Malaysia - Police Report — Absolutely Privileged?
Legal News & Analysis - Asia Pacific - Malaysia - Dispute Resolution
5 June, 2019
The Federal Court, on 30 January 2019, issued its grounds of decision with regard to the case of Noor Azman Azemi v Zahida Mohamed Rafiq. Through this decision, the Federal Court held that the publication of the contents of a police report by its maker to the public at large is not protected by absolute privilege.
This decision is significant, as the Federal Court had to weigh public policy considerations such as freedom of speech as well as to continue encouraging honest and well-meaning persons to lodge police reports without the fear of being sued for something said in the police report.
The respondent (“Zahida”) lodged a police report against the appellant (“Noor Azman”) which referred to Noor Azman by his name and alleged that he ran off with her money. After lodging the report, Zahida was approached by reporters and she repeated the contents of the report to the reporters. Harian Metro later published an article which Noor Azman contended contained defamatory statements (“Impugned Words”).
Subsequently, Noor Azman commenced a defamation suit against Zahida on the ground that the article was defamatory and tainted his reputation and character. Zahida raised the defence of absolute privilege and justification.
The defence of absolute privilege applies where there is an argument of public policy justifying the alleged defamatory statements. If this defence applies, it is irrelevant if a person had acted with malice or knew the statements were false.
Decision of the High Court
The High Court allowed Noor Azman’s claim and held that the Impugned Words were defamatory and were not covered by absolute privilege. Further, Zahida had failed to prove the defence of justification.
In reaching its decision, the High Court found that Zahida failed to give a reasonable excuse that necessitated the regurgitation of the police report.
Decision of the Court of Appeal
Dissatisfied, Zahida appealed to the Court of Appeal. The Court of Appeal overturned the decision of the High Court and held that the Impugned Words were nothing more than a regurgitation of the words in the police report and therefore attracts the same privilege as that attached to the police report. Further, the Court of Appeal found that the defence of justification applies.
Decision of the Federal Court
The Federal Court granted leave on the question of whether the publication of the contents of a police report by its maker to the public at large is protected by absolute privilege.
The main issue before the Federal Court was whether the defence of absolute privilege should be extended to the subsequent publication of the contents of a police report by its maker to the public at large.
In reaching its decision, the Federal Court considered the following:
- The extension of absolute privilege must be viewed with “the most jealous suspicion and resisted unless its necessity is demonstrated”.
- There is no valid public policy reason why the maker of a police report should be free from accountability and be allowed to publish any defamatory words contained in the police report to the world at large.
- Absolute privilege must give way and allow an individual access to the courts to seek a remedy for any alleged defamation caused unto him.
Ultimately, the Federal Court decided that absolute privilege will not attach to the subsequent publication of the contents of the police report to the public at large save where the contents were made in or in connection with judicial or quasi-judicial proceedings.
Notwithstanding that, the Federal Court had answered the question in favour of Noor Azman, it did not affect the result of the appeal as the Court of Appeal’s finding that the defence of justification applies remained intact and, therefore, Noor Azman’s appeal was dismissed.
The Federal Court decision has clarified the extent to which absolute privilege attaches to a police report as well as ensures that if a police report contains defamatory statements and is then reproduced to the world at large, action can still be taken against the maker of the report. This strikes an important balance between encouraging honest persons to lodge a police report and ensuring that any affected persons still have access to the courts.
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Marinah Rahmat , Shearn Delamore & Co