In an age where Facebook & Google reviews are CENTRAL to a business’ reputation, it can be particularly stressful for business owners to receive FAKE, or DEFAMATORY ONLINE REVIEWS on social media. Research shows that 1 negative review drives away 22% of prospects, around 30 customers. The percentage of lost customers increases with an increase in negative reviews. 3 negative reviews drive away customers by 59.2%! More than 4 negative reviews increase your lost customers to 70%! [1]
Hence, the truth is that maintaining a positive online presence for your business can, more often than not, mean the difference between SUCCESS and FAILURE OF YOUR BUSINESS – particularly, if you are in the F&B, or Facebook live auction business.
So what happens if you discover that a disgruntled customer or your competitor has posted extensive defamatory reviews about your business causing reputational damage, and financial loss to your Company, Brand?
In this article, we aim to give you an awareness of your key legal rights and options to combat online defamation in order to protect your good reputation from unjustified attack!
WHAT IS DEFAMATION?
In simpler terms, ‘defamation’ means the action of damaging someone’s good reputation. This includes libel, which is statements or images in a permanent form, such as, a negative social media posts about someone or a business.
Now to determine if the words were capable of being defamatory, the Court would construe the words according to the ‘fair and natural meaning’ which would be given to them by reasonable persons of ordinary intelligence. The test to be applied is to see the Meaning and Inference that would be drawn naturally upon reading that negative post by an ordinary person. Therefore, in actions based on libel, the meaning of the writer was immaterial. It was not a question as to what the writer meant but what he/she conveyed to those who read it. [2]
WHAT ARE YOUR OPTIONS?
If you believe someone made defamatory comments against you online, first and foremost:
1. YOU SHOULD FILE A POLICE REPORT
Defamation is a criminal offence in Malaysia under Section 499 of the Penal Code. Further, that person can also be liable under Section 233 of the Communications and Multimedia Act 1998 for making online comments which are indecent, false or offensive, and if found guilty, the person may be fined, or imprisoned.
2. YOU CAN SUE THE PERSON OR BUSINESS FOR DEFAMATION
If you believe you had enough proof of being defamed, it might be useful to seek professional legal advice immediately to determine your best option. But generally speaking, in order to succeed in a defamation suit, you must satisfy 3 requirements:
(1) The words are defamatory and they damaged your reputation in the society;
(2) The words refer to you, and
(3) The words have been published to a third person(s) in the sense of the law of defamation.
The failure to establish any one of the 3 elements above will be fatal, resulting in the collapse of your case.
3. YOU CAN ALSO SUE THOSE WHO ‘SHARED’ THE DEFAMATORY POST
The law treats the person who republishes or spreads the defamatory statement as guilty as the person who made the statement. That is to say, once the defamatory comments/posts are reproduced, those responsible for such republication of that content would be equally liable in defamation. This is known as the ‘repetition rule’. Each republication that repeats the defamatory words constitutes a new and separate instance of defamation.
In 2012, our former foreign minister, Rais Yatim succeeded in his defamation lawsuit against a person that copied, and pasted an article from a website to his own blog, alleging that the former foreign minister was guilty of raping and murder of a maid. The High Court held that the Defendant was liable for defamation, even though he was not the original author of the libellous article.
HOW MUCH YOUR DEFAMATION CASE MIGHT BE WORTH IF YOU SUCCEED?
Damages for defamation aim to provide a remedy for any injury to your business and reputation, and the amount will depend heavily on the facts of your case. This is because there are currently no guidelines in Malaysia as to the assessment of the quantum of compensation for defamation. That said, here are some factors that the Judge will take into account when assessing compensation:
- The seriousness of the libel;
- The extent of publication;
- Your position or standing in society;
- The popularity of the Defendant;
- The behaviour of the Defendant, and whether there is an apology; and
- Whether there is an intention to defame.
[1] https://soundwave.co.uk/blog/study-finds-67-of-consumers-are-influenced-by-online-reviews
[2] Abdul Khalid @ Khalid Jafri bin Bakar Shah v Party Islam Se Malaysia & Ors [2002] 1 MLJ 160
DISCLAIMER: This article is intended for general informational and education purposes only and not for the purpose of providing legal advice. If you would like more information or advice on defamation, please contact us today at info@chernco.com.my, or send us a direct message through our WhatsApp button on our website