Nurul Shuhada Binti Bashir v Sara Nurshazana Binti Shahrudin (KA-12B-10-05/2025)

Introduction This is an appeal by the Appellant (the Plaintiff at the Sessions Court) against the entire decision of the learned Sessions Judge of Alor Setar dated 15 May 2025 in Civil Suit No. KA-B53F-4-05/2022. By that decision, the learned Sessions Judge dismissed the Appellant’s claim for defamation and allowed the Respondents’ counterclaim, awarding global damages in the sum of RM50,000.00.

Dissatisfied with the said decision, the Appellant appeals to this Court seeking, inter alia, that the judgment of the learned Sessions Judge be set aside, her original claim for defamation be allowed, the Respondents’ counterclaim be dismissed, and damages in the sum of RM300,000.00 be awarded in her favour.

Background of the Case 3. The dispute arose from a series of TikTok publications, including ten recorded videos and a TikTok Live session, involving the Appellant and the Respondents.

During these publications, the Respondents made allegations that the Appellant was a wanita jalang, had committed zina, had lost her virginity, and had sent obscene photographs and videos. These allegations were disseminated publicly via TikTok, a permanent and widely accessible digital platform.

The Respondents contended that the impugned statements were made in response to provocation by the Appellant during a TikTok Live session, during which the Appellant allegedly made animal sounds, danced, and behaved mockingly while Respondent 1 was attempting to explain matters relating to a business dispute.

The Appellant commenced proceedings for defamation. The Respondents resisted the claim and filed a counterclaim alleging that the Appellant had acted maliciously by rebroadcasting audio recordings and TikTok Live content and by uttering insulting expressions against them.

The learned Sessions Judge dismissed the Appellant’s claim, accepting provocation as a defence and holding that the Appellant had failed to prove injury to her reputation, particularly in light of her continued social media popularity and commercial success.

The learned Sessions Judge further allowed the Respondents’ counterclaim, finding that the Appellant had acted with malice (niat jahat) in re-broadcasting the recordings, and awarded global damages of RM50,000.00.

(ii) The Appellant’s Contentions 9. The Appellant challenged the dismissal of her claim in defamation and the allowance of the Respondents’ counterclaim.

The Appellant submitted that the learned Sessions Judge erred in law by treating provocation as a substantive defence to defamation. It was argued that provocation is not a valid defence under Malaysian law and is relevant at most only in mitigation of damages. Any response must be reasonable, proportionate, and confined to the subject matter of the alleged provocation. The Appellant contended that the Respondents’ allegations of zina and sexual immorality were wholly disproportionate to the alleged provocation, which consisted of animal sounds made during a TikTok Live session.

The Appellant further alleged that the learned Sessions Judge had failed to appreciate that the impugned statements were published via TikTok, a permanent and widely accessible platform, and therefore constituted libel actionable per se, without the need to prove actual damage or loss.

It was also contended that reliance on the Appellant’s increased social media following and continued business activity was misplaced, as such factors do not negate injury to reputation or dignity.

The Appellant further argued that the defence of justification was not established, particularly in light of Respondent 1’s admission during cross-examination that she had no evidence to support the allegations made.

In respect of the counterclaim, it is the Appellant’s case that it ought to have been dismissed for failure to comply with Order 78 rule 3(1) of the Rules of Court 2012, as the alleged defamatory words and their meaning were not properly pleaded. The Appellant also challenged the finding of malice, relying on evidence that Respondent 1 had previously published the same audio recording at issue.

The Appellant premised that the learned Sessions Judge’s findings were plainly wrong, being unsupported by the evidence and founded on a misapplication of settled principles of defamation law.

(iii)

The Respondents’ Replies The Respondents relied on the defences of provocation and justification, and on a counterclaim alleging malicious conduct by the Appellant.

They contended that the impugned statements were made in response to provocation during a TikTok Live session, where the Appellant allegedly behaved in a mocking and unserious manner. The Respondents maintained that their remarks were spontaneous and reasonable in the circumstances.

The Respondents further relied on justification, asserting that the allegations of sexual misconduct were true. They also submitted that the Appellant failed to prove any injury to her reputation, pointing to her increased social media following and continued commercial activity.

In relation to the counterclaim, the Respondents alleged that the Appellant acted with malice by re-broadcasting the TikTok Live session and private audio recordings in a manner intended to portray the Respondents negatively, and that such conduct caused reputational and personal harm.

On appeal, the Respondents argued that the findings of the learned Sessions Judge should not be disturbed, as the trial judge had the advantage of seeing and hearing the witnesses.

(iv)

Issues to be Determined The determination of this Appeal turns on the following pivotal issues:

Whether the learned Sessions Judge was correct in dismissing the Appellant’s claim for defamation based on provocation, having regard to the nature of the statements published by the Respondents;

Whether the learned Sessions Judge was correct in allowing the Respondents’ counterclaim in defamation, including the finding of malice on the part of the Appellant; and

Whether the award of global damages in the sum of RM50,000.00 in favour of the Respondents was justified in law and principle. B.

Having reviewed the Record of Appeal and the extensive submissions from both learned counsel, this Court finds that there is merit in the appeal. The decision of the learned Sessions Judge is set aside. My reasons are structured as follows.

