CASE ANALYSIS

MASYITAH BINTI MD HASSAN V SAKINAH BINTI SULONG (2021) 7 MLJ 144

ISSUE
The issue that has been brought forward, in this case, is whether the statements that had been
posted by Defendant on her personal Facebook account were it falls to defamatory against
Plaintiff.

FACT OF THE CASE

This case is a defamation case that involves posting on social media. In this case, the Plaintiff
a doula or can be called a birth companion initiate a legal proceeding or sued the Defendant
who is a doctor by profession against a defamatory posting by Defendant against the Plaintiff.
The posting of the defamatory statement has been made via an online platform or social
media called Facebook. In the defamatory statement, Defendant had alleged the Plaintiff, that
Plaintiff was the person who is responsible for the death of a baby which died via a home
water birth.
As Plaintiff is not a qualified doctor to attend a birth. The defendant through information
from a third party made a defamatory statement on social media without solid proof. The
mother of the baby which died during the birth appeared as a witness for Plaintiff. The
mother then discloses to the court and through the police report that the Plaintiff was her
friend who came to visit her, not as a doula. Just before Plaintiff visit the baby mother who is
one of the Plaintiff witnesses, she had an unexpected delivery as then the Plaintiff was their
Plaintiff rendered her assistance to the mother on the delivery.

In the posting by the defendant, the defendant clearly states that the plaintiff was there during
the baby’s birth. The defendant in her posting does also use words of which were not only
disparaging but accusatory on Plaintiff as well. The word includes the hashtag #doulakeji
which refers to vile where any normal person will think of evil act. Defendant did also use the
word ‘melibatkan’ which means involvement. This word is clear for an ordinary man to think
that Plaintiff has done such an act that is not acceptable until leads to the baby’s death.

LAW
The general rule of defamatory acts is related to the Tort Law which is based under the
Section 114A of the Evidence Act 1950 which states that any statements made which are
published on the internet and the statement are false and hence have been circulated widely
cause to the amount of defamatory statement which can be called defamation.
In this case the applicable law was applied from the case of Ayob Bin Saud v TS
Sambanthamurthi (1989), wherein this case it has provides the elements that must be proved
by the Plaintiff to establish a defamation case. The first element is the plaintiff must the
statement made by the defendant bears defamatory imputations, the second the statement
must refer to or reflect upon the Plaintiff reputation, and the third element that a plaintiff
must establish is the statement made by the defendants must have been published to a third
person.

FINDINGS

According to the issue, in the case of Chok Foo Choo @ Chock Kee Lian v The China Press
Bhd, the Court of Appeal laid down the test to be undertaken by the trial judge in determining
whether the impugned words are defamatory. The test, which is a two-staged one, was
explained by Gopal Sri Ram JCA (as he then was) as follows ‘It cannot, I think, be doubted
that the first task of a court in an action for defamation is to determine whether the words
complained of are capable of bearing a defamatory meaning’. Apart from that, in deciding the
natural and ordinary meaning of the impugned statement, the court should look into the
reasonable netizen which is from ordinary and average intelligence, fair-minded and not avid
scandal. The court also did not agree with the argument as it is clear that the facebook
postings were littered with remarks by using the hashtags #doulakeji referring to vile. Based
on the case of Keluarga Communication v Normala Samsudin (2006), where the Court of
Appeal held that when considering whether a statement is defamatory, it is necessary to
consider the article as a whole.
In the case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia
Bhd & Anor (2014), the Court of Appeal explained that the burden of proving justification
has to be discharged by the defendant on a balance of probabilities. According to the Section
8 of the Defamation Ordinance 1957, provide that an action for libel or slander in respect of
words contain two or more distinct charges, having regard to the truth of the remaining
charges.
By virtue of Section 9 of Defamation Act state that an action for libel or slander in respect of
words consisting partly of allegations of fact and partly of expression of opinion, a defence of
fair comment shall not fail by reason only that the truth of every allegation of fact is not
proved if the expression of opinion is fair comment having regard to such of the facts alleged
or referred to in the words complained of as are proved.
Next, for this issue relate to the Section 114 of the Evidence Act which is the High Court
applied Section 114 of the Evidence Act 1950 and held that the defendant is presumed to
have published the comments that posted by the public on her Facebook as she provided a
platform purposely.
Last but not least, the High Court was ordered a general damage of RM100,000.00, pay
punitive damages amounting of RM100,00.00, she needs to cover the overall cost for the
plaintiff amounting of RM30,00.00. The defendants were ordered to post an apology on the
Facebook timelines of both Plaintiff and Defendant within seven days of the decision of the
court and remains the timelines for six months.
Justice Evrol Mariette Peters JC in his findings found that the Defendants posting on social
media were defamatory against Plaintiff. The defense of the justification of Defendant fails
since the Defendants failed to prove the content of her posting truthfulness against Plaintiff.
Defendant’s defence on the fair comment does fail as all the comments made were based on
falsity, surround in bad faith, and were not made in the interest of the public.

HELD
In this case, the High Court has found that the defamatory elements have been successfully
proved and the Coy damages of RM100,000.00 and costs of RM30,000.00 subject to
allocator fees. This cost is for Defendant’s wrong conduct in spreading false news around the
social media which leads to a bad reputation on Plaintiff, it is an exemplary or punitive
damages on defendant. Court did also order that the defendant must issue an apology on
social media as on the Facebook timelines of the parties and the apology must remain in the
public domain for a period of six months long.

ANALYSIS / COMMENTARY
Based on the judgement made by the High Court, we agreed that the High Court upheld the
publication over the internet has wide circulation and the Court may presume such a fact
under Section 114 of the Evidence Act 1950. The court also found that Dr Sakinah had
upload ‘defamatory statements.
Under defamation, it must be noted that there are two varieties of defamation which is slander
and libel. Slander is spoken defamation and libel is printed or broadcast defamation. In
regards to the present case, the defamation occurs in this case is libel defamation as well as
the defendants and plaintiff, both posted the arguments using the social media which is
Facebook. The case went viral and catch the attention of many netizens.
The defamatory statement meant to say that the plaintiff was a liar, had influenced the mother
to continue with home water birth, had committed a crime, had killed or caused the death of
the baby, untrustworthy and unethical. As a result, the character and reputation of the plaintiff
was damaged by the allegations. Thus, through out the process in the court, the plaintiff had
suffered depression, mental stress and postpartum depression after giving birth.
BIBLIOGRAPHY/ REFFERENCES
1. Article THE STAR by Nurbaiti Hamdan
2. Lexis Nexis, Masyitah bt Md Hassan v Sakinah bt Sulong (2020) MLJ 2227