Public Authority can now sue for Defamation. What’s Next?

The Federal Court yesterday has ruled that a Federal or State Government have the necessary locus standi (standing) to sue for defamation.

This is a great setback to our defamation laws and to a citizen's freedom to voice out grouses against the Government. In making the ruling, the Federal Court held that by virtue of Section 3, Government Proceedings Act 1956 ("GPA"), the government has a statutory right to commence civil proceedings including an action for defamation.

The decision today is a departure from the celebrated House of Lords (UK) decision in Derbyshire County Council v Times Newspapers Ltd & Ors [1993] A.C. 534 which essentially held that it is of the highest public interest that a government body or any democratically elected public figure be open to uninhibited public criticism. To allow such public entities to sue for defamation would go against the freedom of speech. The House of Lords held:

“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech”

The GPA is a general statute which mainly provides for the process and procedures for legal actions involving the Government. To now hold that a Government can sue for defamation by relying on the GPA, a 1956 Act, is regressive and an affront to freedom of speech, to say the least.

To allow such public entities to sue for defamation would go against the freedom of speech.

One may also argue that this decision is not in line our constitutional guarantee of freedom of speech and expression, as provided in Article 10 of the Federal Constitution. Under Article 10, such freedom can only be restricted by way of federal law.

It cannot be understated that the threat of a legal action for defamation by the Government, will have a 'chilling effect' and be detrimental to the constitutional right of freedom of speech. This is in line with our Court of Appeal’s decision in Utusan Melayu (M) Bhd v Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob [2016] 5 MLJ 56 where a Menteri Besar (Chief Minsiter) was held not to have locus standi to sue for defamation. The Court of Appeal held as follows:

“[12] In placing in issue the respondent’s locus standi, we have listened to an interesting argument, strongly pressed by learned counsel for the appellant, and we think he is right on this point, that by virtue of his public office, that is, as the Menteri Besar and as the elected representative, the respondent should be open to public criticism and could never be defamed, hence, he ought to be precluded from suing for defamation. He further expanded his argument anchored on the principle propounded by the House of Lords in the case of Derbyshire County Council v Times Newspapers Ltd and others [1993] 1 All ER 1011.”

“[15] …... The decisions in these cases, in summary, acknowledged that it was of the highest public importance that a democratically elected governmental body or indeed any governmental body, should be open to uninhibited public criticism and the principle that in a free and democratic society, it was contrary to the public interest to permit those who held office in government or were responsible for public administration to sue in defamation because that would place an undesirable fetter on freedom of speech.”

[36] It is our judgment, therefore, that the respondent by virtue of his public office, having sued in his official capacity which he may not have expressly described, has no locus standi to do so, but having done so, we are loath to allow the action to proceed any further as such the action must necessarily fail. This claim plainly comes within such category of claim that we can safely say to be obviously unsustainable. We reach the conclusion stated with little hesitation because there is, as it is obvious to us, the public interest considerations in this case which, on balance, does not favour the right of organs of government and public officials of the likes of the respondent to sue for defamation as this will inevitably stifle free speech.”

As we are trying to project Malaysia as a civil and progressive country, this decision may be the last thing we need. In this day and age of instantaneous communication, public bodies and the authorities must be open and subjected to public criticism so long as it is not malicious.

Specifically, to the case at hand, does a government have a reputation to begin with and can that reputation be lowered by public criticisms?

The principle that a government official and/or body must not be entitled to bring an action for defamation was also recognised and accepted in America in the Supreme Court decision of New York Times Co. v Sullivan 376 U.S. 254

The Privy Council in dealing with an appeal from Antigua & Barbuda, have also recognized the principle in Derbysire when it held as follows in the case of Hector v Attorney-General of Antigua and Barbuda [1990] 2 All ER 104:

“In a free democratic society it is almost too obvious to need stating that those who hold public office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.”

The principle that a government official and/or body must not be entitled to bring an action for defamation was also recognised and accepted in America in the Supreme Court decision of New York Times Co. v Sullivan 376 U.S. 254

Hopefully, the Federal Court will be given a chance to revisit this issue sometime in the near future to ensure that our defamation laws are of the same standards as set by our counterparts in the United Kingdom and other Commonwealth jurisdictions.

The information and views set out in this note are those of the author(s) and do not necessarily reflect the official opinion of Thomas Philip.