Cry freedom from Colombo

International Colloquium calls for abolition of criminal defamation laws

The international colloquium on free dom of expression held this week in Colombo has recommended that criminal defamation laws should be abolished.

The colloquium jointly organised by the Commonwealth Press Union and the Article IX which spearheads an international campaign against censorship, agreed that criminal defamation laws were fundamentally unacceptable, frequently abused and used in cases which do not involve public interest.

Associated with Article XIX and the CPU in organising the colloquium were the Free Media Movement, the Editor's Guild, the Newspaper Publishers' Society and the Centre for Policy Alternatives.

The colloquium was attended by eminent resource personnel, including Abid Hussein, UN Special Rapporteur on Freedom of Expression and Dato Param Kumaraswamy, UN Special Rappporteur on the Independence of Judges and Lawyers.

The conference discussed latest trends and developments in the use of defamation laws, both criminal and civil, and examined its impact on the freedom of expression and the free flow of information.

The three-day colloquium ended on Friday with a declaration — titled Principles of Freedom of Expression and Defamation — calling for the abolition of criminal defamatino laws and outlining alternative guidelines and procedures.

The colloquium also wrote a letter to Malaysian Prime Minister Mahathir Mohamed, protesting against the arrest of Far Eastern Economic Review journalist Murray Hiebert for writing an article which the Malaysian authorities saw as scandalizing the judiciary.

The Sunday Times today publishes the declaration, the letter to Mahathir Mohamed, and Mr. Hiebert's article which was recently reproduced in the Asian Wall Street Journal.

Principles on Freedom of Expression and Defamation

Participants at the International Colloquium on Freedom of Expression and Defamation Law, having met from September 15-17 in Colombo, Sri Lanka to discuss the issue of the appropriate standards in relation to defamation law, taking into account constitutional and international guarantees of freedom of expression, have resolved as follows:

Mindful of the crucial importance of both freedom of expression and the right to one's reputation;

Taking into account the importance of open access to information, and particularly of a right to access records held by public authorities, in promoting accurate reporting and in limiting the publication of false and potentially defamatory statements;

Aware of the fundamental necessity of an independent and impartial judiciary to safeguard the rule of law and to protect human rights, including freedom of expression;

Recognizing the role of self-regulatory mechanisms in providing effective remedies which are easily accessible to ordinary citizens; Recalling the need for accountability and transparency in public institutions and corporations;

Cognizant of the media's obligation to carry on their publishing activities with a view to furthering the public's right to know;

We call on governments and the judiciary to bring their defamation laws into line with the following principles:

Criminal Defamation

Criminal defamation laws — including those that provide special protection to the precedent and other public figures — are unnecessary to protect reputations and should be abolished. Other laws provide sufficient protection in situations where there is a risk of a breach of the peace. Such laws are frequently abused, being used in cases which do not involve the public interest and as a first, rather than last resort. In practice, it does not provide a remedy for ordinary citizens, who cannot generally bring criminal defamation cases, and is rather a mechanism which is used by politicians and senior public officials. The threat of criminal sanctions - including a suspended sentence. the threat of imprisonment in case of a subsequent breach - exerts a significant chilling effect on freedom of expression which cannot be justified.

Who may sue

Certain public bodies, including elected and executive bodies and publicly-owned corporations, ought to be prohibited altogether from bringing defamation actions. The trend, internationally, is towards extending the scope of this prohibition. In determining whether a public body is covered by this prohibition, regard should be given to the degree of organizational and financial autonomy of the body, whether the body provides a public service and the effect of stifling criticism of the body.

Procedure

The procedure associated with a defamation case should be as quick and simple as possible so as to limit the negative impact of delay on freedom of expression. In particular, given the potentially chilling effect of the threat of defamation suits, the limitation period for filing such suits should be one year and courts should ensure that each stage of the proceedings are conducted with reasonable dispatch. To facilitate this, courts should have the power to apply appropriate sanctions - including imposing costs and even striking out the action - on parties who delay proceedings.

Justification/Proof of Truth

Truth should be a complete defense in relation to a defamatory statement of fact.

Fair Comment/Opinions

No one should be required to prove the truth of an opinion. It should be a defense to an action for defamation that the statement has a sufficient factual basis and is an opinion that an honest person could hold in the circumstances. Opinions relating to public figures or matters of public interest should be allowed a greater degree of latitude given the importance of open public debate in these instances. Where there is a doubt as to whether a statement is one of fact or opinion, there should be a presumption that it is a statement of opinion. It should be a full defense to an action for defamation to show that the impugned statements were satirical or made in jest, whether or not the statements had a factual basis.

