Monday, January 22, 2007

Defamation And The Blogger

Defamation Proceedings

There is a fallacy that needs to be addressed. Blogging on the internet is not immune from legal process. Like other publications on the internet if a blog publishes defamatory material the blogger responsible for the publication, and even the host of the blog, can be subjected to defamation proceedings.

I believe that Dr Mahathir’s promise of internet freedom could only be taken as being a promise that the Administration would not restrict internet freedom. Based on this promise, Malaysians could reasonably expect that no criminal proceedings are brought against persons publishing on the internet and that no steps will be taken which have the effect of impeding free access to the internet.

I do not believe that Dr Mahathir’s promise was a licence for bloggers to publish material in a reckless and irresponsible manner. You can imagine the extensive damage that could be done if this were the case. For as many bloggers who publish responsibly there are that many more who do not, hiding behind their anonymity and their mistaken belief in immunity. Their attacks on the reputations of individuals and businesses do have an impact and it will sometimes be necessary for those who have been attacked to take steps to vindicate themselves.

This is at the heart of defamation proceedings, the desire to clear one’s reputation and achieve vindication. In more traditional systems, such as in the UK and Malaysia, an award of damages is seen as being the best means of vindication. The award is intended to represent to the world at large the inaccuracy and lack of truth in the offending statements. They are also intended to deter, through a ‘chilling effect’, publications of a similar nature. The courts do not order the publication of an apology, the failure to voluntarily do so by the wrongdoer when asked being one of the factors taken into consideration in quantifying damages. In other systems, such as in Germany, the courts do order the publication of an apology.

Seen from this vantage, those who sue for defamation cannot be faulted for so doing where there is legitimate basis. We have heard of and seen how defamation proceedings have been invoked as means of pressure and intimidation, the complaint most commonly being made with regard defamation proceedings in Singapore. Where done with that intent, the proceedings could be said to have been brought for collateral purpose and despite the plausible legal basis for doing so, could be seen as being ‘less legitimate’. This too is a factor that the court can take into consideration where damages are concerned.


Blogging And Nation Building

However, in the Malaysia context, the analysis should not end there. I believe that there is a social and moral dimension to the discussion. This dimension is founded on the crucial role that blogging plays in socio-political Malaysia and in nation building efforts. There are several ways this can be approached.

First, the reality is that press freedom in Malaysia is limited. The need for permits and the threats of closure and prosecution are not conducive, even where there is editorial will for freer publication. As such, information is available to the public on a limited and ‘structured’ basis. Responsible blogging allows for gaps in information to be filled and the establishment of a more informed polity. In this vein some blogs have, in a manner of speaking, become alternative journalistic institutions. There are of course numerous other blogs that are purely of a personal nature and do not fit into the scheme of things as outlined here.

Second, we cannot deny that the fact that Malaysians having had to exist in a ‘climate of fear’ since, at the very least, 1987 has resulted in an inability on the part of many Malaysians to engage in critical and constructive of analysis on topical issues. The ‘de-education’ of Malaysians by the education system has worsened this state of affairs. The democratic space that blogs open up and the education in logic, critical analysis and constructive dialogue are invaluable.

Third, we similarly cannot deny that race politics and its consequences has also caused a continuing brain-drain. This has seriously undermined the quality of the views expressed and allowed for the insulation of an Administration that is clearly not the best qualified for that role. The blogs have allowed for an involvement of Malaysians living abroad and a harnessing of their views.


Competing Interests

Keeping the foregoing in mind, it becomes apparent that where suits are brought against blogs that are recognized as playing a crucial role in nation building, then it is the nation building process itself that is being threatened.

Having said that, from time to time, as with all publications, offence will be caused. Aggrieved persons will have rights of action and will be legally entitled to recourse and vindication. This points to a need on the part of bloggers to be more responsible and professional in the way material is published.

Equally however, the evolution of the Malaysian blogsphere and the crucial roles that blogs and bloggers play point to a need for greater appreciation of how vital they are for nation building. I do not think I am overstating things when I say that Malaysia is in a state of crisis, politically and economically. The freedom to access information is more vital than ever.

As such, I believe that a balance has to be struck between these two competing interests; personal reputation and integrity on the one hand, and nation building on the other. We cannot lose sight that in as much as vindication may be achieved, the chilling effect may have far wider, and unintended consequences.

MIS

19 comments:

Michael Tan said...

I am a Malaysian altruistically seeking (to my surprise, since I am not resident there) an improvement in the administration of the country.

As you have mentioned, blogs have given non-resident Malaysians a way to keep informed of alternate aspects of various policies in our tanah-air. And overseas Malaysians of various levels of intellect, can now participate in a limited way in the nation's development. Any iota of intellect is welcome in the post-internet world, where opinions and brain-power matter more now to temper old-skool raw power.

