A person’s good reputation has long been a valued commodity. Even in ancient Rome, abusive chants were apparently punishable by death. In modern days, the tort of defamation allows individuals to take civil action against those who tarnish their good name and cause them harm.
However, it has been established in several jurisdictions that public officials should be treated differently when they are criticised in their official capacities. After all, having been elected to serve the public, allowing them to sue that same public for defamation due to criticisms about how they do their job seems counter-productive, to say the least.
It is in this light that we examine the recent majority decision of the Federal Court regarding former Penang chief minister Lim Guan Eng. The court found that Lim was entitled to sue Perkasa and its then-president Ibrahim Ali for remarks made about Lim’s official trip to Singapore, as “a public official must be allowed the same rights as any person and allowed to be sued for defamation”.
What are the implications of this decision for freedom of expression in Malaysia and should the law be amended so that public officials are no longer allowed to sue for defamation when criticised in relation to their official capacities?
Right to criticise
In allowing Lim to sue Perkasa, the Federal Court overruled a 2016 Court of Appeal decision in a defamation suit brought by former Pahang menteri besar Adnan Yaakob against Utusan Malaysia. The Court of Appeal dismissed the suit, holding that as the menteri besar held public office, he should be open to public criticism and ought to be precluded from suing for defamation in his official capacity.
Allowing public officials to sue for defamation would be contrary to the public interest, as found in the English House of Lord’s case Derbyshire v. Times Newspaper Ltd.
The Court of Appeal also relied on the right to freedom of expression as enshrined in Article 10(1)(a) of the Federal Constitution. It stated that “the public should have the right to discuss their government and public officials conducting public affairs of the government without fear of being called to account in court for their expressions of opinion”.
The court remarked that it would be wrong and inappropriate for public officials to receive plaudits for their achievements on the one hand, while denouncing criticisms through defamation suits on the other.
Other jurisdictions such as the United Kingdom and the United States have recognised that allowing public officials to sue for defamation would inhibit freedom of speech and affect the public and the media’s ability to hold the government to account.
From as early as 1923, a US case (City of Chicago v. Tribune Co) stated that “a despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions”. It went on to state that every citizen should therefore have a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution.
Current US law holds public officials to a higher test when they sue for defamation in their official capacity. They are required to prove “actual malice”, meaning that they must prove that the defendant made the offending statement knowing it to be untrue or with reckless disregard about its truth.
Personal capacity vs official capacity
The Federal Court in Lim’s case has chosen not to make such distinctions. It held that public officials can sue for defamation as long as the defamatory statement identified them as individuals in government, instead of critiquing the government body as a whole.
As long as the statement could be read as referring to them as individuals, there was no distinction between whether a public officer was being defamed in their official or personal capacity.
This position poses a minefield for those wanting to criticise the government. Such criticisms would invariably reference individuals holding positions of power.
Governmental powers are always exercised by individuals and the propriety of which are therefore tied to the character, moral and conduct of those individuals.
Therefore, to draw a line in the sand between criticisms of the government in general, and criticisms of individuals in government, is impracticable and amounts to an impossible policing of free speech.
The European Court of Human Rights has long observed that “political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society”.
Public officials ought to be held to a different standard when it comes to defamation suits due to their privileged positions in relation to the public. If one made a defamatory statement about his or her neighbour, that neighbour would not have the benefit of the state apparatus and media to counter those statements, unlike public officials.
Given the resources available to them, it would be preferable for public officials to rebut allegations and criticisms levelled against them through facts and explanations, rather than relying on defamation suits.
Public officials in Malaysia wield the might of the state and already have an arsenal at their disposal when it comes to countering unwanted speech. If defamation is added to this, it further tips the balance of power in politicians’ favour when it comes to facing public criticism.
The case of JB Jeyaretnam in Singapore is an example of the serious consequences that can result from defamation suits filed by public officials. Jeyaretnam was Singapore’s first opposition Member of Parliament and he was sued multiple times for defamation, including by two prime ministers.
When he eventually defaulted on the substantial damages awarded against him, he was declared bankrupt and this disqualified him from standing for office.
While a balance must be struck between freedom of expression and protecting individual reputations, that balance has to be carefully considered when it comes to public officials and public authorities.
Defamation has long been weaponised by those in power to silence dissent and curtail free speech because it carries with it a threat of crippling penalties, as can be seen in Jeyaretnam’s case.
The decision of the Federal Court has exposed the fault lines in our laws on defamation. The courts are not the ideal forum to address the chasms arising from the deficiencies in our laws through policy considerations.
There is an urgent need for Parliament to reform our Defamation Act 1957 to bring it in line with modern times and international standards by introducing a prohibition against public officials and government bodies from suing the individual.
While a person’s good name is of great value, so is the people’s freedom to challenge their government’s actions – and the individuals who carry out those actions as well.
Ding Jo-Ann is an adviser to the Centre for Independent Journalism. This article was published by Malaysiakini.