A Fair and Accurate Report?

Federal Court rules on what constitutes a “fair and accurate” report of legal proceedings

 


 

INTRODUCTION

The inaugural issue of LEGAL INSIGHTS (Issue 1/2004) carried a report on the Court of Appeal’s decision in Joceline Tan Poh Choo & Ors v. V Muthusamy [2003] 3 CLJ 705 (“Joceline”), a libel action. This decision has been overturned by the Federal Court. A summary of these decisions follows.

 

 

BRIEF FACTS

The Joceline case arose out of an article in the New Straits Times (“NST”) which reported on a case in the Penang High Court (“the conspiracy action”).

 

The article stated that two individuals, including the respondent, had conspired to defraud and cheat the plaintiff in the conspiracy action of his land. The respondent - a lawyer and former State Assemblyman - commenced legal proceedings against the reporter, the editor and the publisher of NST for libel. He alleged that the headline and parts of the article meant and were understood to mean that he was a cheat and a dishonest person and not fit to practise law and to hold public office.

 

The appellants in Joceline averred in their defence that the article was based on evidence given in open court as well as the amended statement of claim filed in the conspiracy action. They raised the statutory defence of sec. 11(1) of the Defamation Act, 1957 (“the Act”), the relevant parts of which reads as follows:

 

A fair and accurate and contemporaneous report of proceedings publicly heard before any court lawfully exercising judicial authority within Malaysia and of the judgment, sentence or finding of any such court shall be absolutely privileged, and any fair and bona fide comment thereon shall be protected...” [Emphasis added.]

 

 

DECISIONS OF THE HIGH COURT AND THE COURT OF APPEAL

The High Court found that the words in the article were defamatory and held that the appellants were not entitled to rely on sec. 11(1) of the Act as part of the report was based on the amended statement of claim and not what had taken place in the open court. The High Court awarded general damages and aggravated damages to the respondent.

 

The Court of Appeal upheld the High Court’s decision but reduced the amount of general damages and set aside the award for aggravated damages. It affirmed that the publication of extracts of pleadings which had not been read out in open court was not protected by absolute privilege under sec. 11(1) of the Act.

 

 

DECISION OF THE FEDERAL COURT

The appellants, dissatisfied with the Court of Appeal’s decision, appealed to the Federal Court on the following question:-

 

Whether a fair and accurate report of the proceedings publicly heard before the High Court may include an extract of the pleadings and if so, whether the pleadings should first be read out in the course of the proceedings before publication can be made of the pleadings.

 

The Federal Court, by a unanimous decision, reversed the concurrent findings of law of the Court of Appeal and the High Court. It held that “the essence of sec. 11(1) of the Act is whether the report published is a fair and accurate and contemporaneous report of the proceedings”. The Court further held that a report that satisfies these three criteria enjoys absolute privilege against an action for defamation.

 

The apex court ruled that a report of the proceedings publicly heard before the High Court may include an extract of the pleadings and it is not necessary that the pleadings should first be read out in open court before they can be published. In other words, the Court answered the first part of the question referred to them in the affirmative and the second part, in the negative.

 

 

COMMENTARY

In the course of its judgment, the Federal Court reviewed a number of Malaysian, English, Scottish and Canadian cases. It also referred to leading academic works, including Carter-Ruck on Libel and Slander and Gatley on Libel and Slander.

 

Some of the authorities cited, such as Stern v. Piper & Ors [1997] QB 123 and Gatley, were those relied upon by the Court of Appeal. Others, such as Cowie v. Robinson [1928] 3 DLR 77, Cunningham v. The Scotsman Publications Ltd [1987] SLT 698, Home Office v. Harman [1982] 1 All ER 532 and Harper v. Provincial Newspapers Ltd [1937] SLT 462 support the Federal Court’s determination that a report may include extracts of pleadings that are not read out in open court.

 

Although the Court arrived at its decision after “(h)aving considered the authorities and the arguments”, their Lordships have done little more than re-iterate the words set out in sec. 11(1). Regrettably, the learned judges did not provide the reasons for their preference of one line of authorities over the other or distinguish the authorities relied on by the Court of Appeal.

 

 

SIGNIFICANCE OF THE CASE

The Federal Court’s decision in Joceline is of significance to the media who publish reports on court proceedings. It lays down unequivocally (without explaining why) the position that a report on court proceedings, publicly heard, enjoys absolute privilege from defamation actions under sec. 11(1) of the Act, if it is “a fair and accurate and contemporaneous report of the proceedings”. The additional requirement postulated by the Court of Appeal that the pleadings included in the report must have also been read out in open court is now irrelevant.

 

 

TREVOR JASON MARK PADASIAN ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 

 
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