Is Uploading Sufficient Proof of Publication?

Leong Wai Hong and Angela discuss a defamation case arising from an article published on the internet.
When would an article that is uploaded onto the world wide web be considered to be ‘published’ to a third party under the law of defamation?
This was one of the issues considered by the High Court in Lim Guan Eng and Professor Dr Ramasamy A/L Palanisamy v The New Straits Times Press (M) Berhad and Predeep Nambiar [2015] 1 LNS 1140.
Lim Guan Eng, the Chief Minister and Professor Dr Ramasamy A/L Palanisamy, the Deputy Chief Minister II of Penang filed a defamation suit over an allegedly defamatory online article published on the website of The New Straits Times newspaper.
The First Defendant, The New Straits Times Press (M) Berhad (“NST”) is the publisher of The New Straits Times newspaper and the owner of The New Straits Times website. The Second Defendant, Predeep Nambiar (“Predeep”) is a reporter of NST who wrote the article.
The article entitled “Indian-interest group claim thugs interrupted meeting” (“Online Article”) was uploaded onto NST’s website on 4 December 2013 and was removed on the same day. The matter reported in the Online Article was never published in NST’s printed newspaper.
The Online Article was a report on a press conference called by an ad-hoc non-governmental organisation called Concerned Citizens of the Indian Community (“CCIC”) to inform the public that certain individuals had disrupted a meeting convened by the CCIC to highlight concerns as to state of disrepair and mismanagement of the Batu Lanchang Hindu Crematorium.
The Plaintiffs identified one statement in the Online Article, attributed to N Ganesan, the spokesman for the CCIC, which they alleged to be defamatory:-
“Based on what was said by these thugs, we believe these thugs were sent in by Chief Minister Lim and his Deputy P. Ramasamy.”
According to the Plaintiffs, the natural meaning of those words are understood to mean that:-
(i)    the Plaintiffs are criminals and members of a secret society and/or have involvement and dealing and/or authority and/or habitual secret society activities; and
(ii)     the Plaintiffs are individuals who are involved and authority and/or habitual in supporting physical attacks on members of the public; and/or the Plaintiffs are not men of calibre and should not be leaders of the people and politicians in the State of Penang and/or Malaysia”.   
The Plaintiffs also complained that NST and Predeep did not seek verification from the Plaintiffs before publishing the Online Article.
NST and Predeep resisted the suit by relying on the defence that (i) the Online Article read as a whole was not defamatory; (ii) the words contained in the Online Article were not proved to be “published” to a third party; and (iii) the defence of qualified privilege is available as there was no malice on their part.
Whether the article was defamatory?
According to the trial judge, Judicial Commissioner Azmi Ariffin (“JC”), the Plaintiffs had to prove three essential elements to succeed in an action for defamation:-
(1)     the Defendants had made the defamatory statement;
(2)     the statement referred to the Plaintiffs; and
(3)     the statement was published to a third party.
The learned JC added that the test to be applied to determine whether the words complained of are defamatory is an objective one and that it was necessary to consider whether the publication when read as a whole would impute any dishonourable or discreditable conduct or motives or a lack of integrity to the Plaintiffs. 
Having laid down the guiding principles, the JC then dealt with the evidence adduced during the trial. The JC was of the opinion that the second element had been satisfied as it was “plain and obvious that they (i.e. the words complained of) were written about the Plaintiff.”  
The JC was of the view that “the subject matter of the article were matters of public interest as it involved issues on (the) Indian Crematorium which is an important matter affecting the Indian community as a whole.” The JC held that “when read as a whole and in context, the article did not convey the defamatory meanings which the Plaintiffs claim.”
Furthermore, while the JC was satisfied that the Online Article was published on a website that belonged to NST, he held that “there was no evidence adduced by the Plaintiffs to show that the online article had been accessed or download by third parties” and that the “Plaintiffs also did not provide any proof that the article was widely read.”   
Defence of Qualified Privilege
The learned JC added that even if the words complained of were defamatory, he would have to consider whether the defence of qualified privilege was made out by the Defendants.
