Case Summary and Outcome

The Malaysian Court of Appeal found that a non-fiction author had defamed a member of the royal family in a book which had mistakenly accused the family member of involvement in a corruption scandal. The lower court had accepted the author’s admission that the attribution was an error and found that the allegedly defamatory statements were justified. On appeal, the Court emphasized that, on an ordinary and natural reading of the statements, and given the context and the royal family member’s position in society, the statements were defamatory and would lower her in the estimation of right-thinking members of society.

Facts

In August 2018, Clare Louise Brown, a British journalist born in the British colony of Sarawak – now part of Malaysia – published The Sarawak Report: The Inside Story of the 1MDB Expose. The book detailed a massive corruption scandal involving Malaysia’s state investment fund, 1Malaysia Development Berhad (1MDB), which was established to drive economic development. Billions of dollars were allegedly misappropriated by high-ranking officials, including then-Prime Minister Najib Razak, and laundered globally, leading to international investigations and significant political fallout. Jho Low, a financier central to the scandal, was accused of masterminding the embezzlement and playing a pivotal role in diverting funds for personal enrichment and luxury acquisitions.

Sultanah Tuanku Nur Zahirah, the Sultanah of the Malaysian state of Terengganu and the wife of the reigning Sultan of Terengganu, brought a defamation case against Brown based on a statement in the book: ‘Jho was also friendly with a key player in Terengganu, the wife of the Sultan, whose acquiescence was needed to set up the fund and he later cited her support as having been crucial to his obtaining the advisory position. This was the fund that would shortly be converted into the scandalous entity known as 1MDB’.

During the trial Brown acknowledged that the statement was incorrect and admitted that it was not the Sultanah who introduced Jho Low to the Sultan but rather the Sultan’s sister who had made the introduction. [para. 39] In the later print of the book reference to the Sultanah was substituted with the Sultan’s sister in this passage.

The Sultanah obtained a summary judgment against Brown in the High Court. Brown appealed to the Court of Appeal which, on August 24, 2021, ordered that a full trial be held by the High Court. The High Court then found that the Sultanah had failed to prove that the statements were defamatory, finding that “no negative connotations can be made in reading the impugned statements” [para. 5] and that the statement “does not in any way degrade the plaintiff’s reputation”. [para. 7] The High Court focused on the “natural and ordinary meaning” [para. 7] of the words in the statement and applied “the established and normal English grammar rules”. [para. 6] The High Court also found that, even if it had found that the statement was defamatory, Brown had established the defence of justification on the grounds that the statement was true.

The Sultanah appealed the decision to the Court of Appeal.

Decision Overview

Azhahari Ramli JCA delivered the Court’s judgment. The main issue before the Court was whether the statements were defamatory, and if they were, whether Brown could raise the defence of justification on the grounds that they were true.

The Sultanah argued that the impugned statements falsely suggested she interfered in the administration of the State of Terengganu, supported Jho Low in obtaining an advisory position at the Terengganu Investment Authority (TIA), and was associated with corrupt practices, and that as the statement was made “at the height” of the 1MDB scandal, the High Court should have found that “a reasonable man would have found the impugned statements linking to [her] as having committed the guilty acts as alleged”. [para. 9] She submitted that the statements exposed her to ridicule, hatred, and contempt, tarnishing her reputation as a respected royal figure. She criticised the High Court for relying on what she termed “extrinsic evidence”, such as dictionary definitions, to interpret the natural and ordinary meaning of the statements. [para. 9] The Sultanah also highlighted Brown’s admission that the statements were factually incorrect, further demonstrating their defamatory nature and removing the opportunity for them to rely on the justification defence.

Brown and her publishers maintained that the statements did not carry any defamatory meaning as terms like “key player” and “acquiescence” were neutral and not derogatory. Brown argued that a reasonable interpretation of the text would not lead to the defamatory imputations alleged by the Sultanah as it would be “too far-fetched to impute that [the Sultanah] interfered in the administration of the State as it was common knowledge that Her Highness did not” [para. 10]. Brown highlighted their corrective efforts, including an apology to the Sultanah and corrections added to all original copies of the book as evidence of their good faith and lack of malice.