But it needs refinement, and these defamation suits come just in time. Hopefully, they will make the bloggers churn out better researched, better quality content, and finally, expose the public to these blogs, let them read it and let them think about it some more. Perhaps, if 2% of the public reads about it in the papers and put it in their RSS reader, that's 2% more thinking people, and helluva good addition to the audience.

Now, YOU make sure that a reasonably fair trial ensues. Take some bits from the Durai trial, get a good list of things to look out for, see whether the Straits Times has any demons in their closet. Though it might be a fantasy, do a Durai/NKF on this one. That was pure porn, the Durai trial ... it was so DOPE.

Seems that the first shot has been fired, I feel guilty that I'm not at the firing lines.

tao ching said...

brother MIS,

i pray you'll be in good health till 2017 (quoting elizabeth wong) to help the two bloggers fight a good fight.

i know they are in good hands as you are fair and you are young.

the cause is a noble one. it will not only ensure that bloggers become more responsible in their passion for blogging but
also prove that bloggers are, indeed, responsible. these two blog using their own names, just as you do. they are not snipers.

but what about responsible journalism? who's going to promote that, brother? who's going to root out the snipers who hide behind the bylines of our journalists?

may I quote your goodself:
"Malaysia is in a state of crisis, politically and economically. The freedom to access information is more vital than ever."

yes, who is going to promote responsible journalism in this country?

Mr. Smith said...

MIS,
Did you say nation building? Do you honestly think this government ever cares about nation building.
It's leaders are in the business of self-enrichment, wealth accumulation and fiefdom building.

Tommy Peters said...

Rushdie said “Without freedom to offend, freedom of expression ceases” but I think he meant “ Without freedom to offend expression, freedom ceases”.

A clear distinction between savaging a person’s opinion or expression and savaging the person himself, should be drawn.

Often we see the Minister of Works announcing a toll hike for example, savaged in the blogs. Writers tear at his expression and person in one stroke with adjectives too colourful to even pass Malik’s not-so-stringent comments’ policy.

Issues often arise when a writer does not recognize this distinction.

Malik Imtiaz Sarwar said...

Well, Tommy, if I was as stringent as I sometimes think I should be, it would be very quiet here at Disquiet. I agree with you. I think we should be attacking ideas rather than people. The distinction seems to be a rather fine one for far too many. Having said that I also recognise that many of us are only just beginning to explore freedoms which were not so easily availed not too long ago.

Maverick SM said...

Malik,

I hope you would present an article here about the law on defamation, what are the constituents of defamation and the damage claim.

I could write an article of defamation from the perspective of common law, but I think, as Malaysians, we would be much informed about the Malaysian case laws and how the domestic court deals with such.

There are just too many bloggers who treats defamation not within the proper legal framework and your elucidation would help us understand better. Thanks

hasilox said...

IMHO, at the end of the day, common sense should be the key 'guidelines' for everybody. Not just for bloggers, but, also the administration and its mouthpiece.

For bloggers, in the event of off-tangent postings, they can be quickly rebuked right there and then. Such 'corrections' were not possible for printed publications. For printed publications, even when apologizes were made, most readers have already forgotten or don't even know what the apologizes was all about. Legal process, yes. But, often a complete waste of time and money.

An example of senseless legal 'malpractice' is the OSA. OSA could well be an effective way to protect our nation interest. But, its implementations left nothing to be desired of. At times, its usages were completely senseless yet legal! Blogging them might even risk of legal prosecution.

Legal practice without common sense is just another oppressive tool for the power-that-be. A sure way to suppress and 'stupidify' the quality human capital required to build the nation.

Tommy Peters said...

Malik wrote “Having said that I also recognise that many of us are only just beginning to explore freedoms which were not so easily availed not too long ago”.

A crude analogy on freedom. When someone punches you on the face, it’s his fault. When he punches you at will for 22 years without a response from you, then at best it’s your fault for being punched - at worst the puncher gets the impression that it’s his birthright to keep punching you.

Just as our nose is an integral part of our anatomy, freedom is an integral part of our soul and no one avails to us what is ours in the first place.

We, save for a few brave souls who soldiered on our behalf the past 2 decades, unwittingly surrendered this part of our soul but once it’s clear to us that freedom is very much a part of our being, as opposed to being handed through the benevolence of another, we would treasure it with the same care we would afford any part of our anatomy.

Taufiq Khalid said...

Hi Malik, Since we are talking about freedom of expression, I am curious as to how many percent of the comments are rejected by you and never see the light of day in your blog.
Its just that if I was moderating the comments on the Malaysia-today site, I would probably reject about 80% of them. The sheer immoderation and intolerance of all sides of the political/racial/religious divide are quite frightful to read. But maybe its good that they have a place to let off steam. Or is it just making things worse?

Malik Imtiaz Sarwar said...

