Khalid Samad wins defamation suit against Utusan
September 30, 2011
Khalid Samad wins defamation suit against Utusan
by Hafiz Yatim@www.malaysiakini.com
Sep 30, 11
5:32pm
The Kuala Lumpur High Court has found Utusan Malaysia culpable of libel in publishing a statement incriminating of Shah Alam MP Khalid Samad (left). However, Justice Dr Prasad Sandosham Abraham said Khalid was only entitled to a nominal sum as the court is perplexed over why Bandar Baru Kulim MP Zulkifli Nordin is not named as a defendant.
Justice Dr Prasad Sandosham Abraham said the plaintiff (Khalid) has been successful in proving the statement, which was taken from Zulkifli’s blog, was wrong. “The court rejects the defence of qualified privilege as living in Malaysia we have to subscribe to the sensitivity of all races unlike laws in Australia or the United Kingdom,” he said in his oral judgment.
“All the defendants’ are guilty of downloading the article from the blog without checking the contents (on its sensitivity).”
Sandosham has fixed Oct 11 to hear submission on damages. He said the court found calling someone as Abu Jahal and as a kafir (infidel) is the highest defamation in its mind.
In the suit filed last year, Khalid from PAS, named Utusan Malaysia and Mingguan Malaysia group editor-in-chief Aziz Ishak and the publisher of Utusan Malaysia and Mingguan Malaysia as defendants.
The Shah Alam MP claimed that on September 11, 2009, Aziz, as the Group Editor-in-Chief for both newspapers, with malice, had allowed the publication and printing of defamatory words on him on the front page of the newspapers.
He also claimed that the article entitled ‘Zulkifli bidas Pak Janggut‘ (Zulkifli admonishes Bearded Man) directly or indirectly referred to him even though his name was not mentioned.
‘Media must be sensitive’
Justice Prasad in his judgment said the article has to be taken in its full context as Khalid is the MP for Shah Alam. At that time, two years ago, there was a dispute over a relocation of a temple in Shah Alam.
The judge noted a tremendous departure from the principle of “qualified privilege” in the reasoning which had been mostly cited by the media. “The court is mindful of the fact that we cannot use the reasoning of the Western courts especially in the United Kingdom, Australia and also Canada.”
“I have to adopt the judgment made by former Federal Court judge Gopal Sri Ram in that the media should take into consideration the sensitivities of other races and religions in part due to the nature of Malaysia being made up of so many races. We have to take into consideration of the sensitivities of the people and of diverse races,” he said.
Justice Prasad said the article contains defamation as the court finds that the media cannot say they are practising freedom of speech, freedom of expression and freedom of the media as there is a limitation to it.
“In this case, there is some degree of culpability of libel on the part of the publisher and the defence of qualified privilege is not tenable,” he said.
‘Why no action on Zulkifli?’
The judge also commented that the court find it perplexing that Zulkifli is not named in the 
defamation suit. “Why is Zulkifli (right) not sued? Was it because he was in the same party (coalition) before he had left? The plaintiff (Khalid) did not even ask for the removal of the blog posting which should have been done,” he said.
“I do not know whether this is done accidentally,” he said. Justice Prasad informed the parties that he will write a full judgment on the issue and what he is giving today are the broad grounds.
Utusan Melayu (M) Bhd, which is the publisher of the UMNO-owned daily, was represented by lawyer Mohan Kumar while Azhana Mohd Khairudin appeared for Khalid.
Let us hope Utusan Malaysia will be more careful in future. The UMNO-owned tabloid has been reckless and biased in its reportage.–Din Merican
dinobeano - September 30, 2011 at 10:01 pm
The honourable judge asks why Zulkifli is not named in defamation suit?
It could be that:
1) personal blogs are more free to say things and have a lot less readership in the contested constituencies than a major nationwide daily. So Zulkifli may be shouting in his blog, but nobody logs on and the damage is not done. But Utusan is printed in black & white to behold & delivered to people’s doorsteps daily to be held.
2) didn’t want to give political mileage to Zulkifli
3) battles are picked for ample use of resources
4) Zulkifli cannot pay.
fariyusof - September 30, 2011 at 10:40 pm
Calling somebody a liar an infidel (which translates to mean non-believer) is not defamatory. In the case of public officials and politicians, you need to prove ‘malice’. Not so in the case of private citizens. The rationale behind it is as public officials and politicians their work put them in the public limelight and their views attract public criticism and it is still criticism even when delivered in the most stern of terms.
It is about balancing free speech against the right of the individual not to be defamed.
Mr Bean - September 30, 2011 at 10:44 pm
YB Khalid Samad , you are da man!!
Frank - October 1, 2011 at 9:34 am
It is about balancing free speech against the right of the individual not to be defamed.- Mr Bean
Free speech? Even civilised society recognises there is NO such thing as ABSOLUTE FREE SPEECH.
In Australia:
(1) Read here Columnist and political commentator Andrew Bolt breached the Racial Discrimination Act over two articles he wrote in 2009, a judge has ruled.
