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“The true nature and context of the Derbyshire principle is res ipsa loquitur from the parties of the English case itself. The case of Derbyshire involved a Local Authority (not an individual person) claiming for defamation. There are no fact, context, and reason for the House of Lords in Derbyshire to consider whether or not any individual person holding governmental office may or may not maintain a defamation action. The House of Lords was posed with the question, whether or not a Government (the Derbyshire County Council) as an elected body can sue its own electorate for defamation. And the House of Lords answered that question in the negative (in that a governmental body cannot sue its citizens for defamation). Somehow, over the years, and through many attempts at legal acrobatics, the true and simplistic essence of the Derbyshire principle had been lost in translation. On the extreme contrary to this misconception, the House of Lords made a clear and express finding that the inhibition against governmental bodies does not apply to prohibit individuals in governmental offices from maintaining a defamation action:

A publication attacking the activities of the authority will necessarily be an attack on the body of COUNCILLORS which represents the controlling party, or on the EXECUTIVES who carry on the day-to-day management of its affairs. If the INDIVIDUAL reputation of any of these is wrongly impaired by the publication any of these can HIMSELF bring proceedings for defamation.

(emphasis added)”

“However, in the same manner the House of Lords in Derbyshire was aware some 33 years ago, we are equally aware that attacks against the Government can at times fall or slip into ad hominem and personal attacks against persons in office (not just the Government), be it on personal matters or in his or her exercise in office. Especially considering the sensationalist journalism and the boom of social media and the internet in modern times (coupled with Malaysia's decades of political divide and politicking on race, ethnicity, and religion), it is infinitely more compelling for prominent individuals from competing political spectrums to throw underhanded jabs against persons in office and for the Malaysian people to receive and spread the same attacks like wildfire. Thus, aside from the importance of freedom of speech and the liberty to criticise the Government, it is equally important that the court must remain vigilant to not allow loose-lipped defamation and slander to be thrown at the faces of individuals in governmental positions or offices.” - Per Azimah Omar FCJ in Yeoh Tseow Suan v. Musa Hassan [2026] 3 CLJ 593; [2026] CLJU 82

“We are also of the view that the prosecution against the respondent was unjustified and ought not to have been commenced, as her Facebook post did not fall within the ambit of s. 233(1)(a) of the Communications and Multimedia Act 1998 (‘CMA’). The post that was uploaded was not offensive as it related to a matter of fact and opinion. More significantly, it was not sent with intent to annoy. The mens rea element being absent, there was no basis to warrant a prosecution.”

“The respondent’s Facebook post fell within the ambit of art. 10(1)(a) of the Federal Constitution (‘FC’), meaning that its content amounted to the exercise of the respondent’s right to free speech and expression.”

“In conclusion, we allow the appeal in part, in that we reverse that part of the judgment of the Court of Appeal that struck out the words ‘offensive’ and ‘annoy’ from s. 233(1)(a) of the CMA for being inconsistent with arts. 10(1)(a) and 10(2)(a) of the FC. The impugned words are reinstated in s. 233(1)(a) of the CMA. We affirm the Court of Appeal’s decision that there was no basis to prosecute the respondent on the grounds that her post was offensive and communicated with intent to annoy.” - Per Nallini Pathmanathan FCJ in The Government Of Malaysia v. Heidy Quah Gaik Li [2026] 3 CLJ 677; [2026] CLJU 250