1. ) ROMLE BIN HASSAN 2. ) KOPERASI GERAKAN DAYA WAWASAN KAMPUNG PAYA GURING PERLIS BERHAD v MUHAMMAD FIRDAUS BIN ZULKEFLI

Case Significance

Illustrates that a defamation claim fails where the claimant does not adduce evidence to prove reputational harm and the other elements of the tort, and that an unexplained failure to call material witnesses may be held against the claimant.

This High Court decision at Kangar, Perlis, concerns a defamation claim brought by an individual and a registered cooperative over statements published on the defendant's Facebook account, and the evidential burden a defamation claimant bears. The plaintiffs — the first being an individual and the second a registered cooperative of which he was associated as chairman — alleged that two statements posted by the defendant on Facebook on 2 November 2021 were defamatory of them. In substance the impugned statements accused the first plaintiff of cowardice and of misusing his position as chairman of the cooperative, tying the criticism to a dispute over land in front of an elderly resident's home. The Court's reasoning turned on the plaintiffs' failure to discharge their burden of proof. In particular, the plaintiffs did not call any representative of the relevant authorities that had been referred to in order to substantiate their assertions that the second plaintiff's reputation had been tarnished and that the first plaintiff had suffered distress as a result of the defendant's statements. The Court found that this failure indicated that the plaintiffs had sought to withhold, restrain and conceal an important and material fact from being adduced at trial — a fact which, if produced, would not have benefited or favoured their case. Because the plaintiffs had not proved the essential elements of their claim, the Court dismissed the whole of their claim against the defendant, with costs of RM5,000 subject to allocatur. The decision illustrates that a defamation claim will fail where the claimant does not adduce the evidence necessary to establish reputational harm and the other elements of the tort, and that an unexplained failure to call material witnesses may be held against the claimant. The Court's approach reinforces that the tort of defamation is not made out by the fact of an unflattering publication alone, and that a claimant who alleges damage to reputation must call the evidence capable of proving that damage, failing which the claim cannot succeed however strongly the claimant feels aggrieved.