Defamation and Litigation (2) – from NST


(NST) – Source

You create a fake Facebook profile about your friend or foe, can you get away with it? No.

Someone takes an unflattering photograph of you and posts it on his blog. Can you do anything about it?
Apparently not.

These were among the clarifications given yesterday at a question-and-answer session at the eLawyer Law Conference 2009 themed “Blogging and Law” yesterday.

For unflattering photographs, intellectual property lawyer Foong Cheng Leong said: “So long as it is that person who has taken the photo of you, he has the copyright to it. Unfortunately, even if that photograph is not that nice.”

What about taking a video from YouTube and posting it on your blog?
“You would have infringed copyright laws as you have reproduced material without consent,” he said.

What if someone posts an unfavourable comment about a minister on your blog but you reply to the post saying the comment is inappropriate. Are you liable?
“Yes. Your response will help only in the mitigation of your sentencing or damages against you.”

On copyright, Foong said if you drew a caricature and commissioned someone else to do illustrations for your blog, you would own the copyright to the caricature and illustrations.
“Even if you paid the person just RM1 or RM2 to do it.”

If an image is taken of a website and posted on a blog, said Foong, the defence of fair dealing would be available if the website was credited to the proper owner.

On the fake Facebook profile, lawyer Nizam Bashir Abdul Kariem Bashir said the person responsible would be liable for defamation.


“The strongest defence for defamation is justification. If you express an opinion and the facts are reasonably accurate and it is published in the interest of the public, then it is acceptable,” said Nizam

What if you link your blog to a website that contains defamatory information or images?
The courts, said Nizam, had held that it was fine if the link just contains the name of the site as opposed to its uniform resource locator.

Are you still liable for defamation if you use someone’s name in your blog , and in brackets, explain that it is just an example?
“Even if the comments were humorous, parties have still taken matters like this to court. It would depend on the context of the information. Brackets might not necessarily work on all occasions.”

Nizam said it was defamation if a blogger’s writing injures the reputation of another person.
How much damages you get would depend on how much your reputation is worth. There is also innuendo, where someone reading the comments would jump to the conclusion that the person being written about is you.  This will allow you to bring a suit against the person who wrote the comments although you were not named.”

If I say that there was this person who was allegedly speaking to the chief justice on the phone, you would immediately know who I am speaking about,” said Nizam.

If there is a defamatory comment on a blog but the blogger subsequently removes it, is he still liable?
“Yes. It will only help in the mitigation of sentencing. There is freedom on the Net, but there must also be responsibility.”

Efenem: Isn’t it easy to just criminalize blogging and ban the internet, since we do not really have the freedom on the net? Plus, the definition of defamation in Malaysia is still vague – is a harsh opinion/critic that damages one’s reputation considered defamation? People can claim emotionally injured even if someone is calling him/her “Bitch/Bastard/Skank” etc like a Vogue model Liskula Cohen suing Google . Normal people can become millionaire and politicians can become billionaire. Malaysian law is so graceful! This is the new skim cepat kaya!

One thought on “Defamation and Litigation (2) – from NST

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