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Media Arbitration Schemes: Addressing the Backlog of Defamation Cases in Malaysia
Published online by Cambridge University Press: 02 September 2021
Abstract
The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinized in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.
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References
1 Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314 para 7 (Hamid Sultan Abu Backer JCA): ‘Defamation is generic word and it consists of libel and slander, provided it satisfies the requirement developed by case laws’.
2 Defamation Act 1957 (Malaysia), ss 8, 9.
3 ibid ss 11, 12.
4 Roslan bin Ali v The New Straits Times (M) Bhd & Anor [2017] MLJU 1385 at para 10, per Hayatul Akmal JC (as Her Ladyship then was): ‘Defamation is committed when the defendant publishes to a third person words or matters containing untrue imputation against the reputation of the plaintiff’.
5 S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173, 176 (Wan Hamzah SCJ): ‘In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the plaintiff’; See also Roslan bin Ali (n 4).
6 Dato Annas Bin Khatib Jaafar v Sharifuddin Mohamed & Ors [2014] MLJU 1770 para 160 (Su Geok Yiam J): ‘The question is whether the words complained of can be understood by reasonable people who knew or knows the plaintiff, to refer to the plaintiff, no matter what the intention of the defendant may have been when the words complained of were used by the defendant’.
7 Sim v Stretch [1936] All ER 1237, 1240, per Lord Atkin; Utusan Melayu (M) Bhd v Lim Guan Eng [2015] 6 MLJ 113 para 25 (Badariah Sahamid JCA): ‘a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt or ridicule, or which tends to lower him in the esteem of right-thinking members of society’.
8 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, 587 (Slesser LJ); Kian Lup Construction v Hongkong Bank Malaysia Berhad [2002] 7 CLJ 32, 41 (Ramly Ali J) (as His Lordship then was).
9 Berkoff v Burchill [1996] 4 All ER 1008, 1013 (Neill LJ); Ding Kuong Hiing v Wong Hua Seh [2011] 1 LNS 453 para 44 (Yew Jen Kie J) (as Her Ladyship then was).
10 Datuk Harris Mohd Salleh v Datuk Yong Teck Lee (sued in his personal capacity and as an officer of the second respondent) & Anor [2017] 6 MLJ 133 para 76 (Ahmad Maarop CJ (Malaya)) (as His Lordship then was).
11 Asari, Khairun-Nisaa & Nawang, Nazli Ismail, ‘A Comparative Legal Analysis of Online Defamation in Malaysia, Singapore and the United Kingdom’ (2015) 4 International Journal of Cyber-Security and Digital Forensics 314CrossRefGoogle Scholar.
12 Chew Peng Cheng v Anthony Teo Tiao Gin [2008] 5 MLJ 577, 602 (Hamid Sultan Abu Backer JC) (as his Lordship then was).
13 Foong Cheng Leong ‘Bread & Kaya 26: 2019 Malaysian Cyberlaw Cases, Part 1’ (Digital News Asia, 14 Apr 2020) <https://www.digitalnewsasia.com/insights/bread-kaya-26-2019-malaysian-cyberlaw-cases-part-1> accessed 18 Aug 2020.
14 ibid; Foong Cheng Leong ‘Bread & Kaya: 2018 Malaysia Cyber-law and IT Cases PT2 – Cyber-defamation’ (Digital News Asia, 26 Apr 2019) <https://www.digitalnewsasia.com/insights/bread-kaya-2018-malaysia-cyber-law-and-it-cases-pt2-%E2%80%93-cyber-defamation> accessed 18 Aug 2020.
15 Dominica Toyat Dominic v Peter Wee Teck Ho [2008] 5 CLJ 679, 689 (Hamid Sultan Abu Backer JC) (as His Lordship then was): ‘freedom to publish in internet is also likely to increase defamation action’.
16 Alam, Shahin & Islam, Md Zahidul, ‘Offensive Statements on Social Networking Platforms with the special reference to Cyber Defamation: A Comparative Analysis between Malaysia and Bangladesh’ (2015) 1 Journal of Asian and African Social Science and Humanities 40Google Scholar.
17 Khairun-Nisaa & Nazli (n 11).
18 Duke of Brunswick v Harmer (1849) 14 QB 185.
19 See Sim v Stretch (n 7), where the medium of the alleged defamation was by way of telegram; Clay v Roberts (1863) 8 LT 397, where the medium of the alleged defamation was by way of letters published in a medical journal; Byrne v Deane [1937] 1 KB 818, where the medium of the alleged defamation was by way of a typewritten poster put up on the golf club wall.
20 Godfrey v Demon Internet Ltd [2001] QB 201, 208–209 (Morland J): ‘In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus, every time one of the defendants’ customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer’
21 Loutchansky v Times Newspapers Ltd (Nos 2 – 5) [2001] EWCA Civ 1805 para 76 (Lord Phillips): ‘The change in the law of defamation for which the defendants contend is a radical one. In our judgment they have failed to make out their case that such a change is required. The Internet single publication appeal is therefore dismissed’.
