Defamation: Are You Liable for Another Person Comment?

Introduction

In this day and age, social media provides everyone with a platform to speak their mind conveniently. An unfortunate and unintended consequence to the emergence of social media is that it is also now a fertile breeding ground for “keyboard warriors” and defamatory statements. The law generally presumes that one cannot be held liable for causing harm unless he committed the harmful act. However, have you ever wondered whether you can be liable for a defamatory comment posted by another Facebook user under your post? In this article, we will discuss how the Courts in Malaysia have decided on this issue.

Are you the “publisher” of the statement / comment in question?

Defamation occurs when a person publishes a defamatory statement about another person to a third party. It is important to identify the “publisher” of the defamatory statement as the Court can dismiss an entire suit based on this ground alone. The math is simple. If you sue the wrong person, or the person you’re suing is able to prove that he is not the publisher of the defamatory statement, then the entire case falls apart. So, the question is: who is considered to be a “publisher” under the law? According to Section 114A of the Evidence Act 1950, a person is presumed to be a “publisher” of a statement if he falls into one of the following criteria:-

1. A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication – Section 114A(1)
2. A person who is registered with a network service provider as a subscriber of a network service on which any publication originated from – Section 114A(2)
3. Any person who has in his custody or control any computer on which any publication originated from – Section 114A(3)

For the purposes of this article, we will only focus on the first category under (1) above. The effect of the first category is simply this: if a post or comment is made online under your name, user ID, pseudonym or photo, there is a legal presumption that you published or re-published that post or comment even though you may not be the actual author of the statement in question. This is known as the rebuttable presumption under Section 114 of the Evidence Act 1950 – you are presumed to be the publisher unless proven otherwise. This will be elaborated further in detail below when we discuss the case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652.

Are you a “publisher” of the comments made by another under your social media post?

Based on the past cases decided by the Courts, a person will be held liable for a third party’s defamatory comment that was published under his social media post if he has knowledge of the comments but failed to take any steps to remove it. One of the first cases that decided on the issue of liability for a third party’s comment is GS Realty Sdn Bhd v Lee Kong Seng [2018] MLJU 1902. In this case, the Defendant (Lee Kong Seng), was sued for defamation over statements posted in his Facebook page as well as other forums.

One of the issues that the Judge had to determine was whether the Defendant could also be held liable for the defamatory comments posted by other people. The High Court ultimately found the Defendant liable for the third-party defamatory comments published under his Facebook posts. The reasons for this can be summed up as follows: -

1. The Defendant was well aware of the defamatory comments posted under his posts. However, he failed to take any steps to remove them; and
2. The third-party defamatory comments were made in response to the Defendant’s own postings. In such circumstances, the Defendant caused the publications by the third parties.

In reaching that decision, the Judge had considered several foreign cases, one of which was Byrne v Deane [1937] 2 All ER 204, also commonly known as the “Golf Club Noticeboard Case”. In Byrne v Deane, a golf club had a specific rule that no notices could be posted on the noticeboard of the club unless the secretary’s consent had been obtained. One day, a notice which contained a poem with words defamatory to the Plaintiff was put up in the club. The Defendants did not remove the notice despite being aware of its existence and were subsequently held liable for defamation as publishers of the notice. The English Court of Appeal said as follows:-

"…removal of this particular notice was a perfectly simple and easy thing to do, involving no trouble whatsoever. The defendants, having the power of removing it, and the right to remove it, and being able to do it without any difficulty at all, and knowing that members of the club, when they came into the room, would see it, I think must be taken to have elected deliberately to leave it there. The proper inference, therefore, in those circumstances, it seems to me, is that they were consenting parties to its continued presence on the spot where it had been put up…"

The lesson to be learned from the two cases above is this: if you have been notified of a defamatory publication or comment under your social media post and you have the ability to remove it (but chose not to), then you can be held liable as a publisher if the person who has been defamed decides to sue. GS Realty Sdn Bhd v Lee Kong Seng is an example of this, where it was clear that the Defendant was fully aware of the defamatory comments but chose not to do anything about it. The comments were also made in response to his postings. As such, a conclusion could easily be drawn that he had caused the comments to be published. In other words, without his postings, those third-party comments would not have come into being.

