The Law On Defamation Relating To Social Media

• Published date: 24 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Libel & Defamation, Social Media
• Law Firm: MahWengKwai & Associates
• Author: Sue Ann Wong and Raymond Mah

In this day and age, everyone is on some form of social media be it Facebook, WhatsApp, Instagram, Twitter, etc. This increase in access has made it easy for people to share their statements whether true or untrue, with the world at large. As such, cases involving defamatory statements made on social media platforms are on the rise. This is not constrained to cases involving politicians but also the general public at large. In defamation cases, the Court has to balance a person's right to free speech and a person's right to not be defamed.

How to Prove Defamation?

There are 3 elements to be satisfied before defamation can be proved:

1. The words are defamatory;
2. The statement must refer to or identify the person being defamed; and
3. The statement must be published to a third party other than the person being defamed.

Who to Sue?

Under Section 114A of the Evidence Act 1950, the following three categories of persons are presumed to have published a defamatory statement unless the contrary is proved:

1. A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator editor or sub-editor, or who in any manner facilitates to publish or republish.
2. A person who is registered as a subscriber of a network service.
3. A person who has in his custody or control any computer on which any publication originates.

Section 114A operates as a presumption in law, there is no need for the person suing to prove who published the defamatory statement. For example, if B used C's Facebook account to post something defamatory about D, D can now rely on this presumption in order to sue C. D does not have to prove on a balance of probabilities that C posted the defamatory post on his Facebook account. However, C bears the burden of proving that C did not publish the defamatory post on Facebook.

In the case of Thong King Chai V. Ho Khar Fun [2018] 1 LNS 374, the High Court held that an email was presumed to have been published by the defendant since it originated from his email address. Thong's case further held that there was also a presumption of fact that a Facebook post was published by the defendant since it was published using his Facebook account.

Alternatively, it is possible to bring an action for a pre-action discovery under Order 24 Rule 7A of the Rules of Court 2012 to discover the identities of the person who posted the defamatory post. In the case of Kopitiam Asia Pacific Sdn Bhd v Modern Outlook Sdn Bhd & Ors...