Privilege

Existing privileges - both absolute and qualified - should be retained. Courts should retain the right to extend the categories of qualified privilege in appropriate cases. Fair and accurate reports of privileged statements, for example by newspapers, should also be privileged. The defense of fair and accurate reporting of official proceedings should apply directly to the privileged statements, rather than any official report of them such as Hansard or court records.

Reasonableness

The defense of reasonable publication should be available to defendants in defamation cases which relate to statements on matters of public interest, even where the statement is false or cannot be shown to be true. Factors to be taken into account in establishing whether publication was reasonable in all the circumstances should include:

*the extent to which the author of the statement investigated the matter before publication;

*the credibility of the source of the statement;

*the extent to which alternative sources of information, for example public authorities, have unjustifiably withheld information or refused to comment;

*the nature of the language in which the statement is cast;

*the extent to which the public's right to know in a timely fashion justified publication.

Damages

Damage awards should be proportionate to the harm done so as not to exert a chilling effect on freedom of expression. In assessing damages, courts may take into account not only the harm to the plaintiff, but also the effect of the award on freedom of expression. In written pleadings for damages the practice of quantifying general damages, where it is permitted, should be discontinued. There should be a fixed ceiling on general damages, to applied only in the most serious cases, and special damages should be awarded only where specifically proven. Defendants should, in appropriate cases, benefit from the various payment options that are normally applied in the case of other debts, such as monthly payments.

Alternative Remedies

When allocating damages, courts should take into account any alternative remedies that have been applied and their effect in mitigating any harm to the plaintiff's reputation. In particular, courts should consider whether any action has been taken by self-regulatory bodies, such as a press complaints commission, whether an apology and/or correction has been printed and whether the plaintiff has exercised a right of reply.

Costs

In awarding costs to both plaintiffs and defendants, courts should take into account the effect of such costs on freedom of expression.

Interlocutory Injunctions

Interlocutory injunctions prohibiting publication or further publication are a form of prior restraint and should be applied only in highly exceptional cases. It is generally accepted that interlocutory injunctions should not be applied unless all the following conditions are met:

*the plaintiff can show that he or she would suffer irreparable damage - which could not be compensated by damages - should publication take place

*the plaintiff can demonstrate a virtual certainty of success, including proof:

*of the exact words to be published

*that the statement was unarguably defamatory

*that any potential defenses are manifestly unfounded (any evidence of a defense should be sufficient to defeat a motion for an interlocutory injunction).

Permanent Injunctions

Permanent injunctions may be applied only after a full and fair hearing of the merits of the case. Permanent injunctions should be limited in application to the specific statements found to be defamatory. It should be up to the defendant to decide how to prevent further publication, for example by removing those particular statements from a book.

Malicious Prosecution

Defendants should have an effective remedy in cases where plaintiffs bring clearly unsubstantiated cases with a view to exerting chilling effect on freedom of expression rather than to vindicate their reputations. The particular remedy will vary from jurisdiction to jurisdiction but possible options include the right to bring a case for malicious prosecution (against private parties) and the right to bring an action for vexatious litigation.

The story that got a reporter jailed

The following is the article that led Malaysian courts to imprison Murray Hiebert, a reporter for the Far Eastern Economic Review, for scandalizing the court. The jail sentence was affirmed on September 11. The original article is reprinted here to provide details of the case. It originally ran in the Review on Jan. 23, 1997, under the headines "Malaysia: See You in Court: A series of civil suits suggests growing littigiousness." The trial court's objections are summarized in the accompanying box.

By Murray Hiebert in Kuala Lumpur

When it comes to litigation, Malaysia has a long way to go to catch up with, say, the United States. But a spate of recent suits suggests that it's heading that way.

The most recent case is playing out in a small court room in the south-western suburbs of Kuala Lumpur, where the mother of a 17 year old high school student is suing the International School of Kuala Lumpur, claiming he was unfairly dropped from the school's debate team. Damages sought: a record 6 million ringgit ($2.4 million).

The case has sparked intense interest among legal circles, educators and foreign investors in the Malaysian capital. For starters, the thin, bespectacled student, Goving Sri Ram, is the son of a prominent Court of Appeals judge, Gopal Sri Ram. And many are surprised at the speed with which the case raced through Malaysia's legal labyrinth. The trial began on January 6, less than seven months after a writ was filed with the High Court. "Normally, in a civil case, you're lucky to get a hearing within five years," a veteran lawyer notes.

The main point of interest for lawyers is that the case is breaking new legal ground. "It's the first time in Malaysian history that someone is suing on the basis of unfair discrimination," notes one. "Malaysia has no laws on discrimination."

Educators are also following the case closely. A hefty award for the plaintiff would be a major financial burden on the school and could hinder Malaysia's efforts to attract foreigners. The institution, after all, was established 30 years ago to educate the children of foreign businessmen and diplomats. (Young Govind is among the 7% of the school's 1,650 students who are Malaysian citizens, most admitted because their parents have spent years working overseas.)

