SOO LI MIEN, REIKO & ORS v CHONG WEE FUNG AND ANOTHER APPEAL [2015] MLJU 2253

Court of Appeal (Putrajaya)

Publication of a Defamatory Statement

2. In response, the Appellants filed a counterclaim against the Respondent, claimed for libel, that the Respondent wrote and displayed the letter on the public school’s notice board and the publication of six newspaper articles.

3.  On 26 July 2012, the Respondent decided to drop her legal action against the Appellants, but the Appellants chose to continue with their legal action.

4.  The Appellants submitted that the Respondent had mistreated their daughter, who was dealing from Post Traumatic Stress Disorder (PTSD) from an accident.

5.  The school was informed of the need for special care for the Appellants’ daughter due to PTSD.

6.  The Appellants and the Respondents had the disputes on how to take appropriate care for the daughter’s PTSD. The Appellants claimed that the Respondent made the daughter’s situation worse, causing their daughter to fear going to the school.

7.  As time passed, the relationship between the Appellants and the Respondent worsened.  The school’s Headmaster tried to help by resolving the problems between them, but  the effort was unsuccessful as the Respondent declined to participate.

8.   A second attempt was made by the Ministry of Education Sports Excellence Centre on 15 August 2008. Both the Respondent and the Appellants attended the meeting, but the Respondent disagreed with the proposed resolution and indicated her intention to involve legal representatives.

9.   Subsequently, on 5 September 2008, the Respondent initiated a legal action against both the Appellants and the Headmaster, bringing forth accusations of harassment, abuse of freedom of expression, oppression, slander, and libel. The lawsuit was further published as an article in six prominent Chinese newspapers (the ‘articles’) on 7 October 2008.

10.  The High Court affirmed that the Respondent had indeed published the letter on the school’s public notice board for others to see it. However, the Court also found that the content of the letter did not make any reference to the Appellants. As a result, the judge dismissed the Appellants’ claim.

10.  Furthermore, the High Court held that the Appellants had failed to prove their claim that the Respondent was responsible in publishing the articles in the Chinese newspapers. Consequently, the Court dismissed the Appellants’ claim about whether the content of the publications was defamatory to the Appellant.

(a)  In the present appeal, the Court referred to Paragraph 83B of the Appellants’ Re-Amended Counterclaim, as follows:

“20 A. The Plaintiff vehemently denies allegations in paragraph 83B of the Second and Third Defendants’ Re-Amended Counterclaim and categorically states that:

(a) The Plaintiff had NEVER authorised her counsel Chan Tse Yuen to publish any material in this action to the alleged journalist.

(b) The Plaintiff’s counsel, Chan Tse Yuen did NOT publish nor purportedly caused or aided publication of any of the alleged defamatory words in Appendices A to F by purportedly distributing copies of the Statement of Claim to the alleged journalist.”

(b)  In this case, by referring to the paragraph 83B of the Appellants’ Re-Amended Counterclaim, the Appellants argued that the Respondent had approved her lawyer, Chan Tse Yuen, to assist in the distribution of defamatory statements by giving copies of the Statement of Claim to the reporters from the press and media.

(c)  However, the Respondent argued she had never authorised her lawyer, Chan Tse Yuen to publish any material of the Statement of Claim to journalists from the press and media. The Respondent also submitted that the lawyer did not publish the statement of claim to reporters or allowed any publication.

(d)  However, the Court was of the view that when a party employs a lawyer, therefore, the party is responsible for the lawyer’s action within the scope of employment.

(e)   The Court also referred to the principles of vicarious liability outlined in the book of Carter-Ruck on Libel
and Privacy. It highlights that a person who secures or authorises a publication can be held liable. In this context, the liability is joint and several, which means both the party and the lawyer can be held accountable.

(f)  Therefore, the Court found that the Respondent could be held responsible for the publication of the defamatory material through her lawyer’s actions. Hence, the liability may also be imposed when there is a principal-agent relationship, and the agent defames someone while acting within the scope of their authority, or when the principal subsequently adopts and ratifies the agent’s actions. This liability is distinct from vicarious liability and typically relies on the establishment of an agency relationship, which is often based on a contract.

(g)  Nevertheless, in the High Court, the Respondent’s lawyer was never summoned to provide any testimony to challenge the Respondent’s authorisation.

2.  In defamation cases, the key elements are making false statements that harm a person’s reputation and publishing those statements to a third party.

3.  Vicarious liability can come into play when the person making the defamatory statement is acting within the scope of their employment or agency relationship.