How much to report? The danger associated with reporting Court proceedings in Media

Joceline Tan Poh Choo & Ors v V Muthusamy [2003] 3 CLJ 705

 


This recent Court of Appeal decision highlights a danger associated with the reporting of court proceedings in the newspapers.

 

On 12 September 1991, the New Straits Times carried a report written by Ms. Joceline Tan (first appellant) under the caption “Lawyer and trader conspired to cheat me, claims driver”. Alongside the report was a photograph of Mr. V Muthusamy (the respondent). The report stated inter alia that Mr. Muthusamy allegedly conspired to cheat his illiterate client, Mr. G. Paramasivam of a piece of property in Kulim, Kedah and purported to cover the details of a court trial that took place on 11 September 1991 in the Penang High Court of an action brought by Mr. Paramasivam against inter alia the respondent in respect of the transfer of the said land.

 

Pursuant to the newspaper report, the respondent filed an action against the first appellant as the author of the report, the second appellant as the editor, and the third appellant as the proprietor and publisher of the newspaper. The respondent sought compensatory and aggravated damages and an injunction to restrain the appellants from printing, circulating, distributing or otherwise publishing the newspaper report or similar reports. The respondent won at the High Court and was awarded RM300,000 as general damages and RM50,000 as aggravated damages. The appellants appealed.

 

One of the issues before the Court of Appeal was whether the appellants had a complete defence of absolute privilege under sec. 11(1) of the Defamation Act 1957 . Section 11 provides that:

 

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 and finding of any such court shall be absolutely privileged, and any fair and bona fide comment thereon shall be protected, although such judgment, sentence or finding be subsequently reversed, quashed or varied, unless at the time of the publication of such report or comment the defendant who claims the protection afforded by this section knew or ought to have known of such reversal, quashing or variation.

 

In support of their defence, the appellants had contended that (i) the newspaper report was of a judicial proceeding in the Penang High Court; (ii) in the statement of claim filed by Mr. Paramasivam, it was pleaded that the respondent had by fraud and misrepresentation induced him to inter alia, part with his beneficial ownership of the land in breach of contract and contrary to the respondent’s professional ethics; (iii) these allegations were referred to by the learned trial judge and Mr. Paramasivam’s counsel at the trial; and (iv) the newspaper report contained these allegations as well as Mr. Paramasivam’s evidence given at the trial which was recorded by the learned trial judge in the official notes of evidence.

 

As the crux of the appellants’ defence therefore turned upon the applicability of sec. 11(1) of the Defamation Act, the Court of Appeal had to determine whether they had met the following criteria set out in the provision to enable them to claim the statutory protection: whether firstly the newspaper report was published contemporaneously with the proceedings; and secondly whether the newspaper report could be regarded as a fair and accurate report of proceedings publicly heard before a court.

 

The contemporaneity of the report was accepted by the Court of Appeal as it was published a day after the proceedings on 11 September 1991. The more pertinent issue was whether the report was a fair and accurate report of the court proceeding. The question here was whether the report should have been confined specifically to what was publicly heard in open court and not to matters stated in documents filed in court that were not read in open court. This was because the respondent contended that neither the witness (Mr. Paramasivam) nor the learned trial judge or learned counsel in the Penang High Court action made the defamatory statements mentioned in the report.

 

The first appellant admitted that ‘the article was based on evidence given in open court as well as the statement of claim’. However the learned trial judge found no evidence of this. Instead it was held by the learned trial judge that the newspaper report was derived from the amended statement of claim filed in court which was made available to the first appellant by Mr. Paramasivam’s counsel.

 

The Court of Appeal agreed with the findings of the learned trial judge and affirmed the decision of the High Court on liability “as the publication by the appellants of part of the amended statement of claim which has not been read out in open court is not within the scope of the protection given by section 11(1) of the Act.” As such, the newspaper report could not be considered a fair and accurate report of a court proceeding as the statements in the report were not made or read out during the course of the actual proceeding.

 

The case therefore makes it absolutely clear that the statutory protection in section 11(1) of the Defamation Act will not be available to a defendant if it publishes the contents of pleadings, affidavits and other papers filed in civil proceedings, which are not read out in open court. The reason for this distinction is stated in paragraph 13.44 of Gatley which states:

 

It would be carrying privilege further than we feel prepared to carry it, to say that, by the easy means of entitling and filing a statement of claim in a cause, a sufficient foundation would be laid for scattering any libel broadcast with impunity.

 

In the English case of Stern v Piper [1996] 2 All ER 385 Hirst LJ said at page 394 of the report that:

 

However, I think it is significant that privilege only protects reports of proceeding taking place in open court, and that its foundation is that those proceedings took place in public so that the public in general should have access to fair and accurate reports thereof (see Webb v Times Publishing Co. Ltd [1960] 2 All ER 789…). This is a consideration of public policy, and does not extend to court documents which have not been brought into the public arena.

 

Joceline Tan Poh Choo’s Case is illustrative of the importance of ensuring that only words uttered in the course of court proceedings are reported in the media. “The fact that the public is bound to become aware of the contents of the documents at the trial does not justify their prior dissemination on the grounds of public interest” (see paragraph 13.44 of Gatley). The media is therefore advised to take the necessary precautions to report only what was said in open court and not otherwise, lest they overstep the boundary of the statutory protection afforded to them under section 11(1) of the Defamation Act.

 

The case also serves as a warning to the media to reconsider its practice, if ever, of obtaining copies of relevant cause papers filed in court from a litigant, for the purpose of publicising the case even before it has been called for trial or heard in open court.

 

(On the issue of quantum of damages, it should be noted that the Court of Appeal reduced the award for general damages from RM300,000 to RM100,000 in the light of inter alia the current downward trend in awarding damages for libel suits in the country. The appellate court also set aside the award of RM50,000 for aggravated damages as it found no evidence to support it.)

 

 

By Tan Joon Ho ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 

 
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