It is trite law that an appellate court must not treat an appeal as a mere rehearing, nor should it disturb findings of fact simply because it might have reached a different conclusion. The threshold for interference with findings of fact is high. Intervention is justified only where it is shown that the trial court had misdirected itself on the law or facts, or where the findings are plainly wrong in the sense that the evidence on record does not reasonably support them.

However, findings of fact may only stand where they are supported by credible evidence and arrived at through a proper appreciation of the totality of the evidence. Where a material finding lacks evidential foundation or where legal principles are misapplied, the appellate court is duty-bound to intervene to prevent a miscarriage of justice.

This is affirmed by the Federal Court in Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 1 MLRA 263 in para 94, where Azahar Mohamed FCJ (later, CJM) held: “[94] The law is clear and well settled in that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1, UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 2 MLRA 668, Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 and Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 MLRA 247). This court has said this before, and we adhere to it now. Having regard to the above principle, we find that in the present case, the Court of Appeal made no findings that the High Court had gone plainly wrong, let alone that on a reconsideration of the whole evidence, the opposite conclusion should be reached.” [Emphasis added]

Azahar Mohamed FCJ (later, CJM) further clarified in the same case quoted above, by reliance on Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600, that an appellate court should not interfere merely because it would have arrived at a different conclusion. Interference is warranted only where the decision of the trial judge cannot reasonably be explained or justified on the evidence, or where there exists an identifiable error of law or a critical factual finding unsupported by evidence: “[97] Recently in Henderson v. Foxworth Investments Ltd And Another [2014] 1 WLR 2600, the United Kingdom Supreme Court held that in the absence of some other identifiable error, such as a material error of law or the making of a critical factual finding which had no basis in the evidence, an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was ‘plainly wrong’ in the sense that it could not reasonably be explained or justified and so was one which no reasonable judge could have reached; and that if the appellate court was not satisfied that the decision came within that category it was irrelevant that, with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge”. [Emphasis added]

Thus, an appellate court will not disturb the findings of a trial court unless satisfied that the decision falls within one of four specific categories:

No judicial appreciation of the evidence;

(ii) The order is plainly wrong;

(iii) There is insufficient judicial appreciation of the evidence; or

(iv) The decision is based on a wrong principle of law.

In the instant case, this Court finds that the learned Sessions Judge committed specific errors falling under categories (ii) and (iii). The trial court failed to judicially appreciate the fatal admission by the 1st Respondent that the 'video ghairah' did not actually depict obscenity, rendering the decision on liability plainly wrong and legally unsustainable.

The Respondents urged this Court to exercise restraint, citing the then Federal Court’s decision in Mat Shah Mohamed & Anor v. Foo Say Meng & Ors [1983] CLJ (Rep) 254, on the ground that the trial judge had the advantage of observing the demeanour of the witnesses.

However, the principle in Mat Shah is not absolute. As clarified in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1, the 'audio-visual advantage' of the trial judge is irrelevant where the error stems from a failure to evaluate documentary evidence or specific admissions properly. In the present case, the 1st Respondent admitted in cross-examination that the video was not obscene. This is an objective fact, not a matter of demeanour. Therefore, this Court is duty-bound to intervene to correct the 'plainly wrong' evaluation of the evidence.

It is against this legal framework that the present appeal must be assessed.

The Appellant’s Claim Against the Respondents 32. The Appellant’s complaint arises from a series of ten TikTok videos and a live session published by the Respondents, in which the Appellant was accused of engaging in immoral and criminal conduct of a sexual nature.

In relation to the Appellant’s principal claim in defamation, the learned Sessions Judge undertook an analysis of the constituent elements of the tort.

It is imperative to apply the test as provided by the case of Mohamed Hafiz Mohamed Nordin v. Eric Paulsen & Another Appeal [2019] 1 MLRA 125, where Hasnah Mohammed Hashim JCA (later, CJM) held: “[18] It is trite that to establish the tort of defamation, the burden is on the plaintiff to prove that the impugned words are defamatory of the plaintiff. The plaintiff must establish, on the balance of probabilities, the three requisite ingredients, namely:

The words were defamatory.

The words referred to the plaintiff; and

The words were published.” [Emphasis added]

The learned Sessions Judge accepted that the Appellant had successfully established two of the three essential elements required to sustain an action in defamation.

Concerning publication, the learned Sessions Judge was satisfied that the impugned statements contained in TikTok Videos 1 to 10 were communicated to third parties. The dissemination of the videos on the TikTok platform was not disputed.

In analysing the issue of identification, this Court is mindful of the learned Sessions Judge’s finding at Paragraph 36 of the Grounds of Judgment, wherein it was noted that the Appellant admitted during cross-examination that 'Video 1' did not refer to her. This Court finds no reason to disturb this specific finding regarding Video 1.

The gravamen of the Appellant’s grievance, however, resides in the subsequent publications, specifically Videos 2 through 10. In respect of these videos, the learned Sessions Judge expressly found at Paragraph 37 that the Respondents admitted these videos referred to the Appellant. Therefore, the issue of identification for the substantial portion of the libel (Videos 2-10) is not in dispute. The liability for defamation in this appeal is thus founded upon the imputations contained in this latter series of videos, which undoubtedly identified the Appellant.

The learned Sessions Judge, however, concluded that the Appellant had failed to establish the remaining element, namely that the words complained of were defamatory in nature.