22 Dow Jones & Co Inc v Gutnick [2002] HCA 56 para 138 (Gaudron J): ‘I, like the other members of this Court, do not think that a single publication rule should be adopted in terms of the place of uploading as the place of publication of allegedly defamatory material on the Internet, which would also govern the choice of applicable law’.
23 Mohamed Zaini bin Mazlan, ‘Cyber Defamation in Malaysia: An Overview’ [2018] Journal of the Malaysian Judiciary 124, para 48.
24 ‘Defamation and the internet: the multiple publication rule’, Consultation Paper CP20/09 (Ministry of Justice (United Kingdom), 16 Sep 2009) para 3.
25 Defamation Act 2013 (United Kingdom), s 8.
26 Mohamed Zaini (n 23) para 52, referring to the case of YB Hj Khalid bin Abdul Samad v Datuk Aziz bin Isham & Anor [2012] 7 MLJ 301: ‘The multiple publication rule seems to still apply in Malaysia … Although the court did not discuss the multiple publication rule, it found the defendants liable for defamation for the republication’.
27 Khairun-Nisaa Asari and Nazli Ismail Nawang (n 11).
28 Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300 para 45 (Ahmad Maarop PCA); See also George Varughese, ‘Federal Court Decision Creates Chilling Effect on Public Disclosure’ (Bar Council Malaysia, 2 Oct 2018).
29 Derbyshire County Council v Times Newspapers Ltd [1993] 1 AII ER 1011; Utusan Melayu (Malaysia) Berhad v Dato Sri Diraja Haji Adnan bin Haji Yaakob [2016] 5 MLJ 56 para 18 (Idrus Harun JCA) (as His Lordship then was); Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 1) [2013] 7 MLJ 52 para 29 (Yeoh Wee Siam J) (as Her Ladyship then was).
30 Government Proceedings Act 1956 (Malaysia), s 3: ‘Subject to this Act and of any written law where the Government has a claim against any person which would, if such claim had arisen between subject and subject, afford ground for civil proceedings, the claim may be enforced by proceedings taken by or on behalf of the Government for that purpose in accordance with this Act’.
31 Majlis Perbandaran Subang Jaya v Koh Tat Meng, unreported; see also Abdul Fareed Abdul Gafoor, ‘Government Should Cease the Use of Defamation Suits and Respond to Allegations with Appropriate Evidence’ (Bar Council Malaysia, 21 Feb 2020).
32 Chew Peng Cheng (n 12).
33 Dominica Toyat Dominic (n 15).
34 Dewan Rakyat, Penyata Rasmi Parlimen (Hansard), Parlimen Kedua Belas, Penggal Ketiga, Mesyuarat Kedua (6 Jul 2010), 68–70.
35 Subordinate Courts Act 1948 (Malaysia), s 65(1)(b).
36 ibid s 65(5)(a).
37 ibid s 65(5)(b).
38 Penal Code (Malaysia), s 499.
39 ibid s 500.
40 Pendakwa Raya v Ab Latif Muda [2014] 1 LNS 1450 para 5.
41 Chew Peng Cheng (n 12).
42 Dominica Toyat Dominic (n 15).
43 See, for example: Lim Boo Chang v Ng Wei Aik [2015] 10 MLJ 577, where the claimant sued after being called a frog; See also: Sun Media Corp Sdn Bhd (formerly known as Sun Media Group Sdn Bhd) v The Nielsen Co (M) Sdn Bhd (formerly known as AC Nielsen (M) Sdn Bhd) [2018] 9 MLJ 604, where the claimant sued after it complained that the publication of a survey about its readership numbers made them appear unpopular.
44 Jamilee bin Jamil v Lillian Tay Wai Fun [2006] MLJU 212 (Noor Azian bt Shaari JC) (as Her Ladyship then was).
45 Federal Constitution (Malaysia), art 10(1)(a): ‘every citizen has the right to freedom of speech and expression’.
46 ‘Report by the Commissioner for Human Rights, Mr Thomas Hammarberg, On His Visit to Azerbaijan 3–7 September 2007’, CommDH(2008)2, Council of Europe, para 72: ‘The criminalisation of defamation has a chilling effect on freedom of expression’ – referred to in Fatullayev v Azerbaijan (App No 40984/07) (2010) 52 EHRR 58, [2010] ECHR 40984/07, 58.
47 Dominica Toyat Dominic (n 15) 684.
48 Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 para 30 (Gopal Sri Ram FCJ): ‘all forms of state action – whether legislative or executive – that infringe a fundamental right must (i) have an objective that is sufficiently important to justify limiting the right in question; (ii) the measures designed by the relevant state action to meet its objective must have a rational nexus with that objective; and (iii) the means used by the relevant state action to infringe the right asserted must be proportionate to the object it seeks to achieve’.