Bolt was being sued in the Federal Court by nine Aboriginal people including former ATSIC chairman Geoff Clark, academic Professor Larissa Behrendt, activist Pat Eatock, photographer Bindi Cole, author Anita Heiss, health worker Leeanne Enoch, native title expert Graham Atkinson, academic Wayne Atkinson, and lawyer Mark McMillan.
(2) Sydney Morning Herald Read here EDITORIAL Free speech was not the loser in the Bolt case
(3) ABC News article: Read here Even Bolt’s freedom of speech isn’t an absolute right
Frank - October 1, 2011 at 9:46 am
re-link above articles:
(1) Columnist and political commentator Andrew Bolt breached the Racial Discrimination Act over two articles he wrote in 2009, a judge has ruled. Click here: http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918
(2) Sydney Morning Herald EDITORIAL Free speech was not the loser in the Bolt case click here: http://www.smh.com.au/opinion/editorial/free-speech-was-not-the-loser-in-the-bolt-case-20110929-1kz9d.html
Frank - October 1, 2011 at 10:05 am
Of course there is. But you will have to suffer its consequences.
The man shouting “Fire!” in a crowded cinema can do so. He has that right. But there consequences that flow from his action.
Mr Bean - October 1, 2011 at 8:44 pm
Free speech as an end itself.
Justice Brandies, in his concurring opinion in Whitney v. California 374 U.S. 357 (1927) said that, “Those who won our independence believed that the final end of the state was make men free to deliver their faculties and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.”
This view was expanded by Justice Harlan in Cohen v. California, 403 U.S. 15 (1971) where the Court protected speech which was more vulgar than well-reasoned because the constitutional right of free expression placed the decision of what views shall be voiced largely in the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity.
Mr Bean - October 1, 2011 at 8:58 pm
As every man has a price, so is man’s freedom. Freedom is not absolutely free in a civilised society,
Frank - October 1, 2011 at 9:02 pm
Coming back to the issue of defamation – as seen within the context of the First Amendment (which guarantees free speech), something you’re familiar with since you did your Masters in Mass Communications here.
Defamatory speech (that is untrue statements which injure the reputation of another) and statements about a person which invade his privacy are not fully protected by the First Amendment because (1) they do not promote the dialogue leading to truth which is a cherished First Amendment value and (2) further communication concerning the subject matter which either defames or invade privacy is likely to exacerbate the injury instead of healing it. Therefore, defamatory statements were regarded in Chaplinsky v. New Hampshire, supra, as an area of speech not protected by the First Amendment, and states were consequently free to develop tort rules to protect person injured by defamatory statements.
As for standard and burden of proof.
Defamation of Public officials. The Supreme Court developed a rule essentially recognizing First Amendment protection of certain forms of libel against “public officials”. In effect the rule requires that the public official plaintiff must prove that the defamatory statement was made with actual malice. Before the rule developed states were free to allow recovery on a strict liability basis – that is all the individual had to prove was that the defamation was communicated without regard to the defamer’s motivation or malicious intent.
“Actual malice” is used by the Supreme Court to mean a knowing or reckless falsehood; it is not the same as actual malice in the common law sense of “not made in the reasonable belief of its truth.” Garrison v. Lousisiana 379 U.S. 64. “Reckless disregard” is not shown by a negligent failure to investigate but by the publisher’s having serous doubts as to the truth of the statement. St. Amant v. Thompson 390 U.S. 727 (1968).
Mr Bean - October 1, 2011 at 9:22 pm
Having said that Article 10 Federal Malaysian Constitution 1957 is nothing like the First Amendment of the U.S. Constitution.
Mr Bean - October 1, 2011 at 9:27 pm
“The court rejects the defence of qualified privilege as living in Malaysia we have to subscribe to the sensitivity of all races unlike laws in Australia or the United Kingdom,” he said in his oral judgment.
———————–
“Sensitivity of all the races”?? This would not stand in a U.S. court.
Mr Bean - October 1, 2011 at 9:35 pm
The judge is setting too low a standard.
As an MP you are a public figure and should expect to endure criticism both fair and unfair tinged with some malicious even (in the common law sense) and should expect statements like those and readers and the public at large understands that.
Mr Bean - October 1, 2011 at 9:42 pm
ooops … malice even
Mr Bean - October 1, 2011 at 9:42 pm
The judge also didn’t take into account that the defamation was done by a MSM with thousands of readers as opposed to an individual defamation. Thus the award should have taken into account the quantum effect of the slander and the plaintiff should be awarded damages equitable to the damage done. Just because the defendant is an UMNO owned entity the judge became soft. Throw the book at Utusan Judge. Hit it where it hurts the most. That is the purpose of punitive damage. That will send a warning to them to be careful and verify future stories.
webelos - October 2, 2011 at 12:41 am
For defamation to occur there has to be a third person in the room who understands what is being said. If he or she does not understand the language there is no defamation.
Here it is in print and circulated widely.
scarlet.pimpernel - October 2, 2011 at 8:13 pm
Menang sorak, kampong tergadai
webelos - October 4, 2011 at 11:55 am
Such narrow-minded Utusan Melayu hampers own image.
rightways - October 4, 2011 at 4:04 pm