Defamation on Social Media
Defamation expressed through written medium such as newsprint and Facebook is known as libel. Peter Newell (1912) “The Rocket Book”, Harper & Brothers.
Of the complaints I have received in recent years concerning defamation, the most prevalent has been defamation by social media. Defamation through Facebook seems to have “outperformed” other platforms such as WhatsApp and Twitter as a mode of defamation. My last Twitter-based defamation matter was in 2018, but we are referred Facebook cases every year.
In this writing, I wish to share for your information some notes on defamation through social media — my reference point is Facebook but much of my observations apply to other social media platforms as well. I would include WhatsApp and YouTube within the meaning of social media, though not everyone may agree.
Much of the discussion here, whilst referring to Facebook posts and comments, can also apply to Twitter and other platforms subject to how each of them operates in relation to the mechanics of defamation.
I refer to the person who made the defamatory statement as the “defamer” and the person on the receiving end as the “victim” or addressed in the second person.
Defamation law originated from the English common law and codified under the Defamation Act (Akta Fitnah) 1957. Broadly it is categorized into 2 types:
Libel – nowadays the most common type of defamatory complaint brought to me. It means defamation expressed in written form through documents. This includes words, images, drawings, cartoons, symbols – in printed and electronic form.
Slander – Defamation by uttering words.
Under the Section 3 of the Evidence Act 1950, documents include audio and visual recordings in electronic form, so it is evidentially libel due to the medium that preserves and transmits the data even though it originated and is reconstructed into spoken verbalized words.
WHAT DO YOU NEED TO PROVE?
1. The words must be defamatory. This means that the words damage your reputation. The words reduce your esteem among members of society. Sometimes merely insulting words or harsh criticism are not defamatory. It depends on factors such as context, gravity and innuendo.
2. The words must refer to you. Just because they did not use your name does not mean they can get away. Depending on the facts, if you can prove that the words refer to no one except you (even though they omitted your name), you may be able to prove your case. Sometimes the words are directed not at you but at your family, company (in which you are the CEO, for example) or some other group of people in which you are a member. It depends on the facts of the case and context.
3. The statement must be published to another person or persons. Even if it is just one single person. Published means that it is heard or seen by other people through any type of medium. The more people receive the defamatory words, the more impactful the damage done to your reputation – and the more damages you can claim if you take it to court. Damages are of course subject to taxation and court procedures. Even if a million people read a negative statement about you, it may not constitute defamation or it may not entitle you to much damages. It depends. Likewise, even if a small number of people heard the defamatory statement, you could be entitled to respectable compensation with the right set of facts and basis.
4. Statement was made by the defendant. You need to establish who actually uploaded the defamatory post or comment. Section 114A of the Evidence Act 1950 aids you in proving the identity of the defamer based on several categories:
a. Their profile picture, name and other identifying features of their account. If you cannot establish who actually defamed you, then your case shall fail.
b. A person who has possession of a device containing the defamatory material is presumed to be the one who published it. However, we do not expect that you can seize their laptop or computer – get your lawyer’s advice on this. This presumption is rebuttable.
c. The owner, host, administrator, editor or sub-editor, or whom in any manner facilitated to publish the post or republish or share it.
WHAT DEFENCES CAN YOU RELY ON IF YOU ARE ACCUSED OF DEFAMING SOMEONE?
Let us assume that the Section 114A hurdle has been crossed and you actually did upload the offending post or comment.
1. Justification. This had been the most popular and most successful defence raised in the cases we have handled. Justification means that your statements are justified : you can produce proof that it is true, or you can establish the source of your information. There are technicalities involved. A few of them:
a. Malice can rebut Justification. Even if you raised the defence of Justification, it can be countered if the other side can show that when you made the statements, you were actuated by malice. Malice needs to be particularized and is also subject to technicalities, just like everything else in the law of defamation.
b. Justification does not mean the absolute, actual truth. Even if it turned out you were partly or somewhat wrong, you can still rely on this defence. Be careful about simply sharing unverified facts without bothering to fact check. There are technicalities.
c. Burden is on you to prove Justification on a balance of probabilities.
2. Fair Comment. This means you make a comment on the other party or their conduct or their product or their service or whatever. You rely on the law to protect your right to make that comment, not necessarily because of the facts imputed. However, your comment may be mixed with facts. Some elaboration:
a. Your comment must be based on facts. So there is basis for it.
b. It must concern a matter of public interest – so it is indeed in the public interest for you to have made such comment and not because you are a busybody or that you are just taking advantage of the publicity of the matter to slag your nemesis. There are technicalities.
c. The comment can be made by a fair-minded person relying on the same facts proved.