49 Hammarberg (n 46).
50 See for example Defamation Act 2009 (Ireland), s 35: ‘The common law offences of defamatory libel, seditious libel and obscene libel are abolished’.
51 Libel Act 1843 (United Kingdom), s 6: ‘the Truth of the Matters charged may be inquired into, but shall not amount to a Defence, unless it was for the Public Benefit that the said Matters charged should be published’. Although the term ‘public good’ is used rather than ‘public benefit’, section 6 of the Libel Act 1843 (United Kingdom) is largely analogous to the First Exception under section 499 of the Penal Code (Malaysia), which states that: ‘It is not defamation to impute anything which is true concerning any person, if it is for the public good that the imputation should be made or published’.
52 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) Rome, 4 Nov 1950; TS 71 (1953); Cmd 8969.
53 Gleaves v Deakin and others [1979] 2 All ER 497, 498, 499.
54 Coroners and Justice Act 2009 (United Kingdom), s 73: ‘The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished— (a) the offences of sedition and seditious libel; (b) the offence of defamatory libel; (c) the offence of obscene libel’.
55 ibid s 178: This section repealed, amongst others, sections 4 through 6 of the Libel Act 1843.
56 Radio France v France (App No 53984/00) (2004) 40 EHRR 706, 40: ‘in view of the margin of appreciation left to Contracting States by Article 10 of the Convention, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued’.
57 Mariapori v Finland (App No 37751/07) [2010] ECHR 37751/07, 67: ‘Although sentencing is in principle a matter for the national courts, the Court considers that the imposition of a prison sentence for a defamation offence will be compatible with an applicant's right to freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence’.
58 Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR (Mativo J): ‘Another very compelling reason for eschewing resort to criminal defamation is the availability of an alternative civil remedy under the actio injuriandum in the form of damages for defamation. To my mind, this affords ample compensatory redress for injury to one's reputation. Thus, the invocation of criminal defamation to protect one's reputation is in my view unnecessary, disproportionate, and therefore excessive and not reasonably justifiable in an open democratic society based on human dignity, equality and freedom’.
59 Nevanji Madanhire & Anor v Attorney General, Judgment No CCZ 2/14 (Patel JA): ‘I take the view that the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights, and freedoms of other persons. In short, it is not necessary to criminalise defamatory statements’.
60 Basildon Peta v The Minister of Law, Constitutional Affairs and Human Rights & Ors CC 11/2016 para 24 (Mokhesi AJ): ‘[H]aving concluded that criminal defamation laws have a chilling effects on the freedom of expression, and that, civil remedies for reputational encroachment are more suited to redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment of the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.” … the crime of defamation has no place in our current Constitutional dispensation’
61 Subramanian Swamy v Union of India, Ministry of Law & Ors. Writ Petition (Criminal) No 184 of 2014, 149 (Dipak Misra J): ‘in the ultimate conclusion, we come to hold that applying the doctrine of balancing of fundamental rights, existence of defamation as a criminal offence is not beyond the boundary of Article 19(2) of the Constitution, especially when the word “defamation” has been used in the Constitution’.
62 Shishir Tripathi, ‘Criminal defamation law: As MJ Akbar files case against Priya Ramani, it's time to re-examine this instrument’ (FirstPost, 30 Aug 2016, republished 16 Oct 2018) <https://www.firstpost.com/india/criminal-defamation-law-as-mj-akbar-files-case-against-priya-ramani-its-time-to-re-examine-this-instrument-2982338.html> accessed 28 Jan 2020: ‘The judgment attracted sharp criticism from different quarters’.
63 See Singhal v Union of India [2015] INSC 251.
64 R v Ensor (1887) 3 TLR 366.
65 Penal Code (Malaysia), s 499, Explanation 1.
66 Mohamad Sabu lwn PP [2013] 2 CLJ 168; See also PP v Mohamad Sabu [2017] 7 CLJ 214 para 38 (Lim Chong Fong J): ‘Now moving next to the history of the Bukit Kepong incident which has been earlier ruled by Mohd Amin Firdaus JC (as he then was) in Mohamad Sabu lwn. PP [2013] 2 CLJ 168 to be justiciable’.
67 Jacqueline Okuta (n 58); Nevanji Madanhire (n 59); Basildon Peta (n 60).
68 Altheide, Emma, ‘Arbitration for the Afflicted – The Viability of Arbitrating Defamation and Libel Claims considering IPSO's Pilot Program’ (2017) 13 Journal of Dispute Resolution 165Google Scholar.
69 ibid.
70 Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 para 71 (Harmindar Singh Dhaliwal JCA) (as His Lordship then was): ‘the apology was ordered by the court despite the defendant's unwillingness to do so. Such an apology is really useless. An order for apology ought to have been considered only in the case where the offending party was willing. … we take the view that the order for an apology ought not to have been granted by the learned JC’.
71 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 268 para 64 (Hammerschlag J).