Taufiq,

the only posts I have rejected are those which I think are couched in highly intemperate language or in a highly uncivil manner; those whose aim appears to me to be nothing more than to stir up reactions (incitement) or those which might have that effect even if unintended. I believe that there is always a civil, objective way to state things even if it takes a little more effort. I am glad to say that since I started up the blog, I have only had to reject 4 (if I remember correctly).

I think expression is important but there are two other considerations we should all keep in mind: (1) allowing a comment which has the effect of having the blog shut down is counter-productive; and (2) as I noted above, we have to appreciate that all of us have sensitivities and it is our collective responsibility to ensure that we take the least objectionable route in order to facilitate dialogue. I would not want individuals refusing to comment because they are put off by the tone and tenor of the comments left on this blog.

Aus Bear said...

I was invited to view this blog from a friend and as someone from outside Malaysia I see many synergies with every other blog space in the world.

My personal blogging activity mainly steers to personal interest groups, (Such as car related Blog's).

The ironic thing is that any blog in any country of the world has a global impact not just local. This also means that influences can be received by anyone anywhere. I guess this is noted in the main post for this blog.

Irrespectiv of what a government, group, webmaster, or individual set out to do or achieve on a blog the real power comes back to the web space it takes up and how many people are listening.

Can I offer my thoughts on this:
As individuals we all have some ability to put forward out views or opinions. This is often tempered weather by regulations or policies within a government, club, Council, webcommunity etc.
THOUGH, the fundamental balance in why these regulations are there is to TRY to ensure a forum exists for everyone to share and communicate without feeling shut down or pressured not to have our say. My personal experience is that if we express our concerns or issues in a non confrontational manner then none of the above bodies will or can reject your input.

Common sense often prevails, though not always as we know.

Anyone who does end up venting on a public forum will have to realise that they will also be eliminating any opportunity for their true message to be heard and considdered. As an example someone uses profanity to express their anger. This won't be published as lets face it, you and I don't need or want to hear it or see it in text.
The other option to be constructive gives every reader a cause to reflect and considder the argument.

The world certainly is getting much smaller in the way of accessibility. Just search how many local papers you can read online from anywhere in the world at any time.

BMB

kittykat46 said...

Hi Brother,
You write a very intelligent and thoughtful column. First class!

I'm not a lawyer but I think it is important for the legal system to differentiate between (a) Strictly private individuals or organisation going about their daily lives and business and (b) Public figures and Organisations.

I quite agree in the case of private individuals and organisations that they have a right to stricter protection against defamation and unwarranted commentary.

People who run for political office or organisations which seek to influence public opinion must also be willing to accept that members of the public have the right to criticise them, including fair comment on their conduct and person, as long as it is not mala fide. To my mind this category includes political parties and newspapers. They have the right to rebut and reply, but if they can't take the heat , they should get out of the game, not hide behind lawyers and defamation laws.

Of course, there is no absolute freedom of expression - it doesn't exist anywhere - but the law should recognise a more liberal approach to public figures as opposed to private individuals.

juslo said...

hi,

i'm not a lawyer, but i do know a bit of law thru selective courses n auditing in college. here is my view about blogger's liability, interested to know whether u think it is sustainable.

but before that, i disagree that this law suit would have chilling effects on free speech, not only bcos it has not been made know what contents of these blogs were being sued for, but also bcos a law suit is JUST a law suit. just bcos u can sue doesnt mean u can win.

besides, just imagine if the bloggers WIN. now THAT would b a BOOST to our freedom of speech, right???

it won't 'chill' unless we treat the law suit as ICE CUBE. there's no reason y we should - at least not now, not until u have lost, not until the judge has restricted our freedom of speech.

---------------------------------

Blog Owners/Post-writers should NOT be Responsible for COMMENTS being made by others

DISAGREE that blog 'owners' have any responsibility to regulate the contents - UNLESS & UNTIL u decide to regulate.

my analogy (said this before at jeff ooi's) was, a blog CAN BE like a coffee shop (until u turn it into something else).

u r only providing a SPACE for people to come n gather, to chat. surely, if u heard anything defamatory being said inside my cafe, i shouldn't b held responsible. it's just a space.

but the COMMENTATOR should b responsible for it bcos he SAID it. u can then track down this particular commentator n sue him if u like, but the space provider is not responsible.

otherwise, we can extend that to the service providers also, such as blogger.com, n even streamyx (in malaysia), america online (in usa) etc - y didn't they BLOCK our access to these 'defamatory remarks'??? WHY they should not b responsible??

eg. in this blog, i don't care what u want to say, n I MADE THAT CLEAR. i'm just giving a space here. if they want to go after me, they should go after coffee shop owners, shopping mall owners etc who provide PUBLIC SPACE for others to carry out their activities, including talking.


