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
 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.
THE DECISION OF THE HIGH COURT
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
 1 CLJ 152, explained the procedure that applied when the defence of qualified privilege is pleaded by a defendant:-