72 See for example Safege Consulting Engineers v Ranhill Bersekutu Sdn Bhd [2005] 1 MLJ 689; SDA Architects (sued as a firm) v Metro Millennium Sdn Bhd [2014] MLJU 29.
73 Daniel KC Tan & Associates Sdn Bhd v Progressive Insurance Sdn Bhd [2001] 5 MLJ 642.
74 See: Gossip Daily Ltd v Next Media Magazines Ltd and others [2018] HKCU 2952 para 24. See also 9302-7654 Quebec Inc. carrying on business as Team Productions v Justin Bieber (2017) QCCS 1100 paras 74, 75.
75 Ecobank Transnational Incorporated v Tanoh [2015] EWCA Civ 1309 paras 75 and 77.
76 Tamihere v Mediaworks Radio Ltd [2014] NZHC 2082 para 49.
77 Achells Kenya Limited v Philips Medical Systems Nederland BV & another [2007] eKLR.
78 Press Metal Sarawak Sdn. Bhd. v Etiqa Takaful Bhd [2016] 9 CLJ 1 para 91 (Ramly Ali FCJ): ‘In determining what is the dispute or difference the parties intended to submit to arbitration, the arbitration clause ought to be interpreted widely, based on its express terms and the intention of the parties, taking into consideration the commercial reality and the purpose for which the contract or agreement was made. A proper approach to construction requires the court to give effect, so far as the language used by the parties in the arbitration clause will permit, to the commercial purpose of the arbitration clause. This principle was adopted in Fiona Trust & Holding Corporation & Ors v Privalov & Ors [2007] 4 All ER 951’.
79 Fiona Trust & Holding Corporation & Ors v Privalov & Ors [2007] 4 All ER 951.
80 Albilt Resources Sdn Bhd v Casaris Construction Sdn Bhd [2010] 3 MLJ 656 para 69.
81 Rt Hon Lord Justice Leveson, An Inquiry into the Culture, Practices and Ethics of the Press, Report (The Stationery Office, 29 Nov 2012).
82 Altheide (n 68).
83 Leveson (n 81) 1768.
84 ‘About us’ (IMPRESS) <https://www.impress.press/about-us> accessed 28 Jan 2020.
85 ibid.
86 ‘Regulated Publishers’ (IMPRESS) <https://www.impress.press/complaints/regulated-publishers.html> accessed 28 Jan 2020.
87 CIArb/IMPRESS Arbitration Scheme Rules (10 Jul 2018) (IMPRESS Rules), Rule 1.
88 ibid Rule 4.
89 ibid Rule 5.
90 ibid Rule 6.
91 ibid Rule 17.
92 Gary Flood v Times Newspaper [2009] EWHC 2375 (QB).
93 Berezovsky v Russian Television and Radio Broadcasting Company and Terluk [2010] EWHC 476 (QB).
94 McDonald's Corporation & McDonald's Restaurants Ltd v Steel and Morris [2000] 1 WLR 618.
95 ‘McLibel: Longest case in English history’ (BBC News, 15 Feb 2005) <http://news.bbc.co.uk/2/hi/uk_news/4266741.stm .> accessed 28 Jan 2020.
96 Dominic Crossley, ‘Reframing the time it takes to get a libel trial’ (The International Forum for Responsible Media Blog, 11 Nov 2010) <https://inforrm.org/2010/11/11/%E2%80%9Creframing-the-time-it-takes-to-get-to-a-libel-trial%E2%80%9D-dominic-crossley.> accessed 28 Jan 2020.
97 IMPRESS Rules (n 87) Rule 10: ‘The fees of the arbitrator, which shall be paid by IMPRESS’; IMPRESS CIArb Arbitration Scheme Guidance (IMPRESS Guidance), ‘What is the IMPRESS/CIArb Arbitration Scheme?’ (IMPRESS/CIArb, 10 Jul 2018): ‘It is also free to access for both claimants and publishers because IMPRESS pays the fees of the arbitrator’.
98 ibid Rule 9: ‘No award of costs shall be made against the Claimant under any circumstances’.
99 ibid Rule 11.
100 IMPRESS Guidance (n 97), ‘If I have a dispute, how do I use the IMPRESS/CIArb Arbitration Scheme?’: ‘The claimant shall make payment of a £75 non-returnable filing fee to IMPRESS’.
101 ibid ‘How much will it cost?’: ‘The claimant will not be liable for any of the costs of the arbitration, other than payment of an administrative filing fee’.
102 Peter Preston, ‘Orthodox Impress or loftier Ipso? Maybe an arbitrator should decide’ The Guardian (26 Feb 2017) <https://www.theguardian.com/media/2017/feb/26/impress-ipso-arbitration-local-newspapers-costs .> accessed 28 Jan 2020.
103 IMPRESS Rules (n 87) Rule 23.
104 ibid.