In arriving at this conclusion, the learned Sessions Judge emphasised the following considerations. First, the learned Sessions Judge was of the view that the Appellant had not demonstrated that she suffered actual trauma, humiliation, or emotional harm as a result of the impugned statements.

Secondly, the learned Sessions Judge took into account the evidence indicating that the Appellant’s social media following increased after the incident. The learned Sessions Judge considered this to be indicative that the publications had not lowered the Appellant’s reputation in the estimation of the public.

Defamatory Nature of the Statements 42. This Court, however, is of a different view from that of the learned Sessions Judge. The allegations in the present case: that the Appellant was a wanita jalang, had committed zina, had lost her virginity, and had circulated obscene images, strike at the core of a person’s moral standing. By any objective standard, such imputations are inherently defamatory.

The test for defamation is whether the words complained of tend to lower the plaintiff in the estimation of right-thinking members of society generally or expose the plaintiff to hatred, contempt, or ridicule. This was classically articulated by Mohamed Azmi J (as he then was) in the case of Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 1MLRH 153; [1973] CLJU 146, where it was stated that: “[13] …the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is whether the words would tend to lower the plaintiff in the estimation of right-thinking members of society generally. The typical type of defamation is an attack upon the moral character of the plaintiff, attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.” [Emphasis added]

In construing the impugned words, this Court adopts the distinction drawn by Mohamed Azmi J (as he then was) in Syed Husin Ali. The imputation here falls within the category of 'false innuendo'— meaning the words are defamatory in their natural and ordinary meaning to any reasonable person, without requiring proof of extrinsic facts or special circumstances.

The phrases 'video ghairah' and 'hang send gambaq blue' (you sent pornographic photos) naturally impute sexual immorality and criminal conduct. These words require no secondary interpretation or legal innuendo to be understood. They tend, in their natural meaning, to lower the Appellant in the estimation of right-thinking members of society and expose her to hatred, ridicule, or contempt.

The Respondents submitted that the impugned words were merely 'vulgar abuse' uttered during a heated exchange, and thus not actionable. They placed reliance on Iqbal Feiruz Khan v. Adrian Wong Shiang Hoe [2024] CLJU 1313, where Rozi Bainon JC held that words like 'bastard', 'big shot', and 'fuck' uttered during a parking dispute were merely abusive and did not lower the plaintiff’s reputation in the eyes of the public.

This Court finds the factual matrix in Iqbal Feiruz Khan to be readily distinguishable. While general insults like 'stupid' or 'bastard' may constitute mere abuse, the Respondents' allegations here were specific and grave. Accusing a Muslim woman of committing zina (adultery) and sending 'video ghairah' (obscene videos) constitutes a specific attack on her moral character and chastity. As per the test in Syed Husin Ali (supra), such imputations tend to lower the plaintiff in the estimation of right-thinking members of society and expose her to public scandal, odium, and contempt. Therefore, the words transcend the realm of mere vulgar abuse and constitute actionable defamation per se.

Applying these settled principles, the statements complained of plainly satisfy all three elements. There was therefore no legal basis for rejecting the Appellant’s claim at the liability stage.

Accordingly, the learned Sessions Judge erred in law by requiring proof of actual harm, humiliation, or business loss, and by placing undue reliance on evidence that the Appellant continued to receive paid reviews or experienced an increase in followers. Continued commercial activity does not negate the existence of defamation, nor does it erase injury to dignity or reputation.

As noted earlier, the learned Sessions Judge dismissed the claim on the premise that the Appellant’s social media following had increased post-incident, concluding thereby that her reputation was not damaged. With respect, this reasoning is legally flawed.

In the realm of social media, notoriety must not be conflated with reputation. As observed in Dato’ Foo Ming Lam & Anor v. Wee Meng Chee [2024] 4 MLRH 202, the court must look at the tendency of the words to lower the plaintiff in the estimation of right-thinking members of society. A scandal may attract curiosity and increase 'followers' or 'views', but if those followers view the plaintiff with contempt or ridicule on account of allegations of zina, the injury to reputation is established. The law protects a person’s moral standing, not merely their statistical popularity.

Further, the learned Sessions Judge erred in law at Paragraph 44 by dismissing the claim on the ground that 'tiada keterangan yang menunjukkan pendapatan Plaintif... terjejas' (no evidence that Plaintiff's income was affected).

Where defamatory statements are published in permanent form, including through social media platforms such as TikTok, they constitute libel and are actionable per se. In such cases, proof of special damage or actual loss is not required. Injury to reputation is presumed by law.

It is trite law that the publication of defamatory material in a permanent form constitutes libel, which is actionable per se. As held by Varghese George Varughese J (as he then was) in Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 3 MLRH 124: '[58] Libel is actionable per se, that is to say, the plaintiff is not required to show any actual damage... because the consequences are of more durable and of a permanent character.' [Emphasis added]

Although the impugned words were spoken in a video, the medium of TikTok ensures their permanent preservation and global dissemination. Therefore, the Appellant is not required to prove 'special damages' (such as loss of employment or income) to succeed. The injury to her reputation is presumed by law, and the Court is entitled to award substantial damages to vindicate her standing.

