1.0 INTRODUCTION

Self reputation is vital in each and everyone’s life. A good reputation of a person is very

important to maintain self-respect and gain respect among society. Self-respect makes everyone

to love themselves, proud of their position and believe on their ability. Other than that, reputation

is also important to build a good name among society. The way society look at a person is

essential for him or her to continuously move on with achievement. When a person is lack of self

reputation they will face the feelings of shame, guilty, anger, regret and blamed. Other than that,

the person is also will feel difficulties to complete and achieve the desired goal. In short, people

will give much respect as we give respect to ourselves. People will never respect us if we fail to

respect ourselves.

In Malaysia the media is a dominant communication media playing a huge role in

conveying information to nation. Perhaps the media should be aware of the Law of Defamation

that rules the nation. Each of the communication media in Malaysia should be wise in spreading

the messages or information. They should not destroy the reputation of a person by giving wrong

information to the nation. Under the Malaysian Law, a person who spoil another person’s good

name may sue and taken legal action. In short, anyone who is giving an unhealthy statement or

giving speech, talking in public must avoid spreading wrong information to nation.

In this paper I would like to discuss about defamation law, online defamation, sedition

statement in Malaysia and differentiate the case of “Parliament Datuk Nawawi Ahmad v the late

Karpal Singh” and “Datin Seri Rosmah Mansor v a 25-year-old man”. Under this paper I will

discuss about the cases and how the cases are handled under the defamation law. I also will give

some suggestions and recommendations on how to make our country to be the best in drafting

any online defamation law.

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2.0 THE CONCEPT OF LAW

2.1 Defamation Act 1957

Self reputation and defamation are moving in the same path. In the eyes of law,

defamation is a statement that damages a person’s good name in public. The law of defamation

in Malaysia is primarily based on the English common law principles and so far it has been

modified by the Malaysian Defamation Act 19571. Defamation is the publication of a statement

which tends to lower a person in the estimation of right-thinking members of society generally,

or which tends to cause the claimant to be shunned or avoided2. In short, defamation will make a

person to lose the good name among society and face difficulty to live among society. No matter

either they are poor, rich, educated, uneducated, in a corporate or government servant, each and

everyone are same under the law of defamation. Everyone have the rights to defend themselves.

Moreover, defamation is also known as a statement which disparages a man’s reputation

in relation to his office, profession, calling, trade or business. For example the imputation of

some quality which would be detrimental or the absence of some quality which is essential to the

successful carrying on his office, trade or profession, such as wants of ability, incompetence and

dishonest or fraudulent conduct3. The statement above is deeply expressing that every business

people are facing difficulty when the other person is spoiling the reputation among society. In

this case the Defamation Law is in favor to plaintiff. To conduct the business and achieve the

desired goal people can use the Defamation Law to walk in with good quality among the nations.

Defamation is falls under two categories. They are Slander and Libel. Both of the

defamatory categories are different from the point of defamatory materials practice to

communicate. Libel defamation is in an everlasting form or permanent form. Libel in permanent

statement can be seen through the eyes. It is not in oral form. The statement that are in the type

of printed, written text, e-mail, blogs, film, picture, statue, and model are known as permanent

statement. They are falls under Libel Defamation. This is proven by section 3 of the Malaysian

Defamation Act 1957. Section 3 indicates “the broadcasting of words by means of radio

1Talib, Law of torts in Malaysia, (3rd Ed.) Sweet & Maxwell Asia, Petaling Jaya (2010).2Jones, Tort, 2000.3Lee Mei Pheng & Ivan Jeron Detta, Business Law, Pg 253-254, Oxward University Press, 2009.

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communication shall be treated as publication and permanent form and therefore constitutes a

libel”4.

The example to prove the Act is the case of Derbyshire County Council V Times

Newspaper Ltd. The case of “Derbyshire County Council V Times Newspaper Ltd”, it was held

that a local authority and so (public authorities and governmental bodies) had no right to sue for

defamation in respect of governing and administrative reputation if no actual financial loss was

pleaded or alleged. It's different from the business or commercial organization, a trading or non-

trading corporation which can show that it has a corporate reputation which is capable of being

damaged by a defamatory statement, may sue in libel to protect that reputation in the same way

as could a natural person5. This case indicates that the business or commercial organization that

damaged by a defamatory statement can be sued under Libel defamation.

