Reporting an offence is not defamation

Whistleblowers cannot be sued for libel or slander, rules Federal Court

PUTRAJAYA: A person who complains about an alleged offence to enforcement agencies cannot be sued for defamation for lodging those reports, ruled the Federal Court.

The court held that such reports to agencies such as the Malaysian Anti-Corruption Commission (MACC), the Commercial Crime Investigation Department (CCID) and the Registrar of Societies (RoS) are protected with absolute privilege.

The unanimous decision was made during the appeal brought by former Selangor Chin Woo Athletic Association president Datuk Dr Low Bin Tick.

Justice Aziah Ali said the three authorities in the case shared a common feature in which they were statutorily empowered with investigative powers.

“The purpose (of lodging a complaint) is to notify these authorities of alleged unlawful conduct and to set an investigation in motion and, if appropriate, to take the necessary action against the alleged wrongdoer,” said Justice Aziah yesterday.

The Bench set aside the decision by the Court of Appeal and the High Court. The lower courts had ordered Dr Low to pay RM500,000 in damages to another former Chin Woo president, Datuk Chong Tho Chin.

Yesterday, the Bench also awarded RM150,000 in costs to Dr Low.

Chong, who was Chin Woo president from 1991 to 2001, had filed four defamation suits at the High Court in 2007.

Chong claimed Dr Low, who was president from 2001 to 2005, had made unfounded and defamatory complaints regarding him in the letters to the three authorities in 2005.

The Federal Court said Dr Low’s letters to the authorities had alleged probable misuse of power, breach of trust, fraud and negligence.

“The common vein in these letters is the request for the authorities to carry out investigations and to take action, if appropriate,” Justice Aziah said.

On republication of a police report, the court held the issue did not arise for their consideration since it was not raised in the appeal.

But she said a person who repeats another’s defamatory statement without privilege may be held liable for republishing the same libel or slander.

The five-man Bench was led by Chief Judge of Malaya Justice Ahmad Maarop. Apart from Justice Aziah, also in the panel were Chief Judge of Sabah and Sarawak Justice Richard Malanjum and Federal Court judges Justices Hasan Lah and Ramly Ali.

Source: The Star by Nurbaiti Hamdan

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You are 'Stupid' is not defamatory

PUTRAJAYA: Calling a person “stupid and recalcitrant” does not amount to defamation, the Court of Appeal has ruled.

Court of Appeal judge Justice Mohd Hishamudin Mohd Yunus, who chaired a three-man panel, held this in a civil appeal brought forward by Jelutong MP Jeff Ooi (pic) against a politician over the dismissal of Ooi’s defamation suit.

Justice Mohd Hishamudin ruled Thursday that “although it was not nice to use the words”, it did not amount to defamation.

On April 22 last year, Ooi’s defamation suit against Gerakan deputy secretary-general Dr Thor Teong Gee for calling the former “stupid and recalcitrant” at a press conference was dismissed by the Penang High Court.

Justice Mohd Hishamudin, who upheld the High Court’s ruling in an unanimous decision, also ordered Ooi to pay RM10,000 to the defendant in costs.

In the coram were Court of Appeal judges Justice David Wong Dak Wah and Justice Vernon Ong Lam Kiat.

At the outset of court proceedings when queried by Justice Mohd Hishamudin, Ooi’s lawyer R. Ramesh Sivakumar argued that those words were defamatory because they were a personal attack on the credibility of his client.

Ramesh Sivakumar argued that Dr Thor had acted mala fide by using those words.

“He could have used better words. By calling him stupid, he was portrayed as not fit to be an MP,” he added.

However, Dr Thor’s counsel Baljit Singh and V. Amareson were not required to submit in the appeal.

In an immediate response, Dr Thor said he was very grateful for the appellate court’s decision as he had never made a personal attack against Ooi.

“An NGO invited me to give a professional views on medical issues on radiation,” said Dr Thor, who is a Penang-based medical doctor, when contacted.

