IN THE past, defamatory statements were largely confined to traditional media such as newspapers, where their reach was limited to readers within a specific region.
However, in the digital era, defamation has become a borderless issue, where defamatory statements can go viral within minutes, reaching global audiences with just a single post or share.
While the Malaysian legal landscape has evolved to address these challenges, the rapid growth of social media platforms continues to expand the scope of liability.
Defamation in the digital era
Defamation is defined as a false statement that diminishes a person’s reputation in the eyes of a reasonable member of society. Under Malaysian law, defamation can be classified into libel (in permanent form, i.e. written or published) and slander (in temporary form, i.e. spoken words).
To establish a claim for defamation, the plaintiff must prove three elements: (1) the statement is defamatory in nature; (2) it refers to the plaintiff, either directly or by implication; (3) the statement has been published to a third party.
With the rise of platforms such as TikTok, defamatory statements can reach vast audiences instantaneously, magnifying their impact. The ease with which users can share, comment, and repost content has also complicated liability issues, as individuals may unknowingly become parties to defamation.
The primary Malaysian legislation – the Defamation Act 1957 (DA) only applies to civil claims; and Section 499 of the Penal Code governs criminal defamation in Malaysia. The publication of criminal libel is punishable under Section 500 of the Penal Code with imprisonment for up to two years or a fine, or both.
When it comes to digital communications, the DA is outdated and, hence, reliance is often placed on the Communications and Multimedia Act 1998 (amended in 2025), to fill the gaps on defamatory or false statements. Section 233 criminalises the use of network facilities to transmit any communication that is “obscene, indecent, false, menacing or grossly offensive in character with intent to annoy, abuse, threaten, harass or commit an offence involving fraud or dishonesty against, any person”.
The scope of liability has expanded significantly for online defamation, affecting not only content creators but also those who share, comment or even fail to moderate defamatory content. For instance, if a person reposts defamatory content with a caption endorsing it, they may be as liable as the original author because their caption contributes to the defamatory nature of the post. Even reposting without a caption can attract liability, if done with malicious intent or knowledge of falsity.
In Malaysia, both the original publisher and the person who reposts such content may be sued, with courts assessing the degree of their involvement in spreading the defamatory material.
In light of this, courts have increasingly recognised that virality exacerbates reputational harm, making even casual users into potential defendants in defamation suits. In Dr Zakir Abdul Karim Naik v Ramasamy a/l Palanisamy and another suit [2024] 9 MLJ 881, Dr Zakir had filed defamation suits against former Penang deputy chief minister II Ramasamy over several statements he made, including a Facebook post referring to Dr Zakir as a “devil”. The High Court found in Dr Zakir’s favour, ruling that the statements were defamatory. Ramasamy was ordered to pay RM1.52 million in damages. Given that the reach of a defamatory statement is now digitally borderless, it is no wonder that we are seeing such high amounts of damages being awarded.
Owners and administrators of social media platforms must note Section 114A of the Evidence Act 1950 which provides a rebuttable presumption that the owner of an online platform or a person named in an online publication is responsible for the content, unless proven otherwise. This applies even, for example, where a hacker posts defamatory content. The account holder will be presumed to be liable, unless they can provide evidence, such as cybersecurity reports or login records, to rebut the claim.
Conclusion
The DA was drafted in 1957 and has remained unchanged despite vast technological advancements that have transformed communication. This has led to the courts building precedent to adapt the principles of defamation to the digital age, expanding liability through judicial interpretation instead of legislative reform.
Given how easily defamatory content is spread online, it is crucial that the DA is amended to ensure its relevance and effectiveness in addressing contemporary challenges. Ultimately, freedom of speech is not absolute, and with the power of social media comes the responsibility by its users to use it wisely.
This article is contributed by Vanessa Khoo Xue Ying of Christopher & Lee Ong.
