Defamation occurs when someone makes statements that can harm another person’s reputation in the eyes of the public. In Malaysia, defamation law includes libel (written statements) and slander (spoken statements), as outlined in the Defamation Act 1957, which provides remedies for plaintiffs and defenses for defendants. Additionally, the Sedition Act can come into play if the defamation relates to inciting hatred or contempt against a ruler, government, or the justice system, or if it fosters animosity between different races or social classes in Malaysia (Section 3(1) of the Sedition Act).

As information flows freely online, individuals can easily share their thoughts and opinions, which can lead to someone’s reputation being damaged by false or misleading statements that remain accessible on the internet. Social media platforms and websites, like Facebook, Blogger, and Twitter, host vast amounts of user-generated content, including personal opinions and comments. By making this content available, service providers can be considered “publishers,” which may make them and the original authors liable for any defamatory statements.

A practical way to address defamatory content online is to send a demand letter to the publisher and the author. This letter should explain why the article is defamatory, outline the potential legal risks they face, and request the immediate removal of the content. This approach can be beneficial because legal proceedings can be lengthy, and the harm to the victim’s reputation may become irreversible before a court ruling is reached.

It’s important to note that identifying the author of a defamatory article can be challenging, as many internet users choose to remain anonymous or the publisher may refuse to disclose their identity for confidentiality reasons. Consequently, the typical course of action is to send a demand letter to the publisher requesting the removal of the defamatory article and asking them to notify the author to do the same. Most publishers, as the media or hosts of the content, are often willing to remove the entire article or the specific defamatory parts after reviewing the letter of demand to avoid potential legal disputes.

While the meaning of words in a defamatory article can sometimes be clear, challenges arise when the words imply something negative, known as “innuendo” in legal terms. In these cases, the demand letter must include additional explanations and clearly connect the insinuation to the person being defamed, as the defamatory elements may not be immediately obvious.

If the publisher does not comply with the demand letter and fails to remove the defamatory content, the victim may choose to pursue legal action. The likelihood of success in such a case depends on various factors, including the circumstances surrounding the situation and the defenses available to the defendant. The plaintiff must prove three basic elements, as established in the case of Kian Lup Construction v Hong Kong Malaysia Bhd [2002] 7 CLJ 32:

1. The statement carries defamatory implications.
2. The statement must relate to or impact the plaintiff’s reputation.
3. The statement must have been published to a third party by the defendant.

Common defenses available to the defendant include:

1. Fair comment: This allows freedom of speech for expressing opinions on public interest topics, provided the comments are not made with malicious intent (Section 9 of the Defamation Act 1957).
2. Qualified privilege: This applies to statements made by newspapers when the maker has a duty to share the information and the recipient has a legitimate interest in receiving it (Section 12 of the Defamation Act 1957).
3. Consent: If the plaintiff has permitted the defendant to publish the defamatory article, this serves as a complete defense.
4. Truth: If the statement is true, it serves as a strong defense against defamation claims.

In summary, defamation poses significant risks to an individual’s reputation and business, particularly when harmful content remains online permanently, ranks highly on search engines, and is accessed by the public over time. Therefore, individuals who have been defamed should consider the legal remedies mentioned above and seek guidance from trusted advisors to address the negative publicity.