Award of Damages in Defamation Actions

The recent Federal Court decision in Chong Chieng Jen v Government of State of Sarawak & Anor has sparked robust discourse on the subject of civil defamation actions. As such, it is imperative for the public to be aware of the likely range of the monetary reliefs that the Court may award in the event a Plaintiff is successful in a defamation action.

The main relief sought by a Plaintiff in bringing a civil action for defamation is monetary compensation, also known as damages. This is apparent from the numerous headlines in the newspapers about some personality or public figures suing for millions of ringgit for an alleged defamatory statement.

It is imperative for the public to be aware of the likely range of monetary reliefs... in a defamation action.

It should be noted that the Court of Appeal in Chin Choon v Chua Jui Meng [2005] 2 CLJ 569 has held that an award for damages in cases of defamation will be a global sum, with no demarcation between aggravated, exemplary and/or general damages.

The important question will then be, “How would the courts decide on the amount of damages to be awarded?”

In determining the quantum of damages to be awarded, the Courts will consider, amongst others, the following factors[1]:-

1. The gravity of the libel;
2. The mode and extent of publication;
3. The nature of the libel;
4. The plaintiff’s position and standing in society;
5. Evidence that the defendants received some sort of benefit or advantage from the libel;
6. The absence or refusal of retraction or apology; and
7. The conduct of the defendant(s) from the time the libel was published down to the moment of the verdict.

In recent years (approximately 2014 to 2018), awards of damages for defamation cases are seen to range from around RM100,000 to RM400,000. Specific examples of such cases are as follows:

1. In the case of Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] MLJU 34, the Court of Appeal awarded RM150,000 as general damages for the defamatory statements. A basis of the award was the fact that the Appellant was a company. To that end, the Court of Appeal held that a company can only recover general damages, and the value of such an award would be dependent on any proof of financial losses.
2. In the case of Lim Guan Eng v New Straits Times Press (M) Bhd [2017] 9 MLJ 622, the High Court awarded the plaintiff RM300,000 as general and aggravated damages. A basis for the award was the high social standing of the plaintiff, the severe gravity and nature of the bribery charges against the plaintiff, and the wide circulation of the impugned statements.
3. In the case of Dato' Seri Anwar bin Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 2 MLJ 492, the High Court awarded the plaintiff RM100,000 as compensatory damages. The Court held that the plaintiff had already achieved public vindication of the truth via a public declaration by the defendant. However, since this vindication came late, the plaintiff had to be compensated. There was no evidence that the plaintiff had experienced any economic harm. Therefore, there was no rationale for awarding substantial damages.
4. In the case of Dato’ Seri Anwar bin Ibrahim v Khairy Jamaluddin [2017] MLJU 1495, the High Court awarded RM150,000.00 as compensatory damages to the plaintiff. The Court dismissed the plaintiff’s claims for aggravated damages, in part, as the defamatory words were uttered in the climate leading up to a general election, and to a crowd well-versed in the realities of politics. The defendant’s appeal on the same was subsequently dismissed.
5. In the case of Nurul Izzah binti Anwar v Tan Sri Khalid bin Abu Bakar & Anor [2018] MLJU 472, the High Court awarded the plaintiff damages of RM400,000.00 from the 1st defendant (Tan Sri Khalid bin Abu Bakar) and RM600,000.00 from the 2nd defendant (Dato Sri Ismail Sabri Yaakob). The high sums of damages awarded reflected the gravity of the defamatory statements made, and the fact that these statements were made with express malice. The sum payable by the 1st defendant was lower than that of the 2nd defendant, as the 1st defendant had uttered the defamatory statements in a privileged occasion, despite having done so with malice.

It should be also be noted that in Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato Vincent Tan Chee Yioun [2000] 4 MLJ 77, the Federal Court upheld the cumulative award of RM7,000,000.00 as general and aggravated damages payable by the defendants to the plaintiff. To-date, this is the highest award of damages for defamation that the Malaysian courts have awarded.

The Federal Court held that the high awards of general damages were justified on the basis of certain defendants aggravating the libel, by insisting on the truth of the defamatory statements. It was additionally held that no apology, retraction or withdrawal can ever be guaranteed to completely undo the harm of the defamatory statements, or hurt the same has caused.

The trend for the quantum of damages awarded in recent defamation actions are as follows:-

Table 1

Table 2

Table 3

From the cases above, it is evident that the quantum of damages awarded in each case differs based on the specific facts of said case. Therefore, individuals or company that wish to sue for defamation should note that any award of damages will be based on the factors above.

The quantum of damages awarded in each case differs based on the specific facts of [the] said case

Normal individuals must also take note that the mere fact that if a certain public figure brings a defamation suit for RM100 million, it does not mean that said public figure will be entitled to RM100 million in the event they are successful in the claim.

As can clearly be seen above, the Malaysian courts have been rather moderate in granting damages for defamation action. In addition, a person’s or a company’s reputation is something subjective and intangible. There is great difficulty for the Courts to determine the actual value of a Plaintiff’s reputation. Hence, the Courts will use the factors above to decide on the quantum of damages to be awarded to a successful Plaintiff in a defamation action.

As such, the likelihood of obtaining the monetary judgment sought is a necessary consideration before any potential plaintiff decides if they should initiate a defamation suit.

[1] Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato Vincent Tan Chee Yioun & other appeals [1995] 2 CLJ 912 (FC);