The other category of defamation law is Slander. Slander is a defamation that falls under

temporary or non-permanent form. Slander is the opposite position of Libel defamation law. The

movement of body gesture and the spoken words are the type of non-permanent form. Slander

category of defamation is not an actionable per se. The person involved in such cases or the

plaintiff needs to prove the harm and actionable movement to succeed in the case. To sue the

case under Defamation law there is a need for plaintiff to prove that the statement is in

permanent form.

Even there are some exceptions to the actual damage in cases of slander. The plaintiff is

can sue the actual damage without proving the harm and actionable movement. The first

exception is slander to women. Under section 4 of Malaysian Defamation Act 1957, “words

spoken and published which impute unchastity or adultery to any woman or girl shall not require

special damage to render them actionable”6. This means a case can be investigate under

defamation act if the used words are damaging women’s good name among the public.

For instance, in the case of “Luk Kai Lam v Sim Ai Keng”, the respondent called the

appellant as a prostitute and said that the appellant charged RM50 to entertain men at any one

time. These allegations were made in presence of a third party. The court held that since the

4Laws of Malaysia Act 286, Defamation act 1957, Section 3, Pg 6, Percetakan Nasional Malaysia Berhad, Kuala Lumpur, 1 April 2006.5Defamation, 22 October 2009, malaysialawstudent.blogspot.6&7Laws of Malaysia Act 286, Defamation act 1957, Section 3, Pg 6, Percetakan Nasional Malaysia Berhad, Kuala Lumpur, 1 April 2006.

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words impugned the appellant's chastity, special damage need not be proven. Slander was

established7. This case proves that in Malaysia the words that might spoil a women’s reputation

can be investigated under the Defamation Act.

The other exception to the slander is in relation to a person’s professional or business

reputation. Section 5 of Malaysian Defamation Act 1957 states “in an action for slander of

calculated to criticize the plaintiff in any office, profession, calling, trade or business held or

carried on by him at the time of the publication is shall not be necessary to allege or prove

special damage whether or not the words are spoken of the plaintiff in the way of his office,

profession, calling, trade or business”8. It says that there is no special need to any profession,

trade or business to prove the statement as defamation statement. The plaintiff can be charged

under Defamation Act.

The exception to the slander is proven in the case of “John Tan Chor-Yong v Lee Chay

Tian”. The case of “John Tan Chor-Yong v Lee Chay Tian”, P who was a advocated and

solicitor claimed that the D words to the P's friends and clients to the effect that he, the P, was

owing him, the D, several months’ rent were defamatory as the words were calculate to

disparage him in his office. Applying section 5 of the Defamation Act in favour of the P and so

holding that the P's case was actionable per se without proof or special damage9. The case shows

that there is still some exception to the Slander Defamation cases.

The third exception of Slander is in relation to title, slander of goods and malicious

falsehoods. Section 6 of Malaysian Defamation Act 1957, “in any action for slander of title,

slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special

damage”. For instance, in the case of Borneo Post Sdn Bhd v Sarawak Press Sdn Bhd, it was

held that in action for slander of goods under section 6, the P must prove that the statement was

published maliciously. The same requirement applies in action for slander of title the alleged

statement must disparage the goods. The case above is strongly in favor to the exception of

Slander.

2.2 Elements of Defamation

7&8 Defamation (Part 2), 22 October 2009.8

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There are several elements need to be followed to prove the defamation. The satisfactions

of following the elements are necessary to confirm the defamation. The first element of

defamation is the words must be defamatory. This means the words that plaintiff says as being

defamatory can be complained. The plaintiff can claim the damages if the words are proven as

defamatory. The words which are defamatory but rough and hurtful cannot be considered as

defamation case.

