Defamation online
Email, social media, chat groups and blogs have made it easier to publish information, and easier to publish defamatory statements. The freedom to express oneself online is not absolute, and the rise of social media has brought a corresponding increase in defamation cases in Malaysia.
What is a defamatory statement?
Civil defamation in Malaysia is governed by the Defamation Act 1957, and criminal defamation by section 499 of the Penal Code.
A statement is considered defamatory when it is untrue, tends to lower a person in the estimation of right-thinking members of society generally, and conveys an imputation disparaging or injurious to the person’s office, profession, calling, trade or business. Honest opinions, truthful statements and privileged communications (such as court testimony) may not amount to defamation.
Defamation takes two forms. Libel is a written statement, appearing in media such as newspapers, social media, emails or videos. Slander is a spoken statement or gesture.
What a claimant must prove
- The statement is defamatory. The words must lower the claimant’s reputation in the eyes of reasonable people, exposing them to hatred, ridicule or contempt.
- The statement refers to the claimant. It must identify the claimant, either directly (by name, photo or clear description) or indirectly, if reasonable people would understand it to refer to them.
- The statement was published to a third party. The words must have been communicated to someone other than the claimant, for example posted online, spoken publicly or printed in the media.
Defences
A defendant may avoid liability by establishing one of the following defences.
- Absolute privilege. Statements made in legally protected proceedings cannot be sued on for defamation. This applies to parliamentary and judicial proceedings, police reports (First Information Reports under section 107 of the Criminal Procedure Code) and statements made to the police under section 112 of the Criminal Procedure Code.
- Qualified privilege. Statements made in good faith under a legal or moral duty, or to further a legitimate common interest, provided there is no malice and they are made to the right audience. For example, an employee who reports a colleague’s misconduct to the human resources department is likely to be protected.
- Fair comment. An opinion, rather than a statement of fact, on a matter of public interest. The comment must be based on true facts or widely known information and made without malice.
- Justification. The statement was substantially true. For example, a journalist who publishes a statement about a company’s chief executive and can prove it to be true.
In short
Freedom of speech is protected, but Malaysian law limits it to prevent harm to reputation, whether on social media or face to face. If you believe someone has published harmful statements about you, or you face a claim yourself, speak to a lawyer early.