3. Privilege. The law on privilege protects your right to make the statement. Unlike the other forms of defence, privilege is focused on the occasion, place and context you made the statement, not the statement itself or whether you had facts to back it up.
a. Absolute Privilege means you made the statement in the course of a court proceedings as a witness, or in Parliament as an MP. There are categories of persons and occasions provided by such immunity.
b. Qualified Privilege is something you have to prove, and it only covers certain specific categories of persons and contexts. An entire article can be devoted to just this deep topic. If you made the statement with improper motive or malice, then your defence could be rebutted.
THIRD PARTY POSTINGS
Persons who have made defamatory comments on a blog or Facebook post or other publication expose themselves to liability for defamation. Likewise the account owner or blog owner or webmaster. Third party posting by people who reshared or reposted the same elsewhere are considered republications that expose them to liability just like the first defamer.
WHAT TO DO IF SOMEONE HAS DEFAMED YOU ON FACEBOOK?
There are different ways to handle this. It is not possible to show all the different approaches because each case is different. Defamation involves reputation, hurt pride, context and other aspects which differ from other legal cases. The ideas below assume that you are going at it without legal representation — Which would be against my best advice because defamation combines the most human factors with the most legalistic technicalities.
1. Confront them directly to verify the allegation and to address it. Put everything on record because your attempt could be useful for evidence later. There are many ways to do this.
a. By messaging applications like Facebook Messenger. I’m sure you already know that they will screenshot your message.
b. Face to face – To me, this is the best way depending on your relationship with the other party. For obvious reasons, it could neither be safest for you nor advisable. There are many human and tactical factors concerned. To make the most out of the meeting you should set up a mechanism to record what happened, or whether witnesses should attend. Recording does not necessarily mean a recording device. I was involved in only one comparable case, where the defendant posted defamatory statements and photos which interposed the victim’s face on nude bodies and animals. I think the victim was bold in meeting the perpetrator face to face. His mistake was that he allowed her to see which car he got into and memorise the number plate. The case evolved into a criminal case, layered upon other cases of cyber sexual harassment. Anyway, there are some weirdos in cyberspace so this is probably an undesirable way to begin discussions.
c. On the phone – Recording is a good idea. Mention their name at least once.
d. By e-mail or other physical letter. But the rapid nature of social media may prefer other platforms.
2. Recording all the above has its drawbacks too. For example, suppose the conversation recorded was unfavourable or humiliating to you or unexpectedly exposed a third party, and the opponent knows that you recorded it, or worse, they recorded you recording them (as happened in one of our cases involving former spouses) – it could put you at a disadvantage later if the matter escalates. Tactically, an opponent may perceive that you are giving a negative, hostile or calculative posture by recording the meeting.
3. If you are unable to resolve the matter yourself, invite the defamer to refer the case to a mediator. The mediator can be a professional mediator, a lawyer, a common family member who is respected by both, a community leader such as a Penghulu or Pastor. I don’t know if licensed counsellors are mandated to handle such disputes. If the context was a department office, there could be formal procedures to resolve the matter. It could be quite embarrassing though, and you may continue to be in contact with all these people for the rest of your life, so tread wisely.
4. If you have reached a resolution, you may want to “set things right”. If you were defamed on Facebook, you may want the other party to do something on social media to actually set things right. It is up to you. Some people just let it go and hope that people just forget. Some ideas if you wish to go down this path:
a. The defamer must take down everything they posted immediately. Different platforms have different effects if the defamatory post has been shared.
b. The defamer must publish a correction, or an apology or other statement of regret. You should take measures so that their statement really fixes the problem. If it does not, or if it appears insincere, it does nothing for you and could even make it look worse.
c. The defamer must pay you some form of monetary compensation.
5. Speed is of essence. The longer you delay, the more people have viewed the defamatory statement or shared it or reacted to it. This could be damaging to you, permanently, even if you manage to set things right. Because not everyone reads the apology. Do not intentionally delay so as to stir things up or with the hope of getting more damages. You have a responsibility to mitigate your loss once you know of the defamation.
6. You could publish / post something yourself to set things right – to put forward your side of the story. But it is often better (more satisfactory) if the defamer does it.
7. Don’t tell people you are taking legal action if you are not. And don’t tell people you have spoken to “your” lawyer if you have only spoken to a friend who happened to be a lawyer sometime.
SHOULD I SEND THEM A LETTER OF DEMAND?
The benefit of a letter of demand is it captures everything in writing. You put on record what the defamer has said/uploaded and you put on record your objection. It is dated, so it is placed within a space and time.
An actual letter is not always necessary if you can resolve the matter face to face or over the phone. From my point of view, if you are going to put something in writing affecting something as important, then consider preparing an actual letter.
You can draft the letter yourself. No one said you can’t.
Clarity is the most important aspect. Just make sure you clearly state what is the statement complained of, when and where and to whom it was made, and what you demand from them.
