The court affirmed that unauthorized publication of a photograph does not necessarily imply defamation when interpreted by an ordinary, reasonable fair-minded reader, and upheld trial judge's discretionary costs order based on ethical considerations.

[1] In this judgment parties will be cited as they appear in the court below.

[2] We heard Appeal No. W-02-1165-2004 (the "1st appeal") and W-02-700-2005 (the 2nd appeal), both filed at the instance of the plaintiff, together. The 1st appeal is against the decision of the High court dated 18 August 2004 dismissing the plaintiff's claim and the order of costs pronounced. The 2nd appeal is against the decision of the High court judge dated 11 May 2005 in reviewing the order of costs pronounced on 18 August 2004. There is a cross appeal by the 1st defendant in the 2nd appeal.

[3] The unanimous decision of this court was to dismiss both appeals as well as the 1st defendant cross appeal. Our reasons are as follows.

The Claim

[4] The 1st defendant is the publisher of "Female" magazine ("the magazine"). It ran a bridal gown promotion cum advertisement in its September 1995 issue. It was co-sponsored of the 2nd defendant (who ran a bridal boutique called "White & Lacy") and the 3rd defendant (who ran a photo studio named "T.A.G Studio").

[5] As the publication which is the subject matter of this appeal relates to the publication of a photograph and one paragraph in the said publication, sight of a copy of the impugned publication made available to us by the appellant's counsel at the hearing of these appeals was indeed of assistance to us in making a considered decision in these appeals. It is as follows:

[6] The impugned publication to an ordinary reader may be described thus: The photograph was that of a bride. A beautiful woman in a bridal gown with a veil over her head. The words "A Special Night" appears prominently on the top of the page. The paragraph which the trial court and, on appeal, this court, is concerned with is the paragraph following the words "A Special Night". It reads as follows:

Nothing could be more special than the night of your wedding. From the trousseau to your walk down the aisle, all eyes are turned to you, you'll want everything to be just right.

[7] Other than this paragraph, the contents of the rest of the page consists of promotional statements of the co-sponsor, the 2nd defendant ("White and Lacy") and others with whom they are in association with in respect of hair styling and photography. The 3rd defendant was expressly mentioned as the professional photographer with which "White and Lacy" was associated with and the 3rd defendant has been expressly named at the bottom of the page. There is then a description of the grand prize which the winner of the competition would win, as well as the format as to the details of entries to the competition.

[8] It has been conclusively proved that the photograph in the impugned publication is the plaintiff's photograph and its publication was without the plaintiff's consent. On the date of the impugned publication the plaintiff was a Government Medical Officer attached to the General Hospital Kuala Lumpur. The plaintiff commenced proceedings for defamation against the publisher as well as those named in the said publication. The plaintiff claimed that the said publication was defamatory and derogatory of her. That the said publication portrayed her to be a woman of loose morals; an unsuccessful doctor who had to resort to do part time modelling to supplement her income.

Background

[9] The role played by the parties cited in the suit in the said publication was this.

[10] The 3rd defendant had given two rejected prints of the plaintiff's (a client of his) photograph as a record of the design of the wedding gown for the 2nd defendant's portfolio. The prints given were never intended for publication. The 3rd defendant had no knowledge that the photograph given would be published. He also had no prior notice of the write up accompanying the photograph. The 3rd defendant's involvement was only as a co-sponsor of the grand prize, ie, to provide photography shots to the winner of the competition.

[11] The 2nd defendant gave the plaintiff's photograph which he recei