What I said was half-true, are they defamatory?

The Federal Court answered this question in a recent case: Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong. Below is my case study.

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THE ORIGIN STORY

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1.?????????? The plaintiff (“David Chiu”) sued the defendant (“Seema”) for defamation.

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2.?????????? Seema is an owner of a unit at W&W, an apartment developed by Mayland. Seema is also a committee of the management corporation for her property.

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3.?????????? David Chiu is the chairman and founder of Mayland.

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4.?????????? This management corporation has a WhatsApp group. In this WhatsApp group, Seema made several statements on David Chiu. Specifically; Mayland was convicted for fraud and misrepresentation against W&W owners; and David Chiu was arrested and charged for fraud and falsifying documents.

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5.?????????? At the High Court ("HC"), Seema relied on several defences:

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(a)???????????????????? The impugned statement was justified.

(b)???????????????????? It was made in good faith, without malice.

(c)????????????????????? It was a fair comment; and

(d)???????????????????? A qualified privilege only for the eyes of the WhatsApp group participants.

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6.?????????? David Chiu lost at the HC. HC found that:

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(a)??????? Seema proved her defence justification – the statement was “substantially true”. It is a fact that David Chiu was arrested and charged for falsifying documents.

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(b)??????? Seema proved her defence of qualified privilege – the impugned statement was between fellow W&W owners, and therefore privileged.

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(c)??????? It was a fair comment – it was a public interest matter and there was no malice in making it.

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THE APPEAL

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7.?????????? The Court of Appeal ("COA") reversed HC’s decision: The impugned statement was capable of disparaging and injuring David Chiu’s character and reputation. It also encouraged adverse opinion among the readers against David Chiu.

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8.?????????? COA also found the statement to be done with malice. Seema knew David Chiu was acquitted of the charges. Seema painted half the picture. The deliberate omission of the acquittal was malicious.

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Note: Seema admitted at HC trial that the entire truth, i.e. the acquittal was not posted.

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?THE ULTIMATE DECISION

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9.?????????? Now, the Federal Court ("FC") is faced with this question – could half-true statements were defamatory?

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10.?????? The FC’s answer: yes, the statement was defamatory.

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11.?????? The FC was persuaded by, among others, the House of Lords (Sutherland & Ors v Stopes [1925] AC 47), which said this:

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(a)??????? “truth must not be stated without being fully stated…which would put a different complexion upon matter which is libellous or slanderous standing by itself, and possibly or probably destroy altogether its character as such.”

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(b)??????? “a statement may, without an explanation be libellous or slanderous if written or uttered in such circumstances as to suggest that a taint upon character and conduct still subsists, and that the plaintiff is accordingly held up to ridicule, reprobation, and contempt.”

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(c)??????? “the allegation of fact must tell the whole story.”

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12.?????? The half-true statement did not contain the whole fact, which in turn garnered a different effect to the statement and resulted in David Chiu’s reputation to be viewed in disdain.

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13.?????? Since half-true statements can be defamatory, is there a derogation to the existing position? The FC’s answer: no.

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14.?????? The existing local approach remains, i.e.:

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(i)?????????????????? Whether the impugned statement is capable of bearing a defamatory meaning (question of law); and

(ii)???????????????? Whether the impugned statement is defamatory (question of fact).

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(See: FC in Chong Chieng Jen v Government of State of Sarawak [2019] 3 MLJ 300)

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15.?????? The FC held that its finding in this case on half-true statements were an exercise of applying the facts to the existing approach above.

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16.?????? Takeaway: Half-true statements that create a false impression which harms the reputation of a person = defamatory.

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17.?????? Can the FC adopt the English courts’ approach for this? FC’s answer: yes.

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18.?????? There is no local written law governing half-true statements. Section 3(1) of the Civil Law Act 1956 (on common law being applicable when there is lacuna in the local laws), comes into play here.

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CONCLUSION

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19.?????? A statement must be fully truthful, as partial truths that omit significant details can mislead and harm people’s reputations.

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20.?????? It goes without saying that you have to be careful of what you post and share online. Especially now that half-truths, incomplete or unverified information, may now be defamatory. Best advice: if you have nothing good to say, don’t say anything. You don’t want to be sued in court because of your rash posting!

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