Awards made in defamation suits are too high and have an adverse effect on the media besides threatening the functioning and emergence of a free and informed media, a Bar Council report revealed today said.
To overcome this, the report proposed a legislation that would allow a right to reply to the affected parties. It added that a Media Ombudsman could be introduced with the power and authority to order a retraction from the media.
The report on the effect of defamation laws on free speech was prepared by the Defamation Suits Committee of the Bar headed by M Ramachelvam. The report was presented to the media at a press conference attended by Bar Council chairman Sulaiman Abdullah with Ramachelvam.
Sulaiman said the report has been submitted to Minister in the Prime Minister's Department Dr Rais Yatim and Chief Justice Mohamad Dzaiddin Abdullah and a copy will be forwarded to the Attorney-General's Chambers soon.
Chilling effect
"The right to reply proposal is one of the strongest remedy we can think of. The Bar is in favour of freedom of speech," said Sulaiman.
The report was compiled to identify the shortcomings in the existing 1957 Defamation Act, and especially to highlight the discrepancies between damages awarded by the courts in relation to physical injuries and defamation cases.
The report stated that the present defamation awards are too high and have "a chilling effect" on the freedom of speech in the country. It called for an amendment to the legislation to provide for an appropriate and rational relationship between the relevant harm to reputation and the amount of damages awarded.
However, Sulaiman said that the Bar was not keen on pursuing a legislative change. Instead, it is hoped that the judiciary itself will correct the current flaw in awarding high damages.
"The courts can switch the trend of awarding high awards on their own initiative. The common law gives judges the opportunity to look at current trends in society and base their decisions on that," said Sulaiman.
He however stressed that only a failure by the courts to change the trend will see the Bar actively seeking legislative amendments to alter the situation.
"To do this, we will continue submitting our reports to the minister as well as other interested parties. We will also need the media to create awareness among the public for the need to reverse this trend," he added.
Sulaiman said that legislative amendments should include imposing a cap on the quantum of damages that can be awarded in defamation cases.
Unhealthy trend
The report stated that awards granted by the courts between 1980 and 1990 were relatively low, with the highest being RM100,000.
"This trend of damages continued unchanged until 1995 when the High Court awarded businessman Vincent Tan RM10 million for libel in his suit against journalist MGG Pillai and seven others," it said.
The inclination continued with almost all plaintiffs in defamation suits quantifying the amount of general damages they were seeking from the defendants. The High Court in a defamation suit by MBf Capital against lawyer Tommy Thomas allowed the plaintiffs to quantify the general damages on the grounds that "neither the Rules of the High Court nor any practised direction barred the plaintiff from affixing a figure to vindicate their worth", said the report
Sulaiman said that the Bar disagreed with this ruling as such quantification may be oppressive to the defendant and the public at large and will stifle freedom of speech.
"There will then be no restriction to the sums claimed resulting in an unhealthy trend of mega-defamation suits and the opening of the floodgates to inflated claims," said Sulaiman.
The report stated that a study carried out by the Bar Council revealed that defamation awards in Malaysia were the highest among Commonwealth countries.
Developing media
Sulaiman also said the media in Malaysia was still at a developing stage and it should not be subjected to threats of defamation suits and huge awards.
"We need a healthy media culture and we need the recognition of the government, law enforcement agencies and the courts for a free press. Slamming the media is not a way to educate it to play a role in the society," added Sulaiman.
The report said that a free press is one of the foundations of modern democratic society and that no free and fair media can exist if it is subject to mega-defamation suits on a regular basis.
A look at the recent defamation suits made it apparent that most of the plaintiffs claim millions of ringgit for the loss of their reputation. In a case filed this February, businessman Badrul Zaman PS Md Zakariah is seeking RM1.3 billion from eight news organisations.
Other mega suits are as follows, with damages claimed and damages awarded in brackets:
1) Muslinah Mustapha vs The New Straits Times Press and nine others (RM450 million) (pending)
2) Badrul Zaman vs TV3 (RM400 million) (pending)
3) Transport minister Ling Liong Sik vs lawyer S Krishna Kumar (RM200 million) (pending)
4) Low Wei Yuen vs Major Indah Sdn Bhd (RM100 million) (pending)
5) Works Minister Samy Vellu vs Malaysian Nanban (Tamil daily) (RM100 million) (pending)
6) Businessman Ting Pek Khiing vs journalist MGG Pillai (RM100 million) (pending)
7) Vincent Tan vs journalist S Ganesh (RM22 million) (pending)
8) Keadilan leader Dr Chandra Muzaffar vs ex Bank Negara deputy governor Abdul Murad Khalid (RM70 million) (pending)
9) Ex-Malacca CM Rahim Tamby Chik vs Time Magazine and three others (RM55 million) (pending)
10) Vincent Tan vs Prof KS Jomo, Dow Jones Publications and three others (RM250 million) (pending)
11) DAP chairman Lim Kit Siang vs Utusan Melayu (M) Bhd (RM250 million) (pending)
12) Lim Kit Siang vs The New Straits Times Press (M) Bhd (RM250 million) (pending)
13) Ex-minister Megat Junid Megat Ayub vs Ruslan Kassin and Keadilan (RM10 million) (pending)
14) Mirzan Mahathir vs Dow Jones Publication and four others (RM200 million) (pending)
15) Anwar Ibrahim vs Sun Media Corp. (RM100 million) (pending)
16) Mirzan Mahathir vs Sin Chew Jit Poh Sdn Bhd (RM550 million) (settled out-of-court)