105 Webb v Lewis Silkin LLP [2015] EWHC 687 (Ch) para 24 (Proudman J): ‘It is trite law that arbitration proceedings take place in private and are both private and confidential to the parties, whether or not they involve confidential matters. This is a rule of substantive law’.
106 Arbitration (Amendment) (No 2) Act 2018 (Malaysia), s 11.
107 Arbitration Act 2005 (Malaysia), s 41A(1): ‘Unless agreed by the parties, no party may publish, disclose or communicate any information relating to – (a) the arbitral proceedings under the arbitration agreement; or (b) an award made in those arbitral proceedings’. cf. Australia, where confidentiality in arbitration is not automatic and must be an express term in the agreement. See Esso Australia Resources Ltd & Ors v Plowman (Minister for Energy and Minerals) & Ors (1995) 128 ALR 391, 401, 402 (Mason CJ).
108 Jonny Gould v Evolve Media Limited, IMPRESS Case No 132130205.
109 Dennis Rice v Byline Media, IMPRESS Case No 132130163.
110 Sam Forsdick, ‘Press regulator Impress extends arbitration scheme to cover data protection claims’ (Press Gazette, 24 Jul 2018) <https://www.pressgazette.co.uk/impress-extends-arbitration-scheme-to-cover-data-protection-claims> accessed 28 Jan 2020: ‘So far the regulatory body has received five applications for arbitration and has published two arbitration awards’.
111 David Rolph, ‘Anonymity and Defamation’ (Sydney Law School Research Paper No 16/04, 5 Jan 2016).
112 ibid.
113 Dario Milo, Defamation and Freedom of Speech (Oxford University Press 2008) 262.
114 ‘What is IPSO?’ (IPSO) <https://www.ipso.co.uk/what-we-do/#WhatIsIPSO .> accessed 28 Jan 2020.
115 Altheide (n 68): ‘From this proposal, IPSO was born’.
116 ‘What claims can I make?’ (IPSO) <https://www.ipso.co.uk/arbitration/what-claims-can-i-make> accessed 28 Jan 2020; ‘Further things to think about when considering an arbitration claim’ (IPSO) <https://www.ipso.co.uk/media/1319/further-things-to-think-about-when-considering-an-arbitration-claim.pdf .> accessed 28 Jan 2020.
117 Leveson (n 81) 1768: ‘Of course, no one can be forced to give up their right to go to court in pursuit, or for the protection, of their rights’.
118 Martin Moore, ‘The Risks of Abandoning Leveson’ (LSE Media Policy Project, 20 Jun 2017) <https://blogs.lse.ac.uk/medialse/2017/01/06/the-risks-of-abandoning-leveson .> accessed 28 Jan 2020.
119 ibid.
120 Freddy Mayhew, ‘UK's largest press watchdog creating compulsory arbitration scheme for newspapers that offers alternative to court action for press victims’ (Press Gazette, 1 May 2018) <https://www.pressgazette.co.uk/uks-largest-press-watchdog-creating-compulsory-arbitration-scheme-for-newspapers-offering-alternative-to-court-action-for-press-victims .> accessed 28 Jan 2020.
121 ibid.
122 Sydney Smith, ‘No one voluntarily used IPSO's arbitration scheme, now it is compulsory’ (iMediaEthics, 29 Aug 2018) <https://www.imediaethics.org/no-one-voluntarily-used-ipsos-arbitration-scheme-now-it-is-compulsory .> accessed 28 Jan 2020.
123 Independent Press Standards Organisation Arbitration Scheme Rules (31 July 2018) (‘IPSO Rules’), r 8.2.
124 ibid Rule 9.1.
125 ibid Rule 11.1.
126 ‘FAQs’ (IPSO) <https://www.ipso.co.uk/faqs/arbitration/#how-long-will-a-claim-take .> accessed 28 Jan 2020.
127 IMPRESS Guidance (n 97; n 100; n 101).
128 IPSO Rules (n 123) Rule 21.3.
129 ibid Rule 21.4.
130 ibid Rule 25.7: ‘The Claimant will not be required to reimburse Fees or pay Legal Costs to the Respondent in the event that the Claim is unsuccessful’.
131 ibid Rule 29.4.
132 ibid Rule 19.1.
133 ibid Rule 22.2 read with the definition of Cost Cap under the Glossary of Terms.
134 ibid Rule 9.3(f) read with the definition of Cost Cap under the Glossary of Terms.
135 Abraham and another v Thompson and others [1997] 4 All ER 362, 377 (Millett LJ): ‘The risk of an adverse order for costs and consequent bankruptcy has always been regarded as a sufficient deterrent to the bringing of proceedings which are likely to fail’; Child & Family Agency (formerly Health Service Executive) v OA [2015] IESC 52 para 46 (MacMenamin J): ‘the risk of an adverse costs award in such cases as the situation arises may, on occasion, have the effect of deterring litigants from pursuing unmeritorious claims’.
