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Can Kepochimochi.com be sued for
defamation upon the photo posted on their website?

Under S6(1)(a), slander of title, stated if the
words upon which the action is founded are calculated to cause pecuniary damage
to the plaintiff and are published in writing or other permanent form.

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The plaintiff must prove the following action to sue
a person for defamation. Firstly, the material must be defamatory. Defamatory
means publication of an untrue statement to a third party that tends to lower
the reputation of a person in the eyes of right-thinking members of society
generally or causes them to avoid or shun them.

In the case of Dato’ Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd
& Anor (2014) MLJU 262, Dato’ Seri Mohammad Nizar bin Jamaluddin (the
Plaintiff) filed an appeal action against the decision of the learned High
Court Judge that had dismissed his claim against the defendants, the Sistem
Televisyen Malaysia Berhad and Rohani Ngah. The plaintiff had written 3 twitter
status regarding biding a car plate with RM520k, where most of the public would
imply to Sultan Johor used public fund that suppose allocated to the poor for
biding the car plate. The defendants alleged that the plaintiff’s statement is
against Sultan Johor. In Court of Appeal, the defendants were held liable
because they failed to prove the defence of justification. Furthermore, the
defendants cannot succeed on the defence of fair comment because there was malice
that can be readily inferred from the surrounding circumstances as found in the
evidence pertaining to the publication of the defamatory statements against the
plaintiff. By referring to this case, Kepochimochi.com posted a photo that look
alike with Ruby Stone maliciously as the identity in the photo could be someone
that have similar feature with Ruby Stone. The photo can be said defamatory as
the photo could cause the public misunderstand relationship between Ruby Stone
and Emma Rose’s husband, in another words, it could lower down reputation of
Ruby Stone in the eyes of a reasonable man.

Secondly, the defamatory material must refer to the
plaintiff. A test was laid down in the case of David Syme v Canavan (1918) 25
CLR 234. The test stated it does not matter whether or not the plaintiff is
specifically named, he could be described to allow for recognition. In
addition, it is not necessary that the general public understand the words to
be defamatory of the plaintiff. It is enough that those who know the plaintiff
believe that he is the person referred to. By referring to this case,
Kepochimochi.com alleged a mysterious woman is having a date with Emma Rose’s
husband and attached with a blurred face photo. Although Kepochimochi.com did
not mention name of Ruby Stone, but the public would referred to Ruby Stone as
the feature in the photo look alike to her.

Lastly, there must be an intended
publication communication to a third party. The defendant must have the
intention to publish the defamatory statement to at least one other person than
the plaintiff. In Chua Jui Meng v Hoo Kok Wing (2000) 6 CLJ 390, the defendant
wrote to Anti-Corruption Agency (ACA) accusing the plaintiff of being
corrupted. The letter was published to the press during a press conference and
resulted 2 newspapers republished the defamatory material. The defendant was
held liable because republication of the letter and the statements to the third
party. Kepochimochi.com published the photo on their website where the public can
easily access to the website and saw the photo.

In short, Kepochimochi.com can be sued under
S6(1)(a) because posted a photo that look alike with Ruby Stone. The photo
would give her bad image to the public. The public would not support a singer
with bad image, resulted pecuniary damage to her as a singer’s main income is
from organizing concert and selling albums. Kepochimochi.com is liable for
defamation against Ruby Stone as the three elements of defamation have proven.

 

            Can
Emma Rose be sued for defamation upon the status on Tweeter?

Under S4, Slander of women stated words spoken and
published which impute unchastity or adultery to woman or girl shall be held
defamatory.

The plaintiff must prove the following action to sue
a person for defamation. Firstly, the material must be defamatory. Defamatory
means publication of an untrue statement to a third party that tends to lower
the reputation of a person in the eyes of right-thinking members of society
generally or causes them to avoid or shun them.

In the case of Sim v Stretch (1936) 2 All E.R. 1237,
1240, the plaintiff complained that the defendant had written in a telegram to
accuse him of enticing away a servant. The House considered the process of
deciding whether words were defamatory. Lord Atkin established a test in his
judgement to decide whether words ‘in their ordinary signification’ were
capable of defamatory meaning. Stating that the classic approach whereby the
plaintiff is exposed to hatred, ridicule or contempt might be too narrow, he
proposed the following test: “Would the words tends to lower the plaintiff in
the estimation of right-thinking members of society generally?”. If the words
are found to be capable of constituting defamation, then it is for the
circumferences of each case. In the present case, the defendant’s words were
found not to be reasonable capable of a defamatory meaning. By referring to
this case, the tweet is defamatory as it accusing someone with the word of “prostitute”.

Secondly, the defamatory material must refer to the
plaintiff. A test was laid down in the case of David Syme v Canavan (1918) 25
CLR 234. The test stated it does not matter whether or not the plaintiff is
specifically named, he could be described to allow for recognition. In
addition, it is not necessary that the general public understand the words to
be defamatory of the plaintiff. It is enough that those who know the plaintiff
believe that he is the person referred to. Emma Rose and Ruby Stone are known
as friendly rivals, so they must be know each other well. Hence, Emma Rose can
easily identified Ruby Stone in the photo and the tweet must be referring to
Ruby Stone.

Lastly, there must be an intended publication communication
to a third party. The defendant must have the intention to publish the
defamatory statement to at least one other person than the plaintiff. In the
case of Dato’ Seri Mohammad Nizar bin
Jamaluddin v Sistem Televisyen (M) Bhd & Anor 2013 4 MLJ 448, the plaintiff sued the
defendant for defaming him through the first defendant’s television news report
of materials regarding the plaintiff’s tweets on his Twitter account. The
plaintiff alleged the news report wrongly accused him of making allegation that
the Sultan Johor used public funds to bid a car plate. The claim was dismissed
because the tweets, read by any reasonable man would clearly imply to the
Sultan Johor. By referring to this case, 

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