1. ) FNC CORPORATE PLT 2. ) FIRDAUS AMMAMI BIN FAUZEE v EZHAM BIN ABD WAHID

Case Significance

Illustrates the burden of proving the identity of an online publisher in a defamation claim and the limits of the rebuttable presumption under section 114A of the Evidence Act 1950, which cannot cure an absence of corroborating evidence such as service-provider confirmation, member lists or dated records.

This High Court decision at Johor Bahru concerns a defamation claim turning on proof of the identity of an online publisher. The plaintiffs, a limited liability partnership carrying on business as a takaful agency together with an individual associated with its management, sued in respect of a series of messages said to have been published in one or more Telegram groups and on Facebook concerning the plaintiffs' handling of commissions for takaful agents. Their case was that the defendant, alleged to be a former agent dissatisfied at having commissions withheld, had mounted an online campaign of defamatory allegations. The defendant denied ever having been an agent, denied authorship of the postings, and disputed the losses claimed. A default judgment earlier entered against the defendant, followed by an assessment ordering payment of RM300,000 and garnishee proceedings, had been set aside, and the matter proceeded to a full trial. The decisive issue was whether the plaintiffs had proved that the impugned messaging account belonged to the defendant. The court held they had not. The identification rested principally on a witness's own labelling of a contact by a name he associated with the defendant, and his belief about who it referred to, without independent corroboration from service providers or platform operators, without member lists, and with undated screenshots. The rebuttable presumption as to online publishers under section 114A of the Evidence Act 1950 could not be stretched to fill those evidential gaps on the facts. Because the plaintiffs failed to establish the first and fundamental element, that the defendant published the words, the court dismissed the claim with costs of RM40,000 subject to allocatur. The court's approach shows that the earlier setting-aside of the default judgment restored the plaintiffs to the task of proving every element of the claim afresh at trial. The judgment is a useful illustration of the burden of proving publisher identity in online defamation and the limits of the section 114A presumption.