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Blogging and Defamation Laws

Blogging and Defamation Laws. by Nizam Bashir. Overview. Discussion will focus on 2 things: Actions initiated against bloggers; and (Residual) rights as a consequence of the actions. Actions Initiated Against Bloggers. Various actions. Typically: Defamation suits;

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Blogging and Defamation Laws

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  1. Blogging and Defamation Laws by NizamBashir Current as at 23.10.2008

  2. Overview • Discussion will focus on 2 things: • Actions initiated against bloggers; and • (Residual) rights as a consequence of the actions. Current as at 23.10.2008

  3. 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 Current as at 23.10.2008

  4. Defamation • Suits related to blogs • January 2007 - NST vs. Jeff Ooi, NST & 4 Ors. vs. AhiruddinAttan (Rockybru) • March 2008 - NordinKardi & UUM vs. RPK, Dato’ Seri Abdul AzimMohd. Zabidi vs. RPK • June 2008 - Lt-Col Aziz Buyong & Lt-Col Norhayati Hassan vs. RPK • August 2008 - Datuk Muhammad Shafee Abdullah vs. RPK, F&N Dairies Sdn. Bhd. vs. Edward Skading • NOTE : Suit against Detikdaily (a news portal) disregarded. Current as at 23.10.2008

  5. 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 StemlifeBerhad v. Bristol-Myers Squibb (M) Sdn. Bhd. and Datuk Muhammad Shafee Abdullah v. RPK Current as at 23.10.2008

  6. 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. SyedAzidi (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) Current as at 23.10.2008

  7. 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 Current as at 23.10.2008

  8. 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. Current as at 23.10.2008

  9. 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? Current as at 23.10.2008

  10. 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 Current as at 23.10.2008

  11. 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 …” Current as at 23.10.2008

  12. 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] Current as at 23.10.2008

  13. 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. Current as at 23.10.2008

  14. 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 - can’t injure someone’s 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 someone’s reputation? Current as at 23.10.2008

  15. 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”) Current as at 23.10.2008

  16. 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 Current as at 23.10.2008

  17. 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 & Anorand The New Straits Times Press (Malaysia) Bhd. v. AhirudinAttan • What if you hyperlink to a specific page on another web site which contains defamatory images or page? See StemlifeBerhad v. Bristol-Myers Squibb (M) Sdn. Bhd. and cf. Bunt v. Tilley 3 All ER 336; [2006] EWHC 407 (QB) Current as at 23.10.2008

  18. 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 Current as at 23.10.2008

  19. 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. Current as at 23.10.2008

  20. 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. Current as at 23.10.2008

  21. 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” Current as at 23.10.2008

  22. Residual Right to Free Speech and Expression : Internal Security Act • Act 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 AbdMalekHussin v. BorhanHj. Daud & Ors [2008] 1 CLJ 264 • Right to file a writ demanding the release of the detainee subject to proving that detention is unlawful : NikAdli bin Nik Abdul Aziz v. Ketua Polis Negara Current as at 23.10.2008

  23. 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 Current as at 23.10.2008

  24. 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? Current as at 23.10.2008

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