In Part 1 of the article, we have set out the prerequisites of a defamation claim. However, the discussion was concentrated on the study after a matter has become litigious and the ways to go about it.
In this article, we will be dissecting the nitty gritty of social media group chats and how a defamation claim concerning (deleted) voice messages sent in group chats can be mounted.
Understanding the ingredients of Group Chats
When group chat is the centre of discussion, it is worth setting out the social media platforms on which defamation can be committed. The non-exhaustive list would include WhatsApp, Facebook, Instagram, Telegram, Twitter, Snapchat, WeChat etc.
The features readily available for group chats users differ from one platform provider to another. The common features between most social media platforms are none other than the following:-
- Firstly, the group member feature. The common understanding is that, as long as there are more than 2 people in a chat sharing a common interest, it can be called a group chat. Fun fact: did you know Telegram has the maximum capacity to cater for 200,000 members to be admitted to one group chat?
- Secondly, the existence of an administrator to regulate the activities and / or communications in the group.
- Thirdly, the “delete for all” button, perhaps qualifying as one of the greatest invention at all times, especially when we experience moments of blunder. If you don’t already know, this feature will only work if it is used within a specific time period. For instance, WhatsApp users have 1 hour but Facebook messenger users only have 10 minutes before the sent message becomes permanently sent (the “Stipulated Time Frame”).
- Above all, the feature to send instant text messages, voice messages and / or pictures. In addition, to the point made in our previous article, that group chat histories are prima facie, admissible evidence in court; voice messages and pictures are also explicitly covered under the definition of “document” under section 3 of the Evidence Act 1950, and thereby being an evidence which could potentially be relied upon in court.
Can the sender still be liable for defamation if the defamatory statements and / or messages have been deleted from the group chat?
Whilst we celebrate and rejoice at the convenience brought about by the provision of social media platforms which allow us to convey messages and / or important information to hundreds and thousands of people at a time, it is also worth remembering that the messages sent can have implications.
On the subject of voice messages, you may wonder, would this fall within the scope of a libel or a slander claim? I would say this is a tricky and extremely fact specific question. Let me set out a few examples for you.
Scenario 1: If member X posted a voice message which contains defamatory statements in a social media group chat with 100 members, directing the statement to member Y. Is this a libel or a slander claim?
Scenario 2: If member X posted a voice message which contains defamatory statements in a social media group chat with 100 members, directing the statement to member Y. However, member X then successfully deleted the said message within the Stipulated Time Frame. Is this a libel or a slander claim?
In Scenario 1, it is likely a libel claim. As for Scenario 2, given the altered nature of existence, it would likely give rise to a slander claim.
In essence, the answers to the questions posed by the above scenarios is contingent on the way in which the voice message is recorded and / or preserved. If the said message is preserved in the group chat history, then it amounts to libel due to its permanent form of existence. If the said message is deleted within the Stipulated Time Frame, then it is likely to constitute an action under the tort of slander due to its temporary form of existence.
A defamation claim premised on deleted voice messages – is it worth pursing?
If the case concerns a deleted voice message posted in a group chat which is of a defamatory nature (the “Deleted Message”), then it would amount to slander. On the question of whether it is worth pursuing, it is highly dependent on the content of the Deleted Message.
If the nature of the defamation case is premised on slanderous words “which impute a crime that is punishable corporally (i.e. physically)”, they are actionable per se, i.e. can be pursued without proving special damages (C SIVANATHAN v ABDULLAH BIN DATO’ HAJI ABDUL RAHMAN  1 MLJ 62).
If the Deleted Message does not “impute a crime that is punishable corporally”, it may be potentially problematic as the tort of slander is not actionable per se. In other words, to succeed in a slander claim, you must prove that you have suffered actual damage that is quantifiable in monetary terms as a result of the Deleted Message. (See the Court of Appeal case of PARDEEP KUMAR OM PARKASH SHARMA & ANOR v. ABDULLAH SANI HASHIM & ANOTHER APPEAL  1 LNS 669 )
“I now briefly touch on the law of defamation in relation to slander. There is only one tort of defamation, though in reality the law of defamation consists of two separate civil actions, one being the action in libel and the other slander (The Law of Defamation in Singapore and Malaysia by Keith R Evans; Principles of the Law of Tort in Malaysia by Wan Azlan Ahmad and Mohsin Hingun). We are only concerned with the latter action in this appeal. Slander consists of spoken words, gestures or inarticulate but significant sounds, with emphasis more on the hearing, and hence not in a more permanent form as compared to libel. In a nutshell it is transient in nature. Slander is actionable on proof of special damage which in layman’s term means actual damage that is capable of being estimated in money.”
The aforementioned difficulty in proving special damages can also be omitted if the circumstances is such that the exceptions of “Slander affecting official, professional, or business reputation” under section 5 of the Defamation Act 1957 apply. Notwithstanding the same, the strict and sparing application of this exception is evident in the Federal Court case of LUK KAI LAM v SIM AI LENG  1 MLJ 214 wherein the court held that the alleged victim who works as a nursing staff and was subjected to a slanderous statement made against her, was insufficient to trigger the said exception.
“Appellant alleged that as respondent was walking past her and Chong respondent uttered these slanderous words about her in the hearing of Chong: “Eh, what is there of you to be proud of? Who does not know that you receive guests upstairs at $50/- a time. Prostitute.” Respondent denied saying these words. She said when she heard appellant say she was as bad as Miss Yeo she retorted that the dispute was between appellant and Yeo and did not concern her and that she did not want to get involved. The appellant’s story was corroborated by Chong. The learned judge preferred appellant’s version. He found the words used by respondent against appellant were slanderous and plainly defamatory in that they imputed adultery or unchastity but was of the view that the words were slanderous of appellant as a woman and not in the way of her profession and office as a staff nurse.”
There are perhaps not enough case laws to reflect the development and the social norm of the 21st Century. Take the Federal Court case of Luk Kai Lam for instance, I believe with the prevalence of the feminism in Malaysia, it is possible that the outcome of the case would have been different, should it be decided in the year of 2020.
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