Suing a minor over a viral allegation in TikTok

On 24th April 2021, a 17 years old Malaysian student, Ain Husniza Saiful Nizam (“Ain”) had posted a TikTok video over an alleged rape joke made by one of her male teacher during class. This video went viral and sparked a nationwide debate on sex education and misogyny in Malaysia. Ain also created a hashtag #MakeSchoolASaferSpace in tandem with her viral video, encouraging other students to come forward with similar issues faced at school. She have since made a police report on this matter. However, after the police had completed investigation, the Deputy Public Prosecutor had classified this matter as No Further Action (NFA).

Ain was then served with a letter of demand on 4th August 2021 from her teacher for the alleged defamatory remarks made by her through the TikTok video. In the letter, he sought for damages of RM 1 million. Ain then counterclaimed him with RM 5 million for emotional suffering. The public was divided into two respective opinions, inter alia - the teacher should be the one getting reprimanded versus the truthfulness of her allegations.

Differing from the heated debated between law and morality, the real question is, can the teacher sue Ain for defamation? Why did the lawyer take up this case for the male teacher? This will be discussed below in two main parts:

(i)????????????????What is defamation

(ii)??????????????Can a lawyer refuse to take up a case?

1. What is defamation?

Before we dive deeper into this matter, let us talk about defamation. Defamation arises when there is a publication that intends to lower one’s reputation and causing him to be shunned in the public’s eyes. Essentially, it would mean the publication is false. This is to protect one’s good name and reputation. There are two types of defamation action; libel and slander. Libel is in a permanent form which is published while slander usually comes in a transient form.

The elements of defamation has been well settled. The Plaintiff has the burden to prove on balance of probabilities that (i) the words are defamatory, (ii) the words referred to the Plaintiff, and (iii) the words are published. [Dato Sri Dr Mohamed Salleh Ismail & Anor v Nurul Izzah Anwar & Anor?[2018] 3 MLJ 726]

(i) Words may be defamatory in its natural and ordinary meaning, innuendo or juxtaposition.

• Natural and ordinary meaning

It imputes the Plaintiff is dishonourable and has discreditable conduct. The test is whether an ordinary reasonable person with general knowledge and common sense sees such statement as having the tendency to look down upon Plaintiff. [Ayob bin Saub v TS Sambanthamurthi [1989] 1 MLJ 315].

For example, in Dato' Dr Tan Chee Khuan v Chin Choong Seng @ Victor Chin?[2011] 8 MLJ 608, the wordings ‘Spare us from more publications from financially self-interested art gallery middleman like Dr. Tan' connotes Plaintiff is selfish, opportunist, untrustworthy and irresponsible.

• Innuendo

Innuendo is inferred from the surrounding circumstances, not from the literal meaning of the words. It may arise from special facts known only to the recipient of the publication.

For example, in Tolley v Fry & Sons Ltd [1930] 1 KB 467, an advertisement showing Plaintiff (an amateur golfer) playing golf with Defendant (chocolate manufacturer) with a chocolate sticking out of his pocket infers Plaintiff is receiving payment for advertisement.

• Juxtaposition

This is done by placing two or more things side by side that creates a visual effect with the intent to defame. ?For example, in Perbadanan Johor & Ors v Syed Hussein Alattas & Ors [2001] MLJU 256, putting the words "The Thief Of The People" between the words "Johor Corporation" and a smiling picture of the 2nd Plaintiff intends to have the ignominious reference to a thief, refer both to the Johor Corporation and to the 2nd?Plaintiff.

(ii) The words must refer to the Plaintiff.

Whether the Plaintiff is specifically named in the publication would not matter as so long ?there is sufficient reference that points to the Plaintiff, it would fulfil this element. The test is established in David Syme v Canavan?(1918) 25 CLR 234 where persons reasonably acquainted with Plaintiff believes Plaintiff is referred to in the publication.

(iii) The words must be published

As for publication, it means the words are disseminated to others (third party) other than the Plaintiff. It can be words spoken in public or published in any documents. This includes social media and/or online defamation.

On whether the publication is true, this shall be determined later as it is still at the preliminary stage now (given that only a Notice of Demand, otherwise known as NOD had been issued). The question is, can Ain be sued since she is a minor? The answer is yes, provided she is represented by a litigation representative. Does the teacher have the capacity to sue Ain for such matter? ?Is RM 1 million outrageous? Let us dissect this part a little more on the law:

• S.2 of the Age of Majority Act 1971 provides anyone under the age of 18 is a minor- Ain is 17 years old, hence a minor.
• Order 76 of Rules of Court 2012 provides minors are classified as persons under disability. The limitation is provided under Rule 2, where such person must sue through a litigation representative and acted by a solicitor- she is presumably represented through her father, Saiful Nizam.
• Everyone have the capacity to sue in a civil action. This includes a defamation action. So long as the male teacher has a valid cause of action and evidences to back his claim, he is entitled to sue Ain. [Credit Corporation (M) Bhd v Fong Tak Sin?[1991] 1 MLJ 409]
• As for the RM 1 million damages, since this is still at the preliminary stage, this means no action has been filed at court yet. As such, in the letter of demand, a plaintiff may put an amount he/she thinks fits the nature of the action. However, one should be mindful of the aim damages in a defamation action. In Lim Guan Eng v Ruslan bin Kassim and another appeal [2021] 2 MLJ 514, the Federal Court held damages is meant to be compensatory, not a scheme for untold wealth. It is not the same as other tort.
• The assessment of damage also very much depends on the circumstances of the case. The postings in social media which attract a large number of audiences may affect the assessment of damages (National Union of Bank Employees v Noorzeela Bt Lamin?[2014] 7 MLJ 31).

