Defamation occurs when one expresses words that may lower another’s reputation in the eyes of the public. The tort law of defamation in Malaysia includes libel (written statements) and slander (spoken statements) which is governed by the Defamation Act 1957 whereby it provides reliefs for the plaintiff and defences for the defendant. Other relevant Acts i.e the Sedition Act could be triggered at once if the defamation involves the following scenario, inter alia, to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government; to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State and to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia (Section 3(1) of the Sedition Act)

As digital information is increasingly free flow on the internet, people are able to express their thoughts and opinions and give comments freely on the internet whereby one’s reputation could be easily tarnished by incorrect, misleading and defamatory articles or statements which stay permanently on the web. Websites and social network service providers such as Facebook, Blogger, Twitter and other internet forums generate massive contents that include opinions, statements and comments made personally by the internet users.  By making such records available in a digital archive whether online or in a designated area, the service provider is considered as the “publisher” of that archive which could made him and the author liable for the defamatory article.

An effective approach to deal with defamatory article posted online is to send the publisher and the author a letter of demand explaining why an article amounts to defamation, how the defamatory article may exposes them to potential liability and demand them to remove the defamatory article instantly before the victims would actually commence a legal action against them. This is because the process for the action could be lengthy and time consuming and the damage caused to the victim might become irreparable before a judgement or order from the Court is obtained.

It is also pertinent to note that the author of the article could sometimes be difficult or impossible to be identified as the internet users nowadays do not expose or reveal their real identity on the internet or where the publisher will not disclose their identity due to confidentiality. Therefore, the common practice is to issue a letter of demand  to the publisher for removal of the defamatory article and request the publisher to notify or inform the author to remove the same. Majority of publishers (as the media or host of the published articles) are willing to remove the whole defamatory article or particularly the defamatory part(s) after conducting an examination through the article by making references to the letter of demand in order to avoid litigation.

Moreover, the construction of words in a defamatory article might be straight forward when they carrying the nature or literal meaning. However, difficulties arise when the construction of words bearing the implied meaning where it is formerly known as ‘Innuendo’ in the legal context.  Extra explanations and clear connection drawings between the insinuation and the defamed person are required in the letter of demand for the latter as the defamatory elements are not obvious compare to the formal.

In general, if the publisher neglects or fails to remove the defamatory article in response to a letter of demand, the victim might consider to commence a legal action thereof. The success rate will mainly depends on the factors, surrounding circumstances of each case and the defenses available for the defendant. The burden to proof shall lies on the plaintiff where he has to prove the following three basic elements (Kian Lup Construction v Hong Kong Malaysia Bhd [2002] 7 CLJ 32):-

  • the statement bears defamatory imputations;
  • the statement must refer to or reflect upon the plaintiff’s reputation; and
  • the statement must have published to a third party by the defendant.

On the other hand, the common defences and mitigating factors available to the defendant include the following:-

1) Fair comments where the law guarantees the freedom of speech to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff (Section 9 of the Defamation Act 1957);

2) Qualified privilege of newspapers where the maker of the statement has a duty to make it and that the recipient of the information has a duty or interest in receiving it (Section 12 of the Defamation Act 1957);

3) Consent of the plaintiff when the plaintiff allows the defendant to publish the defamatory article in relation to him or her (this is a complete defense in the case of defamation);

4) True statement which express the truth will serves as an affirmative defense.

In conclusion, defamation bears the high risks to injure one’s reputation and business grievously, especially the distasteful and harmful contents remain on the internet permanently, rank highly on the search engines and continues to be accessed by more public over time. Accordingly, the defamed person might consider the legal remedies discussed above and consult with trusted adviser to deal with the bad press.

By L Y Lu & Co

L Y Lu & Co has extensive experience in dealing with removal of defamatory statements from internet, including websites, blogspot/blogger.com and social network such as facebook, youtube etc. as we have effectively and successfully removed a number of defamatory posts and articles by precisely drew out the defamatory contents, demanded the publisher and the author to remove it and notified them the legal consequences of non-compliance.


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