The Court established that “[w]hile freedom of speech is one of the fundamental liberties” in the Constitution, “it is also trite law that this freedom is not absolute”. [para. 12] Defamation, as set out in the Defamation Act of 1957 and section 500 of the Penal Code are limitations to the right, and to prove a defamation a plaintiff must demonstrate that there was a publication of the impugned statement, that the statements refer to the plaintiff and that the statement is defamatory. In proving whether a statement is defamatory, the plaintiff must demonstrate that the “natural and ordinary meaning” of the statement “is capable of conveying a defamatory meaning” and that the statements were “capable of being, and were in fact, defamatory”. [para. 14] The Court applied established legal principles, including the objective test for defamation which asks whether a reasonable person, considering the context, would interpret the statements as defamatory. The Court stressed that what the publisher intended the statement to mean and what the reader understood is irrelevant in determining its ordinary meaning, and that there has to be evidence that the “statements may tend to ‘lower the plaintiff in the estimation of right thinking members of society generally’ or ‘to expose him to hatred contempt or ridicule’.” [para. 15-16]

The Court referred to the case of Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad in identifying that a defamatory statement has a “tendency” to harm a person’s reputation in a “right thinking person’s opinion”, and, with reference to Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee, noted that what matters is the “prevailing attitude of the society at the time of publication.” [para. 17]

In determining whether Brown’s statements were defamatory, in their natural and ordinary meaning, the Court rejected the lower court’s use of extrinsic evidence in the form of dictionary definitions. The lower court had also relied heavily on Brown’s witness statement where she gave context to the use of the words “key player” and “acquiesce” in the book’s passage.

The Court held that the correct approach was to evaluate the statements as they would be understood by an ordinary reader, without resorting to overly technical linguistic analyses. In doing this, the Court accepted the principles in the UK Supreme Court’s pronouncement in Stocker v Stocker and explained that an interpretation based on extrinsic evidence, such as dictionary definitions, would place an unduly onerous burden on the party alleging defamation.

In determining whether the statements were capable and were, in fact, defamatory of the Sultanah, the Court found, contrary to the High Court, that the impugned statements were indeed defamatory. The Court emphasized that Brown had admitted that she was mistaken in attributing Jho Low’s introduction to the Sultan to the Sultanah. The statements, particularly those suggesting the Sultanah’s support for Jho Low’s appointment to TIA and her association with corrupt practices, were capable of lowering her reputation in the eyes of right-thinking members of society. The Court emphasized that an ordinary, reasonable reader, using general knowledge and common sense, would infer these negative connotations from the text, particularly given the societal context at the time of publication, as the book was published five months after the election in which 1MDB was a pertinent issue .  The Court also took note of the negative public reaction toward the Sultanah as a result of the book, evidenced in particular by comments on online Malaysian media websites, and rejected the lower court’s finding that the negativity was solely directed at the Sultanah’s actions in filing the defamation case.

The Court stressed that Brown’s intention in publishing the statements is irrelevant to this determination, and held that “at the time of the publication of the book, the impugned statements were calculated to expose the [Sultanah] to hatred, ridicule or contempt in the mind of a reasonable man or would tend to lower [her] in the estimation of right thinking members of society generally”. [para. 34]

Having found that the statements were defamatory, the Court examined whether Brown could successfully raise the defence of justification. The Court again relied on Brown’s admission that the Sultanah was mistakenly identified and found that this admission clearly meant that Brown was unable to prove the defence of justification which requires the impugned statements to be true. The Court also found that Brown had failed to provide the requisite alternative meanings for the statements. [para. 40] Consequently, the defence of justification could not succeed.

In conclusion, the Court overturned the High Court’s decision and ruled in favour of the Sultanah. It found the statements defamatory and awarded RM300,000 (approx. 64,000 USD in 2023) in damages, holding the Brown, her publisher, and printer jointly liable. In determining the amount of damages, the Court took into account the lack of an apology which they construed as a lack of remorse, the Sultanah’s high standing in society as a member of the Terengganu royal family, and the fact only 2000 copies of the book were sold and so the Court held it was not widely circulated.