Ng Ze Xuan v 1. ) Tan Sing How 2. ) Lai Phui Khae 3. ) Kalysta Sdn. Bhd.

Case Significance

Applies the elements of defamation and the defences of justification, fair comment and qualified privilege to statements published on messaging and video-conferencing platforms, confirming that malice defeats qualified privilege.

This High Court decision concerns a claim in defamation arising from messages published on social-media and messaging platforms. The plaintiff, a high-performing sales representative in a direct-sales organisation, brought proceedings over a number of defamatory statements published by the defendants across several publications, including messages in large sales-representative groups on a messaging application and statements made at an online meeting, following the termination of her role. She sought injunctive relief and general, aggravated and exemplary damages, while the defendants counterclaimed for the return of commissions and bonuses. The Court worked through the elements of defamation: whether the statements were capable of defaming the plaintiff as a matter of law, whether they referred to and reflected on her reputation, and whether they had been published to third persons. It found that the statements, which portrayed the plaintiff as dishonest and untrustworthy, were defamatory and had been published to a substantial audience. The Court then considered the defences raised. It rejected justification, finding the statements were not shown to be true or substantially true; rejected fair comment, the statements being assertions of fact rather than comment on matters of public interest; and rejected qualified privilege, which in any event would be defeated by malice. It found the defendants' witnesses contradictory and evasive and their evidence unreliable. The Court entered judgment for the plaintiff, awarded damages and the other relief sought, dismissed the defendants' counterclaim, and ordered the defendants to pay costs. The judgment is significant for its application of the elements of defamation and the defences of justification, fair comment and qualified privilege to statements published on messaging and video-conferencing platforms. The decision is a timely application of the law of defamation to messages circulated within closed messaging groups and at online meetings, confirming that publication to a large private audience is no less actionable than publication in traditional media, and that the ordinary defences remain available only where they are properly made out on the evidence.