Blogging and Defamation Laws

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Blogging and Defamation Laws

• by Nizam Bashir

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Overview

• Discussion will focus on 2 things
• Actions initiated against bloggers and
• (Residual) rights as a consequence of the
  actions.

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Actions Initiated Against Bloggers

• Various actions. Typically
• Defamation suits
• Prosecutions under the Sedition Act
• Detentions under ISA or
• Actions under the Communications and Multimedia
  Act

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Defamation

• Suits related to blogs
• January 2007 - NST vs. Jeff Ooi, NST 4 Ors. vs.
  Ahiruddin Attan (Rockybru)
• March 2008 - Nordin Kardi UUM vs. RPK, Dato
  Seri Abdul Azim Mohd. Zabidi vs. RPK
• June 2008 - Lt-Col Aziz Buyong Lt-Col Norhayati
  Hassan vs. RPK
• August 2008 - Datuk Muhammad Shafee Abdullah vs.
  RPK, FN Dairies Sdn. Bhd. vs. Edward Skading
• NOTE Suit against Detikdaily (a news portal)
  disregarded.

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Defamation

• Orders granted in defamation suits range from
• Damages
• Injunction
• Contempt proceedings
• Imprisonment (criminal defamation) and
• Fines (criminal defamation).
• NOTE Pre-action discovery proceedings to
  discover identity of users may also be an option.
  See Stemlife Berhad v. Bristol-Myers Squibb (M)
  Sdn. Bhd. and Datuk Muhammad Shafee Abdullah v.
  RPK

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Sedition

• Detentions and prosecutions under the Sedition
  Act
• Public Prosecutor vs. RPK (May 2008)
• Public Prosecutor vs. Syed Akbar Ali (May 2008)
• Public Prosecutor vs. Syed Azidi (Kickdefella)
  September 2008
• Upon conviction
• Fine, imprisonment or both see s. 4(1) and
• prohibition against issuance or circulation of
  material by Court (see s. 10)

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Internal Security Act

• Detentions under ISA RPK
• 12th. September 2008 (Section 73 60 day
  detention by Police Officer)
• 24th. September, 2008 Section 8(1) 2 year
  detention by Minister
• Can result in indefinite detention due to right
  of extension s. 8(7) ISA

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Communications and Multimedia Act

• ISPs blocking access to website pursuant to
  provisions of Communications and Multimedia Act
  1998 (CMA) Malaysia Today (RPK) August, 2008
• Also note that Complaints Bureau can grant other
  reliefs written reprimand, fine and removal of
  content in question.

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Consequence of Actions

• Chilling effect on freedom of speech and
  expression on Malaysia
• Loss of credibility - participants will choose to
  be anonymous
• Narrower space for speech and expression
• What rights left for free speech and
  expression?

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Residual Right to Free Speech and Expression
Overview

• Rights preserved by the following
• Federal Constitution
• Defences to defamation proceedings
  justification, qualified privilege and fair
  comment
• Exceptions to sedition
• ISA policy and law

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Residual Right to Free Speech and Expression
Constitution

• The Federal Constitution
• Article 10(1)
• (a) every citizen has the right to freedom of
  speech and expression

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Residual Right to Free Speech and Expression
Constitution

• Right to free speech DOES NOT extend to matters
  affecting security of the Federation (or part
  thereof), public order, morality, contempt of
  court, defamation or incitement to any offence.
  Art. 10(2)
• Right also DOES NOT extend to questioning special
  privileges, sovereignty of the Rulers etc. Art.
  10(4) See Sedition Act

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Residual Right to Free Speech and Expression
Constitution

• Cases PP. v. Lau Dak Kee and Mark Koding v. PP
  (not basic structure). Cf. PP. v. Madhavan Nair,
  Lee Kuan Yew v. Chin Vui Khen, Article 10(2) and
  10(4)
• Case law - rights exist but can be watered down
  by legislation passed under Art 10(2) or 10(4)
  rights are residual.

