Email violation (defamatory)

- Nagandran a/l Kalianna Gaundar (t/a Raju Restoren) v Melinda Alison Monteiro & Ors
[2011] 11 LNS 466/ [2011] 4 MLJ 224
The plaintiff sued the defendants for defamation on the basis statements contained in an email
allegedly made by the first defendant and published on the internet. The first defendant was
employed by the second defendant. It was disputed that the email was sent by the first
defendant and was published to a third party. Neither the maker of the email nor the person
who allegedly downloaded and gave a hard copy of the email to the plaintiff were called to
testify. The email also did not identify who the sender of it was although during ‘without
prejudice’ negotiations to settle the dispute the first defendant allegedly admitted sending the
email to a third party.
Held: The plaintiff had failed to prove the three elements to an action for defamation, namely,
that the words complained of were defamatory of the plaintiff, that they referred to the
plaintiff and that they were published to a third party. ( Appeal dismissed)
Offences on Facebook
- Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS
1384
The management corporation of Amber Court Condominium and its council members sued
two unit owners of the condominium for allegedly defaming them on Facebook. The High
Court struck out the case after finding that a management corporation has no powers to do so
under the Strata Titles Act 1985 and common law.

- Foo Hiap Siong v Chong Chin Hsiang [2014] 1 LNS 1196

The plaintiff sued the defendant, complaining about the a defamatory statement posted by the
defendant, in two Facebook forums named ‘Rakyat Ingin Jadi Bos’ and ‘Ubahkan Politik’,
showing an doctored coloured photograph of the plaintiff’s face, depicting him with long hair
with the top half of a naked body dressed in a bra with certain defamatory comments in
Mandarin. The High Court held in favour of the plaintiff with costs of RM20,000, and
awarded
general damages, aggravated damages and exemplary damages together of RM50,000.

- National Union of Bank Employees v Noorzeela Binti Lamin [2012] 9 MLJ 410
The plaintiff initiated an action against the defendant for posting alleged defamatory
comments on her Facebook page. The defendant denied making such comments on Facebook,
and claimed that his sister operated the Facebook account, also testifying that “maybe
someone hack[ed] my Facebook [account].” The defendant further contended that the plaintiff
had failed to take any steps to check the details of the owner of the Facebook account or the
Internet address with the Facebook administrator to confirm that the account belonged to the
first defendant. Notwithstanding this evidence, the defendant admitted in her Statement of
Defence that she had published the comments. As a result, the court held that she was bound
by her pleadings and therefore could not dispute that she did not post the comments.

- Syarul Ema Rena Abu Samah lwn. PP [2018] 1 LNS 1141

The accused charged of transmitting a command in offensive manner through FB app. Court
held Art 10 and 8 of FC doesn’t give absolute freedom where the parliament can impose
restricting (2), (3), (4) for public order and morality.
Messages in Twitter
- Dato Seri Mohammad Nizar Bin Jamaluddin v Sistem Televisyen Malaysia & Anor
[2013] 4 MLJ 448
The plaintiff, a well-known politician, filed an action against the defendants for defaming him
through the first defendant’s television news report of materials regarding the plaintiff’s
tweets on his Twitter account. The plaintiff alleged that the news report wrongly accused him
of making the allegation that the Sultan of Johor had used public funds to bid for car plate
number WWW1. The High Court held that the plaintiff’s tweets, read and understood by any
reasonable man, clearly insinuated that the Sultan of Johor had used public funds for the
WWW1 bid. Thus, the court held that the defendants succeeded in their defence based on
justification. However, the court held that the defendants did not practise responsible
journalism because they failed to verify the truth of his tweet messages with the plaintiff, or to
obtain his comments on the matter. It said the defendants’ publication was lop-sided, leaning
towards giving a negative impression about the plaintiff, even before the police completed
their investigations. The court also stated that there should be freedom on the part of the
plaintiff to tweet his personal messages on his own Twitter account for as long as the laws on
defamation and sedition, and other laws of the land, were not breached.

- Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Berhad [2013] 1
LNS 592
Mohammad Nizar also initiated legal action against Malay-language daily Utusan Malaysia
for allegedly misreporting his tweets. He succeeded and was granted, among others, damages
of RM250,000.
Online Forums
- Stemlife Berhad v Bristol Myers Squibb (M) Sdn Bhd [2008] MLJU 354
Stemlife Berhad (“Stemlife”) brought an action against Arachnid for online defamation,
alleging the latter was responsible for certain defamatory statements made by users of the
forum. Arachnid sought to strike out Stemlife’s suit on the basis that it disclosed no
reasonable cause of action or was frivolous, vexatious and an abuse of process of the court.
The High Court in Kuala Lumpur struck off the claim by Stemlife.
The court held that Stemlife’s suit had no reasonable cause of action on the grounds that:
1. Arachnid’s role was simply to set up and maintain the website for Bristol-Myers.
Arachnid is Bristol-Myers’ web agency and the website belongs to Bristol-Myers;
2. Arachnid was not the author and editor of the words complained of. Stemlife had
identified the authors as being the forum users, and one of the defamatory statements
did not appear on the website but through a hyperlink to another website. Therefore,
Arachnid could not be the publisher of the words complained of; and
3. Arachnid, which merely provides the service of setting up and maintaining a website,
could not be held responsible as a “publisher” under the law of defamation.

- Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd [2013] 1 LNS 1446
The High Court held that Mead Johnson was liable for the defamatory postings made by users
of Mead Johnson’s Internet forum and website. The Court, in applying Section 114A, stated
that the introduction of Section 114A is the Malaysian legislature’s response to address,
amongst others, the issue of anonymity on the Internet to ensure users do not exploit the
anonymity that the Internet can provide to escape the consequences of their actions. In the
 present case, the Court held that the Defendants failed to rebut the presumptions cast by
Section 114A.
Offences on Blog
- Kho Whai Phiaw v Chong Chieng Jen [2009] 4 MLJ 103
In this case, the petitioner presented a petition to the Election Court to declare the
respondent‘s victory in the Parliamentary election as void for undue influence. The
respondent was claimed to have exerted undue influence by publishing or allowing to be
published on his blog, Chong Chieng Jen‘s Blog, an article written by Mr Smith which was
said to contain threatening statements towards the voters. It was alleged by the petitioner that
the since respondent has absolute control over his blog entries including the act of hiding,
editing and deleting postings, or limiting the type of visitors who could add postings or
comments on his blog and moderate those comments, the respondent should be regarded as
publisher of all information on his blog, including Mr Smith‘s article. The fact that Mr
Smith‘s article was written and posted by third parties does not make any difference as the act
of publication could not have taken place without the respondent‘s consent or knowledge.
Nonetheless, it was ruled by the court that the respondent could not be regarded as the
publisher of Mr Smith‘s article since there was no sufficient evidence to prove that Mr
Smith‘s article was posted on the respondent‘s blog with his knowledge or consent.

- Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904
The Plaintiffs initiated an action for cyberspace defamation against the 1st Defendant. In
tracing the perpetrator, who had posted defamatory statements on two Google Blogspot
websites, the Plaintiffs filed an action called a John Doe action in the Superior Court of
California. In compliance with the court order, Google traced the blogs to two IP (Internet
Protocol) addresses which were revealed by Telekom Malaysia Bhd to be IP addresses
belonging to the 1st Defendant’s account. In the same case, the High Court had held that the
controversial Section 114A (2) of the Evidence Act 1950 applied retrospectively. Section
114A (2) provides that the burden of proof lies on the subscriber of an ISP (Internet service
provider) to prove that a certain statement was not published by him or her. The 1st
Defendant failed to convince the Court that Section 114A (2) does not apply because the
defamatory statements were published before the enforcement date of Section 114A(2). The
Court held that the 1st Defendant had failed to prove that he was not the publisher of the
content. The 1st Defendant is now liable for a payment of RM600,000 as damages to the
Plaintiffs.
Using hyperlinks
- The New Straits Times Press (M) Bhd & Ors v Ahirudin bin Attan [2008] 1 MLJ 814
The plaintiff had commenced a defamation action against the defendant who maintained a
popular blog called the “Rocky’s Bru” blog. The plaintiff had applied for an interlocutory
injunction to restrain the defendant from posting further or similar defamatory statements
against the plaintiff. Subsequently, the plaintiff applied for leave to commence committal
proceedings against the defendant on the grounds that there was a breach of the defendant’s
undertaking by linking his blog to another anonymous blog called “Walked With Us” which
contained discussions of the pending defamation suit. The court ruled that the defendant could
not be held liable for the contents of the “Walk With Us” blog. He was neither the author nor
the publisher of that blog. There was only a “passive” reference to the “Walk With Us” blog
where only the name of the blog appeared on the right column of the defendant’s blog
together with the names of about 85 other hyperlinks.
CMA
- PP v. Muslim Ahmad [2013] 5 CLJ 822
The accused (“the respondent”) was charged under s 233(1) of the Communications and
Multimedia Act 1998 (“the Act”), with three counts of posting offensive comments on the
Perak State Government’s official portal. Held, accused guilty on all counts and sentenced to
a fine of RM10,000 in respect of each charge and in default of each charge, to six months’
imprisonment.

