DATIN PADUKA CHE ASMAH IBRAHIM v Kamarul Zaman Bin Haji Yusoff

Case Significance

Applies the objective "ordinary reasonable reader" test to reverse a defamation finding, holding the impugned words not defamatory in their context and, alternatively, that the pleaded sting was substantially true and fair comment.

This High Court (Shah Alam) decision is a civil appeal in a defamation action. At first instance the Sessions Court, after a full trial, had found the appellant (the defendant below) liable to the respondent (the plaintiff below) for defamation, and had ordered the defendant to pay global damages of RM100,000, to issue a public apology and an admission that the impugned statements were false, and to be restrained by injunction from repeating the libel, with costs of RM30,000. Referring to the parties as they were in the court below, the High Court allowed the appeal, set aside the judgment of the Sessions Court, and ordered costs at the High Court and below in the sum of RM30,000 for the defendant.

On the undisputed facts, the plaintiff was, at the material time, a senior lecturer at Universiti Utara Malaysia, while the defendant was the chief executive of a welfare foundation. The central questions were whether the impugned words were defamatory or capable of bearing the pleaded defamatory imputations, and whether the ordinary reasonable person was likely to understand the words in a defamatory sense in the circumstances of publication. The defences pleaded included justification and fair comment.

The court held that the impugned words were not likely to have been understood in a defamatory way by the ordinary reasonable reader when viewed objectively in the circumstances of publication. It observed that a court must tread a fine line between free speech and libel, a balance easily tilted by subjective sensitivities as to what is offensive. The court added that, even if it were wrong on that point, the pleaded sting — that the plaintiff repeatedly defames others — was in substance true and, or alternatively, fair comment. The judgment is a useful illustration of the objective test for defamatory meaning and of the interaction between the defences of justification and fair comment.