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Sunday April 29, 2012

Think before you tweet

If not used wisely, tweeting obviously carries dire consequences, both civil and criminal, because of its limitless reach in this borderless world.

IN what appears to be the first case in Malaysia, the High Court at Kuala Lumpur ruled last Friday that a journalist had to pay half a million ringgit to a businessman as damages over two defamatory tweets.

The Sun columnist R. Nadeswaran was sued by businessman Datuk Mohamad Salim Fateh Din in his personal capacity as the two defamatory tweets sent on July 12, 2010 and December 22, 2010 were sent out from his personal Twitter account.

The first tweet which questioned Mohamad’s Pakistani heritage was sent to one “tonypua”. The other, which libelled Mohamad as a “land thief” and his association with PKR deputy president Azmin Ali, was sent to one “TerencetheSun”.

As Nadeswaran’s Twitter account was not a protected account, that is an open account, all his tweets could be read by the public including those who were not his Twitter account followers.

Justice Amelia Tee Hong Geok Abdullah also ruled that as Nadeswaran did not file any defence to Mohamad’s claim, the former was deemed to have admitted to the latter’s entire claim.

Nadeswaran’s counsel was therefore not allowed to call any witnesses or cross-examine Mohamad’s witnesses with regard to the latter’s claims except on the issue of the amount of damages.

In this regard, Tee also held that Nadeswaran’s further tweet – “The land thief is trying intimidation! I love a good battle! War is now declared. I’ll take him on” – reflected his arrogance when asked to apologise and retract his defamatory statements.

This, the court ruled, would lend towards a higher amount in damages.

Nadeswaran said he would appeal against the decision.

“I intend to exhaust all my legal options, including an appeal against the decision for damages. The hearing took place without the benefit of my defence and I intend to continue to pursue the matter for my defence to be heard,” he said.

Generally, to found an action in defamation, a person must successfully establish three elements, namely:

> the words are defamatory;

> the words refer to him; and

> the words have been published.

As no defence was filed, Mohamad was deemed to have established the three elements. It follows that the mode of publication via Twitter is actually a non-issue.

Elsewhere, we saw US singer Courtney Love having to pay fashion designer Dawn Simorangkir US$430,000 (RM1.31mil) in March last year as an out-of-court settlement over her tweet accusing Simorangkir as a “drug-pushing prostitute with a history of assault and battery”!

Interestingly, she was sued again a few months later over her tweets accusing her previous lawyers, who represented her in respect of money allegedly stolen from the estate of her late husband Kurt Cobain, of taking a bribe.

Love tweeted: “I was fxxxing devastated (sic) when Rhonda J Holmes Esq of San Diego was bought off [...]”

In England, former New Zealand cricketer Chris Cairns successfully sued ex-Indian Premier League commissioner Lalit Modi over the latter’s libellous tweet accusing Cairns of match-fixing.

The action arose out of Modi’s 24-word tweet on Jan 5, 2010: “Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.”

The High Court awarded Cairns £90,000 (RM443,983) in damages, that is, exactly costing Modi £3,750 (RM18,499) for every word he tweeted! An expensive lesson indeed!

High Court Justice David Bean also ruled that it did not matter that the original tweet was received by probably only 65 followers.

He said: “But although publication was limited, that does not mean that damages should be reduced to trivial amounts.

“In 1935, long before the Internet was thought of, Lord Atkin said in Ley v Hamilton … ‘It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach ...’”

This remains true in the 21st century, except that nowadays the poison tends to spread far more rapidly.”

This case of Cairns v Modi 2012 is also interesting in that the judge increased the damages by 20% because of the vigorous defence conducted by Modi’s lawyer, Ronald Thwaites QC, which was offensive to Cairns.

Bean noted that Thwaites had used the words “liar”, “lie” and “lies” 24 times in his closing speech, and in particular, compared Cairns’ “diabolical scheme” to blackmailing and the abuse of children in an orphans’ home.

Indeed, with the advent of social media, cyber libel or cyber bullying can easily take place via social networking sites such as Twitter, Facebook, Linkedin, Friendster or MySpace.

Postings are done in real time, and likewise, any damage is done instantaneously.

One should, therefore, exercise extra care before expressing one’s views on social media even if they are mere casual comments.

The golden rule is always to pause and sleep over it if necessary so that one does not post something which one will regret later. This often happens in our moments of sadness and anger when we tend to let emotions get the better of us.

No matter what it is, the case of Datuk Mohamad Salim bin Fateh Din v Nadeswaran a/l Rajah, 2012 is now a legal precedent here on cyber libel through Twitter.

Tweeting obviously carries dire consequences, both civil and criminal, because of its limitless reach in this borderless world if not used wisely.

> The writer is a senior lawyer. You may follow him on Twitter at http://www.twitter.com/rogertankm

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