- PP v. Rutinin Suhaimin [2013] 2 CLJ 427/ [2014] MLJU 576

The Appellant is appealing against his conviction for an offence under section 233 of the
Communications and Multimedia Act 1998 (‘the Act’). He was sentenced to a fine of
RM15,000.00 in default 8 months imprisonment. Judge allowed the appeal and set aside the
sentence imposed.

- Rutinin Suhaimin v. PP [2015] 3 CLJ 838

The appellant was convicted for an offence under section 233 of the Communications and
Multimedia Act 1998 for posting an offensive remark against the then Sultan of Perak on the
online visitor book of His Royal Highness, in February 2009. He was acquitted at the
Sessions Court without his defence being called. On appeal, the High Court decided that there
was a prima facie case and, therefore, sent it back to the Sessions Court for trial. The
appellant was convicted and now he appeals against his conviction. His contention was that
although the computer and the Internet account belonged to him, it was an undisputed fact
that they were accessible by third parties. He thus denied posting those remarks.
ISSUE Whether the appellant's defence should have been accepted.
HELD In acquitting the appellant, it was held that there was hardly any consideration by the
trial judge of the probable defence, based on the undisputed fact that the computer and the
Internet account of the appellant were accessible by third parties.

- Mohd Fahmi Redza Bin Mohd Zarin Lawan Pendakwa Raya dan Satu Lagi Kes [2017]
MLJU 516/ [2017] 1 LNS 683
The defendant was under s accused. 233 of the Communications and Multimedia Act 1998 for
the publication of an abusive Instagram post using the username kuasasiswa. The defendant
requested that the indictment be deleted, as s. 233 of the Communications and Multimedia
Act 1998 is unconstitutional and / or exaggerating with regard to Article 5 (1), 8 and 10 (1) A
of the Federal Constitution the charge against him acts as and / or has the feature of a
Censorship and thus contrary to the objectives of the CMA after s. 3 (3) the CMA; and The
accusation against the accused is inadequate because he is unaware of the details of the
offended parties by his actions. The prosecution has requested that the matter before the
Federal Court in relation to the disputes negotiate the constitutionality of s. 233 of the CMA
(pursuant to Sections 30 and 84 of the Judicature Act 1964). However, the Federal Court
dismissed the application for non-compliance with the 1964 Constitution Act.

- Nik Adib Bin Nik Mat v Public Prosecutor [2017] MLJU 1831
The accused was charged under s.233(1)(a) of the Communications and Multimedia Act 1998
for sending indecent and false photos of cabinet leaders titled “Pesta Bogel” on Facebook. He
was also charged under s. 5(1)(a) of the Film Censorship Act 2002 for possession of 883
pieces of pornographic videos in his laptop. The Session Court sentenced him to the
maximum sentence of 1 year imprisonment for the first offence and another 1 year
imprisonment for the second offence. The High Court substituted the original sentence with 1
week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first
charge and for the second charge, a fine of RM10,000 in default 1 ½ years imprisonment.