This Court distinguishes the present case from the factual matrix in Thiagarajan S Rengasamy & Ors v. Sri Ganes Palaniapan [2024] 3 CLJ 607. In that case, the claim failed partly because the plaintiff could not identify specific third parties who heard the defamatory words spoken at a physical town hall meeting.

In contrast, the publication here was via TikTok, a global social media platform. The viewership metrics, comments, and share statistics embedded within the videos constitute incontrovertible documentary evidence that the impugned words were published to and comprehended by a substantial number of third parties. The comments thread and 'share' statistics entered into evidence (Record of Appeal, Vol 2A, pp 553 - 555) constitute irrefutable evidence that the libel was accessed, understood, and responded to by third parties. In the digital age, these platform-generated metrics constitute sufficient proof of publication without the necessity of calling individual netizens to testify.

Also, as established in Dato’ Foo Ming Lam (supra), a plaintiff in a libel action is not required to prove actual financial loss or special damage to succeed. The law presumes damage flows from the publication of defamatory words. By imposing a burden on the Appellant to prove financial loss, the learned Sessions Judge applied a wrong principle of law warranting appellate intervention.

Provocation

Regarding the Respondent’s defence of provocation, this Court agrees with the Appellant that the learned Sessions Judge further erred in law by treating provocation as a substantive defence to defamation. Provocation, at its highest, may be relevant in mitigation of damages but does not afford a complete defence to liability.

The Respondents placed heavy reliance on Dato Seri Tajuddin Abdul Rahman v. Khalid bin Abd Samad [2023] 7 MLJ 617 to contend that the impugned words were merely a provoked response in a heated exchange. This Court finds that the case is clearly distinguishable.

In Tajuddin (supra), the court found that the words (involving the words 'sial' and 'cock') were uttered in the specific context of a chaotic Parliamentary proceeding and did not impute a specific crime. In stark contrast, the Respondents here did not merely trade insults; they made a specific, factual allegation that the Appellant had committed zina and distributed pornographic material ('video ghairah'). As held in Henry Wong v. John Lee & Anor [1980] 1 MLRH 393, a counter-charge that imputes a serious crime goes far beyond the 'exigency of the occasion' and destroys the defence of qualified privilege.

It is imperative to distinguish between the legal concepts of 'Provocation' and 'Reply to Attack'. The former operates strictly in mitigation of damages, whereas the latter is subject to the defence of Qualified Privilege. To the extent that the Respondents sought to rely on the defence of Qualified Privilege on the ground that they were replying to an attack, this Court is guided by the principles enunciated in Henry Wong (supra), where it was held that a counter-charge must not exceed the exigency of the occasion.

Similarly, in Lim Guan Eng (supra), Varghese George Varughese J (as he then was) held that while the law recognises a right to answer, such an answer must be relevant to the accusation and not a separate counter-attack. The Respondents’ retaliation here— alleging zina and sexual immorality—bore no connection whatsoever to the Appellant’s initial provocation of making animal noises. It was a 'tirade of accusations' wholly unconnected with the vindication of the Respondents' character. Consequently, the defence of Qualified Privilege fails, and the plea of provocation serves only to mitigate the quantum, not to extinguish liability.

This is as elucidated by the case of Lim Guan Eng (supra), where Varghese George Varughese J (as he then was) held that: “[49] Further in his closing written submissions, counsel went on in a similar vein to state: Plaintiff, in his speech at the Konvensyen, made sweeping and provocative allegations against the defendant; the defendant, in fact, responded with some warmth in the face of real provocation. [50] I must say I could not discern any such 'sweeping' or any 'attack' in the 'widest terms' or any 'provocation' on Utusan Malaysia, or for that matter on the Malay community, as suggested by counsel for the defendant in his submission, from my careful reading and rereading of the text of the plaintiff's speech at the Konvensyen in its entirety or of that part where there was one reference to Utusan Malaysia. That part of counsel's submission was mere rhetoric, not supported by the reality of the contents of that article, and should be outrightly dismissed. [51] The law only recognised 'an answer or response' as a proper defence in a Defamation suit, if such a response was reasonable and appropriate, and in this instant case, restricted or limited to the objectionable part of the plaintiff's speech, which referred to 'Utusan Malaysia' specifically.” [Emphasis added]

Furthermore, this Court adopts the principle in Henry Wong (supra), where it was held that a person whose character is attacked has a right to answer, but such an answer must be relevant to the accusations and not a separate counter-attack. The Respondents' allegations of zina were not a proportionate response to the Appellant’s animal noises.

Here, the Appellant’s initial provocation (animal noises) might have warranted a retort of a similar nature. However, for the Respondents to escalate the exchange by accusing the Appellant of zina (sexual immorality) and disseminating pornography ('video ghairah') was disproportionate. To borrow the words of Varghese George Varughese J in Lim Guan Eng (supra), the Respondents went on a 'frolic' of their own, making spurious and unconnected allegations of immorality. Such a 'tirade of accusations' destroys the privilege.

In the present case, the alleged provocation consisted of mocking behaviour during a live session. The Respondents’ retort, comprising grave allegations of sexual immorality, was manifestly disproportionate and lacked any reasonable nexus to the alleged provocation. Such a response falls well outside the bounds permitted by law.

