and what to avoid when using social media platforms.
Defamation in Malaysia
The governing law for civil defamation in Malaysia is the Defamation Act 1957 which allows the person defamed to sue the person who has defamed them for damaging their reputation.
How to prove defamation?
The following three elements must be proven to establish a claim in defamation: (i) the statement must be defamatory; (ii) the statement must refer to the person being defamed; and (iii) the statement must be published to a third party other than the person being defamed.
What amounts to a defamatory statement?
The essence of a defamatory statement is the effect that it may have on the person’s reputation. Statements may be defamatory in their natural and ordinary meaning. For example, spreading a false rumour of someone being convicted of murder charge; or when there are innuendos involved which have special meaning only to persons with knowledge of special facts, for example, the statement that “Ben has been spending a lot of time with Ally” may not be defamatory in its natural and ordinary meaning except to those who are aware that Ben is married to Diana.
Must the defamatory statement refer to the name of the person?
It suffices if ordinary persons with knowledge of special facts could and did understand that the statement referred to the person whose reputation is injured, although the person’s name is not specifically mentioned in the statement.
What constitutes publication?
Given that statements made on social media are instantaneously viewable over the internet, they are considered published when viewed by any third party other than the person defamed.
What about republication?
Retweeting, reposting or forwarding WhatsApp messages are common examples of republication via social media. Once the defamatory statements are republished, those responsible for such republication are equally liable in defamation.
What about third-party postings?
A third-party posting refers to comments made by a third party about the defamatory statement for example, comments left on a Facebook thread. Here, the person defamed may sue the person who has the option to remove the comments left by the third party but has not done so.
Who can be sued for defamation?
Any person who made or caused the publication of the defamatory statement can be sued for defamation. This includes any person falling within the rebuttable presumption of Section 114A of the Evidence Act 1950: “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, or editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or republished the contents of the publication unless the contrary is proved”.
Are there any defences to a claim in defamation?
If the statement made is true, the defence of justification in truth will apply, and if the statement is an honest and impartial view or opinion about a matter of public interest, this may give rise to a defence of fair comment.
Will claimants seek compensation for being defamed?
In addition to seeking a retraction of the defamatory statement and a public apology, claimants may seem damages or financial compensation. Actual damage suffered due to the defamation need not be proven. In assessing damages, the court will consider the following non-exhaustive list of factors: (i) the gravity of the allegation; (ii) the size and influence of circulation; (iii) the effect of publication; (iv) the extent and nature of the claimant’s reputation; and (v) the behaviour of both the defendant and the claimant.
You can never be too careful
Given the rebuttable presumption provided under Section 114A, not only does the maker of the statement need to think before “sharing”, any person who can be presumed to be the author or publisher must also be cautious about the comments made, especially where these comments remain on their social media account. A letter of demand could be on its way if care is not exercised.
This article was contributed by Nur Fathin Amira Sapawi of Christopher & Lee Ong.