The second element is words complained must refer to the plaintiff. The plaintiff must

prove that the words used to complain are referred clearly to the plaintiff. Moreover the

defendant’s mind is also not relevant. The statement is also can be consider as defamation as if it

refers to another person who has the same description, name, address and place. In short, it is

easy to prove the defamation if the plaintiff is mentioned by name.

The third element is “malicious” publication. Publication means the words are published

to other person than the defendant itself or third party. Moreover, the communication between

husband and wife about the third party is cannot be defamation and cannot considered as

publication. However, a communication between the third party and the spouses is considered as

publication.

The case of “Senah v Milah” is best meeting the basic elements of defamation. The case

of “Senah v Milah” says the defendant had thrown out word like Milah's victory was due to her

close relationship with one of the judges. The statement is defamatory because Senah’s words

cause Minah reputations to become down among society. Next the defendant has referred her

words he plaintiff by mention plaintiff name in his statement to the press. Thirdly, the defendant

had committed defamatory words to the plaintiff by gives a statement to the press “Milah's

victory was due to her close relationship with one of the judges and published Senah's statement

in its front page”. In this case, the defendant (Senah) had fulfilled element of defamatory and

plaintiff (Milah) had suffered a bad reputation. To conclude, Milah can claim for defamation

(libel) as all the three elements of the defamation has been fulfilled10.

2.3 Sedition Act 1948

10Zulamirul Aiman Bin Zulkifli, Tort of Defamation, May 21, 2013.

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Sedition Act 1948 is a restraining law. This mean the sedition law will guide the people

on what should be done and what should not been done. Seditious are actions that build

unhealthy feeling and create incite hatred towards a ruler or against any government. As per the

defamation Act, the Sedition Act is also applies to any act, speech, words, or publications.

Publication is any ideas and information that been written or printed. Anyway sedition is same as

defamation. Libel is published defamation and slander is spoken false statement of defamation.

2.4 Communication and Multimedia Acts

Defamation law in Malaysia is applying them to internet and protects the nations.

Defamation laws apply to all media, including online media and that they are meant to protect

not just individuals but also corporations from being maligned by false allegations 11. Section 233

of the MCMC Act is about improper use of network facilities or network service, etc12. Section

233 (2) is the initiates transmission. Any comment, request, suggestion or other communication

which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse,

threaten or harass another person can be charged under this section13. The nation is also can be

sued under the MCMC Act, so that they should be wise in using the communication media to

convey information.

The law of defamation is used to protect people either low level or higher level to protect.

The principle aim of the law of defamation is the protection of individual's reputation. In short,

in civil cases of defamation, when a private person sues another private person for defamation,

the Defamation Act 1957 is can be used. Moreover, in criminal cases of defamation, when the

state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is

applicable.

3.0 CASE STUDY

11Bar Council president Yeo Yang Poh, Experts: Defamation laws apply to internet; protects all, not just individual, Petaling Jaya, Jan 23, 2007.12 & 10MCMC Laws that Regulate the Contents in Your Blog or Website, October 27, 2009.13

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“When Langkawi Member of Parliament Datuk Nawawi Ahmad posted photographs of

the late Karpal Singh’s bloodied body on his Facebook page, few would disagree that he

committed an act of gross impropriety. Not only was it a great disrespect to the Bukit Gelugor

MP’s family, Nawawi also crossed a line of decency. But was what he did criminal?

Dato' Ir. Haji Nawawi Ahmad is a Malaysian politician. He is the member of the

Parliament of Malaysia for the seat of Langkawi, Kedah. Whereas Karpal Singh s/o Ram Singh

was a Malaysian lawyer and politician. He was the Member of Parliament for the constituency of

Bukit Gelugor in the state of Penang since 2004. On 17 April 2014, Karpal Singh died in a car

accident on the North-South Expressway near Gua Tempurung. The case of Langkawi Member

of Parliament Datuk Nawawi Ahmad v Karpal Singh is a case of Datuk Nawawi Ahmad posted

Karpal Singh death photo in his personal Facebook account and insult the late Karpal Singh with

disrespect words.

