INTRODUCTION
In Dato' Sri DrBACKGROUND FACTS
Some time in
However, a sum of
During a press conference on
- the Plaintiffs misused public funds for their own personal gain contrary to public interest, in particular the government loan given to the second appellant for the project;
- the 1st Plaintiff had abused his position as the chairman and director of the 2nd Plaintiff to misappropriate the said government loan in order to purchase the eight units; and
- the 1st Plaintiff took advantage of his marital status with Datuk Seri Shahrizat Jalil, during her tenure as Member of
Parliament of Lembah Pantai to acquire the eight units.
HIGH COURT'S AND COURT OF APPEAL'S FINDINGS
In deciding that the impugned statement by the Defendant was defamatory, the
Aggrieved by the decision of the
FEDERAL COURT'S DECISION
Parties agreed at the hearing of the Plaintiffs' application for leave that several grounds of the decision of the
The Federal Court relied heavily on the four elements laid down in the case of
(a) Words must be in a form of comments / inferences
It is necessary to ascertain whether the impugned statement is a statement of fact or is it the Defendant's opinion and inferences made from the facts. A comment, opinion or inferences of fact are different from a statement of fact. However, all of the aforementioned must be based on facts. The Federal Court viewed that an ordinary or reasonable man upon reading the impugned statement and the way it was expressed, the context in which it was set out and the content of the entire statement would regard them as the Defendant's comments and inferences made from the facts. The facts relied on by the Defendant in making his comment were also clearly identified in the publication, which allows the readers to form their own opinion as to whether the Defendant's comments were correct.
(b) Opinions / inferences must be based on true substratum of facts
In relying on the defence of fair comment, the Respondent must firstly establish a sufficient substratum of facts upon which he draws inferences. Secondly, those facts on which the comment or inferences were made must be truly stated so that the readers may form their own opinion whether the comment or inferences were well founded to constitute a sufficient substratum of fact it is not required that all the facts on which the respondent's comments or inferences were based on should be stated in order to admit the defence of fair comment.
The Federal Court in this case relied on the facts that the documents that were sent to the Defendant anonymously constitute sufficient substratum of facts. Based on this substratum of facts, the Defendant made the conclusions in the impugned statement which were, in the Federal Court's views, are the Defendant's opinion and inferenced from the facts referred to.
The extent of the defence of fair comment only revolves around comments or inferences honestly made on existing substratum of facts that are truly stated. What is required is that the comment has to identify, at least in general terms, the matters on which it is based.
(c) Comment / inferences must be fair
In considering whether the comment / inferences made by the Defendant was fair, the Federal Court found it relevant to consider the circumstances leading to the press conference held by the Defendant on
As indicated earlier, there was sufficient substratum of facts to warrant the respondent making the impugned statement. Given all this, in the Federal Court's view, the Defendant's conclusion that public fund had been misused as a leverage for the
KEY TAKEAWAYS
Despite the growing trend of members of the public speaking out on social and political issues over social media platforms, recent decisions made by the courts in relation to defamation claims would show that there has not been a consistent ruling indicating the courts' preference or inclination. It will be on a case-by-case basis and as such, one should exercise caution in penning down his/her thoughts.
Vide this Federal Court's decision, it shows the importance of how a statement should be expressed or worded in order to ensure that a statement is a comment rather than a statement of fact as the defence of fair comment will not be made available to the latter. Having said so, it has always been an uphill task for not only the readers but also the courts hearing a defamation claim to identify and distinguish a comment from a statement of fact.
In addressing such difficulty, certain wordings may be adopted when penning down one's thoughts such as "opine", "my views", "my understanding" and "my thoughts" to clearly distinguish basic facts identified and being relied upon by an author and the author's own comments. On this note, it is also important for an author to include the basic facts relied upon in order for a reasonable or ordinary man to be able to form his/her own opinion with the facts made available.
Whether or not a comment is fair goes back to the circumstances leading to how and when the statement was made. Considering all the elements fulfilled or unfulfilled, the Courts can then decide as to whether the defence of fair comment shall stand or fall.
Mirror, Mirror On The Wall, Is This Comment Fair At All?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Idza Hajar Ahmad Idzam
D3-3-8
Solaris Dutamas
No 1 Jalan Dutamas 1
50480
© Mondaq Ltd, 2022 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source