INTRODUCTION

What is defamation?

The tort of defamation exists in order to protect reputations. In the case of natural persons, the law presumes that the individual plaintiff has a reputation capable of being protected, unless proven otherwise (e.g., when the defence of justification is raised and proven by the defendant). In all other cases, the existence of such a reputation is something that must be proven.

What / who is a non-natural person and can they sue for defamation?

In answering the question above, this article will dissect the findings in the recent Federal Court case of Lim Lip Eng v Ong Ka Chuan [2022] MLJU 762 (the “Lim Lip Eng” case), wherein in brief, the Federal Court, in answering the sole question of law raised, “whether a political party can maintain a suit for defamation”, interestingly ventured into discussions of other types of non-natural persons and whether they may sue for defamation, including:

• Political parties;
• Societies;
• Private companies; and
• Government.

For ease of reference, the parties in Lim Lip Eng were as follows:

Political Parties

As prefaced above, the sole question of law raised for the consideration of the Federal Court in Lim Lip Eng was “whether a political party can maintain a suit for defamation”. This question was answered in the negative.

In its judgment, the Federal Court concluded at the outset that a political party, being a registered society pursuant to the Societies Act 1966, is not a separate legal entity which can sue and be sued in its own name. Consequently, it has no existence separate from its members, and cannot be said to have any reputation of its own to maintain any cause of action for defamation.

The absence of this essential element was held to be sufficient to bar the respondent’s (a political party) claim for defamation from proceeding any further, and the claim was thus struck out.

Interestingly, notwithstanding the conclusion at the outset, the Federal Court proceeded to also discuss the application of public interest considerations in the context of defamation suits brought by political parties. In this regard, the Court had observed, amongst others, that “… a political party must not be thinned-skinned and must always be open to public criticism“. This is a departure from its (the Federal Court) previously ambiguous position and marks a fascinating twist of events in the development of defamation law in Malaysia

Societies

Although the sole question posed in Lim Lip Eng was originally confined to whether political parties could sue for defamation, the Federal Court’s conclusion, appears to also extend to other unincorporated societies registered under the Societies Act 1966.

A similar question of whether a society (albeit not a political party) had sufficient personality and reputation to sue for defamation, had previously been asked and answered in the affirmative, in the High Court case of Ng Yeow Song v Ketua Pengarang Guang Ming Daily & Ors [2002] 7 MLJ 357 (the “Ng Yeow Song” case).

Although the Ng Yeow Song case was briefly mentioned in Lim Lip Eng as being one of the cases being relied upon by the Respondent, its findings were not addressed. That said, based on a review of the conclusion in Lim Lip Eng, other registered societies intending to sue for defamation post-Lim Lip Eng may find themselves facing an uphill battle.

Private Companies

Finally, also briefly discussed in the case of Lim Lip Eng was the existence of trading reputations in the context of companies, and how companies may sue for defamation to protect their trading reputations.

Although companies may initiate actions grounded in defamation, the elements which have to be pleaded and proved by the plaintiff company are more onerous in contrast to defamation actions brought by natural persons:

• The company must plead and prove that the words complained of were calculated to and/or had injuriously affected the company in the way of its trading (business) reputation, though it need not prove special damages.
• The statement complained of must reflect upon the company itself, and not only upon its members or officials. For example:

There have been inconsistencies in the way these additional requirements were previously applied. For example, the additional considerations above were not discussed in the earlier Federal Court case of Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 MLJ 720, whereby the plaintiff was a company.

Notwithstanding, it is hoped that the decision in Lim Lip Eng, which makes reference to the additional requirements in respect of defamation brought by companies, will add clarity and consistency in the practical application of these additional requirements.

Government

The question of whether the state government, or a department or organ of that department, has a right to sue for defamation, was answered in the affirmative by our Federal Court in the case of Chong Chieng Jen v Government of State of Sarawak & Anor [2018] 8 AMR 317 (the “Chong Chieng Jen” case), decided 4 years prior to Lim Lip Eng.

In brief, in the case of Chong Chieng Jen, the Federal Court declined to apply English precedents (whereby local authorities and local government bodies cannot sue for defamation), and held, amongst others, that pursuant to s. 3 of the Government Proceedings Act 359, the government has a statutory right to sue in civil proceedings, and this was not subject to the common law of England.

The Appellant in Lim Lip Eng, perhaps worried that the decision of Chong Chien Jen would negatively affect his case, had argued that Chong Chien Jen was wrongly decided and that both the government as well as political parties do not have any cause of action in defamation.

The Federal Court in Lim Lip Eng rejected that argument and held, amongst others, that Chong Chien Jien remains to be good law.

CONCLUSION

Our general observation is that defamation law in Malaysia is progressively getting clearer – which will hopefully save the Court’s time in dealing with frivolous defamation claims which do not meet the requirements. However, despite the recent case of Lim Lip Eng, there is still an element of uncertainty surrounding private companies and registered societies in general.

In addition, whilst it is now established that a political party is not able to sue for defamation, this restriction is not applicable to a governmental entity. It is therefore important to be mindful of what you post on social media to avoid unnecessary exposure.