"This is the first knowledge I have of any international school being sued for anything," says the administrator of another international school in Kuala Lumpur. "Usually parents discuss problems with a teacher, and if that fails they go to the headmaster and come to some decision."

Govind's mother claims in her writ that the school "unlawfully discriminated" against her son by excluding him from a debate team that took part in a forensics tournament in Taipei last year. The mother is seeking damages from teacher Julie Dean, who served as coach of the school's debate team, and Gail Vendeland, the school board's chairwoman.

The writ says Dean "intentionally relied on insufficient evidence" to accuse Govind of "tampering" with material he had obtained from the Internet while preparing arguments for the tournament. The teacher allegedly acted against Govind at the instigation of other students who had "vested interests" in preventing him from participating, Govind's lawyers wrote.

In a separate 12-page letter to the court, Govind's father says team-mates discriminated against his son because they "never forgave Govind" for the victory that qualified him to compete in Taipei.

The school's defence statement denies that Govind was actually excluded from the tournament. It says the school could not send him to Taipei because the competition called for two-man teams and Govind "at the material time had no partner." The defence contends that Govind's partner had refused to compete alongside him because of questions about the source of some of Govind's preparation material.

The school also denies that Govind was dropped "on the basis that the Plaintiff had falsified evidence." The lawyers wrote: "Another member of the school team had queried a quotation by the Plaintiff from the Economist magazine, as they or any opposing team in a tournament were entitled to do under the rules governing the debate."

A suit like Govind's may sound rather un-Malaysian, but it's not the first. Consider the libel case brought in 1994 against journalist M.G.G. Pillai by Berjaya Group Chairman Vincent Tan. A judge heard the case within seven months, then ruled that four articles which appeared in the monthly magazine Malaysian Industry in 1993 and 1994 were defamatory and calculated to disparage Tan's personal and business reputation. The upshot: Tan was granted 2 million ringgit in damages, the largest award in Malaysian legal history. Pillai lost his appeal, so he's headed for the Federal Court, which will hear his case on January 27.

In another case, two Malaysian companies, MBf Capital and MBf Northern Securities, filed a 60-million-ringgit defamation suit on January 10 against lawyer Param Cumaraswamy over statements attributed to him by International Commercial Litigation in November 1995. The suit against Param was the 13th filed over the same article. Among the other suits it spawned, Berjaya's Tan sought 100 million ringgit in damages from legal firm Skrine & Co. and its partner Tommy Thomas, and 70 million ringgit in damages from Asian Wall Street Journal reporter Raphael Pura. (The Journal is owned by Dow Jones & Co., owner of the Review.)

Meanwhile, Govind Sri Ram continues studying at the International School of Kuala Lumpur, despite his suit. He's also back on its debate team, but teacher Dean is not his adviser. Govind initiated an injunction against Dean in September, prompting the school to agree that she would not serve as coach as long as he is on the team.

Low Hop Bing, the trial judge who found the accompanying article in contempt for scandalizing the court, wrote a lengthy 1997 opinion affirmed Saturday. In explaining the jail sentence for the author, he made the following points. Explanatory material is inserted between brackets:

It was a "baseless unwarranted and unsubstantiated untruth" to suggest that the court had fast tracked the case because it was brought by the family of a prominent appeals judge. Mr. Hiebert had not named the "veteran lawyer" quoted in the third paragraph (the source, a well-known Malaysian trial lawyer, had insisted upon anonymity). The case had been brought to trial on a date consented to by all parties.

It was a "baseless lie" to suggest the suit was based on "unfair discrimination" and that Malaysia had "no laws on discrimination," since its constitution had a guarantee of equal treatment under law.

Mr. Hiebert had perpetrated "an absolutely serious and blatant lie against the plaintiff and his parents" by referring to "a separate 12 page letter to the Court" by Govind's father. The father, an appeals judge, had not written to the court: He had written a 12-page letter to the school, which had been exhibited in court". (The Far Eastern Economic Review had apologized for this error; an editor in Hong Kong had deleted the word "exhibited" from the original copy, giving the sentence an unintended and incorrect meaning.)

The judge inferred from other passages - reporting the concerns of educators, suggesting that parents usually discuss problems with teachers rather than suing them and describing other Malaysian cases - that the reporter had written the article "to solely misinform the general public and to intimidate and pressurise the Court" and to "give the impression that the Plaintiff is an ungrateful boy." In imposing a prision sentence, the judge commented, "in my view for far too long there appears to be unabated contemptuous attacks by and through the media on our judiciary .... It is high time that our judiciary shows its abhorrence to such contemptuous conduct as is illustrated by the facts of this case."

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