Why are we mollycoddling our public figures?

There is a weapon far deadlier than a nuclear bomb. Words are the most powerful weapons in all the world.  So much so that a cautionary note penned in 1885 reads: –

‘Every word is endowed with a spirit …

One word may be likened unto fire, another unto light, and the influence which both exert is manifest in the world.’

It has been said that a word,

‘… is a flaming sword and may cause irreparable damage to the heart and soul.’

This is why the Constitutional right to free speech in Article 10(1) is tempered by Clause 2. It gives Parliament the power to restrict that freedom by enacting national laws.

Article 10(1) states that …

‘… every citizen has the right to freedom of speech and expression.’

The Azmin Ali attack – two days ago

The PKR party elections is days away. Azmin Ali is a contender for the PKR’s top post.

Two days ago, most of us received a social media message. It said Azmin the Cabinet Minister had amassed exorbitant amounts of money; that he had stashed all that away in shadowy bank accounts.

This poisonous, but anonymous missive mimics the style of a well-known blogger. He has millions of readers. The blogger could not have written it.

This news seemed believable, at first…

A day later, doubts began to gnaw: –

If Azmin had all this money, why hadn’t UMNO cybertroopers, or the Special Branch discovered it long before the 14^th General Elections?

Wasn’t Azmin the Chief Minister of Selangor, a state the previous regime wished to re-capture?

Why hadn’t they crucified him?

Why now?

Could the message, depicting computer screens in secretive international banks, be true at all?

Some banks were in Switzerland. Some were in India. Others were in Singapore.

How did the writer get so much information in so short a time? Why hadn’t he exposed it any earlier?

What if the reader was a villager? What would he had do if he had read the message? He’d believe it. Whether words are defamatory depends on what they convey to an ‘an ordinary man’. An ordinary man doesn’t live in an ivory tower. But he does read between the lines. Sometimes the sting in the words is not in the words themselves.  It is in what the ordinary man  infers  from the words. (Lewis v. Daily Telegraph [1964]).

Or he’d be smarter. He’d been bombarded with so much bovine scat that he is now inoculated. He’ll disbelieve anything spoken against the new government. He’ll say it is a fake.

Now, Azmin has everything to lose. His political career is at stake. He denied this message immediately. But by then the damage had been done.

Isn’t it unfair for Azmin Ali to be attacked in this way, when he has had no chance to defend himself?

Examples abound.  Rafizi Rammli has been sued by Najib and Rosmah.  Vincent Tan had sued a writer.  Anwar Ibrahim went to court for the same reason. Then there was the allegation about CowGate. The plaintiffs had one thing in common: they were all big shots – they were public figures.

And so the question is not whether the law should defend them – it is whether public figures deserve greater legal protection because of their special position?

To answer this question, we have to go back in time to 1964.

New York Times Co v. Sullivan [1964]

Sullivan was an elected official in Montgomery, Alabama. The New York Times had defamed him. The offending article said the Montgomery police had acted against students taking part in a civil rights demonstration. And also against the leader of the civil rights movement. The trial judge said that because the statements were false, they were automatically libellous. He ruled that legal injury ‘was assumed’. The plaintiff ‘did not have to show any proof of damages’. That was the old-fashioned law of defamation. It is applied even in the Commonwealth, and so in Malaysia.  It is the law of ‘strict liability’.

But the US judge went one step further. He ruled that the court would not award to any public official, any damages …

‘relating to his official conduct unless he could prove that the newspaper had acted with ‘actual malice’.

How was Sullivan to prove the defamer’s state of mind? The judge answered that the plaintiff had to prove that: –

‘the newspaper had made the statement with knowledge of its falsity,’ or that when the newspaper made the statement, it couldn’t be bothered whether the news was right or wrong (‘reckless or heedless)’.

The Supreme Court affirmed this principle.

From here arose a new principle:

Public personalities who sued for defamation, had to prove ‘with convincing clarity’, the ‘actual malice’ of the defamer.

This became known as the ‘new standard of actual malice’, or the ‘New York Times Rule’.

