SUNDRA RAJOO A/L NADARAJAH v Leaderonomics Sdn Bhd

Case Significance

Reads section 114A(3) of the Evidence Act 1950 as fixing on the particular device from which a publication originates: where a claimant in an anonymous digital-libel case cannot identify that device, metadata and circumstantial evidence may be insufficient to attribute publication, and the appeal was dismissed with costs.

This Court of Appeal decision concerns a defamation claim founded on an anonymous “poison pen” letter and turns on how responsibility for digital publication is proved. The appellant — a natural person referred to here by role — sued Leaderonomics Sdn Bhd (the respondent) and a second defendant who had died before trial; because the tort of defamation does not survive against a deceased's estate under section 8(1) of the Civil Law Act 1956, the claim against the deceased was not pursued, leaving the company as the sole respondent.

The libel arose from an anonymous letter dated 28 September 2018 addressed to the Malaysian Anti-Corruption Commission, produced as a Microsoft Word document and then “widely and maliciously circulated” through social media, email and WhatsApp. It was not disputed that the contents referred to the appellant and were defamatory in nature; the contest was over the third element of the tort — publication — and specifically whether the respondent could be held responsible for disseminating the letter.

The decisive issue was the statutory presumption in section 114A(3) of the Evidence Act 1950. The court held that this provision fixes on the “particular device” from which a publication “originates”, not on the device on which its contents were created. On the evidence, the appellant could not identify the particular device, and the court was “not willing, based on the circumstantial evidence, to make an irresistible inference” that the digital copy came from a device used by the deceased and belonging to the respondent. To draw that inference would “unfairly and unjustly impose hardship on the respondent”. The metadata relied on carried insufficient evidential weight to close the gap.

Concluding that the High Court judge was not “so plainly wrong” as to warrant appellate interference, the court dismissed the appeal with costs of RM30,000. The judgment is significant for its close reading of section 114A(3): the presumption bites on the device of origin of the publication, and where the particular device cannot be identified, circumstantial and metadata evidence may be insufficient to attribute responsibility for an anonymous digital libel.