After enjoying the movie, Joanna Loy explains the law.

There is a high probability that by the time you set your eyes on this article, you may have just updated your status on Facebook, twitted about the nasty traffic jam on the road this morning, posted photos of your latest holiday trip on Flickr, drooled over your friend’s food pictures on Instagram or checked into the office where you are now seated via Foursquare.
 
Welcome to the world of social media.
 
Social media sites (“SMS”) like Facebook are a big thing in Malaysia. Socialbakers.com reported that as of 7 April 2011, there are 10,011,720 Facebook users in Malaysia alone, which is equivalent to 38.27% of the entire population. Youths between the ages of 18 and 24 form the majority of Malaysian users – 38% – while the youngest group, aged between 13 and 15, make up 7% of its users.
 
A survey by TNS found that Malaysians spent the most number of hours per week on such sites i.e. 9 hours per week and have the most number of friends on social networking websites like Facebook, with an average of 233 friends each.
 
Facebook is not the only medium of social media. Wikipedia defines social media as "media for social interaction, using highly accessible and social communication techniques. Social media is the use of web-based and mobile technologies to turn communication into interactive dialogue". This would inevitably include not only Facebook, but Twitter, YouTube, MySpace and Foursquare among others. 
 
Your question now may be, so what has this got to do with me and my Facebook account?
 
A whole lot if you have an incessant need to openly vent out your frustration about work (i.e. your bosses – which is a huge no-no!), make disparaging comments about someone’s looks, status or photo or shudders, post sexually explicit photos of your significant other – after the end of a relationship.
 
STICKS AND STONES MAY BREAK MY BONES, BUT WORDS WILL NEVER HURT ME
 
In reality however, words may hurt more than your pride, it may even hurt your wallet.
 
Comments, photos, videos or articles which are posted on SMS such as Facebook have far-reaching consequences particularly if you happen to have many friends on your list who are able to easily highlight the content by liking it (which is noticeable from their Facebook profile) and in turn, forwarding it to their friends.
 
If one is not careful, one may find himself subject to a defamation suit.
 
In November 2010, Zalina Jaafar filed a defamation suit against a Petaling Jaya City Council member, Mahharul Ismail, and three of his family members, Maisarah, Norsyam and Wan Ikhwan. She claimed that Maisarah and Norsyam had, with malicious intent, posted defamatory words against her, in their postings on Wan Ikhwan's Facebook profile, and thereby caused serious damage to her character and reputation. Amongst others, she is seeking damages of RM10 million as well as an injunction to restrain the defendants from further using defamatory words against her.
 
As recent as last month, a British politician agreed to pay damages for an inaccurate comment he made about a rival on his Twitter account. It is reported that this was the first defamation case in the United Kingdom involving a comment made on Twitter.
 
The Law on Defamation
 
Defamation laws seek to protect individuals and corporations who are maligned by false allegations and apply equally to online media as they do to traditional media. Recourse can be found under both civil and criminal laws under the Defamation Act and the Penal Code respectively.
 
One difficulty with SMS is establishing the identity of the perpetrator. Even if the perpetrator can be found i.e. a Facebook friend, he may argue that the person is not him.
 
In order to establish a cause of action in defamation, a plaintiff must demonstrate the following elements:
 
(1)     The statement bears defamatory imputations.
 
This essentially means that the statement, albeit false, malicious or misleading, must be one which is calculated to injure a person’s reputation in society and to diminish the willingness of others to associate with him. It is not necessary to show that the defendant intended the words to have a defamatory meaning or that he intended them to be defamatory of the plaintiff (Rajagopal v Rajan [1972] 1 MLJ 45).
 
Defamation can arise from written or spoken words and other forms of expression such as gestures, signs, cartoons and caricatures (Datuk Syed Kechik bin Syed Mohamed v Datuk Yeh Pao Tzu [1977] 1 MLJ 56).
 
Thus, any written or spoken words, drawings, videos, photographs or other forms of expression captured on Facebook or YouTube may be defamatory if the elements of defamation are made out.
           
(2)     The statement refers to the plaintiff.
 
The plaintiff must prove that the defamatory remarks were published of and concern him. It is not necessary for the plaintiff to be identified by name. The defendant will be liable so long as the statement, through some extrinsic facts known to some readers, enable those who know the plaintiff to understand that he was being referred to.
 
(3)     Publication must be made to a third person.
 
Publication means the defamatory matter was made known to some person other than the person of whom it is written or spoken.
 
A discourse on criminal defamation falls outside the scope of this article. Suffice to say that one could lodge a police report which may eventually lead to a prosecution, and possibly, conviction of the perpetrator.
 
Liability of Facilitator
 
In Stemlife Bhd v Bristol Myers Squibb (M) Sdn Bhd [2010] 3 CLJ 251, the plaintiff filed a libel claim against the defendants based on numerous messages, including a hyperlink to an external blog created and posted by the users of the 1^st defendant’s website forum.
 