136 Leveson (n 81) 1768.
137 IPSO Rules (n 123) Rule 21.5.
138 IMPRESS Rules (n 87) Rule 10: ‘The fees of the arbitrator, which shall be paid by IMPRESS, shall be set at no more than £3,500 unless IMPRESS agrees to the payment of a higher fee’.
139 IPSO Rules (n 123) Rule 21.5.
140 Peter Preston, ‘Orthodox Impress or loftier Ipso? Maybe an arbitrator should decide’ The Guardian (26 Feb 2017) <https://www.theguardian.com/media/2017/feb/26/impress-ipso-arbitration-local-newspapers-costs .> accessed 28 Jan 2020.
141 IPSO Rules (n 123) Rule 31.3.
142 ibid.
143 ibid Rule 31.4.
144 Cairns v Modi; KC v MGN Ltd [2012] EWCA Civ 1382 para 25.
145 Matt Tee, ‘Will IPSO's arbitration scheme bankrupt newspaper publishers?’ (Press Gazette, 21 Aug 2018) <https://pressgazette.co.uk/will-ipsos-arbitration-scheme-bankrupt-newspaper-publishers .> accessed 28 Jan 2020.
146 The Gleaner Co Ltd and another v Abrahams [2003] UKPC 55 para 55, per Lord Hoffman.
147 Cassell & Co Ltd v Broome and another [1972] AC 1027, 1071, per Lord Hailsham LC.
148 ‘Royal Courts of Justice Annual Tables – 2017’ <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738615/2017_RCJ_tables.xlsx .> accessed 28 Jan 2020.
149 Veliu v Mazrekaj and another [2006] All ER (D) 129 (Jul) para 53 (Eady J): ‘I have come to the conclusion that the overall compensation, for which the second Defendant is liable, and in respect of which the first Defendant is jointly and severally liable (subject to the statutory maximum), should be set at £175,000’.
150 Lillie and another v Newcastle City Council [2002] All ER (D) 465 (Jul) para 1559 (Eady J): ‘each Claimant was entitled to what is now generally recognised to be the maximum amount for compensatory damages in libel proceedings. I award each of them £200,000’.
151 Garfoot v Walker, unreported; See also: Kinsella v Kenmare Resources plc & Anor [2019] IECA 54 para 150 (Irvine J): ‘Garfoot v Walker (The Times, 8 Feb 2000) where an award of damages in the sum of GBP £400,000 was made’.
152 IPSO Rules (n 123) Rule 31.3.
153 ibid Rule 32.7.
154 Milo (n 113).
155 AB v Bragg Communications Inc [2012] SCC 46 (Abella J).
156 ibid para 27.
157 See generally Defamation Act 1957 (Malaysia); S B Palmer v A S Rajah & Ors [1949] 15 MLJ 6.
158 SV Beverages Holdings Sdn Bhd & Ors v Kickapoo (Malaysia) Sdn Bhd [2008] 4 CLJ 20.
159 Dynacast (Melaka) Sdn Bhd & Ors v Vision Cast Sdn Bhd & Anor [2016] 3 MLJ 417.
160 Protection from Harassment Act 1997 (United Kingdom), s 3.
161 Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 6 CLJ 246 para 39.
162 Dato Aishaf Falina binti Ibrahim v Ismail bin Othman & Ors [2017] MLJU 2257.
163 Maslinda Ishak v Mohd Tahir Osman & Ors [2009] 6 CLJ 653; Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 4 CLJ 397; Sherinna Nur Elena bt Abdullah v KentWell Edar Sdn Bhd [2011] 1 LNS 1928; Lew Cher Phow v Pua Yong [2011] 1 LNS 1528; M Mohandas Gandhi v Ambank (M) Berhad [2014] 1 LNS 1025.
164 See Ultra Dimension Sdn Bhd v Kook Wei Kuan [2001] MLJU 751; Lew Cher Phow @ Lew Cha Paw & 11 Yang Lain lwn Pua Yong & Satu Lagi [2009] 1 LNS 1256; Dr Bernadine Malini Martin v MPH Magazine Sdn Bhd [2010] 7 CLJ 525; John Dadit v Bong Meng Chiat & Ors [2015] 1 LNS 1465; Mohamad Izaham bin Mohamed Yatim v Norina Binti Zainol Abidin & Ors [2015] MLJU 372.
165 Data Protection Act 2018 (United Kingdom), s 168.
166 Personal Data Protection Act 2010 (Malaysia), ss 5(2), 108(8).
167 Arbitration Act 2005 (Malaysia), s 13.
168 Arbitration (Amendment) Act 2018 (Malaysia), s 3.
169 Asian International Arbitration Centre (Malaysia), ‘Panellist Search’ <https://www.aiac.world/panellist/view/all .> accessed 28 Jan 2020.
170 ‘Pro tem committee of Media Council established’ (Bernama, 16 Jan 2020) <http://www.bernama.com/en/news.php?id=1807196 .> accessed 28 January 2020.