This case can be discussed under Malaysian Defamation Act 1957. Defamation is the

publication of a statement which tends to lower a person in the estimation of right-thinking

members of society. Under laws of Malaysia Act 286, “words” include pictures, visual images,

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gestures and other methods of signifying meaning is defamation14. Langkawi Member of

Parliament Datuk Nawawi Ahmad used unhealthy or disrespected words in his statement. The

words are spoiling Karpal Singh reputation among society.

The case is also can be referred to defamation law because it has followed the basic

elements of defamation. The word that Langkawi Member of Parliament Datuk Nawawi Ahmad

used in his Facebook account post is a defamatory statement. “The creation of an Islamic state

will only be over my dead body - Karpal Singh”15. The statement is a defamatory word. There is

also plaintiff and the statement shows it is maliciously published. The elements are strongly

contributing evidence to the case and plaintiff can sue defendant under the defamation law.

As the case is falls under Laws of Malaysia Act 286, it is more specifically can be

discussed under Libel Defamation Law. Libel defamation is more accurate to handle the case

because the case and the elements are in the permanent form. This means the images and words

that expressed by Langkawi Member of Parliament Datuk Nawawi Ahmad is showing there are

strong evidence to the case discuss under the Libel Defamation Act.

The case is also can be discuss under section 7 Unintentional Defamation Act. Section 7

(1) says “a person who has published words alleged to be defamatory of another person may, if

he claims that the words were published by him innocently in relation to that other person, make

an offer of amends under this section”16. In a press report Langkawi Member of Parliament

Datuk Nawawi Ahmad says that the post of statement regarding the dead of Karpal Singh was

without thinking of the consequences. He also remarked he had deleted the post after an hour

when strongly condemned on the social networking17. Even Langkawi Member of Parliament

Datuk Nawawi Ahmad argue that he post the statement without thinking of the consequences but

still wrong under the law.

There is another incident that occurred prior to Nawawi’s post. On 7 April 2014, a 25-

year-old man was arrested for posting an image of Datin Seri Rosmah Mansor superimposed on

14Laws of Malaysia. Act 286, Defamation Act 1957.15Amin Iskandar, Langkawi BN MP pokes fun at Karpal Singh’s remains, The Malaysian Insider, 17 April 2014.16Laws of Malaysia, Act 286. Defamation Act 1957.17Boo Su-Lyn, UMNO MP admits to Facebook photos of Karpal in death, 19 April 2014, The Malay Mail Online.

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a dead body, which he tagged “Pray4Rosmah”. The man was investigated under Section 233 of

the Communications and Multimedia Act and Section 505(b) of the Penal Code. The police said

they took up the case on the basis of reports lodged that claimed the doctored image of Rosmah

was a threat to public order, as well as “insensitive to the plight of MH370 passengers and

family”.

There are two parties involved in this case. The suspect is Syed Ahmad Saifullah Hashim,

25 year old and defendant is Datin Seri Rosmah Mansor. The case was says that the 25 years old,

Syed Ahmad Saifullah Hashim has posted the head of the Prime Minister's wife had been

superimposed unto an image of a mangled human body, allegedly that of a plane crash victim 18.

There were two reports regarding the "Pray4Rosmah" posting on April 4 and April 6 was filled

at the Sentul District Police Headquarters and Putrajaya District Police Headquarters. Due to the

report the 25 years old boy was remanded for three days under Section 117 of Criminal

Procedure Code. The case was also investigated under section 233 of Communication and

Multimedia Acts and section 505(b) of Penal Code.

18Gho Chee Yuan, Doctored pictures of Rosmah posted on the net: 25-year-old detained, Petaling Jaya, 6 April 2014, The Malaysia Insider.

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Section 233 of Communication and Multimedia Acts is improper use of network facilities

or network service. Section 233(1) is “a person who (a) by means of any network facilities or

network service or applications service knowingly (i) makes, creates or solicits; and (ii) initiates

the transmission of, any comment, request, suggestion or other communication which is obscene,

indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass

another person”. When a person is commits an offence under section 233(3) “a person who

commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty

thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also

be liable to a further fine of one thousand ringgit for every day during which the offence is

continued after conviction”19. The 25 year old Syed Ahmad Saifullah Hashim was investigated

under this section.

