NURUL SHUHADA BINTI BASHIR v 1. ) SARA NURSHAZANA BINTI SHAHRUDIN 2. ) ROZIYANA BINTI RAMLI

Case Significance

A social-media defamation appeal allowed where grave sexual imputations on TikTok were actionable at the highest Chase level and the defences of justification, fair comment and qualified privilege all failed.

This High Court decision is an appeal in a defamation action arising from social-media publication. The appellant had sued over a series of videos posted on TikTok that identified her and imputed grave sexual misconduct — allegations that she had sent lustful or pornographic videos (video ghairah) and had committed adultery (zina). The Sessions Court had dismissed her claim and allowed the respondents' counterclaim, awarding global damages of RM50,000 against her; she appealed, seeking to set that judgment aside, to have her defamation claim allowed and the counterclaim dismissed.

The appeal required the Court to apply the settled framework of defamation. It considered whether the words imputed actual guilt or mere suspicion, using the Chase levels of meaning, and concluded that the imputations fell at the gravest level, imputing actual misconduct rather than mere suspicion. It examined the pleaded defences and found them wanting: the defence of justification could not stand where the respondents had themselves admitted that the video in question was not obscene, so the truth of the sting was not made out; the defence of fair comment could not rest on untrue facts; and qualified privilege, invoked as a reply to attack, did not protect the publication. The Court also endorsed the principle that a court may take into account the defendant's conduct up to the conclusion of trial, including a persistent but failed attempt to justify the libel, and observed that to leave the use of vile, sexually charged language on a public platform unpunished would effectively license cyber-bullying and character assassination.

The Court allowed the appeal with costs, dismissed the respondents' counterclaim, and set aside the injunctions that the Sessions Court had granted against the appellant. The judgment is a useful illustration of how the Chase levels and the defences of justification, fair comment and qualified privilege are applied to a social-media libel, and of the courts' willingness to vindicate a person subjected to sexually defamatory publication online.