State your disgust or objection to the statement briefly. Be precise, controlled and swift like a samurai sword slash. Avoid ranting. Use only the most effective words to convey your feelings. Please do not go on and on and on. No need for sarcastic jibes.
The tone you use should be in the voice of the high moral ground, not the bitter agitated one. Avoid using CAPTIONS like you are shouting or multiple question marks (??) or exclamation marks (!!!).
You could explain why you find the statement objectionable — but it could be that you need not justify yourself. It depends.
Dates and chronologies are important.
Attach a copy or screenshot of the offending post.
Be mindful that your letter may circulate through many hands and sighted by many eyes. It could even become a court exhibit someday if the matter escalates. Therefore:
Be careful about asserting facts and be cautious about facts you cannot prove or which you did not see or hear yourself.
Be careful about naming the sources of your information, too. Some time back we were referred a case involving allegations made of a Facebook post between two people who were not even Friends nor Followers on Facebook – basically a common friend screenshotted and shared through Whatsapp.
As mentioned above, do not delay – speed is of essence.
SHOULD I APPOINT A LAWYER TO PREPARE AND ISSUE MY LETTER OF DEMAND?
Yes.
I have seen letters for defamation cases written by non-lawyers. Some of them do more damage than good. Then when things do not go well, they appoint a lawyer anyway. Damage done. Please reconsider if you are thinking of taking a chance without a lawyer first and then only appointing a lawyer if your plan does not work. Get it right the first time.
The lawyer may even suggest an idea that you had not thought of.
WHAT CAN I EXPECT FROM A CASE OF ONLINE DEFAMATION?
For this issue I am responding broadly for online defamation generally and not confined to defamation on Facebook.
Facebook actually has its own complaint form for you to fill in and submit to Facebook itself. The link is here:
https://www.facebook.com/help/reportlinks
You may also lodge a complaint with the MCMC Complaints Bureau.
https://www.mcmc.gov.my/en/faqs/online-content-problems/8-i-was-defamed-in-blog-social-media-site
For some cases of on-line defamation, it could be that you cannot readily identify the defamer – as a result you may not be able to rely on the presumption of identity under Section 114A of the Evidence Act 1950 without establishing certain facts. To do this, you would need a court order to compel the relevant parties to disclose information about the defamer to help you identify him. Before the case goes to court, you would need to file an application for pre-action discovery.
A few years ago, we were involved in a case where the victim filed an application to the webhost to obtain details of their registered customer who ran the website containing the allegedly defamatory material. The benefit of this procedure is to support the application of the presumption of identity under Section 114A of the Evidence Act 1950 -- perpetrators cannot as easily hide behind anonymity anymore (but there are still ways that they can). The application enables you to obtain all relevant information about the person who managed the offending website or uploaded the offensive comment or post. The regrettable aspect of that case was that the victim did not bother to first contact the web administrator, as the website did have a “contact us” feature. I would advise you to attempt to contact the website first before going to court because if the administrator acts responsibly, you could save a lot of legal expense and time.
If your case has to go to court, we would commence proceedings by filing a writ of summons in court. Drafting a writ of summons and statement of claim takes time. It is not a matter of copy and paste and then filing mechanically. There is legal drafting involved, assessment of evidence and evaluation of the case, as well as consideration of how the facts fulfil the requirements of the law.
When your case is registered in Court, you are named as Plaintiff. The Court issues the summons and we then serve it upon the defamer, called the Defendant. The Defendant must enter appearance, and then file their Statement of Defence. If they still ignore you, you can then file an application for Judgment in Default (“Penghakiman Ingkar”) and get the order outright. You will need leave (permission from the Court) in some situations. Enforcing the order is another matter though.
Libel takes off from the keyboard warrior like a rocket. Peter Newell (1912) “The Rocket Book”, Harper & Brothers.
WHAT IF YOU RECEIVED A LETTER OF DEMAND OR A SUMMONS?
1. Please Benefit from Professional Advice. Appoint a lawyer. Consider your lawyer’s advice and based on the options they provided, take responsibility and give instructions. Be clear with your lawyer, tell them what you want out of the case and its resolution. As mentioned above, sometimes your lawyer would have a solution that you had not thought of. I know I mentioned above that you can prepare a letter of demand yourself without a lawyer. But if you are on the receiving end of a letter of demand, please do it properly and get legal advice.
2. Sue them Back. If the party who issued the demand or summons to you had also defamed you, consider a counter-claim. Consult your lawyer whether a counter-claim is advisable in the circumstances. There are various strategies involving counter-claims that can help take the sting out of the first-mentioned demand against you. Especially if your claim:
hits harder than theirs; and/or
drags in a (weaker, less interested) third party who can pressure your opponent to soften their stand.