2. Can a lawyer refuse to take up a case?

Besides the uproar on the fact that the teacher is suing Ain for defamation, there is also a public outcry on the law firm that takes up this case. The public opined that she should not be sued for speaking up for her rights, but rather be protected. They viewed this suit as a weapon utilised by the perpetrators to cow victims into submission which then sparked the discussion on whether a lawyer can refuse to accept a case.

In discussing this, we shall look into the cab rank rule. This is to determine whether a lawyer can choose their clients and choose to follow their instructions. The cab-rank rule is the obligation of a barrister to accept any work in a field in which they profess themselves competent to practice. This rule originated from the English law with the rationale that everyone is entitled to be represented. This is supported by the House of Lords in Rondel v Worsley [1969] 1 AC 191 that held it is inevitable for barristers to undertake litigation on behalf of any client if they pay his fee.

A similar sentiment has also been adopted in Malaysia’s legal profession under the Legal Profession (Practice & Etiquette) Rule 1978 (“LPPER”). The LPPER is the code of conduct to guide legal practitioners in Malaysia in carrying out their professional duties. Rule 2 of LPPER provides that it is a statutory duty where an advocate and solicitor shall give advice or accept brief in the courts in which he professes to practice. This means the lawyer is bound to act for anyone who wishes to retain their service. However, there are exceptions found in Rule 3 to Rule 6 of LPPER.

• Rule 3: an advocate and solicitor shall not accept a brief if he would be embarrassed. An embarrassment arises when (i) the advocate and solicitor finds he is in possession of confidential information as a result of having previously advised another person in regard to the same matter or (ii) where there is some personal relationship between him and a party or a witness in the proceedings.
• Rule 4: advocate and solicitor shall not accept brief if his professional conducts is likely to be impugned
• Rule 5: advocate and solicitor shall not accept brief if it is difficult to maintain professional independence or is incompatible with the best interest of the administration of justice.
• Rule 6: an advocate and solicitor shall not accept any brief if he is unable to appear and represent the client on the required day. Lawyers are also subject to disciplinary action.

The question to ponder is, can the lawyer choose to act for a controversial Plaintiff that gets called out for his inappropriate behavior?

Baron Bramwell once said “a man’s rights are to be determined by the court; not by his attorney or counsel”.

A counsel owes his duty to the court and client in administering justice. By accepting a brief, they would have assessed whether such claim is frivolous and the probability of success. By bringing this claim, the facts of the case will then be disclosed publicly with more transparency. Evidences from both sides will be tested and scrutinised as to its truthfulness. Eventually, the truth will prevail in the end.

Amelia Tee Abdullah J in delivering her judgment in National Union of Bank Employees v Noorzeela Bt Lamin?[2014] 7 MLJ 31 had warned:

“There is a need to walk the path of truthfulness and honesty and to steer away from exaggeration and carelessness for truth in an attempt to gain support.”

This could possibly serve as a precedent just like the Federal Court in Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor [2016] 4 MLJ 282 which delivered a landmark judgment on the tort of sexual harassment. It could also be a wake-up call for more scrutiny in the education system and the quality of teachers. One may think it is morally wrong to sue Ain, but it should not restrict the teacher from exercising his legal right to bring this action.

It is undeniable that the increasing use of social media could influence the transmission on one’s view to the world at large or to a designated group. This expands the avenue for freedom of speech. The court in GS Realty Sdn Bhd v Lee Kong Seng [2018] MLJU 1902 elaborated in its judgment that:

“Freedom of speech is checked by the law of?defamation, but any gain in that freedom should not be extinguished by disproportionate awards of damages to the extent that the gain becomes illusory. This, however, is not to mean that the responsibility in the exercise of that freedom is to be tolerated any more than what the law affords on the issue of liability.”

There should be an equal balance between freedom of speech and the right not to be defamed.

?

References

Statutes

1.?????Age of Majority Act 1971

2.?????Rules of Court 2012

3. Legal Profession (Practice & Etiquette) Rule 1978

Case laws

4.?????Ayob bin Saub v TS Sambanthamurthi [1989] 1 MLJ 315

5.?????Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409

6.?????Dato Sri Dr Mohamed Salleh Ismail & Anor v Nurul Izzah Anwar & Anor?[2018] 3 MLJ 726

7.?????Dato' Dr Tan Chee Khuan v Chin Choong Seng @ Victor Chin [2011] 8 MLJ 608

8.?????David Syme v Canavan (1918) 25 CLR 234

9.?????GS Realty Sdn Bhd v Lee Kong Seng [2018] MLJU 1902

10. Lim Guan Eng v Ruslan bin Kassim and another appeal [2021] 2 MLJ 514

11.??? National Union of Bank Employees v Noorzeela Bt Lamin?[2014] 7 MLJ 31

12. Perbadanan Johor & Ors v Syed Hussein Alattas & Ors [2001] MLJU 256

13.? Rondel v Worsley [1969] 1 AC 191

14.? Tolley v Fry & Sons Ltd [1930] 1 KB 467

Websites

15.?https://www.scmp.com/news/asia/southeast-asia/article/3131792/makeschoolasaferplace-malaysian-teen-who-exposed-teachers

16.?https://twitter.com/ant33ater/status/1422839380285165573?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1422839380285165573%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.thesundaily.my%2Fstyle-life%2Fgoing-viral%2F17-year-old-malaysian-student-asked-to-pay-rm1-million-for-calling-out-teacher-s-rape-jokes-BX8167311