Viewing online defamation from a realist’s perspective

IN this modern era of advanced technology, the Internet has become more common for people all around the world.

So much so that a 2020 report issued by the Malaysian Communications & Multimedia Commission (MCMC) showed that there are 88.7% of Internet users in Malaysia, with 93.3% of them having used the Internet to gain access to social media.

Due to the increased use of social media, irresponsible citizens tend to use the benefits of current features of said  technology, such as the anonymous feature that allow users to comment on something that could defame someone without revealing their identity.

One of the examples of such platforms is ‘Confessions’, where many defamation statements have been appearing on. Not only this, they could use more advanced features by creating fake accounts, or even use others’ identity to commit online defamation.

While the Defamation Act 1957 governs cases of defamation in Malaysia as in the principle of common law, it does not provide any express term that governs online defamation. This is because Internet becomes common after the issuance of Defamation Act 1957.

However, Section 3 of the Civil Law Act 1957 allows the application of defamation in common law to be applied in Malaysia. There are two types of defamation, mainly libel and slander. The differences between two of these defamation is that the former is a permanent form whereas the latter is in temporary form.

By viewing this problem from the perspective of a realist’s school of thought, jurist Karl Llewellyn states that to accept statutes as ‘law’, the statutes have to be approved by a court decision as law.

In other words, if the Defamation Act 1957 intends to be a law that governs online defamation, the court decision must be referred to give a more impartial and justice decision before the Act is accepted.

One of the main characteristics features of realist jurisprudence as stated by jurist Goodhart is that the predictability of law depends upon the set of facts that brought before the court to be decided as there is no certainty about law.

A realist’s school of thought emphasise on psychological approach as it is concerned with human behaviour.

The spiritual father of legal realism, namely Axel Hagerstorm, sought a psychological explanation and stated that “one fights better if one believes that one has right on one’s side”.

The victims of online defamation could fight better in the issue of online defamation, as long as they believe that one has right on one’s side, even though there is no express term that govern this current issue in Defamation Act 1957.

Karl Olivecrona, a pupil of Hagerstorm, states that law is nothing but a ‘set of social facts’, rules of law are independent imperatives. He suggests that moral ideas are the primary factor and the law is inspired by them.

He set out two requirements to seek justice through law. Firstly, the rules appear reasonable to most persons; secondly, it is necessary that the application of sanctions is regular and fairly impartial.

These requirements could be applied to the current issue of online defamation. As long as someone who issues any defamation statement has the intention to defame someone, and the statement did cause the effect of defamation to the victim, the issuer is said to have committed online defamation.

Thus, from the view of realism, as long as there is a court decision ruling that such principle is applicable and fairly impartial, it is law.

However, there are two limitations under the realist’s school of thought. These two limitations have been criticised by critics, they are the overestimation of the role of judges and the impracticability of the law.

Firstly, they alleged the overestimation of the role of Judges in formulating the law exerted by the realist school of thoughts. This is because judges have their main duty, which is to interpret the law instead of distracting themselves in contributing to making law.

Secondly, the impracticability of the law that never comes to the court which has been neglected by the realism. Hence, the critics emphasise that even part of the law never comes before the court, they still remain enforceable and applicable in certain circumstances.

It can be asserted that the realist school of thought has its pros and cons when interpreting the law. This is because the law itself will not cover every aspect of life in society as society changes from time to time.

This means that more future issues will arise in the modern era following the steps of advanced technology.

The same goes to the realist school of thoughts who emphasise on court decisions will not cover every aspect of law, as not every case comes before the court. In conclusion, the realism jurisprudence regarding the court decisions and the written laws like statutes have to work in balance, one must not lay greater stress on one’s side.

At this juncture, both written laws and court decisions could complement each other to provide a more justice and fairly impartial law to the society. – Nov 20, 2021


Soon Jia Yang is UKM law student who is passionate in gaining experiences in legal field and Dr. Nabeel Mahdi Althabhawi is the senior lecturer in the Faculty of Law at UKM.

The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.

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