An Elected Representative in Malaysia has sued me for Defamation. Help!

You’re 24, a first time voter in the 2018 General Election, and super stoked to be given the opportunity to take part in creating the “Malaysia Baharu”. Immersed in the world of Malaysian politics, you feel very strongly against a certain elected representative concerning their actions of “hopping parties”, so you decide to vent your frustrations on Facebook.

Overnight, your Facebook post gains significant traction with thousands of likes and hundreds of shares. Whilst enjoying your newfound stardom, you got smacked with a Summons from the said elected representative for defamation.

Can an office-bearer/elected representative sue you for defamation? Has this happened before? What would the Court decide?

What is Defamation?

In its simplest form, defamation is the action of damaging an individual’s reputation and/or social standing. There are two types of defamation:-

1. Slander – defamation in an oral/temporary form (e.g. spoken words)

Example: At a staff meeting, Simona yells at Stacey, accusing her of being a ‘man stealer’ and a horrible friend.

2. Libel – defamation in a written/permanent form (e.g. articles, newspapers, social media)

Example: Gina has written an online blog article about Amin, a popular politician, describing him as a spineless and untrustworthy person who would most definitely betray the mandate of the public.

The following are additional requirements for Defamation to be actionable in law.

• The word and/or statement made must be one that is ‘defamatory’, that is capable of lowering the Plaintiff’s status in the eyes of the average reasonable person in society;

• The defamatory statement must be one that refers (either directly or indirectly) to the Plaintiff;

• The defamatory statement must be published to or heard by at least one other person besides the Plaintiff.

There are a number of defenses available to the Defendant in Defamation suits such as justification, fair comment and privilege.

So what do I do if I get sued by an Elected Official?

The answer can be found in the case of Utusan Melayu (Malaysia) Bhd v Dato’ Sri Diraja Haji Adnan bin Haji Yaakob [2016] 5 CLJ 857 (the “Utusan Malaysia case“).

The respondent (“Dato’ Adnan“), the then Menteri Besar of Pahang was featured in an article entitled “Hebat Sangatkah Adnan” (the “Article”) written by the appellant (“Utusan Malaysia“), a popular Malaysian media company.

Dato’ Adnan initiated a defamation suit at the Kuala Lumpur High Court seeking damages and an apology.

In their defence, Utusan Malaysia maintained three fronts:-

• Fair comment – they may express their comments on a topic of public interest so long as it was not made with ill intent or without basis;

• Qualified privilege – where they have a duty to publish those words, they cannot be held liable if they have done so without ill-intent.

• Reynolds privilege – where the matter is of public interest and the defendant had acted reasonably.

Utusan Malaysia then attempted to strike out the claim on the grounds that the Article was written about Dato’ Adnan in his capacity as Menteri Besar, a public post predisposed to public criticism and therefore unable to sustain a suit in defamation. Although the High Court disagreed, their decision was eventually overruled by the Court of Appeal, recognizing that the article does in fact refer to Dato’ Adnan as the Menteri Besar, and highlights his administration’s weaknesses. Therefore, the Court of Appeal held the suit should be struck out.

The Court of Appeal did not stop there, YA Tan Sri Idrus bin Harun delivering the judgment, laid down an important principle with regards to defamation suits initiated by office bearers:-

“By virtue of the respondent’s public office as the Menteri Besar and as the elected representative, the respondent should be open to public criticism and could never be defamed, hence, he ought to be precluded from suing for defamation (Derbyshire County Council v. Times Newspapers Ltd And Others ). It is one of the fundamental principles that, in the exercise of the right to freedom of speech and expression within the ambit of the Federal Constitution and other relevant laws…”

The Court of Appeal took their inspiration from the following cases:-

1. The English case of Derbyshire County Council v. Times Newspapers Ltd And Others [1993] 1 All ER 1011:

“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”

2. The American case of City of Chicago v. Tribune Co 139 NE 86 (1923):

“…every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely.”

This principle reflects the right to freedom of speech and expression under Article 10 of the Malaysian Constitution, reinforcing the citizen’s right to openly discuss the public affairs of elected officials without fear of litigation.

The Federal Court subsequently overturned the Court of Appeal decision on a technicality that it was still ‘unclear’ to the Court whether the statements made had discussed Dato Adnan in his personal or official capacity and referred the matter to be decided in trial. Nonetheless, the principles set by the Court of Appeal with regard to whether an office bearer can sue for defamation still holds merit.

Conclusion

The Utusan Malaysia case recognizes that in a free and fair society, it is crucial that elected politicians must be open and subject to public criticism. Although the Defendant in this case was the Media, which traditionally holds the role of the Fourth Estate, serving as a public check against office bearers.

It can be argued that in the 21st century, with the rapid outreach of the internet and social media, the rakyat are effectively the Fifth Estate and have unwittingly taken on a similar “public checking” role. As such, the principles expounded in the Utusan Malaysia case applies equally to bona fide comments and honest criticism from Malaysians.