171 ‘Media council: government to play a role of listening, accepting proposals and assisting media players’ (Bernama, 7 Mar 2019) <http://bernama.com/en/news.php?id=1702381 .> accessed 28 Jan 2020.
172 Nail v News Group Newspapers Ltd and others; Nail v Jones and another [2004] EWCA Civ 1708 para 39.
173 Tolstoy Miloslavsky v United Kingdom [1995] 18139/91 para 51, considered in Liew Yew Tiam & Ors v Cheah Cheng Hoc & Ors [2001] 2 CLJ 385, 395.
174 Liew Yew Tiam & Ors v Cheah Cheng Hoc & Ors [2001] 2 CLJ 385, 395 (Gopal Sri Ram JCA) (as His Lordship then was): ‘the freedom of expression guaranteed by Art. 10(1) of the European Convention of Human Rights. That article, though more elaborate in terms than the right enumerated in Art. 10(1)(a) of the Federal Constitution, in essence houses the same principle’.
175 MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other appeals [1995] 2 MLJ 493; [1995] 2 CLJ 912.
176 Liew Yew Tiam (n 174) 395 (Gopal Sri Ram JCA) (as His Lordship then was): ‘We would add that we do not regard the affirmation by the Federal Court of the decision in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun … as an insurmountable hurdle of binding precedent to our decision in the present case’.
177 ibid.
178 Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors [2012] 4 MLJ 191, 204.
179 See also: Datuk Yong Teck Lee & Anor v Datuk Harris Mohd Salleh, Civil Appeal No. S-02-691-03/2012 para 25 (Anantham Kasinather JCA): ‘We have had occasion in the case of Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors [2012] 1 LNS 1359 to caution judges of the High Court against placing too much emphasis on this award since it was an award made during a period of unrestrained excesses on the part of the judiciary’.
180 Nurul Izzah binti Anwar v Tan Sri Khalid bin Abu Bakar & Anor [2018] 1 LNS 528 para 140.
181 Melawangi Sdn Bhd v Yeo Ing King [2015] MLJU 1978 para 91.
182 ibid.
183 Harry Isaacs (n 178); Datuk Yong Teck Lee (n 179).
184 See Dato Seri Anwar Ibrahim v The New Strait Times Press (M) Sdn Bhd & Anor [2010] 5 CLJ 301 where the plaintiff claimed RM 100 million in damages. Harmindar Singh Dhaliwal JC (as His Lordship then was) held at 330 that ‘the claim of RM 100 million is a gross exaggeration’ and only awarded RM 100,000 in compensatory damages.
185 Syed Nadri Syed Harun & Anor v Lim Guan Eng and other appeals [2019] 4 MLJ 259 para 29 (Rohana Yusof JCA) (as Her Ladyship then was): ‘The learned trial judge did not award exemplary damages but had awarded a global award of damages in the sum of RM550,000 to the plaintiff. The damages awarded constitutes general and aggravated damages’.
186 ibid.
187 ibid para 32.
188 ibid para 33.
189 Datuk Seri Utama Dr Rais bin Yatim v Amizudin bin Ahmat [2012] 2 MLJ 807 para 44 (Zabariah Mohd Yusof J) (as Her Ladyship then was), cited with approval in the Court of Appeal case of Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209 para 81 (Suraya Othman JCA).
190 John v MGN Ltd [1996] 2 All ER 35, 54.
191 Jones v Pollard [1997] EMLR 233, 257.
192 Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato Vincent Tan Chee Yioun [2000] 4 MLJ 77, 83 (Eusoff Chin CJ): ‘The awards in personal injury cases for pain and suffering cannot and should not be used to provide any guidance when considering what is a reasonable award of damages in a defamation case’; MBf Capital Bhd & Anor v Tommy Thomas & Anor (No 2) [1997] 3 MLJ 403, 412 (Kamalanathan Ratnam JC): ‘it is not necessarily fair to compare awards of damages in this field with damages for personal injuries’.
193 Dato Seri Anwar Ibrahim (n 184) para 81.
194 ibid.
195 McCarey v Associated Newspapers Ltd. and others (No. 2) [1965] 2 QB 86, 109 (Diplock LJ) (as His Lordship then was): ‘I do not believe that the law today is more jealous of a man's reputation than of his life and limb’.
196 Dato Seri Anwar Ibrahim (n 184) para 87; see also Cassell & Co Ltd (n 147) 1071 (Lord Hailsham LC): ‘What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being “at large”’.
197 Karpal Singh a/l Ram Singh v DP Vijandran [2001] 4 MLJ 161, 185.
198 Chu Kim Sing & Anor v Abdul Razak Bin Amin [1999] 6 MLJ 433, 480.
199 John (n 190); see also O'Rawe v William Trimble Ltd [2010] NIQB 135 para 117 (Gillen J): ‘following the decision of the Court of Appeal in John, it is permissible to remind myself of conventional levels of award for personal injuries not by way of precise correlation but as a check upon the reasonableness of a proposed award of damages for defamation’.
