Prime Minister Najib Abdul Razak today failed in his appeal to strike out two paragraphs from the defence of Harakah Daily to an article put up on its portal on his stepson Riza Aziz.

The Court of Appeal decided unanimously that the issues should be heard in a full hearing.

“In our unanimous decision, and having heard the parties' written submissions and considering the appeal record, we are of the opinion the argument put by them is not sustainable and the issues should be ventilated in a full trial.

“Therefore, this appeal is dismissed with costs (at the High Court),” said Justice Mohd Zawawi Mohd Salleh, who led the three-member bench.

Justice Mohd Zawawi said the appellate court was not making any decision on whether the definition of "newspapers" should include news portals. The judge also felt the case could be settled by both the parties concerned.

The other judges were Court of Appeal judge Justice Zamani A Rahim and High Court judge Justice Hasnah Mohamad Hashim.

Najib had applied to strike out paragraphs 10 and 11 of the defence filed by Harakah 's managing director Dr Rosli Yaakob and its chief editor Taufek Yahya.

Lawyer Mohd Hafarizam Harun said that the defence pleaded by Harakah Daily in paragraph 10 for qualified privilege was confined to newspapers only.

The Umno lawyer referred to Section 12 of the Defamation Act 1957, which applies to newspapers, and said Section 2 of the Act defined a newspaper as 'any paper containing public news or observations thereon or consisting wholly or mainly of advertisements which is printed for sale and is published in Malaysia'.

“It does not apply to news portals, which we know are accessed online and they do not go on print. Hence, the defence of qualified privilege should not be applicable here,” the lawyer said.

Hafarizam further submitted that in paragraph 11 of the defence statement, the defendants pleaded fair comment but what was stated there seemed to be statements of facts, not comments.

Hence, the Umno lawyer argued, the defendants could not plead fair comment as their defence.

Faiz: We rely on common law principle

Lawyer Muhammad Faiz Fadzil for Rosli said they were relying on the common law principle and that the definition of newspapers should include news portals.

“Hence, the defence of qualified privilege is applicable to the news portal and Rosli,” he said.

Faiz also referred to paragraph 11 of the defence affidavit, which he says is a comment whereby the article is based on a New York Times report and it should be true as Najib had not taken any action against the American-based daily.

“Hence, this constitutes fair comment,” Faiz said.

Lawyer Nadzratun Naim Hammad Azizi for Taufek adopted Faiz's submission on the common law principle and added that the definition of newspapers should not only be confined to newspapers and could well include new portals which are paperless.

Najib named Rosli and Taufek as defendants in his libel suit filed in March last year, following the publication of the article related to Riza, Najib and 1MDB.

The prime minister is seeking general, aggravated and exemplary damages, interests and an injunction to prevent the defendants or their assistants from re-publishing the article.

Najib also sought an order for the defendants to tender a written apology for publication in the press.

It was reported last August that Kuala Lumpur High Court judge Justice Hue Siew Kheng dismissed Najib's striking out application of certain paragraphs in Harakah 's defence as the portal cited qualified privilege in its defence.

Najib has so far filed defamation suits against Malaysiakini , Petaling Jaya Utara MP Tony Pua, PKR vice-president and Pandan MP Rafizi Ramli, former MCA president Dr Ling Liong Sik and Taiping MP Nga Kor Ming.

Hafarizam - when met outside the courtroom - said he would seek further instructions from his client on whether to file leave to appeal before the Federal Court, or as suggested by one of the judges, to look into settling the matter or have the matter go to trial.