However, what if it’s a situation where it is unclear whether a defendant is aware of the defamatory comments in question? Will a defendant still be deemed to be the publisher of the comments? We now turn to discuss the Federal Court’s decision in Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652. Although this is a case concerning contempt of court, it is arguable that the principles established in this case are applicable to defamation cases as well. This is because the Federal Court had in its grounds of judgment referred to several foreign defamation cases in reaching its decision to find Malaysiakini liable for contempt of court over the comments posted by its readers under an article.

In Peguam Negara Malaysia v Mkini, the Attorney General of Malaysia initiated contempt proceedings against Malaysiakini and its Editor-in-Chief (Respondents). The subject matter of the proceedings involved five comments (Comments) published by subscribers of the news portal below an article published on Malaysiakini’s website. The Comments were deemed to be offensive, contemptuous and inappropriate as it accused the judiciary of corruption and incompetence. Malaysiakini argued that it should not be held liable because it had no knowledge of the Comments and they were not authored by the company. The Judges disagreed.

It was held that Section 114A(1) of the Evidence Act 1950 (the first category) presumes Malaysiakini to be the publisher of the Comments. The Court also stated that Malaysiakini’s knowledge of the Comments could be inferred from the facts and circumstances of the case. In reaching this decision, the Court found that Malaysiakini had complete control over the contents published on its website and the way the platform operated. In other words, Malaysiakini provided the platform which facilitated or allowed the subscribers to post the Comments on its website. As such, the news portal must accept the risks that come along with it. The Court also highlighted that Malaysiakini had a well-structured editorial team comprising of 10 editors and no explanation was provided by any of them as to how the Comments had escaped their notice. Furthermore, none of the editors had denied knowledge of the Comments. Only Malaysiakini’s director and Editor-in-Chief denied this. It was further held that Malaysiakini ought to have known or foreseen the comments which the article would have attracted at the material time.  

Based on the 2 cases above, a person’s knowledge of the third-party’s defamatory comments is one of the key factors in determining whether one can be liable for third-party comments. Whether this requires proof of actual knowledge or constructive knowledge is something that remains unclear.  What is clear is that if it can be shown that the defendant was clearly aware of the existence of such comments (such as in GS Realty Sdn Bhd v Lee Kong Seng), then liability would stick.

The courts in other countries have also taken similar approaches. For instance, the New Zealand Court of Appeal in Murray v Wishart [2014] NZCA 461 held that a Facebook host is regarded as a “publisher” of comments made by third party users if he/she knows of the defamatory comments and fail to remove it within a reasonable time, giving rise to an inference that they  taking responsibility for it. In Bunt v Tilley [2006] 3 All ER 336, the English court held that liability would accrue if a person knowingly permits another to communicate information which is defamatory, when there is an opportunity to prevent its publication.

In the recent Australian case of Fairfax Media Publications Pty Ltd v Voller [2021] 392 ALR 540, an issue arose as to whether media companies can be said to be publishers of the comments by third parties or readers under their Facebook posts. The Australian High Court held that the media companies are publishers due to their role in facilitating the publication of the defamatory comments. In doing so, it affirmed the Court of Appeal’s decision, which held that a person who is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so, regardless of the extent or degree of their participation. The court also found that the media companies had sufficient control over the platform to be able to monitor and delete the defamatory comments when they became aware of the same.

Conclusion

In view of the cases discussed earlier, the liability which can be imposed on social media users is no longer limited only to their own publications. As such, social media users ought to be more vigilant in monitoring comments made by others on their personal social media pages. In the same light, while the use of social media for corporate media organizations could promote content and generate subscription, pre-emptive measures should also be put in place to monitor public engagement on their media outlets.