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2021 MarsdenLR 2331
HIGH COURT (SHAH ALAM)
FAIZAH JAMALUDIN, J
Crowd Care Sdn Bhd & Anor – Plaintiff
Versus
Ling Lek Foo – Defendant
CIVIL SUIT NO BA-23NCvC-31-09 OF 2019
Lee Huai (Teh Chiew Yin and Chew Xin Yi with him) (Ong & Manecksha) for the plaintiffs.
Gazel Cheong Mei Foong (Sofia Amira Mohd Salleh with him) (Gazel Chen & Partners) for the defendant.
Plaintiffs must prove defamatory statement, identification, and publication; Defendant's actions created admissible malice; fair comment defense was not established.
Headnote:(A) Defamation Act 1957 - Essential elements include defamatory statement, identification of plaintiff, and publication to third parties - Defendant's Facebook posts constituted defamatory statements regarding the 1st and 2nd Plaintiffs - Court found posts were defamatory and published to third parties - Defendant's admission in testimony regarding the reference to the 1st Plaintiff in the impugned statement - Permanent injunction issued against the Defendant to refrain from further publications, and he was ordered to issue a written apology and pay damages. (Paras 1, 6, 7, 113, 116)
(B) Principles of Defamation - Plaintiff must demonstrate the three elements: that statements refer to plaintiff, they are defamatory, and published to a third party - Test established in Knupffer v London Express Newspaper Limited applied to determine reference and defamation - Court applied reasonable man test to assess the defamatory nature of statements. (Paras 3, 44, 86)
(C) Findings: 2nd Plaintiff awarded general damages of RM150,000 for reputational harm due to defamation; the 1st Plaintiff not entitled to damages. (Paras 7, 108)
Facts of the case:
The Plaintiffs alleged defamation due to three Facebook posts by the Defendant, which accused the 2nd Plaintiff of fraud and other criminal activities. The Defendant argued the posts did not refer to the Plaintiffs but changed his position during the trial. (Paras 19, 30, 36)
Findings of Court:
There was a clear finding that the statements were defamatory, capable of attributing criminal conduct to the 2nd Plaintiff, and should reasonably lead readers to believe they referred to him. (Paras 88, 90)
Issues: Whether the statements were defamatory and if they referred to the Plaintiffs; whether the Defendant established any valid defense; the appropriate amount of damages. (Paras 39, 92)
Ratio Decidendi: Court emphasized that the onus lies on the plaintiff to prove defamation. The posts were deemed defamatory based on the Knupffer and Morgan tests. The Defendant's reposting of defamatory content showcased malice, negating a defense of fair comment. (Paras 44, 91)
Result: Plaintiff's claims allowed; Defendant ordered to pay damages and cease defamatory actions.
| Table of Content |
|---|
| 1. elements of defamation (Para 1 , 2 , 3 , 4) |
| 2. crucial findings of fact and defamation (Para 5 , 6 , 11 , 89) |
| 3. plaintiffs' case and defamed statements (Para 19 , 20 , 21 , 24 , 28 , 30 , 108) |
| 4. defamatory meaning and burden of proof (Para 44 , 45 , 74 , 106) |
| 5. court orders and conclusions (Para 113 , 114 , 115 , 116 , 117) |
Faizah Jamaludin J:
GROUNDS OF JUDGMENT
A. Introduction
[1]This is an action by the 1st and 2nd Plaintiffs against the Defendant for the tort of defamation in respect of three separate posts on Facebook made by the Defendant under the profile name “Alan Ling”.
[2]The posts were made on Facebook on 23.10.2018 (“FB Post 1”), 14.03.2019 (“FB Post No.2”) and 07.07.2019 (“FB Post No. 3”). The posts were in the Mandarin language. The Bahasa Malaysia translation of the said posts are reproduced in section B of this Judgment.
[3]The holy trinity of any defamation action are defamatory statement, identification of plaintiff and publication to third parties: the three elements that a plaintiff has to prove in order to establish his cause of action in the tort of defamation are (i) the statement refers to the plaintiff or reflects his reputation, (ii) the statement is defamatory of the plaintiff, and (iii) the statement was published to a third person by the defendant.
[4]In this instant action, the crux of the Defendant’s case was that the Facebook posts published by him did not refer to the Plaintiffs; hence, the impugned statements in the said posts were not defamatory of the Plaintiffs. However, during the course of the trial, the Defendant admitted that Impugned Statement 1(b) (as defined in this Judgment) referred to the 1st Plaintiff.
[5]At the conclusion of trial, this Court made a finding of fact based on the test promulgated by the House of Lords in the English case of Knupffer v London Express Newspaper Limited Knupffer test) that all the impugned statements in the three Facebook posts referred to the 2nd Plaintiff. This Court also made a finding of fact based on the reasonable man test that the impugned statements were defamatory of the 2nd Plaintiff.
[6]For the reasons discussed in this Judgment, this Court found that the Defendant had failed to establish a valid defence to the defamatory statements.
[7]Accordingly, this Court found that the Defendant had defamed the 2nd Plaintiff and had awarded the 2nd Plaintiff general damages in the sum of RM150,000,00 together with interests. A permanent injunction was ordered restraining the Defendant from further publications and broadcast of the defamatory statements or anything similar against the 2nd Plaintiff. The Defendant was also ordered to take down the Facebook posts and to publish a written apology to the 2nd Plaintiff in the local newspapers.
[8]The full reasons for this Court’s decision and orders are set out in this Judgment.
B. Background Facts
[9]The 1st Plaintiff is a private limited company incorporated under the Companies Act 2016 . The 1st Plaintiff is the administrator of a program known as “Life Engineering”. The Plaintiffs’ plead that Life Engineering is a medical cost crowd sharing platform and not a crowdfunding platform. They contend that the platform enables sharers to participate in the program through an application on mobile telephones or websites.
[10]At all material time, the 2nd Plaintiff was a director of the 1st Plaintiff.
[11]The 1st Plaintiff launched the Life Engineering program to the public in March 2017.
[12]On 23 March 2017, Bank Negara Malaysia had issued on its Consumer Alerts List, an advisory notice on the 1st Plaintiff and Life Engineering. After explanation from the Plaintiffs on the nature of the Life Engineering program and that it is not an insurance business, Bank Negara Malaysia removed the 1st Plaintiff and Life Engineering from its Consumer Alert List in January 2018.
[13]On 23.10.2018, the Defendant posted the FB Post No. 1 on his Facebook page. The post was in the Mandarin language. The Bahasa Malaysia tr