(c)

Other Defences To the extent the Respondents pleaded the defence of justification, this defence collapses in the face of the 1st Respondent’s own concession during cross-examination. When confronted with the 'screen recording' she claimed was a 'video ghairah' (obscene video), she admitted it did not actually depict any lewd or obscene acts by the Appellant.

As the sting of the libel—specifically the imputation that the Appellant circulates pornography—is admitted to be factually false, the plea of justification collapses in limine. Furthermore, as held in Henry Wong (supra), a persistent attempt to justify a libel which is later shown to be baseless is evidence of malice. The Respondents’ persistence in this narrative, despite knowing the video contained no obscenity, confirms that the publication was 'hatched in bad faith' and motivated by malice, thereby destroying any residual claim to privilege.

Similarly, the defence of justification requires strict proof. The burden lies on the defendant to establish, on the balance of probabilities, that the defamatory imputations are substantially true. Mere assertions or suspicions are insufficient.

The Respondents failed to adduce any credible evidence to substantiate the allegations of zina, immoral conduct, or the transmission of obscene material. In the absence of proof, the defence of justification must fail as a matter of law.

To the extent the Respondents sought to rely on Public Interest Privilege (on the premise that the Appellant is a social media personality), this Court finds this defence legally unsustainable. While Ansari Abdullah v. Shalmon Sanangan [2016] 7 CLJ 73 extended privilege to political discourse, it did not grant a licence for malicious gossip.

The private morality of a social media influencer does not constitute a matter of 'public interest' within the constitutional contemplation of the defence. Furthermore, as established in Lim Guan Eng (supra), privilege is destroyed by malice. The Respondents' reckless disregard for the truth—persisting in the 'video ghairah' narrative despite knowing the video was innocuous—constitutes malice that defeats any claim to privilege, regardless of the Appellant's public status.

Further, the Respondents' reliance on the defence of Fair Comment is misconceived and must fail in limine. It is a settled principle of law, as applied by Ravinthran Paramaguru J (as he then was) in Ansari Abdullah (supra), that the defence of fair comment requires the underlying facts to be true.

One cannot invent a factual lie (that the Appellant sent a pornographic video) and then claim 'fair comment' upon it. As the 1st Respondent admitted in cross-examination that the video contained no such obscenity, the factual substratum of the comment collapses. Consequently, the defence of fair comment is dismissed.

The dismissal of the Appellant’s defamation claim was therefore the result of both legal misdirection and improper evaluation of the evidence.

(ii) The Respondents’ Counterclaim

The Respondents’ counterclaim was founded on allegations of malice arising from the Appellant’s re-broadcasting of certain TikTok content and the use of insulting expressions during a heated exchange.

Failure to Comply with Pleading Requirements

A further and fundamental defect in the counterclaim lies in the Respondents’ failure to comply with the mandatory pleading requirements under Order 78 rule 3(1) of the Rules of Court 2012.

As submitted by the Appellant, in the case of Linawaty Assim lwn. Saidatul Hanum Sazali [2021] MLRHU 1854 delivered by Latifah Mohd Tahar JC (as she then was), the High Court affirmed that Order 78 rule 3(1) of the Rules of Court 2012 imposes a mandatory obligation on a plaintiff in a defamation action to plead with particularity the defamatory words, the defamatory meaning (including any innuendo), and the material facts supporting each element of the tort. In the absence of complete and proper pleadings, no sustainable cause of action in defamation can arise. “[151] Mahkamah juga bersetuju dan menerimapakai alasan Tuan Hakim Mahkamah Sesyen bahawa A 78 k 3 (1) Kaedah-kaedah Mahkamah 2012 memperuntukkan obligasi Plaintif untuk memplidkan butir-butir kata-kata fitnah, diperuntukan seperti berikut: "(1) Jika dalam sesuatu tindakan kerana libel atau slander plaintif mengatakan bahawa kata-kata atau perkara yang diadukan telah digunakan dengan maksud memfitnahkan selain maksudnya yang biasa, dia mestilah memberikan butir-butir mengenai fakta dan perkara yang padanya dia bersandarkan untuk menyokong maksud itu." [152] Memplidkan secara teperinci perkataan-perkataan yang didakwa fitnah pada tarikh-tarikh adalah suatu kewajipan yang ketat. Lihat Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee [2019] 2 MLRA 345; [2019] 3 MLJ 720; [2019] 3 CLJ 729; [2019] 2 AMR 525 dan Credit Guarantee Corporation Malaysia Berhad v. SSN Medical Products Sdn Bhd [2017] 1 MLRA 541; [2017] 2 MLJ 629; [2017] 6 CLJ 129.” [Emphasis added]

In the present case, the burden of proof lay squarely on the Respondents as plaintiffs in the counterclaim. Their failure to properly plead and particularise the alleged defamatory statements, their meaning, and the requisite factual basis was fatal to the counterclaim. This pleading deficiency ought to have resulted in the dismissal of the counterclaim in limine.

It is settled law that parties are bound by their pleadings. Consequently, any evidence adduced by the Respondents regarding these unpleaded statements ought to have been disregarded by the trial court. The learned Sessions Judge erred in law by considering an unpleaded case to enter judgment on the Counterclaim.