Why did the US Supreme Court say that?

The U.S. Supreme Court imposed the rule because it noted,

‘… the importance of encouraging robust political debate, unintimidated by liability for unintended errors.’ (John L. Diamond, 1996).

This was a reaffirmation of an individual’s right of free speech, and a newspaper’s right to encourage ‘public discourse’.

You will note that this accords with a Malaysian’s right to free speech entrenched in Article 10.

The law of defamation in Malaysia is archaic

Malaysia and Singapore have identical defamation laws.

In 1988 Lee Kuan Yew, the Singapore PM, sued  Jeyaretnam.

Jeyaretnam, while campaigning during elections, accused Lee of misconduct. After offering his apology, Jeyaretnam relied on The New York Times rule as his defence.

Despite the passage of 25 years after The New York Times case, the judge regressed. Lai Kew Chai J uttered these historic words:

‘… the New York Times Rule is not a defence in our law of defamation.’

Chillingly, the judge said:-

‘I resolutely set my face against the sort of judicial activism advocated by Mr Thomas QC.’ [Jeyaretnam’s counsel].’

This regression would come back to haunt both Singapore and Malaysia alike.

Why is our law out of date?

Malaysian libel law shuts its mind to the defamer’s state of mind.

We have always taken the position that once a false statement is published, a libel action premised on it will succeed.

The defendant’s state of mind is completely irrelevant.

He could have been mistaken.

The defamer could have had genuine grounds to believe what he said was true.

Someone could have misled him.

He was liable. And he had to pay. This is the ‘strict liability’ principle.

The defamer’s state of mind (‘malice’) comes into play only when the publisher says,

‘Fair comment: I have a right to comment on a matter of public interest’.

To defeat that defence, the plaintiff must show that the defamer had acted ‘with malice’.

But this is the invocation of malice after the fact.

Where the New York Times rule is in use, malice is the first thing courts look for.

Our Defamation Act supports the New York Times Rule

Surprisingly, the Defamation Act, enacted in 1957, seven years before the New York case, seems to take malice seriously.  In its Preamble it says –

‘… an Act relating to the law of libel and slander and other malicious falsehoods.’

The words are ‘malicious falsehood’; not mere falsehood.

Is that not a reference to a state of mind?

Clearly our forebears thought it fit to put, at the head of the primary legislation on defamation, words that point to the defamer’s state of mind.

This is a clear statutory indication that we should go the way of the New York Times rule.

When we look to other Commonwealth countries, this trend is obvious.

Prime Minister of Ireland v. The Times

Reynolds, the Irish PM, sued The Times newspaper for publishing a false story. It alleged Reynolds had ‘deliberately and dishonestly’ misled the Cabinet.

The Times accepted its error. But it argued that it had made the report on a matter of public interest.

The court ordered The Times to pay to the Prime Minister a princely sum – of one penny!

Without referring to the New York Times rule, the court came to an almost similar result.

The Auto Shankar Case

A similar position was taken in 1994 in an Indian case of Rajagopal v. State of Tamil Nadu (1994).

There an auto driver, found guilty of the murder of six of his passengers, published an autobiography.  He implicated the names of certain police and prison officers as being his ‘partners in crime’.  The Inspector General of Prisons tried to halt its publication. The State complained the reputation of the public officers ‘had been injured’.

The court ruled that where a dispute involves matters relating to his official duties, a public official has no remedy in damages in defamation – unless the official could prove that the publication had been made ‘with reckless disregard of the truth or out of personal animosity.’

Doesn’t that sound like the New York Times rule?

Some 33 years later – a clever Prime Minister is harried

Again, the courts took a similar position when a New Zealand Prime Minister, Lange, sued the Australian Broadcasting Corporation in 1990.  ABC had reported dark mutterings that huge donations were being made to Lange, and his party.

The Australian apex court held that the dissemination of information or opinions about the government, or political matters, were matters that were advantageous for the citizenry.  It was good enough to protect the newspaper:

If the paper could show that it has taken ‘proper steps, to verify the accuracy of the material and did not believe the allegation to be untrue,’ it wouldn’t be thrown under the bus.