Section 505 (b) of Penal Code is statements conducing to public mischief. Section 505

(b) “whoever makes, publishes or circulates any statement, rumors or report with intent to cause,

or which is likely to cause, fear or alarm to the public, or to any section of the public whereby

any person may be induced to commit an offence against the State or against the public

tranquility”20. The statement that Syed Ahmad Saifullah Hashim posted in Facebook regarding

Datin Seri Rosmah Mansor is create rumors and create fear situation to the public. So that, the 25

years old boy is investigated under this section.

4.0 RECOMMENDATION AND SUGGESTION

“Langkawi Member of Parliament Datuk Nawawi Ahmad v Karpal Singh” and “25 years

old boy v Datin Seri Rosmah Mansor” is the case that moving in the same path. That means

19Laws of Malaysia, Act 588, Communications and Multimedia Act 1998, Section 233.20Laws of Malaysia, Act 574, Penal Code, Section 505.

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“Datuk Nawawi Ahmad v Karpal Singh” case has the similarity has the other case. The case can

be conducted or investigated by comparing to the case of “25 years old boy v Datin Seri Rosmah

Mansor”. The case is said similar because Datuk Nawawi Ahmad has the similar intention as the

25 years old boy to spoil the reputation of a person in public.

Next, even Datuk Nawawi Ahmad says he had post the statement in Facebook without

thinking of the consequences but from the point of law it is still not fair and spoiling the

reputation of Karpal Singh. Karpal Singh is the famous lawyer and well known as the Tiger of

Jelutong. The statement that posted by Datuk Nawawi Ahmad in his Facebook is should be

investigated. Datuk Nawawi Ahmad claims that the Facebook account is private but in fact the

Facebook account is not a private but public media. Datuk Nawawi Ahmad can be investigated

under section 7, Act 286, Malaysian Defamation Act 1957. Section 7(1) is “a person published

words alleged to be defamatory of another person and he claims that the words were published

by him innocently in relation to that other person” is still wrong under the eyes of law in

Malaysia.

“Datuk Nawawi Ahmad v Karpal Singh” is also can be investigated under Libel

defamation. Malaysian Defamation Act 1957 is used to investigate the case of “Datuk Nawawi

Ahmad v Karpal Singh”. Datuk Nawawi Ahmad can be investigated under the Libel defamation

law because the statement he posted in Facebook is an evidence of the case. This case can be

investigated under Libel defamation that shows the permanent motivation of spoiling or downing

Karpal Singh reputation. So that, Datuk Nawawi Ahmad is should investigate under Defamation

Act.

The case is also may investigate under section 233 Communications and Multimedia Act

1998. Section 233 (2) is stating “any comment, request, suggestion or other communication

which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse,

threaten or harass another person can be charged under this section”21. Datuk Nawawi Ahmad

should be investigated under the Communications and Multimedia Act for using the

communication media wrongly to convey information. This means, Datuk Nawawi Ahmad used

the social media to convey message regarding the great Karpal Singh death body photo and using

words that spoiling the reputation in Facebook.

21Laws of Malaysia, Act 588, Communications and Multimedia Act 1998, Section 233.

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In part of that, Datuk Nawawi Ahmad may also can be fined up to RM 50,000 or

imprisoned for up to one year or both, with an additional fine of RM 1,000 for every day the

offence continues after conviction of guilty. Section 233 of the Communications and

Multimedia Act is stating the offences that can be charged under Datuk Nawawi Ahmad. The

other example of a case that related to Datuk Nawawi Ahmad case is “five person v Sultan

Perak”. In this case, in year 2009, five persons were charged under Section 233 of the

Communications and Multimedia Act for posting comments deemed insulting to the Sultan of

Perak following the 2008 general election, and were each fined RM10,000.

