Introduction
In today’s digital world where opinions are shared as quickly as a tap on a screen, social media influencers have become the new voices of authority. With just a few clicks, influencers can make or break a product, business, or even someone’s reputation. But as the power of online influence grows, so does the responsibility that comes with it. When does an “honest review” cross the line into defamation? And how can influencers balance authenticity with caution?
As much as we love candid reviews and entertaining rants, the legal implications are no laughing matter. When does the freedom to share turn into an obligation to be fair? In the realm of online influence, the difference between defamation and expression can be a gray area, often leading influencers into unintended legal challenges.
This article will help you navigate the tricky waters of online reviews and public opinions, covering how to share your thoughts responsibly, avoid unintended harm, and still keep your content engaging and genuine. Because while an honest opinion is always encouraged, it is important to know the boundary between sharing and defaming.
What makes a review defamatory?
A defamatory statement and/or review is one that harms an individual’s reputation by exposing them to public ridicule, contempt, or discredit. In contrast, a fair comment refers to a statement of opinion on a matter of public interest, provided that it is made without malice and is based on facts. The key difference lies in the nature of the statements. Defamatory remarks claim to present facts that damage a person’s character, whereas fair comment allows individuals to express opinions, even harsh ones, if they are reasonable and made in good faith.
In the case of Datuk Seri Anwar bin Ibrahim v Utusan Melayu (M) Bhd & Anor [2013] 3 MLJ 534, where VT Singham J relied on the decision of Arnold v King Emperor AIR 1914 AC 644, the Court held that a publisher of a defamatory statement is protected only if they can demonstrate that they took all reasonable precautions and had a well-founded belief in the truth of the statement.
The easier way to distinguish defamatory statement and fair comment is by understanding the elements. To establish a defamation case, courts look at whether the following elements are met:
(a) the statement is defamatory;
(b) it refers to the plaintiff; and
(c) it was published or communicated to a third party.
For example, imagine an influencer reviewing a new skincare product. If they claim, “This brand’s face cream contains harmful chemicals that cause skin irritation”, they could face defamation risks if the product does not actually contain such chemicals. However, saying, “I didn’t like the texture of this face cream, and it didn’t work well for me,” would likely be considered as an honest opinion and is less risky.
While truth and justification as per Section 8 of the Defamation Act 1957 is one of the strongest defenses against defamation, Harmindar Singh FCJ in the Federal Court case of Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577, however decided that:
“What this means is that it is not necessary to prove the truth of every defamatory allegation if the words not proved to be true do not materially injure the plaintiff’s reputation. In short, there only needs to be substantial justification of the whole libel and it is not necessary to prove the truth of every word of the libel.”
Based on this case, defamation is essentially this; does the statement provoke negative opinions about the plaintiff, even if it is not the truth? Hence, the Courts will look into whether the statement made would lower the plaintiff’s standing among reasonable people. If it does, then the answer is in the affirmative.
The thin line between giving an honest review and making defamatory statements
It is important to understand that there is a thin line between an honest review and a defamatory statement. One of the biggest challenges for an influencer is to stay relevant and trendy while maintaining legal boundaries. Some might take the fast route by making controversial statements to garner public attraction. Nevertheless, when such statements harm someone or a brand’s reputation, one cannot simply walk away on the premise of giving an honest review.
Influencers must understand that there is a razor-thin line between an honest review and a defamatory statement that could lead to serious legal consequences. Legally speaking, an honest review is grounded by personal experience, and courts often allow some freedom for subjective opinions. However, personal experience alone is insufficient, the utmost importance is that the statement must be relatively true.
In the recent Federal Court case of Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong [2024] 4 MLJ 260 (“Seema Elizabeth Isoy”), the Court illustrated how even a single statement can cross the thin line if it omits key facts. In that case, a WhatsApp message accused the respondent of fraud but failed to mention his acquittal, which gave readers a skewed perception of an ongoing misconduct. The court found this “half-truth” to be defamatory, underscoring that in defamation law, even if part of a statement is true, leaving out essential details can mislead the public and harm someone’s reputation.
Furthermore, the Court in Seema Elizabeth Isoy (supra) also referred to Jones v Skelton [1963] 3 All ER 952, where the court emphasized that honesty in opinion requires presenting facts that allow readers to form a fair and well-rounded view. When influencers share a negative experience, they must avoid omissions that could mislead or suggest negligence or dishonesty without proof. This reinforces the idea that an honest review should accurately reflect both good and bad experiences based on the reviewer’s actual experience, while steering clear of inflammatory or unverified language.
Hence, defamation happens when a statement crosses from being merely critical to causing harm to a brand’s reputation with false or exaggerated claims. This thin line between opinion and defamation can be tricky; even a seemingly simple comment like “This company scams people” could lead to trouble if it is not backed by verifiable facts. To keep things safe, influencers and reviewers need to ensure they are staying factual, honest, and balanced in their language to avoid crossing into the defamatory territory.
Conclusion
Social media influencers wield the power to shape public perception, but with this influence comes a duty to ensure reviews are fair, accurate, and respectful. Staying rooted in verified facts, framing opinions thoughtfully, and steering clear of exaggeration will help you create valuable insights that respect legal boundaries. Therefore, before you hit the “post button”, ask yourself this: “Is this honest, respectful, and fair?” In a space where every word has weight, balancing authenticity with integrity is not just responsible — it is smart and impactful influence.
For further information, please contact:
Izzat Asyraf Zamri, Partner, Azmi & Associates
izzat@azmilaw.com