The JC, referring to the decision of Mohamad Dzaiddin J (as he then was) in Ayob Saud v T.S. Sambanthamurti [1989] 1 CLJ 152, explained the procedure that applied when the defence of qualified privilege is pleaded by a defendant:- 
The JC then held that even if the words complained of are capable of bearing a defamatory meaning, the defence of qualified privilege is available to the Defendants. The JC found that the Plaintiffs had failed to prove that NST and Predeep had acted with malice in publishing the article based on the following evidence:-
(a)     The Online Article was removed on the same day and not published in the print version of the newspaper;
(b)     The tone and the language of the Online Article were professional and not sensationalised. The words ‘claims’ and ‘believed’ used in the Online Article indicated responsible journalism;
(c)     Predeep had only reported as a matter of fact on issues of public concern without adding anything beyond what was said at the press conference; and
(d)     By comparison with an article published by another online news portal, Malaysiakini, on 4 December 2013 on the same event, the Malaysiakini article had used a stronger word ‘concluded’ as compared to the Online Article. The Second Plaintiff, Dr Ramasamy, confirmed that he did not find the article by Malaysiakini to be defamatory.
The learned JC also appeared to cast an adverse inference on the failure by the Plaintiffs to file any suits against Ganesan, the spokesman of the CCIC, who had made the statements against the Plaintiffs at the press conference. The JC considered the Second Plaintiff’s statement that he intends to file an action against Ganesan to be merely an “afterthought”.
Failure to seek verification
In response to the Plaintiffs’ contention that the Defendants had not sought confirmation or verification before publishing the words complained of, the JC opined that the failure to seek verification prior to publication is not fatal to a defence of responsible journalism as it is not a matter of law but a journalism practice. The JC reiterated that on the facts, the Defendants had only reported the truth of what transpired at the press conference and that there was no malice on their part in publishing the Online Article.
This decision is noteworthy as it appears to be the first reported Malaysian case which considered the issue of when an online article is considered to be published to a third party for the purposes of liability under the law of defamation. The High Court’s decision on this issue is in accord with the decisions of the English, Singapore and Australian courts which have held that for materials placed on the internet, the claimant bears the burden of proving that the words complained of were in fact read or seen by a third party (see Al Amoudi v Brisard and another [2006] EWHC 1062; Ng Koo Kay Benedict and Another v Zim Integrated Shipping Services Ltd [2010] SGHC 47 and Dow Jones & Company Inc v Gutnick [2002] HCA 56). The fact that the words complained of are uploaded on a website that is accessible to the public is insufficient to prove that the words were published to a third party.
The Plaintiffs have since filed an appeal to the Court of Appeal and the appeal is now pending hearing.
It is worth noting that on 3 February 2016, some four months after the High Court’s decision, the Court of Appeal delivered its decision in another defamation case, Tan Ah Hong v CTOS Data System Sdn Bhd (Civil Appeal No. W-02(NCVC)(W)-501-03/2014). It was held that the requirement for ‘publication’ was satisfied when the respondent intentionally uploaded the defamatory information on its database for access by third parties and that it did not matter whether a third party accessed the information by way of subscription only or by paying a fee.
The Court of Appeal’s decision in Tan Ah Hong appears to rely on Huth v Huth [1915] 3 KB 32 where the English Court of Appeal acknowledged that in certain instances the law takes judicial notice of the nature of a document, such as words written on a postcard, when it may be impossible to prove that any third party read it. However, the court in Huth held that such a presumption did not apply to a letter that is posted in an unsealed envelope. It does not appear that the more recent cases on the publication of materials on the internet delivered by the English, Singapore and Australian courts were argued before the Court of Appeal in Tan Ah Hong.
The finding with regard to publication in Tan Ah Hong is inconsistent with English, Singapore and Australian cases mentioned above on proving publication of materials uploaded on the internet. It would be interesting to see whether another Court of Appeal will follow the approach taken in Tan Ah Hong or in Lim Guan Eng.