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2013 MarsdenLR 2700
COURT OF APPEAL PUTRAJAYA
DATO SERI MOHAMMAD NIZAR JAMALUDDIN – Appellant
Versus
SISTEM TELEVISYEN MALAYSIA BERHAD & ANOR – Respondent
[Civil Appeal No: W-02(NCVC)(W)-1152-05-2013]
In defamation cases, the burden is on the defendant to prove justification; failure to verify serious allegations may lead to a finding of malice and liability for defamation.
Headnote:(A) Defamation Act 1957 - Section 8 - Appeal against dismissal of defamation claim - The defendants published a news report concerning the plaintiff's tweets, alleging defamation regarding public funds and the Sultan of Johor - The High Court found the publication was defamatory but justified, leading to dismissal of the plaintiff's claim - The Court of Appeal found that the defendants failed to prove their defence of justification as they did not verify allegations, hence liable for defamation. (Paras 7, 8, 54)
(B) Defamation - Justification - A defendant must prove the truth or substantial truth of the defamatory statement; mere belief does not suffice. (Paras 19, 25)
(C) Defamation - Malice - Malice may be inferred from failure to verify claims, particularly where serious implications for the plaintiff exist; the defendants were deemed to have acted with malice. (Paras 46, 48)
| Table of Content |
|---|
| 1. plaintiff's claim of defamation (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. defendants' justification for publication (Para 7 , 8) |
| 3. standards for claiming defamation (Para 9 , 10 , 11 , 12) |
| 4. court upholds trial judge's findings (Para 13 , 14 , 15) |
| 5. legal tests for defamation established (Para 16 , 17 , 18) |
| 6. defendants' burden to prove justification (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 7. implication of responsibility in journalism (Para 25 , 26) |
| 8. need for verification in journalism (Para 27 , 28) |
| 9. inconsistency in publishing evidence (Para 29 , 30 , 31 , 32) |
| 10. understanding qualified privilege (Para 33 , 34 , 35) |
| 11. malice in context of defamation (Para 36 , 37 , 38) |
| 12. implications of malice in qualified privilege (Para 39 , 40 , 41 , 42 , 43 , 44 , 45) |
| 13. inference of malice in publication (Para 46 , 47 , 48) |
| 14. framework for fair comment defence (Para 49 , 50 , 51 , 52) |
| 15. final conclusion on defamation liability (Para 53) |
| 16. assessment of damages awarded (Para 54) |
[1] This has been an appeal by Dato' Seri Mohammad Nizar bin Jamaluddin ('the plaintiff/appellant') against the decision of the learned High Court Judge that had dismissed his claim against the defendants 1 and 2 namely, the Sistem Televisyen Malaysia Berhad and Rohani Ngah. The appellant/plaintiff had in his writ and statement of claim, filed in the Kuala Lumpur High Court (encl 1), prayed for the reliefs as prayed therein pertaining to an alleged defamation committed by the defendants against him. Among others, he had prayed for damages to be awarded to him by the defendants for the injury caused to his reputation by the alleged defamation perpetrated by the defendants. That alleged defamation was contained in the publication by the defendants in the Buletin Utama TV3 news report ('Buletin Utama') of materials regarding the plaintiff's tweets on 28 May 2012 in his Twitter account.
[2] As a matter of factual background, the plaintiff at the material time was a Member of Parliament, a Member of the State Legislative Assembly of Perak for Pasir Panjang, a Member of the Central Committee of Parti Islam Semalaysia ("PAS") and the Head of the Opposition Pakatan Rakyat for Perak.
[3] The 1st defendant was a broadcasting television company whereas the 2nd defendant was sued in her capacity as the publisher of Buletin Utama for 30 May 2013 which was broadcasted in the TV3 Channel at 8pm.
As it had turned out, it all began with the plaintiff's tweets that the plaintiff had tweeted through his Twitter account on the 28 May 2012 whereby the plaintiff had made the following three statements:
"YB Mohammad Nizar
rm520K boleh dibelanjakan membantu rakyat melayu johor yang masih ramai miskin serta memerlukan bantuan keperluan hidup, bina 20 rumah pprt!";
"YB Mohammad Nizar
but if comparing 24 million diamond ring by rosmah, then rm520k 4 WWW1 reg plate is nothing! But how does 1 justify that purchase MFatwaKeb?";
"YB Mohammad Nizar
rm520k utk no plate www1, Xkan nak letak kat proton atau motor kut? Ramai lagi rakyat yang masih kais pagi mkn pagi kais ptg mkn ptg!"
[4] Pursuant to those tweets of the plaintiff, the undisputed facts would further show that the defendants had on the 30 May 2013 published the following news transcript that was read by the 1st defendant's news presenters at 8pm during the Buletin Utama news programme on TV3. The said transcript, as read by the two presenters, has been as follows:
"NUR JAMALINA MOHD JAMALI:
POLIS MENUBUHKAN SATU PASUKAN KHAS UNTUK MENYIASAT TUDUHAN ADUN PASIR PANJANG, DATUK SERI MOHAMMAD NIZAR JAMALUDDIN, KONONNYA SULTAN JOHOR MENGGUNAKAN WANG RAKYAT UNTUK MEMBIDA NOMBOR PENDAFTARAN WWW1.
KAMARUDIN MAPE:
MENURUT KETUA POLIS JOHOR, DATUK MOHAMMAD MOKHTAR SHARIFF, KES DISIASAT MENGIKUT AKTA HASUTAN.
KETUA POLIS JOHOR, DATUK MOHAMMAD MOKHTAR SHARIFF:
SEHINGGA PETANG INI, POLIS JOHOR TELAH MENERIMA LAPAN LAPORAN POLIS. JADI KITA TELAH MENUBUHKAN SATU PASUKAN KHAS YANG DIKETUAI OLEH KETUA POLIS DAERAH JOHOR BHARU UTARA, ASSISTANT KOMISIONER POLI