The trial judge, Zabariah Mohd Yusof J, ruled that in order for there to be publication:
 
(1)     there must be some positive overt act on the part of the defendant in disseminating the alleged defamatory remarks or statements; and
 
(2)     the defendant must have control on the circulation of the statements or words complained of.
 
Her Ladyship then held that these elements were not present in the case as the 1^st defendant was merely an internet service provider which performed a passive role in facilitating postings on the internet and thus could not be deemed a publisher at common law (Bunt v Tiley [2006] 3 All ER 336).
 
In other words, the mere hosting and facilitation of postings by users on a website forum does not fulfill the criteria of participation in order for there to be publication. In addition, there was no opportunity for the 1^st defendant to edit, vet or check the postings authored by the individual users before it was posted on the forum. The fact that the 1^st defendant was able to edit the postings after they are put up did not give the 1^st defendant an “opportunity” to edit and this did not amount to “control” as envisaged by the authorities.
 
It is possible that the court may come to a different conclusion in a situation where the defendant has active control settings over what is published in his blog or website. For instance, where the comment is set for the host’s approval prior to its publication.
 
VIOLATION OF PERSONAL DATA
 
More often than not, we do not think twice when we are asked to enter our personal details on SMS and upload our photos online or add new friends (whom we have never spoken to offline!) to our Facebook friends list.
 
However, the nightmare begins when one finds himself being falsely accused of misdemeanors that he did not commit or finds his personal details misused in identity fraud or blackmail via Facebook. This has been heavily highlighted by the local mainstream media where criminals have been lifting information from Facebook such as addresses, telephone numbers and even photographs for crimes ranging from drug trafficking to blackmail and sexual harassment.
 
A recent US case illustrates this. A Californian man, George Bronk, admitted using personal information he gleaned from Facebook to hack into women’s e-mail accounts, then send nude pictures of them to everyone in their address book. Bronk was arrested in October 2010 and eventually pleaded guilty to seven felonies, including computer intrusion, false impersonation and possession of child pornography.
 
Although there is no express right to privacy in Malaysia, which compounds the difficulty for a victim to take action against the perpetrator, a person whose privacy has been infringed in the form of hijacking of their personal data, may appeal to certain enforcement agencies to take action against the perpetrator.
 
Communications and Multimedia Act (“CMA”)
 
Section 211(2) of the CMA prohibits the provision and transmission of content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person. A person who is found guilty of this an offence shall, upon conviction, be subject to a fine of up to RM50,000.00 or to imprisonment for up to one year or to both.
 
“Content”, as defined in the CMA, includes any sound, text, still picture, moving picture, audio-visual or tactile representation, which can be manipulated, stored, retrieved or communicated.
 
Further, Section 233 of the CMA renders it an offence to manipulate any network facility or network service or applications service with intent to annoy, abuse, threaten or harass another, to transmit any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character.
 
The Malaysian Communications and Multimedia Commission may take various actions against a perpetrator, including issuing a notice or warning, barring websites or blogs and initiating investigations based on the provisions of the CMA.
 
Penal Code
 
If the abuse of personal data involves the posting of sexually incriminating photos or videos on SMS, the perpetrator may find himself criminally liable under Section 292(a) of the Penal Code for distributing, exhibiting or putting into circulation, an obscene object. This offence is punishable with imprisonment for up to three years or with a fine, or with both.
 
In Mohd Rizal Mat Yusuf v PP [2009] 3 CLJ 798 the Court held that a video compact disc which contained a pornographic recording was an obscene object but quashed Mohd Rizal’s conviction on other grounds. It remains to be seen whether the court would extend the scope of the section to cover online postings.
 
Film Censorship Act
 
Where the obscene material posted on SMS consists of a sequence of visual images, a perpetrator may find himself prosecuted under Section 5 of the Film Censorship Act for circulating or exhibiting obscene material, which on conviction, is punishable with a fine of up to RM10,000.00, or to a term of imprisonment of up to five years, or to both.
 
It may be easier to secure a conviction under the Film Censorship Act than the Penal Code as 'film' is defined in this Act to include any record of a sequence of visual images which is capable of being shown as a moving picture.
 
SO DOES THIS MEAN THE END OF MY FACEBOOK WORLD?
 
Not quite. Ultimately, one should always bear in mind that everything posted online is in the public domain. One should always err on the side of caution and take precautions to never post sensitive personal information online and never add friends whom one is not acquainted with.
 
Self-regulation remains the best solution to combat the invasion of privacy. If it sounds too good to be true, it probably is - and that includes the message from the good-looking stranger who has just dropped you a message in your Facebook inbox.
 
Oh, and before you lean back and think that you’re safe from service of legal process as long as you stay exclusively online and remain physically inconspicuous, think again. The Australian court in 2008 has held that service of legal documents may be done by way of Facebook. It remains to be seen whether such service of legal process will be permitted here eventually.
 
Now if you’ll excuse me, I’d like to get back to checking what that gorgeous hunk who dropped a message in my Facebook inbox has to say.