blogging and defamation laws by nizam bashir current as at 23.10.2008

Blogging and Defamation Blogging and Defamation LawsLawsby Nizam Bashir

Current as at 23.10.2008

OverviewOverviewDiscussion will focus on 2 things:

1.Actions initiated against bloggers; and

2.(Residual) rights as a consequence of the actions.


Actions Initiated Against Actions Initiated Against BloggersBloggersVarious actions. Typically:

1.Defamation suits;2.Prosecutions under the Sedition

Act;3.Detentions under ISA; or4.Actions under the

Communications and Multimedia Act


DefamationDefamationSuits related to blogs

1. January 2007 - NST vs. Jeff Ooi, NST & 4 Ors. vs. Ahiruddin Attan (Rockybru)

2. March 2008 - Nordin Kardi & UUM vs. RPK, Dato’ Seri Abdul Azim Mohd. Zabidi vs. RPK

3. June 2008 - Lt-Col Aziz Buyong & Lt-Col Norhayati Hassan vs. RPK

4. August 2008 - Datuk Muhammad Shafee Abdullah vs. RPK, F&N Dairies Sdn. Bhd. vs. Edward Skading

NOTE : Suit against Detikdaily (a news portal) disregarded.


DefamationDefamationOrders granted in defamation suits range

from:1.Damages;2.Injunction;3.Contempt proceedings;4.Imprisonment (criminal defamation); and5.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


SeditionSeditionDetentions and prosecutions under the

Sedition Act:1. Public Prosecutor vs. RPK (May 2008)2. Public Prosecutor vs. Syed Akbar Ali (May

2008)3. Public Prosecutor vs. Syed Azidi

(Kickdefella) [September 2008]

Upon conviction:1.Fine, imprisonment or both [see s. 4(1)];

and2.prohibition against issuance or circulation

of material by Court (see s. 10)


Internal Security ActInternal Security ActDetentions under ISA – RPK:

1. 12th. September 2008 (Section 73 : 60 day detention by Police Officer)

2. 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


Communications and Communications and Multimedia ActMultimedia ActISPs 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.


Consequence of ActionsConsequence 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?


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : OverviewOverviewRights preserved by the

following:1.Federal Constitution2.Defences to defamation

proceedings – justification, qualified privilege and fair comment

3.Exceptions to sedition4.ISA – policy and law


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : ConstitutionConstitutionThe Federal Constitution:

1. Article 10(1):

“… (a) every citizen has the right to freedom of speech and expression …”


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : ConstitutionConstitution

2. 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)

3. Right also DOES NOT extend to questioning special privileges, sovereignty of the Rulers etc. : Art. 10(4) [See Sedition Act]


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : ConstitutionConstitutionCases – 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.


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : DefamationDefamation Excluded from your right of free speech and

expression is the right to defame another : Art. 10(2)

Meaning of defamation - can’t injure someone’s reputation. E.g.:

1. Writing letters to friend saying PLC is defrauding investors – arguably, defamatory of PLC

2. Speak at a forum claiming building is badly designed – arguably, defamatory of architect

3. 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 someone’s reputation?


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : DefamationDefamationNO - as evident by defences

applicable to defamation cases:

1.Statement was true – strongest defence. (“justification”)

2.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”)


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : DefamationDefamation3. 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


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : DefamationDefamation Questions:

1. 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

2. 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)


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : DefamationDefamation

3. 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


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : SeditionSeditionSedition 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.


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : SeditionSeditionWhat can be blogged or commented

about? See s. 3(2) Sedition Act, 1948:1.can point out mistakes made by Ruler;2.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;

3.except in respect of special privilege etc, can point out, with a view of removal, any matters producing ill-will between races etc.


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : Internal Security ActInternal Security ActPrecursor (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”


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : Internal Security ActInternal Security ActAct shouldn’t 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


Residual Right to Free Residual Right to Free Speech and Expression : Speech and Expression : Internal Security ActInternal Security ActRight 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


ConclusionConclusion“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?


blogging and defamation laws by nizam bashir current as at 23.10.2008

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