Rapid advances in information and communication technology have impacted our daily lives significantly.  With the introduction of different types of Internet communication, including e-mail, social media platforms, chat groups, blogs and others, Internet users can readily post and disseminate any type of information to the general public.  However, the accessibility of these Internet platforms has been wrongly used by irresponsible individuals on multiple instances to disseminate defamatory remarks in the cyber world.  People can say that they have the right to write or say anything on the internet.  Of course, the rise of social media has resulted in a corresponding increase in defamation cases.  In Malaysia, there are many reported incidences of online defamation at the moment.
 
Why are defamation cases on the rise?
 
The tort of defamation primarily deals with the protection of a person’s reputation and good name.  A person may commit defamation when he publishes statements which are not true against the reputation of the person defamed.  Many people tend to voice their opinions when they encounter something unfair or unjust.  Furthermore, with the advent of social media and different platforms of Internet communication, people are more prone to write what they think and feel online, where nothing is private.  While these platforms can assist to enhance practice and service, build a great image, and promote referrals, they can also be exploited by former clients, dissatisfied or unsatisfied clients, competitors, former workers, or others who can swiftly ruin the reputation of a business.
 
The mobile phone and the internet are the two factors that have raised the possibility of committing defamation.  These days, people are constantly expressing themselves on their digital devices, increasing the likelihood of making a defamatory comment.  However, not all comments are considered defamatory; people should be aware that they have legal rights and that not all statements can give rise to the tort of defamation.  In Malaysia, the tort of defamation is governed by the Defamation Act 1957, which is in pari materia with the English Defamation Act 1952.  The Act provides no single definition of what defamation is but seems to adopt the common law definition that “a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society” as stated by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237.
 
Since online content is transmitted via telecommunication lines and typically consists of a varied combination of written texts, visual images, and sounds, it is to be expected that defamatory materials published via Internet platforms will be regarded as libel.  This is by way of analogy with broadcast publications provided under Section 3 of the Defamation Act 1957.  The question pertaining to this issue was answered when cases involving defamation suits against bloggers have been tried and decided according to the law of libel, namely the cases of The New Straits Times Press (M) Bhd & Ors v Ahirudin bin Attan [2008] 1 MLJ 814 and Datuk Seri Utama Dr Rais bin Yatim v Amizudin bin Ahmat [2012] 2 MLJ 807.
 
What does it take to prove defamation in court?
 
While many people say or write things about others on the Internet, in most cases, they argue that these comments are opinions and not defamatory statements.  Three requirements must be proven by a plaintiff in court to win a case of defamation, which include the following:

 
To be defamatory, the statements must tend to lower the plaintiff’s reputation in the estimation of right-minded persons or must tend to cause him to be avoided.  Mohamad Azmi J in Syed Husin Ali v Sharikat Perchetakan Utusan Melayu Bhd [1973] 2 MLJ 56, said that; “to be defamatory, an imputation need have no actual effect on a person’s reputation, the law looks only to its tendency” and this interpretation has been well considered in the case of Dato’ Seri Anwar bin Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 2 MLJ 492.
 
Apart from that, the plaintiff must also show to the court that the statements must refer to him.  The test to establish this was laid down in the case of David Syme v Canavan [1918] 25 CLR 234, the test being that if reasonable people would think that the language used by the defendant is defamatory of the plaintiff, then the defendant is liable even if the defendant did not intend to refer to the plaintiff.  Taking into consideration that only the person defamed may bring an action for defamation, other persons cannot initiate a cause of action on his behalf as enshrined in the case of Atip bin Ali v Josephine Doris Nunis & Anor [1987] 1 MLJ 82.  A similar principle was mentioned in Pardeep Kumar a/l Parkash Sharma v Abdullah Sani bin Hashim [2009] 2 MLJ 685, where the presiding judge, James Foong JCA, mentioned that in order to prove defamation, one must prove that the words are referring to the plaintiff.
 
For the tort of defamation to be brought before the court, most importantly, there must be a publication to a third party. Publication can be defined as the communication of the words to at least one person other than the person defamed. Publication, in the legal sense, may be done verbally or in writing or print and is affected by any act on the part of the defendant which conveys the defamatory meaning of the matter to the person to whom it is communicated.  Lord Esher MR in Pullman v W.  Hill & Co Ltd [1891] 1 QB 524 at 527, has defined publication as “the making known of defamatory matter after it has been written to some person other than the person of whom it is written”.  It is not difficult to prove that the defamatory statement was published when the statements are posted on the Internet.  The case of Datuk May Phng @ Cho Mai Sum & Ors v Tan Pei Pei [2018] 11 MLJ 741 concerned defamatory statements circulated by email.  It was the decision of the High Court that the email in question was not an ordinary email directed to one person but rather one “written in the context to address the public, to have the said email widely circulated among the public”.  The same application was used in the case of Datuk Seri Anwar bin Ibrahim v Wan Muhammad Azri bin Wan Deris [2014] 9 MLJ 605, where the High Court took judicial notice that the Internet is used worldwide.  In this case, the blogger known as ‘Papa Gomo’, with the intention of tarnishing the good name and reputation of Datuk Seri Anwar bin Ibrahim, had published defamatory statements “to show that he is an immoral person, not dignified, ineligible to hold public office, not eligible to become political leader, not fit to be Prime Minister and a leader who is not responsible and cannot be trusted”.  As such, the High Court decided in favour of the plaintiff, taking into account that the defamatory statements were published on the Internet and “people all over the world can get access to the website … there was a wide publication of the defamatory statements”.
 
Every repetition or republication of a defamatory matter is a fresh publication and creates a fresh cause of action.  Typical examples of republication on social media and the Internet include retweeting, reposting, and forwarding WhatsApp messages.  Once the untrue remarks have been repeated, those who did so are also held accountable for defamation.  The republication of defamatory content on the Internet has been considered in the Malaysian case of YB Hj Khalid bin Abdul Samad v Datuk Aziz bin Isham & Anor [2012] 7 MLJ 301. 
 
Advice for communicating on the Internet
 
People must conduct themselves with professionalism at all times to avoid spreading inaccurate, untrue, or misleading information online, in publications, or verbally.  As the media has now become the primary channel for everyone to write about their interactions with others, here are some important guidelines :

 
Conclusion
 
In conclusion, the principle suggests that as long as the fundamentals of the tort of defamation remain, that of the protection of a person’s reputation, it is immaterial that the defamatory statements were published on social media or other platforms of Internet communication, as these statements shall still be subjected to the tort of defamation as long as all the requirements can be fulfilled.  
 

References:
 
Khairun-Nisaa binti Asari, Nazli bin Ismail @ Nawang (2014), “Cyber Defamation: A Comparative Analysis of the Legal Position in Malaysia and the United Kingdom, Proceedings of the International Conference on Information Security and Cyber Forensics, Kuala Terengganu, Malaysia
 
Ahnaf Azmi ed (2021), “Norchaya Talib on Torts in Malaysia”, Sweet & Maxwell, Malaysia
 
Ronquillo Y, Varacallo M., Defamation. [Updated 2021 Sep 5]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2022 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK531472/