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Residual Right to Free Speech and Expression
Defamation

• Excluded from your right of free speech and
  expression is the right to defame another Art.
  10(2)
• Meaning of defamation - cant injure someones
  reputation. E.g.
• Writing letters to friend saying PLC is
  defrauding investors arguably, defamatory of
  PLC
• Speak at a forum claiming building is badly
  designed arguably, defamatory of architect
• Creating a fake page on the Internet of a
  personality defamatory of personality?
• Does this mean that you can never say or write
  anything which injures someones reputation?

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Residual Right to Free Speech and Expression
Defamation

• NO - as evident by defences applicable to
  defamation cases
• Statement was true strongest defence.
  (justification)
• Had a legal, social or moral duty to provide
  statement to a particular recipient. E.g. Teacher
  commenting to parents about child being naughty.
  (qualified privilege)

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Residual Right to Free Speech and Expression
Defamation

• Expressing an opinion acceptable if facts were
  reasonably accurate and published in the public
  interest. (fair comment)
• Put another way there is a right to defame in
  specified circumstances

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Residual Right to Free Speech and Expression
Defamation

• Questions
• What if you hyperlink the home page of a website
  with defamatory information or images?
• See International Telephone Link Pty. Ltd. v. IDG
  Communications Limited Anor and The New Straits
  Times Press (Malaysia) Bhd. v. Ahirudin Attan
• What if you hyperlink to a specific page on
  another web site which contains defamatory images
  or page?
• See Stemlife Berhad v. Bristol-Myers Squibb (M)
  Sdn. Bhd. and cf. Bunt v. Tilley 3 All ER 336
  2006 EWHC 407 (QB)

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Residual Right to Free Speech and Expression
Defamation

• What if you use tags, categories or keywords to
  enable a defamatory image or defamatory page
  contained on another web site to be discovered?
• See Hird v. Wood 1894 34 SJ 234

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Residual Right to Free Speech and Expression
Sedition

• Sedition Act passed in 1948 prior to
  Independence
• What is seditious? See s. 3 Sedition Act, 1948
  no disaffection to be made against Ruler or
  Government, no promotion of ill-will and
  hostility between races, no questioning of
  special privilege etc.

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Residual Right to Free Speech and Expression
Sedition

• What can be blogged or commented about? See s.
  3(2) Sedition Act, 1948
• can point out mistakes made by Ruler
• can point out errors or defects in any Government
  or constitution, or in legislation, or in the
  administration of justice with a view of
  remedying errors or defects
• except in respect of special privilege etc, can
  point out, with a view of removal, any matters
  producing ill-will between races etc.

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Residual Right to Free Speech and Expression
Internal Security Act

• Precursor (Emergency Regulations Ordinance 1948)
  conceived to combat armed insurgency of the MCP
• Stated purpose of Act by 1st Prime Minister to
  combat communists
• My Cabinet colleagues and I gave a solemn
  promise to Parliament and the nation that the
  immense powers given to the government under the
  ISA would never be used to stifle legitimate
  opposition and silence lawful dissent

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Residual Right to Free Speech and Expression
Internal Security Act

• Act shouldnt apply to civilians but case law
  rejects this
• Right to be informed of grounds of arrest and
  this should not be vague Art. 5(3) Federal
  Constitution and Abd Malek Hussin v. Borhan Hj.
  Daud Ors 2008 1 CLJ 264
• Right to file a writ demanding the release of the
  detainee subject to proving that detention is
  unlawful Nik Adli bin Nik Abdul Aziz v. Ketua
  Polis Negara

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Residual Right to Free Speech and Expression
Internal Security Act

• Right for initial inquiries to be made by police
  under s. 73 (being initial detention provision)
  BEFORE final detention under s. 8 Tan Sri Raja
  Khalid bin Raja Harun
• If arrest and detention proves to be wrongful,
  right to sue for damages Abd Malek Hussin v.
  Borhan Hj Daud Ors

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Conclusion

• It is a paradox that every dictator has climbed
  to power on the ladder of free speech.
  Immediately on attaining power each dictator has
  suppressed all free speech except his own.
  Herbert Hoover
• The most stringent protection of free speech
  would not protect a man in falsely shouting fire
  in a theater and causing a panic. Oliver Wendell
  Holmes, Jr.
• Despite the obvious tension, what should be our
  course for the future?