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2009 MarsdenLR 168
HIGH COURT MALAYA KUALA LUMPUR
DATO SERI ANWAR IBRAHIM – Appellant
Versus
THE NEW STRAITS TIMES PRESS (M) SDN BHD & ANOR – Respondent
[Civil Suit No: S6-23-44-2003]
The court established that media must act with reasonable care in defamation cases, failing which the defense of qualified privilege does not apply.
Headnote:(A) Defamation Act 1957 - The law of defamation exists to protect reputations while maintaining freedom of speech. The plaintiff claimed that an article published about him was defamatory and sought RM100 million in damages. The defendants contended that the article was not defamatory and sought to establish a defense of qualified privilege. The court concluded that the article contained defamatory statements, which lowered the plaintiff’s reputation in the eyes of society (Paras 1, 6, 10, 29).
(B) Qualified Privilege - The defendants failed to prove reasonable belief in the truth of the allegations as they did not verify the accuracy of the information nor seek a response from the plaintiff, therefore, the defense of qualified privilege was not applicable (Paras 30, 66, 70).
(C) Reportage Defense - The defense of reportage was not established, as the publication did not provide both sides of the dispute and was not neutrally presented (Paras 78).
Findings of Court:
The court determined that the publication was defamatory, affecting the plaintiff's reputation severely without established justification (Paras 29, 81).
Issues: The court had to consider if the publication was defamatory, whether the defendants could claim qualified privilege, and the appropriate damages if the plaintiff prevailed (Paras 10, 12).
Ratio Decidendi: The court held that the defendants’ failure to verify the factual allegations and to present the plaintiff's side negated the claim of qualified privilege, thus they were liable for defamation (Paras 30, 71).
Result: The court ruled in favor of the plaintiff, awarding RM100,000 in damages and costs of RM20,000, including interest (Paras 100, 91).
| Table of Content |
|---|
| 1. the significance and nuances of reputation. (Para 1 , 2 , 3 , 4) |
| 2. interplay between freedom of expression and reputation. (Para 5 , 6) |
| 3. nature of defamatory statements. (Para 11 , 12) |
| 4. criteria for determining defamatory nature. (Para 13 , 14 , 15 , 16 , 18 , 19 , 22 , 23 , 24 , 25 , 26) |
| 5. defence of qualified privilege. (Para 30 , 32 , 34) |
| 6. differences in qualified privilege across jurisdictions. (Para 54 , 56 , 61) |
| 7. damages in defamation and their implications. (Para 80 , 84 , 90) |
Introduction
[1] This case is about a mans reputation. What is reputation? There is no precise concept or definition. According to the Oxford English Dictionary, reputation means "what is generally said or believed about a mans character or standing". But reputation is different from character in that a persons character is what he or she in fact is whereas a persons reputation is what other people think he or she is. Plato Films Ltd v. Speidel [1961] AC 1090 at p 1138 per Lord Denning. In theory therefore, an unrevealed scoundrel may actually have an excellent reputation.
[2] In any discussion of reputation, there is the customary or some say obligatory reference to Shakespeares characterization of "good name" as the "immediate jewel" of the soul. W Shakespeare, Othello, Act III Scene iii. The "purse" was "trash" when compared to the value of a "good name". Some believe that reputation is a form of honour. RC Post, The Social Foundations of Defamation Law: Reputation and the Constitution [1986] 74 California Law Review 691. So dishonour or loss of face is an absolute fall from grace. As Shakespeare depicted:
Mine honour is my life, both grow in one,
Take honour from me and my life is done. W Shakespeare, Richard II, Act I Scene i.
[3] Reputation has also been equated with the protection of dignity. In Rosenblatt v. Baer [1966] 383 US 75, Stewart J observed:
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any system of ordered liberty.
[4] There is therefore no doubt as to the value of reputation even if articulating it or its limits with precision is complicated. In terms of its practicality and relation to modern life, Lord Nicholls in Reynolds v. Times Newspapers Ltd [2001] 2 AC 127 at 201 asserted:
Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate ones reputation. When this happens, society as well as the individual is the loser For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of his reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad.
[5] This case is also about freedom of expression and the related role of the media. The most durable argument in favour of free speech is the importance of open and free discussion to the discovery of truth which was no doubt influenced by thesis of Milton and Mill. E Barendt, " Freedom of Speech" (1985) 8-28. The famous pronouncement of Holmes J in Abrams v. United States [1919] 250 US 616, 630 asserts that all truths are relative but "the best test of truth is the power of the thought to get itself accepted in the competition of the market". Similarly, the eloquent statement of Learned Hand J in United Sta
