1. Blogging on the internet is not immune from legal process.
  2. Blogging plays a crucial role in socio-political Malaysia and in nation building efforts.
  3. 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.

SOURCE: Disquiet, Malik Imtiaz Sarwar

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.

Malik Imtiaz is one of the defence lawyers for Jeff Ooi, who faces a defamation suit by The NST & Others.