The law in Malaysia should be in favor to nation to pretend them. Even

Defamation Act 1957 is used to pretend a person’s reputation from being insulted but

there are still some errors to be pay consideration. Everyone must free to use the law and

everyone must be treated same from the point of Defamation law. Other than that, the

Communication and Multimedia Acts should prevent the community in using the social media

without hurting the other person. The Act should be stronger and heavy toward irresponsible

community from overstepping the rules and condemning others. Datuk Nawawi Ahmad should

be investigates as per the 25 years old boy. This is because even Datuk Nawawi Ahmad is a

politician and in a good position but the way he spoiled Karpal Singh reputation among

community is similar to the other case. So that, this case is also need to investigate to avoid

defamation in future.

5.0 CONCLUSION

A person’s reputation among society is important to thrive in this global. Everyone must

protect themselves from criticize by third party. There are rule and regulation in our country to

defend our self being. So that everyone must spend their quality time knowing the Malaysian

laws to prevent either inside or outside the border. The case study is describing how a person can

defend themselves among society. Either politician or a normal person is still can defend their

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reputation from the point of law. In Malaysia the communities are free to use the law.

Defamation law can be used for civil and criminal defamation as well. To protect reputation

among population everyone must use the law.

Moreover the social media is also a platform for a person to convey or share information

among society. The social websites such as Facebook, Twitter, Blogs and Instagram are faster in

spreading the information among society than newspapers. So that, each of the users are must

know their limits in spreading the messages using the social media. Everyone can be investigate

under the Communication and Multimedia Acts when use it wrongly. When posting information

in Facebook everyone should always remember that the social media is not a private platform

and can be viewed by almost everyone in the world.

Malaysians are very active using internet to get and spread the messages among society.

In Malaysia the defamation on the Internet is a problem. The growth of internet usage sometimes

leads to unnecessary matters to occur. There can be many scenarios happens in the same

situation but lead to different judgment. The Communication and Multimedia Acts should be

interrelated with Defamation Laws to prevent the nation from being liability. The case of Datuk

Nawawi Ahmad v Karpal Singh and Syed Ahmad Saifullah Hashim, 25 year old v Datin Seri

Rosmah Mansor can be an example of different judgment.

In law, there is nothing wrong if a person voice his or her opinion to pretend and express

point of view. In nature it is not a wrong with websites if providing people the opportunity to

voice their opinion. But the important point should be remembered is not to go beyond the limits.

Everyone should know how to use the websites well from criticizing others. The nation is also

should never go beyond the limit and step into real problems.

6.0 REFERENCES

1) (22 October 2009). Defamation (Part 2) .

2) Detta, L. M. (2009). Business Law, Pg 253-254. Oxward University Press.

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3) Iskandar, A. (17 April 2014). Langkawi BN MP pokes fun at Karpal Singh’s remains. The

Malaysian Insider.

4) Jones, M. A. (Blackstone, 2000 ). Textbook on Torts. In Torts (p. 655).

5) (1 April 2006). Laws of Malaysia Act 286, Defamation act 1957, Section 3. Percetakan

Nasional Malaysia Berhad, Kuala Lumpur.

6) Laws of Malaysia, Act 286. Defamation Act 1957.

7) Laws of Malaysia, Act 574, Penal Code, Section 505.

8) Laws of Malaysia, Act 588, Communications and Multimedia Act 1998, Section 233.

9) ( October 27, 2009). MCMC Laws that Regulate the Contents in Your Blog or Website.

10) Poh, B. C. (Jan 23, 2007). Experts: Defamation laws apply to internet; protects all, not just

individual,. Petaling Jaya.

11) Su-Lyn, B. (19 April 2014). UMNO MP admits to Facebook photos of Karpal in death. The

Malay Mail Online.

12) Talib. (2010). Law of torts in Malaysia, (3rd Ed.) . Sweet & Maxwell Asia, Petaling Jaya .

13) Yuan, G. C. (6 April 2014). Doctored pictures of Rosmah posted on the net: 25-year-old

detained. Petaling Jaya : The Malaysia Insider.

14) Zulkifli, Z. A. (May 21, 2013). Tort of Defamation.

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