In her ruling earlier, High Court Judicial Commissioner Nurmala Salim said Ooi had failed to state the alleged defamatory words in the original language, which was in Mandarin, in his statement of claim.

She also held that the words used by the defendant Dr Thor in the press conference were in reference to a radiation issue, and not a personal attack against Ooi.

“I am inclined to concur with the defendant’s (Dr Thor) counsel that the words uttered are commonly used by Malaysians of all races during an argument or when one is angry,” she said in her decision.

She also said the court did not see how the words had sullied Ooi’s reputation and office, as he had earned a bigger majority of votes in the 2013 general election compared with the general election in 2008.

“The plaintiff (Ooi) himself had refused to state how the words had tarnished his office and reputation,” she said, before dismissing the suit and ordering Ooi to pay RM20,000 in costs to Dr Thor.

Ooi sued Dr Thor for defamation for allegedly uttering the words “stupid and recalcitrant” against him in a press conference on May 21, 2010.

He sought aggravated and exemplary damages, a retraction and an apology by Dr Thor, as well as costs and other relief deemed fit by the court.

By M. Mageswari The Star/Asia News Network

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Google hit with $AUD200k defamation damages

Ad giant's own witness confessed removing dodgy search results is easy

An Australian man defamed by links on Google that associated his name with images of and articles about a criminal has been awarded $AUD200,000 damages.

Melbourne man Michael Trkulja argued that searches on his name, which brought up references to criminal Tony Mokbel, constituted defamation.

Trkulja asked for those references to be altered. Part of Google's defence suggested he had not properly completed forms that would have seen the ad giant alter its search results, but the end result was that Trkulja's name continued to appear alongside references to a nasty gangster called Tony Mokbel. A jury agreed that those results equated to defamation, and Supreme Court Justice David Beach today decided it was $AUD200,000 worth of defamation.

The judgment paints a fascinating picture of Google's response to the complaint, noting that a Google US employee, a 'Mr Madden-Woods', appeared on the stand but that the ad giant did not call anyone to the witness stand involved in handling the original complaint from Mr. Trkulja.

That became important because one piece of evidence offered by Mr. Trkulja was an email from help@google.com stating:

“At this time, Google has decided not to take action based on our policies concerning content removal. Please contact the webmaster of the page in question to have your client’s name removed from the page.”

But the existence of the mail from help@google.com, Justice Beach writes, means the jury could easily “... infer that … Google Inc was well aware of what was being requested of it” and that a more nuanced response was almost certainly a sensible option.

Making matters worse, Justice Beach writes that Madden-Woods “ … conceded the obvious (perhaps somewhat begrudgingly) that it would not take very much effort to work out, from the page of photographs supplied to Google Inc, the identity of the website that linked the plaintiff’s name to Mr Mokbel and Mr Tanner. All one had to do was click on one of the images (the text beneath each image showing that the one web page was involved). At that point it would have been open to Google Inc to block the URL of that page from Google Inc’s searches, in compliance with the plaintiff’s former solicitors’ request.”

The amount of damages awarded seems to have been calculated in two ways.

Trkulja had already succesfully sued Yahoo! over the same matter and been awarded $AUD225,000, but that search engine had published nasty links for longer and that those links stated he was “so involved with crime in Melbourne that his rivals had hired a hit man to murder him”. Google's results stated only that Trkulja “was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicled crime in Melbourne”.

Justice Beach declares that a lesser imputation, but then tried to weigh the number of times each statement would have been read given the respective user bases of the two search engines.
His argument makes for interesting reading:

"While there was debate before me as to the relative popularity of Google and Yahoo search engines, neither side made any attempt to lead evidence of the precise number of publications brought about by a Yahoo search engine as compared to a Google search engine. That said, as was noted by counsel for the plaintiff, in support of a submission that I should find that there were more Google publications than Yahoo publications, while the word 'Googling' has entered the vernacular, there is no corresponding word in respect of Yahoo’s products.”

By Simon Sharwood, APAC Editor
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