3. Claim Fizzles Out. We have defended many clients in cases where, after replying to the demand, there was no summons filed after that. The case went quiet and the first claimant just lost interest. You may or may not find out why the other party did not pursue the demand – it could be that they were just testing you. It could be that they did not have a genuine claim but were just trying to appease someone else or show them that they fulfilled their responsibility and issued a demand to you. A lot of folk can’t distinguish a letter of demand from an actual summons – so the claimant satisfies the gallery by sending their family, shareholders, supporters or lover a screenshot of their lawyer’s letter of demand and saying, “Saya dah lantik loyer untuk saman dia” when in fact they never did.
WHAT NEXT?
A case may be settled at any stage – whether at the Letter of Demand stage (before going to court), or after summons have been filed. We have handled a number of cases that have been settled through the court-initiated mediation process without going through full trial. Sometimes the parties agree to settle on the first date of trial itself before the first witnesses take the stand. There are so many things that can happen.
The stage (or lateness) of the case may affect your appetite for demanding expenses of the case be paid by your opponent. After all, you have paid out money to cover lawyers’ fees which are not cheap. But realistically, to achieve a win-win outcome through settlement and not full trial, neither party will get what they want entirely. You could agree to each party bearing their own costs as a term of settlement. But this is really up to the parties – there is no hard and fast rule. We were involved in a case where one party insisted the other should pay for legal costs as a sweetener for settlement because the case dragged on due to their perceived stubbornness.
What you need to do is make sure your own conduct mitigates or manages your risk well. Your lawyer can advise you on this. You also need to act promptly because in many scenarios, delay will be held against you.
FULL TRIAL
If the case is not settled, then it shall go for full trial. The Plaintif and Defendant sides present their witnesses, supporting evidence and submissions. The Court then makes a determination at the end of the case. Damages are determined through a special exercise. Generally, trial itself does not take long, just a morning up to no more than a few days. But the process at arriving at trial takes months. There are many procedures and court’s directions that you must comply with.
HOW OFTEN ARE CASES SETTLED WITHOUT FULL TRIAL?
Speaking for myself, more than half of my cases were concluded by settlement, either before the matter went to court or just before trial commenced — sometimes on the very first day of trial. The most successful settlements were those where the Judge had referred the matter for mediation. For a plaintiff or defendant this could be a good thing. Sometimes the Judge can be courteously guided to refer the matter for mediation.
WHAT CAN I GET OUT OF A DEFAMATION SUIT IF I WIN?
If you are on the claimant (Plaintiff) side:
a. Retraction / Apology / Statement of Regret.
b. Damages (there are several categories of damages).
c. Injunction.
d. Costs.
e. Closure.
If you are the defamer (Defendant) side:
a. The opportunity for a counterclaim – which may not be a motivation had the plaintiff not started the ball rolling.
b. The opportunity to clear your name and have your day in court.
c. Costs.
HOW MUCH MONEY CAN I DEMAND AS COMPENSATION?
There is no fixed limit of how much you can demand in a letter of demand. However, if the matter goes to Court as a disputed matter, damages shall be decided by the Court. Among the factors that the Court takes into consideration in awarding damages to the victor are as follows:
a. The gravity of the allegation;
b. The effect of the allegation on your reputation;
c. The extent of publication – i.e. how far the post had been circulated or shared;
d. Your own reputational standing in society;
e. Relationship between the defamer and you;
f. Existence of ill-will and malice.
SOME MORE EXAMPLES OF RESOLUTION OF A DEFAMATION CASE:
1. A defendant had to read out an apology in open court in front of the Judge and reporters, who then published the event in the media.
2. A defendant had to publish his apology in newspapers, filling 1/8th page in each (which was rather costly) for a full week.
3. A defendant withdrew his facebook post and posted an apology, then worked with the claimant on some public relations exercise that salved both their egos and reputations. Win-win.
4. A defendant had to pay damages and was declared bankrupt.
5. A plaintiff agreed to repair the car of a defendant who withdrew his Facebook rant against the former.
DO I HAVE TO MAKE A POLICE REPORT?
Generally, it is optional. In my experience handling defamation matters, the role of a police report has been minimal, like some formality done in passing. The existence or non-existence of a police report does not have bearing to whether the tort of defamation was committed. For some victims (not all), making a police report is a morale boost that lets them tell their supporters about it. Please note that there exists the offence of Criminal Defamation, which has over the years become a kind of fringe offence that is seldom enforced. In any case, the police can only take action on a report.
CONCLUSION
Defamation online is same soup different spoon. The difference with normal defamation lies in evidence and proof but fundamentally it is the same; and fundamentally it still relates to the moderation and management of human pride and human principles.
Revision : 8.9.2021