Author: Dr Dheeraj Bhar
When should blog or forum posts create liability for defamation?
A number of recent court cases give rise to concern about the ability of a blogger to express opinions or to report news events without fear of being liable for damages in a lawsuit for defamation. Some of those lawsuits have captured the attention of the international community.
In a case decided in December 2013, the Court of Appeal reinstated a defamation suit filed against a blogger who published a photograph depicting a Member of Parliament wearing the robe of a Christian priest. The High Court had ruled that the article accompanying the photograph was not defamatory because it did not refer to the Member of Parliament as an apostate but that the picture could be defamatory by raising that implication. The High Court dismissed the lawsuit because it was not satisfied that the Member of Parliament introduced the original picture published on the blog into evidence.(1)
Disagreeing, the Court of Appeal ruled that the words and photograph in the article were defamatory. “The words extend the legitimate bound of justification and fair comment,” according to the Court’s decision.(2)
Altering a photograph to make a point may extend beyond the boundaries of a blogger’s legitimate right to criticize public officials. More troubling are lawsuits that attack bloggers who make legitimate comment upon serious issues of public importance. Bloggers, like journalists, play an important role is society by stimulating debate and calling attention to legitimate public issues. This does not mean that bloggers are licensed to make irresponsible claims or to tell public lies that injure reputations, but raising public awareness of potential misconduct is not the sort of activity that should subject a blogger to liability for defamation.
What is defamation and how does it apply to bloggers?
The law of defamation requires a plaintiff to show that a defamatory statement was made, that the statement concerns the plaintiff, and that the statement was published to third parties. If the plaintiff makes that showing, the burden then shifts to the defendant to establish a “qualified privilege” by proving that he made the statement honestly and without any indirect or improper motive. To overcome the qualified privilege, the plaintiff must prove that the statement was made with actual or express malice.(3) A recent controversial case demonstrates how defamation claims can be used as a weapon against bloggers.
A Malaysian subsidiary of Asahi Kosei Japan Co. Ltd., a Japanese electronics company, sued Charles Hector after Hector criticized the company’s treatment of Burmese workers on his blog. The workers had complained about unlawful wage deductions, the denial of sick leave, and threats of deportation, among other issues. Asahi Kosei denied responsibility for the migrant workers, contending that they were not employed directly by Asahi Kosei but were provided by an agency that outsources temporary workers. Asahi Kosei sued Hector for US$3.3 million, but after a six month trial, Hector settled the case for a payment to Asahi Kosei of only 1 Ringgit. Hector also published an apology to Asahi Kosei and paid certain court costs.(4) The defamation suit sparked concern from the international human rights community that lawsuits could be used to silence legitimate criticism of abusive practices. The Malaysian Bar Council justly called the suit “a deplorable and coercive act.”(5)
A similar misuse of defamation law occurred in December 2010, when a blogger accused a prominent Malaysian politician of heinous crimes. The politician sued the blogger, seeking injunctive relief in the form of an order compelling the blogger to remove the accusations from his blog. In defending the action, the blogger asserted that he copied the accusation from a newspaper story. The story identified the victim of the alleged crimes but did not identify the politician as the perpetrator. The blogger did not identify the politician by name but added the politician’s photograph next to the story. The blogger also referred to documents indicating that the victim worked for the politician, that the victim’s claims had been investigated by Migrant Care, that the investigation report was forwarded to the police, and that the police refused to act because the victim did not press charges. The court declined to receive the investigation report into evidence because the Migrant Care investigators were disinclined to authenticate the report by coming to Malaysia to testify. The court held that the burden of proving the truth of a defamatory accusation is on the person making the accusation and that the blogger could not prove the accusation was true, even if he believed it to be true.(6)
The court’s logic is suspect. The blogger did not claim the accusation was true but merely reported that the accusation had been made. He did so by reprinting verbatim a newspaper story that reported the same accusation. While the blogger’s addition of the politician’s photograph arguably identified the politician as the person who was accused, his identity as the employer of the victim, and thus the person she accused, does not seem to be in serious dispute. Nothing in the facts recited by the court suggests that the blogger did not publish the story honestly and without indirect or improper motive.
The court’s decision has a chilling effect upon bloggers who act as journalists by reporting accusations of criminal activity, particularly when the bloggers are merely republishing stories that have already been published by news outlets. Of course, if the original newspaper story was defamatory, its republication is equally defamatory, but the court referred to no evidence suggesting that the original story was untrue. And while the court rejected other news stories that confirmed the investigation of the politician on the ground that they were published after the blogger’s story, it is difficult to see how the date of the confirming stories has any bearing on the accuracy of the blogger’s report that the accusation had been made.
The court held that “a blogger is free to publish and disseminate matters and information which is of public interest, however the information or matter must be true and accurate … not something fished out of hearsay information and without verification. … Freedom of expression does not extend to freedom of publication of … accusations.” If that is true, the publication of a prosecutor’s accusation made against a criminal defendant would potentially be libelous, at least if the defendant is later acquitted. Surely the public interest is served in publishing the fact that an accusation against a public figure resulted in an investigation, so long as the blogger (or reporter) does not assert or imply that the accusation is true. As another court noted, “defendants should be given the freedom to report news in a transparent and impartial manner, with the leeway to raise queries or even call for investigations as permitted under the Reynolds principles.” (7) That language seems to fit the blogger’s report in this case.
