Defamation law turned on its head
MGG PillaiPublished: Feb 26, 2001 5:19 AM | Updated: Jan 29, 2008 6:21 PM
The de facto law minister, Dr Rais Yatim, is worried about Malaysia's trend to high defamation damages. He calls for studies to be done by the Attorney-General's Chambers, the judiciary and the Bar with a view to get the cabinet to cap it.
He told Mingguan Malaysia yesterday he does not question the RM100 million damages awarded to a labour recruitment agent against TV3 when it failed to enter an appearance, but that the trend disturbs.
(Badrul Zaman P.S. Md Zakariah is suing TV3 and Radio and Televisyen Malaysia for a news broadcast which allegedly depicted visuals of him in handcuffs while he was in remand for allegedly not operating a genuine employment agency.)
He thinks it is too high, but does not address what caused it, why settled defamation principles are thrown to the winds so that the law is invoked to threaten and frighten any who has a different view. Unless he takes steps to bring the law back on the rails, this would not go away.
What began as an attempt by businessmen close to those in power to prevent an intrusive look into their faltering businesses has now become an easy means of making the money travel agents and traders could not in their normal course of business. Most recent defamation damages exceed what they could reasonably earn in a lifetime. One man wants nothing short of RM1.3 billion.
It came about because in one case, the plaintiff's lawyer, as alleged in an sworn affidavit, helped to write a judgment to set the trend, by quantifying general damages. The Court of Appeal and the Federal Court has affirmed this faulty application of the law of defamation and it is now law. The Common Law principle of 'he who attests, prove' does not apply in defamation, after that case.
In Common Law practice, general damages is at the discretion of the judge, but if the plaintiff wants to be compensated for actual loss, he must plead special damages which must be pleaded and proven. But the trend here is to quantify general damages, which need not, and the courts conveniently gives what is asked for.
Case exposed
As a result more defamation actions have been filed in the last seven years than in the previous hundred. It is now common practice for cabinet ministers, mentris besar, business men, petty traders, injured clerks, men and women of doubtful reputation and politicians, to demand huge sums and getting it.
It restricts free speech. It ensures a cowed press. It makes people frightened of their own words. Society is demeaned as a result. The frightening practice these days is to use the threat of huge damages to force defendants to settle.
In one high profile case, this threat was enough for a re-insurance company to settle for RM12 million with RM5 million in costs. The High Court, in sealing the settlement, felt the announcement of the settlement would not be popular; so it ordered the terms to be kept secret.One of those on whose behalf the re-insurance company settled was ordered jailed for expressing his disgust. That is on appeal.
That would have remained a secret but that the terms of this settlement became the subject of a legal action in the United Kingdom, and the details of how and how much was paid was revealed in pleadings. These huge defamation settlements only affected those close to the establishment. But when it spreads down the line, and makes a mockery of the procedure, the government had to step in. Which is what Rais is so nervous about it.
For the law of defamation is used to threaten, and since courts tend to presume that when a man sues, he has been libeled, and it is only the quantum of damages that remain to be awarded, the frightening irrelevance of huge defamation damages would continue. If that is not stopped, no amount of legal and political measures would change this trend.
Vested interest
TV3 did not file a defence, and the judgment of RM100 million was in default. The assistant registrar gave the labour recruitment agent what he asked for, did not hold a separate hearing as she must to assess damages, and is not the end of the matter. TV3 can appeal against the award, and ask for a hearing. One hopes that its lawyers would make a stand on it, and force the issue out into the open.
Rais should accept the judiciary has sufficient weapons at its disposal to correct such aberrations as quantifying general damages. It would. The judiciary's ancient regime had a vested interest to encourage high defamation damages without proof. That can be easily be stopped.
The law of defamation is turned on its head in Malaysia. He wants not a comparative study of defamation damages in other Commonwealth jurisdictions, but to ensure we do. We do not now.
And take steps to put that right. He should do this even if he was described by the former chief justice as the "minister of law in charge of tables and chairs".
He told Mingguan Malaysia yesterday he does not question the RM100 million damages awarded to a labour recruitment agent against TV3 when it failed to enter an appearance, but that the trend disturbs.
(Badrul Zaman P.S. Md Zakariah is suing TV3 and Radio and Televisyen Malaysia for a news broadcast which allegedly depicted visuals of him in handcuffs while he was in remand for allegedly not operating a genuine employment agency.)
He thinks it is too high, but does not address what caused it, why settled defamation principles are thrown to the winds so that the law is invoked to threaten and frighten any who has a different view. Unless he takes steps to bring the law back on the rails, this would not go away.
What began as an attempt by businessmen close to those in power to prevent an intrusive look into their faltering businesses has now become an easy means of making the money travel agents and traders could not in their normal course of business. Most recent defamation damages exceed what they could reasonably earn in a lifetime. One man wants nothing short of RM1.3 billion.
It came about because in one case, the plaintiff's lawyer, as alleged in an sworn affidavit, helped to write a judgment to set the trend, by quantifying general damages. The Court of Appeal and the Federal Court has affirmed this faulty application of the law of defamation and it is now law. The Common Law principle of 'he who attests, prove' does not apply in defamation, after that case.
In Common Law practice, general damages is at the discretion of the judge, but if the plaintiff wants to be compensated for actual loss, he must plead special damages which must be pleaded and proven. But the trend here is to quantify general damages, which need not, and the courts conveniently gives what is asked for.
Case exposed
As a result more defamation actions have been filed in the last seven years than in the previous hundred. It is now common practice for cabinet ministers, mentris besar, business men, petty traders, injured clerks, men and women of doubtful reputation and politicians, to demand huge sums and getting it.
It restricts free speech. It ensures a cowed press. It makes people frightened of their own words. Society is demeaned as a result. The frightening practice these days is to use the threat of huge damages to force defendants to settle.
In one high profile case, this threat was enough for a re-insurance company to settle for RM12 million with RM5 million in costs. The High Court, in sealing the settlement, felt the announcement of the settlement would not be popular; so it ordered the terms to be kept secret.One of those on whose behalf the re-insurance company settled was ordered jailed for expressing his disgust. That is on appeal.
That would have remained a secret but that the terms of this settlement became the subject of a legal action in the United Kingdom, and the details of how and how much was paid was revealed in pleadings. These huge defamation settlements only affected those close to the establishment. But when it spreads down the line, and makes a mockery of the procedure, the government had to step in. Which is what Rais is so nervous about it.
For the law of defamation is used to threaten, and since courts tend to presume that when a man sues, he has been libeled, and it is only the quantum of damages that remain to be awarded, the frightening irrelevance of huge defamation damages would continue. If that is not stopped, no amount of legal and political measures would change this trend.
Vested interest
TV3 did not file a defence, and the judgment of RM100 million was in default. The assistant registrar gave the labour recruitment agent what he asked for, did not hold a separate hearing as she must to assess damages, and is not the end of the matter. TV3 can appeal against the award, and ask for a hearing. One hopes that its lawyers would make a stand on it, and force the issue out into the open.
Rais should accept the judiciary has sufficient weapons at its disposal to correct such aberrations as quantifying general damages. It would. The judiciary's ancient regime had a vested interest to encourage high defamation damages without proof. That can be easily be stopped.
The law of defamation is turned on its head in Malaysia. He wants not a comparative study of defamation damages in other Commonwealth jurisdictions, but to ensure we do. We do not now.
And take steps to put that right. He should do this even if he was described by the former chief justice as the "minister of law in charge of tables and chairs".
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