Can You be Sued for Derogatory Remarks made via Instant Messaging Apps?

You know that feeling when you are annoyed at your friend, ex, colleague or boss?

You go on your social media or Whatsapp chat group and typed out a long rant..you’re about to hit the post but WAIT!

Are you sure? Can you be sued for something said or written on your social media? YES, you most definitely can.

In the case of Dato' Mohamad Salim Fateh bin Fateh Din v Nadeswaran a/l Rajah (No 1) [2012] 10 MLJ 203 where the Plaintiff, a prominent businessman, sued the Defendant, a journalist for publishing two defamatory statements about him on Twitter. The High Court has decided that a person, the Defendant, in this case, should have exercised a greater degree of care over his Tweets knowing that it would be seen by many and his Tweets would injure the Plaintiff’s reputation as a prominent businessman. The High Court Judge held:

“The Court is thus of the view that the defendant should have exercised a greater degree of care over his Tweets knowing full well that it could and would be seen by many. Where fails to exercise the proper degree of care with his postings and in the process injures another with his defamatory posting, he must be held accountable and responsible to pay for it.”

Ultimately, the Courts will determine whether the words posted has reduced the reputation of the Plaintiff in the right-thinking members of society. If the answer is in the affirmative, then a prima facie case (accepted as correct until proven otherwise) for defamation would be made out.

Your messages on Whatsapp and postings on social media can subject you to a claim for defamation.

This was recently held by the High Court in Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] 1 LNS 448 where it was held that WhatsApp messages fall within the meaning of “document” under Section 3 of the Evidence Act 1950. Section 3 defines the document as follows:- 

Any matter expressed, described, or howsoever represented, upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound-track or other devices whatsoever, by means of—

(a) Letters, figures, marks, symbols, signal, signs, or other forms of expression, description, or representation whatsoever;

(b) Any visual recording (whether of still or moving images);

(c) Any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever

(d) A recording, or transmission, over a distance of any matter by any, or a combination, of the means mentioned in paragraph (a), (b) or (c).

or by more than one of the means mentioned in paragraphs (a) , (b), (c) and (d), intended to be used or which may be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter.

Similarly, in the case of Pannir Selvam a/l Sinnaiyah & Anor v Tan Chia Foo & Ors [2019] MLJU 1699 it was held that WhatsApp messages are relevant and admissible, as they also demonstrate their connection to the facts in issue. The messages, in this case, were admitted to enable the court to draw an inference in relation to the defamatory nature of the messages.

Therefore, be wary about what you write on your personal WhatsApp chats and also your social media as it can be used against you in court.

You must also take note that there is a presumption under the law that a person is presumed to be the publisher/maker of any online statement/contents in the following situations:-

• A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor;
• A person who is registered as a subscriber of a network service; and
• Has in his custody or controls any computer on which any publication originates.

The presumption above, which is a rebuttable one, is found in Section 114A of the Evidence Act 1950. This provision recently added to take into account the growing online communication.  

The effect of the presumption was explained by the Court of Appeal in YB Dato’ Hj Husam bin Hj Musa v Mohd Faisal bin Rohban Ahmad [2015] 3 MLJ 364 where it was held there is a presumption under the Evidence Act in which the name, photograph or pseudonym of a person depicting the said person to have some connection with the publication, the said person is presumed to have published or re-published the contents of the publication. In this said case, the Defendant is a blogger and circulated a defamatory article about the Plaintiff who is a well-known politician. The Defendant denied writing the article and owning the said blog. The Court of Appeal set aside the High Court decision as the trial judge failed to give a proper judicial appreciation of the presumption under S.114 of the Evidence Act 1950. Further, the respondent failed to rebut the presumption and his defence of mere denial was not acceptable as the identity had been established on the balance of probability. Therefore, the Court of Appeal held:

“ As a general rule in defamation suit relating to libel, once the plaintiff has established by direct and/or circumstantial evidence through documents that the act complained is defamatory, and was published, and it refers to the plaintiff, and the defendant was the author of the misconduct, liability is attached, and the defendant’s defence cannot survive on mere denial, and when it relates to cybercrime, s 114A of the EA 1950 will assist the plaintiff to force the defendant to exonerate himself from liability.”

Looking at the case of Thong King Chai v Ho Khar Fun [2018] 1 LNS 374, the Defendant was presumed to have published an email issued by an email address under his name under Section 114A. The Defendant was also presumed to have published a Facebook post made using his Facebook account.

The High Court held the following:

“I find that the Email and the Facebook Posting were published to the persons named in the Email's address list and cc list and also to the persons who had access to the One South Facebook Group. The Defendant did not provide any evidence to rebut this presumption of fact.”

In other words, if an online post or message is made under your name, user ID or photo, there is a presumption that you have published or re-published the defamatory post. Even if it was done by another person. 

However, this is a rebuttable presumption. You can produce evidence to disprove that the presumption i.e, that you, as a matter of fact, did not publish the defamatory post. 

Did you know you can also be liable for third party comments on your defamatory post? 

The first instinct is to ask why? Why should I be held accountable for someone else’s comments? 

In GS Realty Sdn Bhd v Lee Kong Seng [2018] MLJU 1902 the Defendant was held liable for posting defamatory statements on Facebook and also liable for the comments by third parties of the defamatory statements. The Court’s rationale was that the Defendant was well aware of the defamatory comments made by the third parties however, he did nothing to remove them. Therefore, it could be maintained that the Defendant had caused the defamatory publications made by the third party.

As the owner of your own Facebook page or even as the administrator of Whatsapp chat groups, you have a duty to remove any defamatory comments by third parties. Failing which, you are liable to be sued for causing the publication of the comments.

In summary, the law on defamation is constantly evolving to fit the vast usage of social media. Gone are the days where people can post any kind of defamatory statements and hide behind Facebook groups with several admins to escape the responsibility of what was said or written. Therefore, think before you post!