by MH Law | October 4, 2024 | Case Study
Overview
Can a statement that is a "half-truth" be considered a defamatory false statement? The Federal Court examined the relevance of the common law concept of "half-truth" in Malaysian defamation law in the recent case of Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong [2024] 5 AMR 341.
The Federal Court ruled that a WhatsApp message sent by the Appellant, Seema Elizabeth Isoy, to a group of individuals stating that the Respondent, Tan Sri David Chiu Tat-Cheong, "had been arrested and charged" was deemed defamatory. This was because the Appellant intentionally failed to mention that the Respondent had been acquitted of the charge.
The Federal Court, in making this decision, clarified that it is not deviating from the established defamation laws in Malaysia and discussed the application of common law principles in relation to section 3(1) of the Civil Law Act 1956 and the case of Chong Chieng Jen v Government of State of Sarawak [2018] 8 AMR 317 (“Chong Chieng Jen”), where it reiterated the two-step process in defamation cases. The first step involves determining if the statement in question can be interpreted as defamatory (a legal issue), while the second step involves establishing whether the statement is indeed defamatory (a factual matter).
Brief Facts
Legal conflicts arose between the proprietors of Waldorf & Windsor Tower Serviced Apartments ("W&W") and the developer, Malaysia Land Properties Sdn Bhd ("Mayland"). The Appellant owns a unit in W&W and serves as a committee member of the W&W Management Corporation.
In a case brought by the W&W owners, Mayland was defeated, with both the High Court and Court of Appeal determining that Mayland had committed fraud and/or provided false information to the W&W owners regarding a shared area in W&W. Mayland's request for permission to appeal to the Federal Court was denied.
In a WhatsApp group for W&W unit owners, the Appellant informed that the Respondent, who is the founder and Chairman of Mayland, had been arrested and charged with conspiracy to falsify documents and plotting to defraud, similar to his father. The Appellant further claimed that Mayland had been found guilty of fraud and misrepresentation against W&W owners in various court instances. The Appellant encouraged the readers to search the names online for additional information.
In the lawsuit, the Respondent accused the Appellant of defamation, alleging that the message implied he was a criminal, deceitful, and unreliable, thereby damaging his reputation in the community. The Respondent sought RM1.5 million in special damages, as well as general and aggravated damages.
High Court Decision
The High Court's ruling was reversed on appeal by the Court of Appeal, which determined that the statement made by the Appellant was defamatory and showed malice by omitting the fact that the Respondent had been acquitted of the charges long before. Despite urging readers to seek more information via Google, the Court of Appeal concluded that the Appellant's statement was a partial truth and unfairly portrayed the Respondent. Given the establishment of malice, the Court of Appeal deemed the Appellant's defenses of qualified privilege and fair comment to be untenable.
The Respondent was awarded damages of RM100,000 by the Court of Appeal and a permanent injunction was granted to prevent the Appellant from publishing or disseminating the defamatory statement or similar harmful words about the Respondent.
Court of Appeal Decision
The High Court's ruling was reversed on appeal, with the Court of Appeal determining that the statement made was defamatory and that the Appellant acted maliciously by omitting the fact that the Respondent had been acquitted of the charges a long time ago. Despite urging readers to search for further details, the Court of Appeal concluded that the Appellant's statement was a partial truth and unfair to the Respondent. Given the establishment of malice, the Court of Appeal found that the Appellant's defenses of qualified privilege and fair comment were not viable.
The Respondent was awarded damages of RM100,000 by the Court of Appeal, along with a permanent injunction prohibiting the Appellant from publishing or disseminating the defamatory statement or any similar disparaging remarks about the Respondent.
Federal Court Decision
The Appellant was given permission to appeal to the Federal Court based on the following questions (summarized):
Question 1 : Can Malaysian courts use foreign common law to determine if a statement is defamatory based on the "half-truth" doctrine, despite the restriction in section 3 of the Civil Law Act 1956, which prohibits such reliance when local statutory provisions offer a remedy, as ruled in the case of Chong Chieng Jen?
Question 2 : If the initial question is answered positively, do sections 8 and 9 of the Defamation Act 1957 adequately offer a defense for proving the truth of a statement and for making a fair comment based on true facts?
Question 3 : If the second question is answered affirmatively, can a statement that is "substantially true" or “true” about criminal charges against the plaintiff, but fails to mention that he has been acquitted, potentially undermine the defenses provided by section 8 (justification) or section 9 (fair comment) of the Defamation Act 1957?
