Reynolds’ Privilege and Lucas Box

Recognition of Common Law defences in defamation claims in Malaysia.

Federal Court – Civil Appeal No.: 02(f)-31-03/2014(W) : Syarikat Bekalan Air Selangor Sdn Bhd (Appellant) v Tony Pua Kiam Wee (Respondent)

Brief Facts:

This appeal arises from a defamation action brought by SYABAS against the Respondent, Tony Pua. The words complained of by SYABAS were uttered by Tony Pua at a forum on 14.11.2010 which was subsequently published in an article in Nanyang Siang Pua, Metro Edition on 16.11.2010. The words complained off by SYABAS are as follows:

“He said, if the water concessionaire has insufficient funds to repay its loan, it should return the water rights to the state government, if the water concessionaire is unable to replace water pipes, it should give up or exit the water business, and not to ask to borrow money from the Federal Government.”

On 06.06.2012, the Kuala Lumpur High Court allowed SYABAS’ claim after a full trial and awarded RM200,000.00 as general damages. Tony Pua proceeded to appeal to the Court of Appeal and his appeal was unanimously allowed on 27.03.2013. SYABAS then obtained leave from the Federal Court to appeal against the decision of the Court of Appeal on the following questions of law:

1. Whether the defence of qualified privilege as set out In the English House of Lords case of Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (Reynolds’ Privilege) is available to an individual who is not a journalist?
2. Whether in relying on the defence of Reynolds’ Privilege, the Defendant has to show that responsible and fair steps were taken to gather, verify and publish information; or whether it is sufficient to merely have an honest belief that the statements were true, even if the statements were in fact untrue?
3. In the event that Reynolds’ Privilege applies, would the Plaintiff have to prove malice to defeat the claim of such privilege?
4. Whether there exists a defence of justification based on ‘reasonable grounds for suggesting’ as opposed to ‘reasonable grounds for suspicion’? If so, what are the elements required to establish such a defence?
5. Whether it is a defence for a Defendant to rely on a plea of justification of a lesser defamatory meaning in relation to the conduct or status of the Plaintiff, even though the status or conduct so justified was distinct from the sting of the defamatory article?

Decision of the Federal Court

Question 1:
The Federal Court held that the Reynolds’ Privilege defence is a defence of public interest as it concerns the publication of material and/or information to the public, on matters of public interest which affects their life. As such, there is sufficient basis that the defence should be extended to anyone who publishes information concerning a matter of public interest.

In coming to its decision, the Federal Court relied on the House of Lords’ decision in Jameel (Mohammed) and another v Wall Street Journal Europe [2007] 1 AC 359 and also the decision of the Privy Council in Seaga v Harper [2008] 1 All ER 965.

Therefore, question 1 was answered in the affirmative. The defence of Reynolds’ Privilege was available to an individual who is not a journalist such as Tony Pua. As a result, it is now expressly recognised by the apex court that the defence of Reynolds’ Privilege is available to a non-media defendant.

Questions 2 & 3:
The Federal Court decided that in order for a Defendant to successfully raise Reynolds’ Privilege, a Defendant must satisfy two (2) tests. Firstly, the material published is on a matter concerning public interest and secondly, the publication is made responsibly (i.e have exercised responsible journalism).
As the publication was concerning the water supply management and services, Tony Pua has fulfilled the 1st test of Reynolds’ Privilege.

The Court of Appeal held that it was sufficient for Tony Pua to merely have an honest belief that the impugned words were true, even if the words were in fact untrue; once all relevant information was in the public domain then, Tony Pua was not obligated the further requirements in Reynolds’ Privilege.

The Federal Court held that that Tony Pua must still satisfy the test of responsible journalism in order to successfully rely on Reynolds’ Privilege. In other words, Tony Pua must show that that he took responsible and fair steps to father, verify and publish the information. The failure of Tony Pua to disclose certain information in the publication is against the concept of responsible journalism.

In coming to this decision, the Federal Court commented that publishers must meet the test of responsible journalism to ensure that the privilege is not abused. Rights and responsibilities must go hand in hand and freedom of speech must be exercised responsibly. As such, question 2 was answered in favour of SYABAS and Tony Pua was held to have failed in his defence of Reynolds’ Privilege. Consequently, question 3 has been rendered unnecessary.

Questions 4 & 5:
In defending the suit by SYABAS, Tony Pua had pleaded a justification defence known as the Lucas-Box justification. This means that the Defendant is seeking to prove his own reasonable meaning to the words complained of. In doing so, Tony Pua pleaded that “there were and are reasonable grounds for suggesting” the meaning he sought to prove. SYABAS argued that a plea of reasonable grounds for suggesting does not amount to a valid plea of justification.

The Federal Court held that based on the Defence by Tony Pua, he has properly pleaded his justification defence and the Lucas-Box meanings he sought to prove. In deciding so, the Court relied on the English Court of Appeal decision in Lucas-Box v Associated Newspapers Group Pic & Ors [1986] 1 All ER 177which held that a defendant must make it clear in the particulars of justification, the case which he is seeking to set up and must accordingly state clearly the meanings which he seeks to justify.

The Federal Court further decided that after perusing the Defence and Counterclaim, Tony Pua had clearly and expressly pleaded the Lucas-Box justification defence for the following reasons:

1. He first denied that the words complained of carried any defamatory meaning;
2. He then went on to contend that the meanings set out in paragraph 6 of his Defence were true and in substance and in fact; and
3. Then he proceeded to plead particulars to support the meanings that he gave to the words complained of.

In dealing with the arguments raised by SYABAS, the Federal Court decided that the plea of ‘reasonable suggestion’ at least falls within the lowest limb of justification as propounded in the case of Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 (CA), that is to say “there are grounds for investigating whether he/she has been responsible for such an act”. Furthermore, it must be borne in mind that there was never any suspicion and/or allegation by made by Tony Pua in the article. He merely made a suggestion by the use of the word IF in the article.

The Federal Court then went to held that Tony Pua has successfully proven his Lucas-Box meanings that SYABAS was indeed facing financial difficulties and as such, it should return the water management rights to the State Government. This is based on the admissions made by SYABAS’ Chief Executive Officer during cross-examination at the trial.

In view of the above, question 4 was answered in the affirmative. A plea of reasonable grounds for suggesting does amount to a valid plead of justification. In light of the answer to question 4, it is unnecessary for the Court to deal with question 5. SYABAS’ appeal was dismissed with costs.

Comment:

This Federal Court decision is a landmark decision in relation to the defences of Reynolds’ Privilege and Lucas-Box justification. The Court has now recognised that the defence of Reynolds’ Privilege is available to a Defendant who is not a journalist. Furthermore, the Federal Court has given express recognition to the different levels of the defence of justification and the use of Lucas-Box meanings to sustain a justification defence. Through this decision, the Federal Court has impliedly upheld and strengthened freedom of expression by expanding the defences of Reynolds Privilege and Justification in the manner as explained above.