200 See Elliot v Flanagan [2016] NIQB 8 para 35 (Stephens J): ‘In Northern Ireland that check should be with personal injury awards in Northern Ireland’.
201 Jones (n 191).
202 Dato Seri Anwar Ibrahim (n 184).
203 MGG Pillai (n 175).
204 Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99; See also: Siti Rahmah bte Ibrahim v Marappan s/o Nallan Koundar & Anor [1989] 1 CLJ 252.
205 Wong Fook & Anor v Abdul Shukur bin Abdul Halim (Wong Piang Loy, Third Party) [1991] 1 MLJ 46.
206 FXTOP, ‘Inflation Calculator (based on existing Consumer Price Indices)’ <http://fxtop.com/en/inflation-calculator.php .> accessed 14 Jun 2019.
207 ‘Revised Compendium of Personal Injury Awards’ (Bar Council Malaysia, 6 Jul 2018); See: Abdul Waffiy bin Wahubbi & Anor v A K Nazaruddin bin Ahmad [2017] MLJU 761 para 39 (Nantha Balan J): ‘It is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavour to ensure that the sum awarded falls within the range as stipulated in the Compendium and it would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium’.
208 ibid.
209 Datuk Seri Utama Dr Rais bin Yatim (n 189) para 76.
210 Dato Dr Tan Chee Khuan v Chin Choong Seng @ Victor Chin [2011] 8 MLJ 608 para 42 (Chew Soo Ho JC) (as His Lordship then was).
211 Lim Guan Eng v Utusan Melayu (M) Bhd [2012] 2 MLJ 394 para 64 (Varghese George J) (as His Lordship then was)
212 Syed Nadri Syed Harun (n 185) para 32.
213 Defamation Act 1957 (Malaysia), s 8: ‘In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff’; Defamation Act 1957 (Malaysia), s 9: ‘In an action for libel or slander in respect of words consisting of partly allegations of fact and partly of expression of opinion’.
214 Courts of Judicature Act 1964 (Malaysia), s 3. This definition was adopted by the Federal Court in the cases of Akira Sales & Services (M) Sdn Bhd v Nadiah Zee binti Abdullah [2018] MLJU 50 and Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] MLJU 54.
215 Limitation Act 1953 (Malaysia), s 30(1).
216 Civil Law Act 1956 (Malaysia), s 3(1); See also: Lau Yeong Nan v Life Publisher Berhad & Ors [2004] 7 MLJ 7 para 10 (Suriyadi J) (as Her Ladyship then was): ‘The Civil Law Act 1956 later confirmed statutorily that the common law of defamation in England, with certain modifications, is to be applicable to Malaysia’.
217 Dato Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2018] 3 MLJ 726 para 49 (Abang Iskandar JCA) (as His Lordship then was): ‘[B]oth at common law, as well as under our very own statutory regime, justification, if successfully erected, provides a complete defence for the defendant in a defamation suit’.
218 Dato Dr Tan Chee Khuan (n 210) para 27 (Chew Soo Ho JC) (as His Lordship then was): ‘Whether pursuant to s 9 of the Defamation Act 1957 or the common law, to constitute fair comment, a distinction must first be drawn between an expression of opinion which if given fairly or constructively, comes within the ambit of fair comment and an assertion of facts which the defendant must prove or establish sufficiently to substantiate his comment basing on them to render it to be fair comment’.
219 cf Defamation Act 2013 (United Kingdom), s 2(4): ‘The common law defence of justification is abolished’; Defamation Act 2013 (United Kingdom), s 3(8): ‘The common law defence of fair comment is abolished’; Defamation Act 2013 (United Kingdom), section 4(6): ‘The common law defence known as the Reynolds defence is abolished’.
220 Defamation Act 1952 (United Kingdom), s 12: ‘In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication’.
221 Senior Courts Act 1981 (United Kingdom), s 151(1).
222 Jonny Gould (n 108), per Ian Ridd: ‘In addition, I must consider the impact, if any, of 12 section 12 Defamation Act 1952, which provides that a defendant to libel proceedings’.
223 Astoria Medical Group v Health Insurance Plan of Greater New York, 182 N.E.2d 85 (N.Y. 1962) (Fuld J): ‘Arbitration is essentially a creature of contract, a contract in which the parties themselves charter a private tribunal for the resolution of their disputes. The law does no more than lend its sanction to the agreement of the parties, the court's role being limited to the enforcement of the terms of the contract’; M S Archer Power Systems Private Limited v Kohli Ventures Limited And Others LNIND 2017 MAD 4006 para 49 (M Sundar J): ‘At the risk of repetition, we reiterate that arbitration being a creature of contract, intention of the parties is extremely sanctus’.
224 Larkden (n 71).
225 Leveson (n 81) 1768.