The Federal Court has upheld an earlier court decision that Petaling Jaya Utara MP Tony Pua is not liable for defamation against the water concessionaire Syarikat Bekalan Air Selangor (Syabas).

In a unanimous decision today, the five-member bench led by Court of Appeal president Raus Sharif ruled that Pua’s allegedly defamatory statement is justified, and ordered Syabas to pay Pua an additional RM25,000 in costs.

“It has not been successfully shown to us that the findings of the Court of Appeal on this issue was against the weight of evidence or perverse in any way, warranting our intervention.

“We therefore agree with the judgment of the Court of Appeal that the defendant had succeeded in the defence of justification,” the court said in a ruling read by Federal Court judge Azahar Mohamed ( photo ).

The High Court of Kuala Lumpur in 2012 had found Pua liable for defamation and ordered him to pay Syabas RM200,000 in damages.

The Court of Appeal reversed this decision in 2013, ordering Syabas to refund the sum and pay Pua RM50,000 as costs.

Other members on the quorum were the Chief Justice of Sabah and Sarawak Richard Melanjum and Federal Court judges Hasan Lah and Ramly Ali.

Pua’s defence was led by Puchong MP Gobind Singh Deo, who was assisted by Joanne Chua, Benjamin Alif Suhaimi, and Malini Subramaniam

Lawyers Tan Cheng Leong, Fadzilah Pilus, and Mark Lau appeared for Syabas.

The High Court of Kuala Lumpur had in 2012 found Pua liable for defamation and ordered him to pay Syabas RM200,000 in damages.

The Court of Appeal reversed this decision in 2013, ordering Syabas to refund the sum and pay Pua RM50,000 as costs.

Syabas sued Pua over an article published in Nanyang Siang Pau in November 2010 under the headline ‘Tony Pua: Selangor government must have water rights to prevent price hike’.

It claimed that the offending words carried the meaning that Syabas was incompetent in managing water supply rights, given its inability to manage its debts or replace water pipes, and that the company was making improper claims to raise the tariff that was aimed for self-benefit and to the unfair detriment of the public at large.

Reynolds Defence

In its decision today, the Federal Court also held that the ‘Reynolds Defence’ of qualified privilege also applies to non-journalists, although Pua was unsuccessful in meeting the conditions required for its successful use.

“Reynolds privilege defence is in no way limited to journalistic publications. If the defendant passed the test of responsible journalism, the issue would be determined in his favour,” the court said.

The Federal Court explained that the Court of Appeal had failed to consider that Pua had knowledge of Syabas’ true position but had failed to disclose this, is unreasonable and goes against the concept of responsible journalism.

The ‘Reynolds defence’ refers to a precedent set in English defamation law in 1999, where - subject to conditions such as whether steps had been taken to verify the allegation or to seek the plaintiff’s comments on it - journalists may claim qualified privilege when reporting on matters of public interest, even when the information reported may turn out to be false.

Gobind ( photo ) hailed the extension of Reynolds Defence to non-journalists as a ‘ground-breaking decision’, in view of the widespread use of social media.

“Reynolds (Defence) would apply to them (netizens). If they write something and they communicate information by way of that writing, then they can claim the Reynolds privilege.

“Of course the Reynolds privilege is something you have to study as well. There are conditions that you have to meet to be successful in raising that defence,” he said.

He added that while Pua was unsuccessful in raising the Reynolds Defence because the court was of the opinion that he should have divulged more information at the forum that the Nanyang article was reporting on, Pua had succeeded in his plea of justification, which is a complete defence in defamation cases.

Meanwhile when contacted, Pua said he was glad that the case is over after four years of litigation.

“It is amazing that a defamation suit goes all the way to the Federal Court. I am happy that I have been ruled innocent of defaming anyone.

“Anyone reading that supposedly offending sentence would be able to tell that there is no defamatory meaning in that sentence,” he said.

Asked about the money raised from the public through fundraising campaigns in 2012 to pay for the RM200,000 damages to Syabas, Pua said about RM300,000 had been raised at the time.

He said as promised during the fundraising campaign, the money had gone into DAP’s election campaign fund following the 2013 Court of Appeal decision.