Defamation in the Cyber Age: The Emerging Trends

Defamation in the Cyber Age: The Emerging Trends

by Dr. Mohd Altaf Hussein Ahangar

Excerpt:

The cyber age signifies the age of high technology. Its evolution at the global level has affected every aspect of our lives. In relation to the law of defamation, the new trends of anonymous defamer, restricted meaning of defamer, liberalized meaning of defence of qualified privilege, insistence on actual damage, multiplicity regarding place of publication, and the irrelevancy of slander concepts have emerged. The consequences of some of these emerging trends are horrifying. It is possible that the common law tort of defamation might die an unnatural death and be replaced by heretofor unknown legal principles and rules.

Anonymous Defamer. In common law historically, a defamer is more easily identifiable than the defamed person. However, in the cyber age it is not always possible to identify the defamer. Generally, an internet service provider (ISP) knows the identity of the defamer, but does not reveal the identity in view of a written agreement or published privacy policy. An ISP that performs no more than a passive role in facilitating postings on the internet and does not host the relevant website is not a publisher under common law.

In England, the Data Protection Act of 1998 prevents disclosure of personal data without the consent of the data owner or an order of the court. A plaintiff is thus left without any remedy against the ISP with respect to the content of an offending website. Further, the Defamation Act of 1996 of England contains safeguards for service providers if they are unaware of inappropriate content they are hosting.

However, a remedy can be provided to the plaintiffs under the Norwich Pharmacal Order. Under this order, an ISP can be compelled to disclose the identity of the defamer if the following three conditions are satisfied:

1. A wrongful act must have been carried out by someone.

2. An order must be necessary to enable action to be brought against the wrongdoer.

3. The party against whom a disclosure order is sought must be involved in the wrongdoing so as to have "facilitated" it and be able to provide information which will enable the wrongdoer to be sued.

In Malaysia, an ISP can be compelled to disclose the identities of the anonymous defamers under a Norwich Pharmacal Order, provided it has facilitated the wrongdoing by the internet user. [footnotes omitted]

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Dr. Mohd Altaf Hussain Ahangar is a professor of law at the Sultan Sharif Ali Islamic University in Brunei Darussallam. He specializes in tort law, private international law, family law, property law, and succession law. Professor Ahangar is a noted scholar and prolific writer on both torts and succession law, as well as a frequent presenter at numerous international conferences.