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Case Update: Landmark High Court case in relation to an alleged defamatory statement over iMessage

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30 November 2022

LAW OF TORTS
Defamatory Statement – iMessage – Phone Number – iCloud Email  – Presumption – Burden of Proof – Balance of Probabilities

Pushparajan A/L R. Thachanamoorthy v Chin Wai Yee 
Civil Case No. WA-23CY-36-08/2017 | High Court
- see the grounds of judgment here

Facts The claim was filed by Pushparajan (the ‘Plaintiff’) for damages against Chin Wai Yee (the ‘Defendant’) for a defamatory statement which was allegedly sent by the latter to the Plaintiff’s wife via an iPhone messaging application (‘iMessage’). The Plaintiff’s wife claims to have received the iMessage via an iCloud Email Address that the Plaintiff claims to belong to the Defendant. However, the Defendant disputed that she had ever sent the iMessage and that she has never owned the iCloud Email Address in question. As the Plaintiff was not satisfied with the Defendant’s response, the Plaintiff filed the claim against the Defendant seeking for damages for the alleged defamatory statements.

Issues 1. Whether the iMessage that was sent to the Plaintiff’s wife was made and/or sent by the Defendant?
2. Whether the iMessage was defamatory?

Held In dismissing the claim, Learned Judicial Commissioner Dr John Lee, held that in the current case, of utmost importance was to establish whether the Defendant had made and/or sent the alleged defamatory statement to the Plaintiff’s wife. Like any other instant messaging application, ‘iMessage’ is an instant messaging service that is used by Apple users to send text messages, photos, documents, and videos via the built-in app on their Apple devices. Any text messages that are sent via ‘iMessage’ can be seamlessly continued on another device such as the Apple Mac computers and the Apple iPad. It is also known that iMessage is only available to the Apple user and one particular feature of iMessage is that any person can send and receive an iMessage via his/her iCloud email from any Apple device. Similarly, in the present case, the iMessage that was sent to the Plaintiff’s wife was sent from the iCloud Email Address. Thus, in order for the Plaintiff to be successful in his claim, he needed to prove that the Defendant owned the iCloud Email Address. The Plaintiff cited s. 114A of the Evidence Act 1950 to impose a presumption that the iCloud Email Address was owned by the Defendant at all material times. However, the Defendant had firmly positioned that the iCloud Email Address was not and has never been her email address and the screenshot iMessage had never displayed her profile picture nor her handphone number. Other than this mere presumption, the Plaintiff could not bring any additional document or evidence that the iCloud Email Address belongs to the Defendant. The Plaintiff argued that the ownership of the iCloud Email Address could not be checked due to the privacy policy held by Apple. However, the Plaintiff’s argument here only relied solely on Apple’s webpage and was not in any way confirmed by any officer from Apple nor the Malaysian Communications and Multimedia Commission (MCMC). Nor has the Plaintiff shown any correspondence to show that they have attempted to check on or enquire about this. The Learned Judicial Commissioner held that just because the iCloud Email Address contains the words “Michelle Chin” and the Defendant has an alias “Michelle” and her family name is “Chin”, one cannot simply associate the Defendant with the iCloud Email Address. In conclusion, the Plaintiff had failed to prove on the balance of probabilities that it was the Defendant who had sent the iMessage. Hence the claim against the Defendant was accordingly dismissed with costs.

Zul Rafique & Partners
{30 November 2022}

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