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2022 MarsdenLR 2363
HIGH COURT MALAYA KUALA LUMPUR
TAN SRI DATO NATHAN ELUMALAY – Appellant
Versus
NATARAJEN MANOHRAN – Respondent
[Civil Suit No: WA-23CY-60-11/2018]
Defamation requires proof of publication, defamatory nature, and identification. Defenses like justification and fair comment fail without supporting evidence.
Headnote:(A) Defamation Act 1957 – Defamation – The plaintiff, a managing director, claimed damages for alleged defamatory statements made by the defendant, who admitted to posting a collage of WhatsApp messages about the plaintiff. The statements suggested dishonesty and bribery concerning a civil suit. The court found that the plaintiff's reputation was indeed defamed, establishing the defendant's publication of actually defamatory words as pivotal. The defendant's defenses, including justification and fair comment, were dismissed due to lack of evidence. (Paras 9, 10, 24, 73)
(B) Publication and Defamation – Essential elements of defamation established: publication to third parties, defamatory nature of words, and identification of the plaintiff were proven. (Para 10)
(C) Quantum of Damages – The court awarded RM200,000 as global damages, citing the severity and extent of the defendant's defamatory statements. (Paras 62, 73)
Facts of the case: The defendant posted messages in a WhatsApp group that accused the plaintiff of bribery and dishonesty related to a civil suit, which was corroborated by witness testimonies. The plaintiff sought damages and an apology based on these statements.
Findings of Court: The court acknowledged that the plaintiff's reputation was significantly harmed by the defendant's actions, which were deemed serious accusations towards the plaintiff's professional integrity.
Issues: Whether the defendant published the statements, their defamatory nature, and the applicability of defenses were central to the case.
Ratio Decidendi: The court ruled that the Impugned Posting was defamatory by its natural meaning, dismissing defenses due to insufficient evidence presented by the defendant. The court reaffirmed the essential presumption of damage in defamation cases.
Result: Judgment granted in favor of the plaintiff with an award of RM200,000.
JUDGMENT
A. Introduction
[1] The plaintiff in this case filed this claim ('this Claim') for damages against the defendant for a picture collage which consists of a few WhatsApp messages exchanged between him and the defendant ('the Impugned Posting').
i. Background Facts
[2] The plaintiff is the founder, Chairman and Group Managing Director of Eversden Group of Companies. Meanwhile, the defendant is the Managing Director and one of the shareholders of Linsun Engineering Sdn Bhd. It is known that there was a civil suit ('the civil suit') initiated by Linsun Engineering Sdn Bhd against Shin Eversendai Engineering (M) Sdn Bhd, a subsidiary of Eversendai Group of Companies on the dispute of a nonpayment under a subcontract entered by them.
[3] The crux of this Claim is that the Impugned Posting created and posted by the defendant is deemed to be defamatory against the plaintiff. For ease of reference, the Impugned Posting is produced as follows:
[4] The Impugned Posting was allegedly posted to a WhatsApp group called DG Chat Group ("the DG Chat Group"). The DG Chat Group was administrated by one Dato' Gopinath a/l Supramaniam who was the plaintiff's first witness ('SP1'). SP1 asserted that after the collage was received in the DG Chat Group, he had forwarded the Impugned Posting to another WhatsApp chat group named 'Politics & Public Debate' (the Politics & Public Debate Chat Group) before deleting the Impugned Posting in the DG Chat Group.
[5] The plaintiff contended that the Impugned Posting was capable of being treated as defamatory against him. However, the defendant denied that the Impugned Posting was created by him and thus no publication was ever made.
[6] Unsatisfied with the defendant's response, the plaintiff filed this Claim against the defendant. The plaintiff was seeking, in essence, damages from the defendant, a written public apology, and an injunction to prohibit the defendant from further authoring or publish any defamatory statement about the plaintiff.?
ii. The Trial
[7] The plaintiff called eight witnesses during the trial while the defendant called one witness, respectively:
SP1 Dato' Gopinanth Supramaniam
SP2 Datuk Phupatrai Mansukhlal Premji
SP3 Thirumaren Munisamy
SP4 Vijaya Kumaran Danapalan
SP5 Mahendran Gnasamoothy
SP6 Gavin Jay Anand Ail Jayapal
SP7 Tan Sri Dato' Nathan Ail Elumalay
SP8 Ganasan Arumugam
SD1 Dato' Natarajen Ali Manohran
iii. Issues
[8] Before the commencement of the trial, the parties had agreed on the following issues to be tried:
1. Whether the defendant had published or caused to be published the Impugned Posting referred to in para 24 of the Re-Re-Amended Statement of Claim ("the SOC")?
2. Whether the Impugned Posting referred to in para 24 of the SOC, is a publication of and concerning the plaintiff?
3. Whether the words complained of set out in Annexure B of the SOC forming the Impugned Posting are capable of bearing the defamatory meaning(s) pleaded respectively under para 29 of the SOC?
4. Whether the defendant is entitled to rely on the defence of Justification?
5. Whether the defendant is entitled to rely on the defence of Fair Comment on a matter of public interest?
6. Whether in publishing the words complained of the defendant was motivated by express malice?
7. Whether the plaintiff is entitled to the reliefs prayed for?
B. Decisions And Findings Of The Court
[9] After perusing the cause papers, the witnesses' statements, the notes of proceedings, the written and oral submissions, and the parties' replies, I allow the plaintiff's claim. Herein are my reasons.
[10] It is trite in any defamation action that, a plaintiff will need to establish the following to succeed in his claim for defamation:
(a) That the words were defamatory;
(b) That the words referred to the plaintiff; and
(c) That the words were published to third parties.
[11] In the current case, there is no dispute that the Impugned Posting was indeed referring to the plaintiff. Thus, I will only focus and disc
