Challenges and threats to sue for defamation flying freely in cyberspace may underscore an area of Defamation Law least understood.
Loosely defined Defamation is statement which “injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society”.1*
Any lawyer will know that defamation consist of libel, where the defamatory statement is in written form and slander, where it is in spoken form.
Libel is both a tort (civil wrong) and crime 2* and actionable per se, which means that there is no need to prove special damages such as financial loss, “loss of marriage prospect”3* and “of consortium”4*.
Slander, on the other hand, is only tort (civil wrong) and requires proof of special damages. The exceptions, among others, are:
Imputation of a criminal offence punishable with imprisonment;5*
(eg “monsterball” calling simonscwee a pimp)
Imputation of unchastity or adultery to a woman or girl; 6*
(eg. “monsterball” calling Lucy Lee a prostitute)
--Imputation of certain diseases.
Now lets get back to the matter on hand.
For a cause of action to be sustainable, there must be an identifiable plaintiff and identifiable defendant. The 3rd party must be “right-thinking members of society.”
In the case of cyberspace personalities and bloggers, most of them maintain nicknames and pseudonyms cloaking their real identifies, thus making the cause of action difficult to establish.
In cases where a potential defendant such as “monsterball” is identified by face or even name, there is the possibility that “monsterball” who has been infamous for maligning a hosts of other bloggers may turn around and say so and so is not “monsterball”.
To link “monsterball” to his IC name, IC number and address is not difficult given his propensity to divulge personal information in hiss poison-spewed blogs. If he admits to his identity, well and good. Otherwise evidence from other bloggers who know him would also help provided they would testify.
Then there is the issue of potential Plaintiff bringing the action. Unless the potential Paintiff’s real identity is known to the potential Defendant and also the “right-thinking members of society” (in this case fellow bloggers and blog readers), he cannot be said to have been exposed to “hatred, contempt or ridicule…” The way out is for the potential Plaintiff to meet up with the potential Defendant “face to face” and let known his real identity and background to him, other bloggers and blog readers. Then again the lawyer for the potential Defendant, could easily put up a successful defence that when the defamation was made, the potential Plaintiff was an unknown in cyberspace. Naturally the potential Defendant can repeat the defamatory statement after the potential Plaintiff’s real identify is known to all and sundry, just like the phrase “repeat it outside Parliament”.
The above need to be sorted out, established and agreed upon before a case of this nature can proceed.
As such let’s begin the process of identification by comparing “monsterball” and a man by the name of Goh Swee Soon. 7*
+ a blogger infamous for maligning other bloggers;
+ got the name of “monsterball” from a movie by the same name because he is a movie buff;
+ suspected of suffering from symptoms of “Hai Lam Tin” (Hospital Bahagia);
+ first to dive in whenever Susan or Elizabeth opens a post and last to get out;
+ age same as Pak Lah;
+ three ex-wives;
Goh Swee Soon @ SS Goh
++ I/C No: 390712-05-5138 (using IC of a female);
++ Address: akan datang.
(An Indonesian woman in her 30s was seen in the house);
++ runs a company selling non-commercial coffee dispensers;
++ selling dispenser at RM4,846 and a annual maintenance fee of RM550;
(whereas Nescafe’s machine is free or subsidized as long as using Nestle beverages)
++ Clients mostly banks such as CIMB, Maybank, etc where contracts suspected to be Ali Baba type;
++ Company suffering losses of more than RM700,000 up to 4 years ago;
++ Company has not filed in annual returns to Suruhanjaya Syarikat Malaysia (ROC) for the last 3 years, an offence under Company Act 1965 Section 165;
++ Company still owing bank over a mortgage after more than 25 years;
Now lets assume there is a cause of action after all the above issues are sorted out. Next will come the issue of “legal capacity” on the part of the potential Defendant. The prognosis, as mentioned in my earlier blog, is that “monsterball” is suspected of suffering from symptoms of “Hai Lam Tin”, akin to “Hospital Bahagia” syndrome. If that is the case, the court effort could be frustrated and come to naught. Anyone with such symptom could also get away with murder.
Even if the legal capacity is established, the court decision could well be just a paper judgment given the company’s floundering financial positions. On top of that “monsterball” has to pay alimonies to not just one but three ex-wives!
As it has been said there are easier ways and Right Appraoch to deal with person afflicted by “Hai Lam Tin”. Maybe SSM and Jakin could chip in.
=Interview with Director of SSM (ROC) on why no action taken on company not filing annual returns for last 3 years;
=Interview with Indonesian woman for possible Khalwat offence;
=Interview with ex-wives for possible offences under Family Law;
=Interview with creditors for possible Bankruptcy Notice;
*1 Parmiter v Coupland & Anor (1840)
*2 R v Wicks (1936) & Goldsmith v Pressdram Ltd (1977)
*3 Speight v Gosmay (1891)
*4 Lynch v Knight (1861)
*5 Gray v Jones (1939)
*6 Kerr v Kennedy (1942)
*7 Disclaimer: At no time it is to be assumed the two is the same person