The elusive distinction between a blogger, a publisher, and a forum
The common law of Malaysia imposes the same liability on an owner, publisher, or editor of a defamatory publication that is imposed on its author or distributor.(8) But what if the “publication” is a forum maintained for the benefit of users of a corporate website? The High Court addressed that issue in a 2010 decision.(9)
Bristol Meyers, an international pharmaceutical company, created a website to promote its products in Asia. One part of the website was a forum that permitted users to exchange opinions and information on healthcare and parenting issues. Bristol Myers’ terms of use stated that the views expressed on the forum were not the views of Bristol Myers. The plaintiff sued Bristol Myers, contending that content posted to its forum was defamatory, particularly with regard to statements made in a different website to which the forum post was hyperlinked.
There was no dispute that Bristol Myers was the official service provider of the forum, but the court held that Bristol Myers was not the forum’s publisher. With regard to electronic media, the distinction between a publisher and a forum provider is elusive. If Bristol Myers is not electronically publishing the forum, who is?
Even more doubtful is the court’s conclusion that, unlike print media, where an editor or publisher has the opportunity to review content submitted by authors prior to its publication, Bristol Myers could not control the content of its forum. Bristol Myers asserted that it offered an unmediated electronic forum in which individuals could interact with each other. Bristol Myers generally did not know what messages were left on the forum, did not participate in the forum, and did not control, edit, verify, endorse, or censor the content that authors contributed to the forum. Bristol Myers did have a system in place for removal of offensive content, but that system was triggered either by a complaint by a forum user or by a routine search for offensive keywords.
It is correct, as the court observed, that this is a different system from the traditional model followed by print media, but is it fundamentally different? A newspaper could, if it chose to do so, publish letters or submissions without reading them. As the High Court noted, it does not matter whether the editor or publisher actually reads defamatory material before publishing it because the editor or publisher had the opportunity to control the publication of the defamatory content.(10) Yet the High Court drew a distinction between a print publisher and an internet forum provider like Bristol Myers because Bristol Myers exercises control over forum postings only after the content has been posted, by removing it if it receives a complaint about offensive content. The High Court concluded that after-the-fact removal of published content is not the same kind of control that a publisher of printed material exercises.
The High Court’s reasoning is flawed. Bristol Myers could, if it chose to do so, assign employees to review and vet all forum submissions before publishing them on its website. It was Bristol Myers’ choice to operate an unmediated, rather than a mediated, forum. It is therefore inaccurate to conclude that Bristol Myers could not have controlled the forum’s content prior to its publication. Bristol Myers’ terms of service expressly reserved the right to edit the content posted on its website by forum users. It therefore had the ability to control the forum’s content (although likely at great expense) and could have done so by holding posts until they were reviewed and approved. It chose instead not to play the traditional role required of an editor or publisher.
The High Court distinguished three cases in which a party was found to be a publisher who did not author the defamatory content. In one, the recipient of an anonymous letter circulated the letter to others. In the second, a newspaper published a letter to the editor. In the third, a property owner was aware of a placard erected on his property that contained defamatory content and called attention to it by pointing at it. The High Court concluded that each of those cases involved “a positive overt act” that caused the publication, while Bristol Myers engaged in no such “positive overt act.” Yet Bristol Myers took the overt act of opening a website to users and allowing users to publish content without supervision. Those actions seem difficult to distinguish from a newspaper editor who publishes a defamatory letter without reading it. That the publication of unread content is done via computer rather a printing press makes the publication no less an overt act.
While some of the High Court’s reasoning is therefore questionable, it is always difficult to expand common law principles to new technology. The result that the High Court reached is correct as a matter of public policy. The choice to play a passive role as a forum provider serves an important public function. Making an auditorium available for public discussions may lead to libelous remarks that the auditorium owner does not anticipate or endorse, but there is value in creating a forum for robust public debate. Just as the auditorium owner is not held liable for choosing to play a passive role as the provider of a forum for public discussion, an internet service provider that creates a public forum performs a public service by facilitating the open exchange of opinions and ideas. The service provider who chooses to remain passive should not be penalized for performing a valuable public service. The High Court therefore reached the correct result, albeit for the wrong reason.
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1. Rita Jong, Shah Alam MP Loses Suit to Wanita Umno Information Chief, THE MALAYSIAN INSIDER (July 12,
2013), available at http://www.themalaysianinsider.com/malaysia/article/shah-alam-mp-loses-suit-to-
wanita-umno-information-chief.
2. Appeals Court Allows Shah Alam MP’s Defamation Suit, THE SUN DAILY (Dec 10, 2013), available at
http://www.thesundaily.my/news/902350.
3. Lee Thye @ Lee Shan Too v. Daniel Siew Yong Loong [2013] 1 LNS 514.
4. Press Release, Defamation case against human rights defender Charles Hector Fernandez ended with a
settlement, THE OBSERVATORY FOR THE PROTECTION OF HUMAN RIGHTS DEFENDERS (Aug 26, 2011), available at
http://www.omct.org/human-rights-defenders/urgent-interventions/malaysia/2011/08/d21400/.
5. Sean Yoong, Company chastised for suing Malaysia rights
lawyer, BURMANET NEWS (June 23, 2011), available at
http://ph.news.yahoo.com/company-chastised-suing-
malaysia-rights-lawyer-093516145.html.
6. Datuk Seri Utama Dr Rais Yatim v. Amizudin Bin Ahmat [2011] 1 LNS 1441.
7. Lee Thye @ Lee Shan Too v. Daniel Siew Yong Loong [2013] 1 LNS 514
8. Stemlife BHD v. Bristol Myers Squibb (M) Sdn Bhd & Anor [2010] 3 CLJ 251, ¶ 10.
9. Id.
10. Id., ¶ 24.