Question 4 : Can the concept of a "half-truth" be used in the initial assessment stage following the two-step procedure detailed in Chong Chieng Jen?
At the start, the Federal Court explained the established criteria for identifying defamatory statements: assessing their natural and typical interpretation, whether they diminish the plaintiff's reputation in the eyes of a reasonable person, or suggest dishonorable behavior or a lack of integrity, thereby subjecting the plaintiff to disdain, contempt, or mockery. The natural and typical interpretation should be analyzed within the complete context, considering any inferences or suggestions that may arise from the language used.
In the case of Sutherland & Ors v Stopes [1925] AC 47, the Federal Court made reference to a statement by the House of Lords clarifying that the "absolute rule" declaring a case concluded when a defamatory statement can be proven true is subject to certain conditions. One of these conditions is that the truth should not be presented without providing full context or circumstances that could alter the defamatory nature of the statement when considered in isolation.
In the current case, the Federal Court determined that while the accusation against the Respondent was accurate, the intentional omission of the fact that the Respondent had been acquitted tarnished his reputation, exposing him to ridicule, disapproval, and scorn. By not disclosing the complete truth, the statement in question took on a different meaning and impact. Failing to mention the Respondent's acquittal rendered the partially true statement essentially false. Moreover, the Federal Court emphasized that suggesting the reader search for additional details online did not mitigate the defamatory content of the statement.
The Court clarified that, despite the Appellant's argument, the ruling in Chong Chieng Jen does not prevent a partially true statement from being taken into account when assessing the defamatory character of a statement in question. The Court then followed the two-step procedure established in that case to assess whether the message shared by the Appellant in the WhatsApp group was defamatory in this particular instance.
When determining if a statement can be considered defamatory, the initial step involves evaluating the wording and structure of the statement as a whole to understand its ordinary and natural meaning, whether directly, indirectly, or through implication or inference. Following this assessment and based on the previously discussed reasons, the Federal Court concluded that the partially true statement created a misleading impression that harmed the reputation of the Respondent, thus meeting the legal criteria for defamation.
Regarding the second step of determining whether the statement is defamatory, the Federal Court concurred with the Court of Appeal's assessment that the statement, when considered in its entirety and in its usual sense, had the effect of damaging the reputation and standing of the Respondent, as well as inciting negative opinions from members of the WhatsApp group against the Respondent. Therefore, the statement was indeed defamatory.
While emphasizing that it was not straying from the established defamation laws in Malaysia, the Federal Court clarified that it was drawing on foreign common law regarding the notion of a half-truth statement. The Court explained that the Defamation Act 1957 does not address the concept of half-truth statements, thus making English common law principles relevant in Malaysia as stipulated in section 3(1) of the Civil Law Act 1956.
After determining that the statement in question was defamatory towards the Respondent, the Federal Court proceeded to examine the defenses put forth by the Appellant, including justification, qualified privilege, and fair comment.
The Federal Court believes that the Appellant's intentional publication of a misleading statement, which creates a negative perception of an individual and relies on readers to investigate further, is a malicious act. The Court asserts that disclosing the complete truth would significantly alter the interpretation of the statement by its audience.
The Federal Court concurred with the Court of Appeal's rationale and decision that the Appellant's WhatsApp message was motivated by malice, given that the Appellant knew well that the Respondent had been cleared of the charges and thus made her defense of fair comment under section 9 of the Defamation Act 1957 and qualified privilege (S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173, Supreme Court) unsustainable.
Furthermore, the Court ruled that the Appellant's attempt to justify their actions under section 8 of the Defamation Act 1957 was unsuccessful due to two main reasons. Firstly, the statement in question was not deemed to be true or substantially true, as it created a misleading impression for the readers. Secondly, the condition stipulated in section 8, that no harm should be inflicted on the plaintiff's reputation, was not met as the statement had indeed damaged the Respondent's reputation.
To sum up, the Federal Court determined that the Appellant's appeal lacked merit and upheld the Court of Appeal's ruling to overturn the High Court's decision. Additionally, the Court concluded that there was no need to address the leave questions raised in the appeal.
Key Takeaways
This case underscores the significance of fairness in making statements and the repercussions of omitting facts that could turn a partially true statement into a false and defamatory one. It also confirms the use of the common law principle of "half-truth" in Malaysian legal practice, as outlined in section 3(1) of the Civil Law Act 1956, given the absence of clear guidelines in the Defamation Act 1957 on determining whether a statement that is partly true can constitute defamation.
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