BUT, the moment u take it upon yourself to MODERATE the comments, u r indirectly telling the world that u HAVE FILTERED thru the comments, n HAVE EXERCISED YOUR JUDGMENT on what comments r/not appropriate. u've 'owned up to' them, APPROVED of their existence BY THE FACT that u published them.

THAT (like jeff ooi's n rocky's bru) is a VERY DIFFERENT KIND of blog. they HAVE PUBLISHED, DIRECTLY, the defamatory comments, even though they might not have WRITTEN them.

that's my logical distinction. whether the court buys it or not, of course, is another story.


i think my distinction above would b beneficial to free speech, (n the rejection of this distinction would BURDEN free speech,) bcos it would b VERY CUMBERSOME for bloggers (n forum owners also) to check thru each n every comment n verify the 'facts', to c if they r 'false info', as u suggested (n i disagree):

"even if it's just from a anon commenter, the onus lies on u not to publish FALSE INFORMATION."


besides, the KEY IDEA of defamation is when u present something as TRUE, n MISLEAD the public INTO THINKING THAT IT'S TRUE. to assess whether such effects of MISLEADING exist, u have to look at the CONTEXT of the publication as a whole.

if i tell u that THIS SPACE ALLOWS RUMOURS, it would b STUPID of u to BELIEVE what is being said here, no? reasonable person would know that they should take things being said in a 'rumour mill' with a pinch of salt n if u DON'T, then u r not being reasonable.

just like u won't sue the 'national enquirer' or 'people magazine' in the usa for making up stories about how brad pitt broke up with angelina jolie last week if it turns out to b false. NO REASONABLE PERSON would have taken the contents of THIS KIND OF PUBLICATION seriously, but if u do, that's YOUR problem.

so, my blog (n all those unmoderated blogs) r precisely THIS KIND of FREE TALK 'publication'. so, i as the 'blog owner' should not b held responsible for it bcos i NEVER VOUCH FOR THE VERACITY, TRUTH or ACCURACY of the contents u find herein. but any reader still INSISTS on taking them seriously, then - fine, u can - go after the WRITER of those comments, not me, bcos i didn't WRITE them, nor PUBLISH them.

- of course, u can go after me for MY POST (as distinguished from the COMMENTS) if i made any false/defamatory allegation against u in my POST. that's different.

Firewall said...

Again, allow me some of your space Malik. And thank you.

This is for "hasilox". Can you kindly get hold of Sheih (kickdefella@yahoo.com) please. This is no longer just about legal suit and we need our very own "security team". Can we count on you? Regards.

Sophie said...

i believe one can stil blog responsibly without showing one's true identity for watever reasons.

not everyone has the luxury to show one's true self. but it does not necessarily mean tt he or she is irresponsible. the blogger can still be tracked down via his ISP should he post defamatory comments, with or without a pseudomym.

sincerely,

woof woof
responsible blogging poodle. :-)

nf said...

Dear MIS,

I am new at your blog -and I must say that I am very impress with the level of clarity and lateral intelligence of your thoughts and writings.

I am truly sad that NST has resorted to what is doing and happening today. NST can certainly do many things to counter the writings/blog entries by both RB and Jeff. How much were they truly defamed that they need to take this to court? I think that freedom of speech is not only brutally jeopardize by their act –but it has been challenged for all of us to react wisely and strategically, in our own and able capacity. nf

mob1900 said...

Why can't Blogs be treated like other traditional media channels, like TV, radio, etc. So if you do not like to 'hear' or 'read' these blogs you can always turn/change to another. Imagine taking every broadcast and media station to court just because you think they're defaming you or feeling offended.

If you are a public figure, of course you will be ready to be ridicule, don't tell us it's not 'part of the parcel'. By taking their critiques to court, it seems to give credibility to the blogger's 'False Reporting'.

I still think it's a waste of public resource and money. If they feel like 'controling' the internet, write a proposal and submit it to the cabinet/parliament, I'm sure the YES-men there would be obliged to sign anything. Unless, they do not want to be seen as the Instigator to 'teach' bloggers to be more responsible.

Case on J.O. and R.B. seems like a 'Public Witch-Hunt' to be made exemplary to all to see, fully endorsed and backed by the ruling coalition and paid with our tax-payer's money. It would only serves to make J.O. and R.B. a 'matyr' in the eyes of everyone.

It is plain wrong, and it seems like they do it just because they can...

Michael Heraghty said...

Wasn't there a ruling in the US a couple of years ago that said that bloggers couldn't be prosecuted for what is known in the blogosphere as "re-blogging" i.e. publishing a story that had first appeared somewhere else? I guess they would have to link to the source...

Winston said...

I have always wondered whether all the laws passed by our local councils to enable them to evade responsibility for their acts of commission or omission are valid in a court of law.
If that is the case, they can get away with anything just by passing a law which grants them immunity.
The same goes for the Federal government.
Where will all this end?
Somebody should challenge them about these.