CASE OF THE WEEK

The plaintiff owned and ran a nursing college, Masterskill College, at all material time. The defendant was a television broadcaster, owning the TV3 television network with wide and influential broadcast locally and internationally, and was also available online and accessible by internet users. The plaintiff was aggrieved by what was aired in the defendant's news bulletin on 13 March 2010 regarding the issue of colleges failing to comply with the conditions set out by the Ministry of Higher Education. The news broadcast was accompanied by a visual of the plaintiff's branch campus and obviously recognised by the plaintiff's students and parents. Some also had accessed the internet news portal of the defendant that was available for about a month after the news bulletin to watch the news item with the visuals of the plaintiff's college. The plaintiff felt that their good name had been tarnished and that a cause of action would lie in defamation against the plaintiff for damages and promptly filed an action. The plaintiff pleaded in its statement of claim that the said words complained of were understood to mean, inter alia, that the plaintiff had been deregistered and had not provided the specified teaching infrastructures and equipment. The plaintiff prayed for general damages in the sum of RM100,000,000 and for aggravated damages to be assessed. The issues that arose for consideration were (i) whether the impugned words in the news bulletin coupled with the accompanying visuals and having regard to the language used be regarded as capable of referring to the plaintiff, (ii) whether the news bulletin would lead reasonable people who know the plaintiff to the conclusion that it referred to the plaintiff and (iii) whether the defence of qualified privilege applied in the circumstances of the case.

Held (allowing claim and awarding RM200,000 to the plaintiff):

(1) The impugned words were defamatory in the natural and ordinary sense of the words used and a reasonable man would understand the impugned words and visuals in a defamatory sense in that they did denote and connote the meaning as set out in the plaintiff's statement of claim if indeed they were not true of the plaintiff. The visuals to an ordinary viewer of even temperament, not having proclivity or a penchant for the sensational nor a craving for the curious but endowed with a fair measure of reasonableness and rational thinking would ordinarily have equated the news with the visuals of the college. Such a viewer would form the relation and nexus between the two, ie, the news and the visuals. A viewer in a relaxed mode is entitled to absorb a broadcast with the impugned words and visuals as a composite, coherent whole. It would ordinarily evoke a cause of concern as to which college it was that was being referred to in the visuals as being having its license revoked. Hence, the impugned words and the accompanying visuals taken together were capable of referring to the plaintiff. (paras 21, 28-30)

(2) Anyone including the plaintiff's international partners, who had logged on to the plaintiff's website would recognise the plaintiff's unique colour scheme, building interior, uniforms, badges and logos. It would be remiss for the defendant to suggest that the video was fleeting and that no one would have concentrated on the badges and name tags. It was a truism that the versatility of the internet allowed the viewer to watch the clip over and over again, and it allowed for pause, zoom, enlargement and slow motion. Any potential student would do their best to verify which college was referred to in the visuals that had its license revoked and that had inadequate lecturers and facilities. Reasonable people who knew or were acquainted with the plaintiff would conclude that the impugned words and visuals referred to the plaintiff. (paras 44 & 45)

(3) The issue of colleges that had their license revoked is certainly a matter of public interest. However, the plaintiff which was duly approved, registered, licensed and certified by the Ministry of Higher Education, objected to being associated with colleges which were masquerading as duly licensed to conduct their diploma and degree programmes. Since the Deputy Minister had not listed out the private colleges that had their registration revoked, there should not be the slightest allusion to any college whatsoever during the news broadcast. Running the news without the visuals was another valid option seeing the risk of wrongful association especially when one does not know which college is in the blacklist. That was part of responsible journalism as envisaged in the test laid down in the Reynold's defence. (paras 50, 52 & 56)

(3a) In spite of a notice of demand dated 18 March 2010 sent to the defendant, the defendant's internet portal where the news was accessible was only removed around 13 April 2010, some one month after the news first broadcast on 13 March 2010. There was no public apology by the defendant other than the fact that it regretted that the report had been misinterpreted by parents. There was a clear reckless disregard as to the truth or otherwise of what had been published and the subsequent period when the news was still accessible. Appreciating the power of association with the first broadcast of the news on 13 March 2010 of the plaintiff to the news and the power of repeated access to the news to view and verify, the defendant's action or inaction in not removing the news report was not just regrettable and reckless but reprehensible. Based on the court's finding of fact, neither the defence of qualified privilege nor the Reynolds' public interest privilege availed the defendant.

(paras 57 & 60-62).

(4) The plaintiff's claim for general damages of RM100 million was misplaced. The composite and crucial factors that this court must consider in assessing damages were inter alia (i) the reputation of the plaintiff, (ii) the sensitivity of the news report at the time of imminent listing in the Stock Exchange of Bursa Malaysia, (iii) the wide coverage as befitting a Bulletin Utama at 8pm, (iv) the hardship and humiliation caused and the agony, angst and anxiety arising out of the publication and the alarm the news report caused to the plaintiff's stakeholders and (v) the resulting damage to reputable and goodwill of the plaintiff. Thus, this court awarded the sum of RM200,000 which was sufficient in the circumstances of this case. The plaintiff did get listed in Bursa Malaysia under the name of Masterskill Education Group Berhad. None of the students who gave evidence left the college as a result of the news report. Reckless as the defendant might have been, this was not a case for the award of aggravated damages. (paras 64, 70-73)

Case(s) referred to:

Adam v. Ward [1917] AC 334 (refd)

Ayob Saud v. T S Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321 HC (refd)

Cassidy v. Daily Mirror [1929] All ER 117 (refd)

Halim Arsyat v. Sistem Televisyen Malaysia Bhd & Ors [2001] 7 CLJ 268 HC (refd)

Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130 (refd)

Horrocks v. Lowe [1975] AC 135 (refd)

Hough v. London Express Newspaper Ltd [1942] KB 504 (refd)

Knupffer v. London Express Newspaper Ltd [1944] AC 116 (refd)

Liew Yew Tiam & Ors v. Cheah Cheng Hoc & Ors [2001] 2 CLJ 385 CA (refd)

MGG Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun & 2 Other Appeals [1995] 2 CLJ 912 CA (refd)

Morgan v. Odhams Press Ltd [1971] 1 WLR 1239 (refd)

Murugesan v. The Straits Times Press (1975) Ltd [1984-1985] SLR 334 (refd)

Sivabalan P Asapathy v. The New Straits Times Press (M) Bhd [2010] 7 CLJ 885 HC (refd)

Too Good v. Spyring [1834] 1 CM & R 180 (refd)

Wong Yoke Kong & Ors v. Azmi M Anshar & Ors [2003] 6 CLJ 559 HC (refd)

Counsel:

For the plaintiff - R Jayasingam; M/s B H Lawrence & Co

For the defendant - Liew Teck Huat; M/s T H Liew & Partners

Reported by Suhainah Wahiduddin