Here we see again, the over-arching shadow of The New York Times.

National Media Ltd v. Bogoshi (1998) – South Africa

Bogoshi was a famous lawyer in South Africa. A newspaper alleged that Bogoshi had defrauded his clients, had touted for business, and was ‘under investigation by the Auditor General’.  Bogoshi sued.

The Supreme Court pointed out that even in the UK,  the common law principle of ‘strict liability’  was in retreat.  It noted that the British legislature had ‘partially rejected that doctrine’.

It said the UK courts had conducted a ‘balancing exercise’ between ‘the right to freedom of expression’ and ‘the need to protect reputation’.

The court thought ‘greater latitude’ should be given to political discussions,’ and if the writer had behaved reasonably.

Of all the cases, the  Bogoshi  principle shines like an orb in the sky. We would do well to follow it.

And so we see in each of these cases…

And so we see that wherever courts apply The New York Times Rule, they do not mollycoddle public figures.

This accords with the proposition spoken 130 years ago:-

‘In this Day the secrets of the Earth are laid back before the eyes of men. The pages of swiftly appearing newspapers are indeed the mirror of the world. They reflect the deeds and pursuits of diverse peoples and kindreds. They both reflect them and make them known. They are a mirror endowed with hearing, sight and speech. This is an amazing and potent phenomenon. However, it behoves the writers thereof to be purged from the promptings of evil passions and desires and to be attired with the raiment of justice and equity. They should enquire into situations as much as possible and ascertain the facts, then set them down in writing.’

The phrase ‘the promptings of evil passions and desires’ resonates with ‘malice’: it points to intent.

The phrases ‘… attired with the raiment of justice and equity’  and that ‘They should enquire into situations as much as possible and ascertain the facts’, refer to the need of writers to act reasonably; it also urges them to get their facts right.

That dovetails with the expressions of the brightest legal minds across the world.

The lagging Malaysian trend

Yet a century later, we have, unaccountably fallen behind.

Malaysian courts display a trend: they treat those who occupy positions of power, or importance, and those who are highly visible, with greater deference.

Why this is so, no one knows.

The way forward

The U.S. Supreme Court points out that public figures often assume the risk of defamation and other public disclosures:-

‘… by thrusting themselves into politics and … the public sphere.’ [The New York Times case].

Courts say that such ‘public figures’ …

‘often play an influential role in the order of society.’

‘As a class, these public figures have ready access to mass media communication.’

‘They have the means to both influence policy, and [are able] to counter the criticism of their views and activities’: [Curtis Publishing Company v. Butts [1967].

The use of The New York Times Rule by the courts has resulted in substantially less media regulation by the courts.

With the advance of technology, news – or a libel – is delivered like a lightning bolt. And so, the chance of ‘forwarded’ information you receive being a fake is far greater.

Churchill once said,

‘A lie gets halfway around the world before the truth has a chance to get its pants on’.

And usually, at the end of a ‘viralised’ lie, we find a public figure – often, one quivering with righteous indignation.

If that person is a public figure, he or she must bear with it – unless he can prove that malice motivated the writer.  Then the defamer has to pay – through his nose.

In developed nations, a convention has grown.  People in power do not sue.

We should follow that standard.

When you are a public figure, there are benefits – and risks.  If you demand the benefit, you must bear the burdens.

Public figures must be open to criticism, even if those criticisms are unreasonable, or had been made unwittingly.

They do not need the law bent in their service.

Our courts must encourage robust political debate.

Writers, bloggers, and the media are the true voice of the nation. Those who speak their minds, must speak without fear of liability.  The courts should protect them from unintended consequences.

A society that does not speak openly and without fear remains a society oppressed – as we have been.

Should we not take a more robust, modern approach?

Should we not follow the New York Times Rule?

[GK Ganesan Kasinathan is an advocate and solicitor. He is a constitutionalist, an international commercial arbitrator, an author and a prodigious essayist. He lives in Kuala Lumpur.  You may see his articles at gkg.legal/blog]