This strict requirement of pleadings was recently reaffirmed by the High Court in Thiagarajan (supra). Su Tiang Joo JC (as he then was) held that a plaintiff (or counterclaimant) must plead the defamatory words ad verbatim in the Statement of Claim. A failure to do so is not merely a technical irregularity but a fundamental defect that prevents the court from determining whether the words are capable of a defamatory meaning.

As the Respondents failed to plead the specific words of the alleged 'harassment' or 'fitnah' in the Counterclaim, relying instead on general assertions, the Counterclaim falls foul of this mandatory rule and must be dismissed in limine.

It is also unreasonable to grant damages for injury allegedly suffered from the republication of content initiated by the principal defendant herself. The counterclaim ought to have been dismissed. However, for completeness of discussion, this Court shall also discuss the rest of the issues concerning the counterclaim.

Finding of Malice 85. The learned Sessions Judge allowed the counterclaim on the basis that the Appellant had acted with malice (niat jahat). In his Alasan Penghakiman (paragraph 52), the learned Sessions Judge ruled that the Appellant’s act of re-broadcasting the TikTok Live and perbualan (conversations) while muting her own voice showed "niat buruk" (malice) to humiliate the Respondents. This finding, however, is not supported by the evidence on record.

Malice, in the context of defamation, is a serious allegation. It requires proof of an improper or dominant motive, such as an intention to injure, humiliate, or abuse the occasion of publication. Malice cannot be inferred lightly and must be supported by evidence.

The learned Sessions Judge found malice based primarily on the fact that the Appellant muted her own voice when re-broadcasting the content. However, a finding of malice must rest on more than inference or conjecture.

In this case, evidence was adduced showing that Respondent 1 had herself published the same audio recording on her WhatsApp status before the Appellant’s re-broadcast. Where the allegedly defamatory content originated from the Respondent herself, the inference that the Appellant acted with malice is significantly undermined.

Moreover, this inference is legally and factually unsustainable. The Record of Appeal (Vol 2A, p. 553-554) clearly establishes that the 1st Respondent had already published the same audio recording on her WhatsApp status before the Appellant’s broadcast.

One cannot claim to be a victim of malicious publication regarding material one has voluntarily placed in the public domain. The Appellant’s act of muting her voice, while perhaps tactical, does not amount to 'malice' sufficient to ground a claim in defamation, particularly when the stinging parts of the recording—the Respondent’s own voice—were admitted to be authentic. The finding of malice was therefore against the weight of evidence.

(c)

Damages As for the award of damages under the counterclaim, it is trite law that an appellate court will not interfere with an award of damages unless the trial judge acted on a wrong principle of law or made a 'wholly erroneous estimate' of the damage suffered (Karna a/l Muthiah v. Saravanan a/l Velan [2021] LNS 2562; Rasidin Partorjo v. Frederick Kiai [1976] CLJU 123: [1976] 2 MLJ 214). The learned Sessions Judge committed a palpable error in allowing the Counterclaim of the 2nd Respondent despite a fatal evidentiary gap. During cross-examination, when pressed on whether she possessed any documentary evidence to substantiate her claim of being attacked or harassed by netizens, the 2nd Respondent explicitly admitted: 'Tiada... Tiada jumpa di Mahkamah tiada' ('No... I found none in Court, none')(Record of Appeal, Vol 1, p. 134). A claim for damages cannot stand on bare assertions without proof of injury or the impugned publication. This admission alone warrants the setting aside of the judgment on the Counterclaim. In the absence of any evidence of reputational harm or a reasoned basis for the figure, the award of RM50,000.00 constitutes a legally unsustainable and wholly erroneous estimate.

A critical factual finding unsupported by evidence cannot stand. The finding of malice in this case, therefore, fails the “plainly wrong” test.

This Court therefore finds that the learned Sessions Judge erred in law and fact in allowing the Respondents’ counterclaim.

(iii) Quantum of Damages 94. Once liability for defamation is established, the law recognises that the injured party is entitled to compensation for the harm suffered to reputation, dignity, and feelings. In defamation actions, damages are not confined to pecuniary loss. The law presumes injury flowing from the publication of defamatory material, particularly where the defamation takes the form of libel.

The learned Sessions Judge, at Paragraph 42, dismissed the claim partly on the observation that the Appellant 'masih boleh bersahaja menyanyi-nyanyi' (could still sing casually) during her broadcasts, concluding that she suffered no pressure or shame.

This reasoning is legally flawed as it conflates 'mental distress' with 'reputational injury'. The tort of defamation protects the estimation of the plaintiff in the eyes of right-thinking members of society, not merely the plaintiff’s internal emotional state. As a social media influencer, the Appellant’s maintenance of a cheerful composure is more reasonably viewed as a professional façade or damage control, rather than an admission of 'no injury'. As held in Linawaty Assim (supra), the court must look at the objective tendency of the words to lower the plaintiff's standing, irrespective of her outward resilience.

In the present case, the defamatory imputations made against the Appellant were of the gravest nature. Allegations of zina and sexual immorality carry profound moral and religious stigma, particularly within the social and cultural context in which the Appellant lives. These accusations strike at the very core of a person’s honour, integrity, and standing in society.

The gravity of the libel is exacerbated by the specific vernacular used. The Respondent uttered the words: 'Hang send gambaq blue hang kat ex-boyfriend aku' ('You sent your pornographic photo to my ex-boyfriend'). In the local vernacular, the phrase 'gambaq blue' is a colloquialism unequivocally understood to denote pornography.

