By last Thursday evening, Fahmi Fadzil was into his 12th tweet-apology quoting the words “I’ve defamed BluInc Media & Female magazine. My tweets on their HR policies are untrue. I retract those words & hereby apologise.” He had another 88 to go.

Fahmi had in January tweeted that his friend’s wife, who worked at Female magazine, tendered her resignation because her employers were treating her badly for being pregnant.

However, Fahmi told The Edge Financial Daily by phone yesterday that he tweeted a retraction on the same day after being contacted by the company. His retraction read: “I would like to formally & unequivocally apologise to BluInc and Female mag for my tweets earlier today. All inconveniences are regretted.”
Fahmi had thought the issue resolved until he received a letter at his workplace from the company’s lawyers in March. Fahmi and his lawyer swiftly attended to the matter and agreed to a settlement with BluInc in the form of a 100 tweet-apologies, over three days starting June 4.

“I cannot comment on anything that will jeopardise the settlement agreement but I have found that many [people] do not know the consequences of placing a statement on a network such as Twitter.

“It is getting increasingly difficult to differentiate between what is a private conversation and what will be considered public, and I feel that we just have to be accountable for our actions. If we are brave enough to say something on cyberspace, we have to stand up and take responsibility for it,” he said.

The incident caused a sensation and not only in Malaysia. Forbes and CNBC quoted the apology as an “unusual settlement”. This has set some form of precedent where media law and defamation is concerned. The Edge Financial Daily spoke to Chew Kherk Ying, a partner at the Malaysian member firm of Baker & McKenzie International, Wong and Partners, pertaining to our laws surrounding defamation and publication.

Would you comment firstly on this settlement setting a possible precedent of using social media as a medium for apology in defamation cases?
Chew: An apology has long been accepted by our Malaysian courts as a mitigating factor judges take into consideration in a defamation case. In view that the original statement was by a tweet, it will not, in my view be unreasonable to issue an apology through the same medium. The only issue is whether 100 tweets were necessary or should it be just one tweet.

What are the laws governing defamation? Would you comment on the medium Fahmi was using, which is social media — and whether BluInc had a case?
The short answer is yes, one can be liable if one publishes a defamatory statement, albeit using social media.  In fact, section 2 of the Defamation Act defines “words” to include pictures, visual images, gestures and other methods of signifying meaning. Additionally, section 66 of the Interpretation Acts 1948 and 1967 states that, “writing and expressions referring to writing include printing, lithography, typewriting, photography and other modes of representing or reproducing words or figures in visible form”. These definitions appear to cover statements made in the cyber world, including Fahmi’s tweet.

Let us presume that Fahmi had not settled, he would have had to prove his statement was true, and there was no malfeasance in the sense that he had not intended to damage BluInc’s reputation, is that right? How would he prove this?
It should first be clarified here that it is not a defence to show that the person making the defamatory statement did not intend to defame. A statement can still be defamatory even if it is made in jest or unintentionally. Nevertheless, it is an absolute defence if the defamatory imputation is true; this is called a plea of justification, whereby the words complained of were true in substance and in fact. As the law presumes that defamatory words are false, Fahmi will need to prove that his defamatory tweet is true or substantially true, and that the defamatory inference borne by the comment is true. In this case, Fahmi  will have to prove (through the testimony of his friend’s wife) that she did in fact resign as a result of poor treatment by her employer.

What else would he needed to have done and how could he have done so?
Although there are other defences available to a defamation claim, for example absolute privilege, qualified privilege and fair comment, it is believed to be not applicable in Fahmi’s case.

Could you comment on defamation laws in Malaysia and give a brief insight into the Printing Presses and Publications Act 1984?
Defamation law in Malaysia is technology neutral in the sense that it does not really matter what medium of communication is used, as long as defamatory statements are issued and published against an identifiable person or corporate, liability will be established.

The Printing Presses and Publications Act 1984 on the other hand is a completely different legislation which governs publishing and the usage of printing presses in Malaysia. Under this Act, it is a criminal offence to use printing presses for unlawful purposes or to publish false news, and a person found guilty may be imprisoned for up to three years and/or fined up to RM20,000.

There was a brief mention of extending the Act to cover blogs and online sites. What are the implications for social media, blogs and online sites if the laws are changed to include those mediums?
At the moment, there are no regulations which specifically regulate social media like blogs and online sites in terms of requiring permits to establish such sites, etc.  However, notwithstanding the medium, the use of social media and content published is still subject to all other laws like defamation laws, intellectual property law, content code and advertising laws.

A direct implication of expanding the Printing Presses and Publications Act 1984 to include social media channels is that all these media outlets will be subject to the licensing requirements under the Act, and publishers through this medium could be liable for the corresponding offences contained in the Act as well. Of course, on a legal standpoint, this is possible through a legislative amendment. However, on a practical standpoint, enforcement may be impossible as such sites can be set up outside of Malaysia but still be accessible in Malaysia.

So even if our laws do not yet cover online publications, these publications are still subject to other laws such as defamation?
Yes, that is correct.

Are there any countries which govern online publications, or social media/blogs with the equivalent of our Printing Presses and Publications Act? Is there a problem with enforcement there?
We note that Iran’s Press Law’s regulations and restrictions are extended to domestic news sites and domestic websites. All Internet publications which arguably include blogs and private websites, are required to obtain licences. As with print publications, charges against unregistered online publications may result in harsher penalties than those that are licensed, including the death penalty or extended prison sentences for content-based crimes like “insults to religion”. Even so, it appears that enforcement may be difficult as websites/blogs which communicate opinions that the country’s print media would never publish, continue to operate.  

To conclude, could you tell us how a balance can be struck between freedom of expression, defamation laws, and the Act?
The starting point is that everyone should have the right to hold opinions without interference. The right to freedom of expression is, however, a qualified right in Malaysia, subject to restrictions for example in the interest of security, public order or morality.  Hence, the balance seems to be that there is freedom of expression provided the expression does not cause disruption to national security, public order or morality and the expressions are also subject to orders of court and the laws of defamation.

This article appeared on Media & advertising page, The Financial Daily June 9, 2011