This item has been updated since initial publication.
By HR Dipendra
Does Malaysia need wholesale legislative reform or is it a case of only tidying up the edges? That was the gist of the conversation with the three panellists in a post lunch breakout session. Moderated by HR Dipendra, Partner, Arianti Dipendra Jeremiah, the session began with Ang Hean Leng, a defamation law practitioner with Lee Hishammuddin Allen & Gledhill, providing an overview of the Defamation Act 1957 (“Act”). The Act, Mr Ang argued, was developed shadowing the 1952 English Defamation Act. While the United Kingdom has moved by leaps and bounds, the Malaysian legislation showed little or no improvements save for what the courts have developed as common law principles. The introduction of the 2013 English Defamation Act then begged the question: Should Malaysia embark on its own legislative reform?
Arguing for reform, Mr Ang further espoused issues that defamation law practitioners face. First up was whether government–linked corporations or local authorities should be allowed to initiate defamation suits. The celebrated United Kingdom case of Derbyshire CC v Times Newspapers (1993) cemented the principle that government–linked corporations or local authorities cannot sue for defamation. The position in Malaysia is less clear. Lembaga Kemajuan Tanah Persekutuan (Felda) v Dr Tan Kee Kwong (2013) and Syabas (2012) did not accept the decision of Derbyshire. Somewhat fortuitously, the High Court in Kerajaan Negeri Terengganu v Syed Azman Syed Ahmad (2013) held that the state government is a public authority with no personal reputation to protect.
Secondly, Mr Ang argued that limitation period for defamation suits should be shortened. In Sabah and Sarawak, the limitation period to bring defamation suits is 12 months but in Peninsular Malaysia, it is six years. It does not make sense to litigate someone’s reputation after five years.
Thirdly, the codification of the common law defence known as the “Reynolds defence” or “responsible journalism defence”. The Reynolds defence was given approval by the Court of Appeal (written judgments by the second panellist) in Tony Pua v Syabas (2012) and Yong Teck Lee v Harris Salleh (2014). The Federal Court is now considering the scope of the Reynolds defence in Malaysia having granted leave to appeal both these cases.
The next speaker was Dato’ Anantham Kasinather, Judge, Court of Appeal (Rtd). He shared his experience on the bench on how defamation cases were treated. In making out a case for reform, the learned Judge said that so long as the judiciary followed common law principles laid down in the English courts, and allowed for its importation via the Civil Law Act 1956, such legal reform may not be necessary. Dato’ Anantham also suggested that section 11 of the Act statutorily incorporates the common law operation of the doctrine of absolute privilege.
Touching on the issue of damages, Dato’ Anantham expressed fear that the previous trend circa 1995 of mega defamation awards might reoccur and suggested that reform should include statutorily capping damages. Given the propensity for Malaysian courts to ignore English precedents, it may be useful to have legislative reforms.
The 100–odd participants were charmed by the heavyweight presence of Desmond Browne QC, Joint Head of Chambers, 5RB, United Kingdom. Having conducted many high profile trials, Mr Browne set out the English position and why the 2013 Defamation Act was necessary. The 2013 English Defamation Act was more than just to “cure” London from being labelled a “libel tourism” centre, but years of lobbying by various stakeholders after the United States legislated the SPEECH Act to counter the enforcement of UK libel judgments meant the passing of a new Defamation Act was inevitable. The legislative approach, Mr Browne espoused, was curious as the common law defences were abolished and replaced with codified defences like truth, honest opinion and publication on a matter of public interest. It remains to be seen how effective these defences are.
Mr Browne went on to explain that the claimant’s feelings (often important in assessment of damages) is irrelevant and corporations must demonstrate “serious financial loss” before embarking on a defamation suit. Only two cases have been the subject of the Defamation Act 2014, namely Cooke Midland Heart Ltd v MGN (2014) and Cartus Corporation v Siddell (2014). The courts have adopted an approach to suggest that companies suing for defamation must set out precisely how the publication had caused, or was likely to cause, serious financial losses.
Mr Browne further said that reforms are being looked into whereby the costs of litigating defamation suits are managed sensibly. A variable costs protection order is being looked into whereby either party could seek financial protection to conduct their case without the danger of severe financial hardship. If a party was later found to be fundamentally dishonest or have abused the court process, then such protection of costs would be lost.
What next then? It was suggested that the Parliament set up a select committee to help look into defamation law reform. Sivarasa Rasiah, a Member of Parliament who was among the delegates, offered to head this select committee. Both Mr Ang and Dato’ Anantham felt that reform was needed and hoped that this would be looked into as soon as possible.