Applying the test in Syed Husin Ali (supra), this imputation tends to lower the Appellant in the estimation of right-thinking members of society, particularly in a conservative community. It imputes conduct that is morally repugnant and potentially criminal. This is not merely 'vulgar abuse' or 'heated words' as seen in Iqbal Feiruz Khan (supra); it is a specific charge of sexual immorality. Such a serious allegation warrants a commensurately higher award of damages to vindicate the Appellant's reputation.

In assessing the gravity of the libel, this Court takes guidance from the decision of Azimah Omar JCA (Now FCJ) in Abdul Azeez Abdul Rahim v. Lim Guan Eng [2023] 9 CLJ 513; [2023] MLJU 1949 (as referred to in [40] of Thiagarajan (supra)), which explicitly adopted the classification of defamatory meanings established by the English Court of Appeal in Chase v. News Group Newspapers Ltd [2003] EWCA Civ 1772 (commonly known as the 'Chase Levels').

The imputations that the Appellant committed adultery ('zina') and "sent pornographic photos" ('hang send gambaq blue') fall squarely within Chase Level 1—the most serious category. Under this classification, the words are understood to mean that the Appellant is factually guilty of immorality and misconduct. They are not merely allegations of reasonable suspicion (Chase Level 2) or grounds for investigation (Chase Level 3). As held in Abdul Azeez, a Level 1 imputation causes the maximum degree of injury to reputation because it leaves no room for doubt regarding the plaintiff's guilt. Consequently, the damages awarded must reflect this severity.

It is well settled that an award of global damages is appropriate in defamation cases. Such an award reflects the composite nature of the harm suffered, encompassing injury to reputation, wounded feelings, humiliation, and the need for public vindication.

The mode and extent of publication further aggravated the seriousness of the defamation. The allegations were disseminated widely through social media platforms, thereby amplifying their reach, permanence, and impact. Publication on such platforms inevitably exposes the subject of the allegations to widespread scrutiny, ridicule, and lasting reputational harm.

Unlike the factual matrix in Thiagarajan (supra), where the court could not ascertain who heard the defamatory speech at a physical meeting, this Court takes judicial notice of the mechanics of the TikTok and Facebook platforms. These platforms are, by their very design, engines of mass dissemination capable of propelling content across a borderless digital landscape to an indefinite and potentially global audience, far transcending the geographical limitations of a physical gathering.

On this, the Appellant placed reliance on the decision, to which this Court concurs, by Shamsulbahri Ibrahim JC (as he then was) in Suharnizan Md Sidek v. Noorazira Pissal [2022] MLRHU 1831. In awarding damages of RM100,000.00 for vulgar defamation on social media, the Court in that case explicitly considered the 'global reach' of the publication, noting that broadcasts via social media 'can be easily viewed by people all over the world' [38(e)]. Furthermore, the Court recognised the permanence of such libel, holding that a defendant remains liable for the reputational damage even if the original video is deleted, as the content can be rebroadcast and preserved by third parties. In that case, the court recognised that video publications on digital platforms have a high degree of virality and permanence, thereby exacerbating reputational harm. Applying these principles, the viral nature of the Respondents' TikTok videos in the present case creates a permanent digital footprint with global access, thereby exacerbating the reputational harm and justifying an award of damages in excess of RM100,000.00.

Furthermore, this Court is also entitled to award aggravated damages taking into account the Respondents' conduct. As held by Yusoff J in Henry Wong (supra), the Court may consider the defendant’s conduct up to the conclusion of the trial, including a refusal to apologise or a persistent attempt to justify the libel which fails.

Similarly, in Lim Guan Eng (supra), Varghese George Varughese J held that the 'want of an apology', and the defendant’s indifference to the truth entitle a plaintiff to aggravated damages.

In the instant case, the 1st Respondent not only refused to retract the impugned TikTok videos but persisted in the narrative of 'video ghairah' during cross-examination, despite admitting that the video did not actually depict lewd acts. This malicious persistence in a baseless justification deepens the injury to the Appellant’s feelings and warrants an aggravated award.

In quantifying the damages, again, this Court adopts the approach taken by Varghese George Varughese J in Lim Guan Eng (supra), where the Court held that it is preferable to award a single global lump sum encompassing both general and aggravated damages. This approach ensures that the Appellant is fully compensated for the injury to her reputation and feelings without the risk of 'double counting' or overlapping awards.

Both authorities are instructive and comparable to the present appeal in that the defamatory statements were disseminated via social media video content. This medium significantly amplifies the reach, impact, and enduring nature of defamatory imputations. The courts in those cases held that such publications aggravate the harm caused and justify higher awards of global damages.

While the Appellant claims a sum of RM300,000.00, the assessment of damages must be guided by the principles of fairness, proportionality, and reasonableness. The Court must balance the need to adequately vindicate the Appellant’s reputation against the requirement that the award should not be excessive or punitive in nature.

In assessing the global sum, this Court takes into consideration the broader public policy concern raised in the Appellant’s Reply. To allow the Respondents’ conduct—specifically the use of vile, sexually charged language ('jalang', 'anak haram', 'porn') on a public platform—to go unpunished would effectively grant a 'licence' for cyber-bullying and character assassination.

