The present information age is characterised by the abundance of information and minimal restrictions on access and control thereof. The right to freedom of speech and expression rises to prominence considering its role for the dissemination and acquisition of information and knowledge. In Malaysia, this right is constitutionally protected pursuant to Article 10 of the Federal Constitution.
It is trite, however, that the right to freedom of speech and expression is not absolute. To this end, one’s right to freedom of speech and expression may be examined against the law of defamation, which aims to protect one’s reputation. Whilst the law of defamation does not forbid one from expressing themselves, one may nevertheless be responsible for the harm caused to other’s reputation as a result of words spoken or statements authored by him.
In the words of the Federal Court in Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 MLJ 720, defamation is committed when the defendant publishes to a third person words or matters containing untrue imputation against the reputation of the plaintiff. This raises questions about the liability of “half-true” statements for defamation.
To this end, the Court of Appeal in Tan Sri David Chiu Tat-Cheong v Seema Elizabeth Isoy [2023] 3 MLJ 674 so held:
“… the omission to paint the full picture is the very nature and essence of the concept of ‘half-truth’ which establishes liability for defamation in circumstances where the failure to present the requisite information portrayed a false impression in the minds of the ordinary person.”
This alert discusses the interplay between the law of defamation in Malaysia and one’s right to speak of “half-truths”.
The Courts’ Role in a Defamation Action
As elucidated by the Federal Court in Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300, the court in a defamation action is tasked with:
a. Determining whether the words complained of are capable of bearing a defamatory meaning.
b. Determining whether the words complained of are in fact defamatory.
The consideration of potential defences against defamation only arises should the above questions be answered in the affirmative.
Half-truths and Justification
Nearly a century ago, the House of Lords in Sutherland v Stopes [1925] AC 47 authoritatively held that half-truths can convey defamatory imputations and be unjustifiable. Lord Shaw in prefacing his Lordship’s ruling, articulated two illuminating principles pertinent to this analysis
First, truth must be presented with its full context, particularly that which would alter or negate the defamatory nature of a statement. Second, statements which recall the past may be defamatory if they are made to suggest that a taint upon character and conduct still subsists, causing others to mock, disapprove, and look down on a Plaintiff.
The determination of whether half-true statements are defamatory hinges on the unique factual circumstances of each case. Should such statements be found defamatory, the next question is whether justification may be invoked as a defence. The House of Lords succinctly illustrated how defamatory half-truths may not avail of the defence of justification in the following manner:
“If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.
In the second place, however, the allegation of fact must tell the whole story. If, for instance, in the illustration given, the facts as elicited show what my writing had not disclosed – namely, that the defendant had a saddle of his own lying in my harness room, and that he took by mistake mine away instead of his own and, still labouring under that mistake, sold it – then the jury would properly declare that the libel was not justified on the double ground that there, were facts completely explaining in a non-criminal sense anything that was done, and the jury would disaffirm the truth of the libel because, although meticulously true in fact, it was false in substance.”
The Malaysian Position
The issue of “defamatory half-truths” came under scrutiny by the High Court in Tan Sri David Chiu Tat-Cheong v Seema Elizabeth Isoy [2021] 1 LNS 1162 and the Court of Appeal in Tan Sri David Chiu Tat-Cheong v Seema Elizabeth Isoy [2023] 3 MLJ 674.
The case concerned Seema’s publication of texts which, amongst others, referred to the charges against David Chiu decades ago. Seema merely raked up the criminal charges against David Chiu but deliberately omitted his acquittal. The crafting of the texts amounted to “half-truth” as it did not contain the relevant exculpatory legal decision. Whilst the texts were factually correct, the natural and ordinary meaning of the statements imputed dishonourable conduct and the lack of integrity on David Chiu’s part.
Whilst the High Court rejected the notion of “half-truths” as forming part of the legal landscape in Malaysia, the Court of Appeal unanimously reversed the High Court’s decision, recognising that half-truths may, indeed, be defamatory and unjustifiable. Seema appealed.
The appeal was unanimously dismissed, viz the Federal Court ruled in favour of David Chiu.
The law, as it stands, holds that half-true statements may be defamatory. Whilst a defendant may contend that such statements are factually true, the defence of justification cannot be invoked due to the false impression created.
This position aligns with that of the House of Lords in Sutherland v Stopes, which forms an integral part of Malaysian law by virtue of section 3 of the Civil Law Act 1956.
Conclusion
The decisions of the Federal Court and Court of Appeal underscore the importance of truthfulness in statements, even when factual truth may be asserted. These decisions further reflect a commitment to affording a robust framework for safeguarding an individual’s reputation from unwarranted harm.
12 March 2024