Having regard to the gravity of the imputations, the breadth of publication, and the necessity of public vindication, this Court is satisfied that a global award of RM180,000.00 represents fair and just compensation for the injury suffered by the Appellant.

As observed in Lim Guan Eng (supra), the quantum of damages must reflect the Court’s disdain for the lowering of standards in public discourse. The award of RM180,000.00, therefore, serves not only as vindication for the Appellant but also as a necessary deterrent to the toxicity of unchecked social media defamation.

(iv)

115.

Consequently, the appeal is allowed with costs. The Order of the learned Sessions Judge is set aside. Judgment is entered for the Appellant against the Respondents jointly and severally as follows:

Global damages in the sum of RM180,000.00; and (ii) Interest on the said sums at the rate of 5% per annum from the date of filing the Writ of Summons until the date of full realisation.

Costs of this appeal and the costs in the Court below are awarded to the Appellant in the global sum of RM20,000.00 (subject to payment of the allocatur fee), to be paid by the Respondents to the Appellant.

The Respondents’ counterclaim against the Appellant is dismissed, and all injunctions granted against the Appellant by the learned Sessions Judge are set aside.

In addition to the award of damages, this Court finds it necessary to grant a permanent injunction restraining the Respondents, whether by themselves, their agents, or servants, from publishing, posting, or disseminating the same or similar defamatory words against the Appellant on any social media platform. While the Court in Ansari Abdullah (supra) declined to grant an injunction for lack of evidence of continued publication, the factual matrix here differs. The viral nature of the TikTok platform and the Respondents’ persistence in their narrative during the trial create a real risk of repetition. An injunction is therefore imperative to prevent further injury to the Appellant's reputation and to bring finality to this dispute.

Hence, this Court further orders the following: i. A mandatory injunction for the Respondents to forthwith, whether by themselves and/or their family members and/or any other parties, proceed to delete, remove and/or take down the said Defamatory Statements of the First Respondent and Second Respondent concerning the Appellant and any publications and/or comments and/or any statements relating to the defamation against the Appellant from all social media of the Respondents, including but not limited to TikTok, Twitter, Facebook, and Instagram belonging to the Respondents, within twenty-four (24) hours from the date of judgment; ii. An order of injunction for the Respondents to forthwith cease and desist from publishing any defamatory statements related to and concerning the Appellant and/or any untrue statements whatsoever against the Appellant; iii. An order for the Respondents to publish and/or cause the publication of a public unconditional apology, on terms agreed to by the Appellant, which must be published on all social media sites belonging to the Respondents including but not limited to TikTok, Twitter, Facebook, and Instagram accounts belonging to the Respondents that are open to the public, as well as in a local daily Bahasa Malaysia newspaper for one (1) publication, within seven

days from the date of this judgment or a duration deemed fit and reasonable by this Court; and iv. An order for the First Respondent to publish and/or cause the publication of a public unconditional apology on the First Respondent’s TikTok account, @serrananaa, on terms agreed to by the Appellant and in a form approved by the Appellant, permanently and accessible by any member of the public at all times, within seven (7) days from the date judgment is given, and to be ‘pinned’ for a period of 365 days from the date of publication of the said apology. Dated : 12th February 2026 -------------------------------------------------------------------- YA. Dr. Hj JOHN LEE KIEN HOW @ MOHD JOHAN LEE J JUDGE HIGH COURT OF MALAYA ALOR SETAR Solicitor : Rosman Azwan For the Appellant Messrs. Amir Hamzah Solicitor : Asmaniza Abdullah For the Respondents Messrs. Asmaniza Abdullah & Co Table of Authorities Cases Abdul Azeez Abdul Rahim v. Lim Guan Eng [2023] 9 CLJ 513; [2023] MLJU 1949 Ansari Abdullah v. Shalmon Sanangan [2016] 7 CLJ 73 Chase v. News Group Newspapers Ltd [2003] EWCA Civ 1772 Dato Seri Tajuddin Abdul Rahman v. Khalid bin Abd Samad [2023] 7 MLJ 617 Dato’ Foo Ming Lam & Anor v. Wee Meng Chee [2024] 4 MLRH 202 Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1, Henry Wong v. John Lee & Anor [1980] 1 MLRH 393 Iqbal Feiruz Khan v. Adrian Wong Shiang Hoe [2024] CLJU 1313 Karna a/l Muthiah v. Saravanan a/l Velan [2021] LNS 2562 Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 3 MLRH 124 Linawaty Assim lwn. Saidatul Hanum Sazali [2021] MLRHU 1854 Mat Shah Mohamed & Anor v. Foo Say Meng & Ors [1983] CLJ (Rep) 254 Mohamed Hafiz Mohamed Nordin v. Eric Paulsen & Another Appeal [2019] 1 MLRA 125 Rasidin Partorjo v. Frederick Kiai [1976] CLJU 123: [1976] 2 MLJ 214 Suharnizan Md Sidek v. Noorazira Pissal [2022] MLRHU 1831 Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 1MLRH 153; [1973] CLJU 146 Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 1 MLRA 263 Thiagarajan S Rengasamy & Ors v. Sri Ganes Palaniapan [2024] 3 CLJ 607 Statutes Order 78 rule 3(1), Rules of Court 2012