Rohana Binti Ibrahim v Khadijah Binti Iskandar (BA-23NCvC-67-12/2021)

The Plaintiff alleged that words uttered by the Defendant in the said meeting were uttered with malice and were capable of bearing defamatory character. The Defendant denied this and the suit went to trial. Background Facts [3] The Plaintiff had been an employee at Agrobank since 1-10-1992. Her position at the time of the alleged defamation was Relationship Manager (Deposit Section) for the Ministry of Agriculture and Food Industries and its agencies. [4] On 11-2-2021, the Defendant had a work-related MS Teams meeting with the CCO, Zurina Othman (SD-1) ( Teams ). The Teams Meeting was 1 hour 21 minutes long and it was set up, recorded and saved in the public Teams by secretary. This meant that the recording was accessible to all employees of Agrobank. [5] Sometime between 11-2-2021 and 5-3-2021, the full recording of the Teams Meeting as well as a 6 minute 47 second excerpt of it began circulating via WhatsApp as a . The video file was accompanied by #Ana tu macam and other comments not attributed to the Defendant. [6] The video leak came to the attention of management at Agrobank on or about 5-3-2021. It was investigated internally by Agrobank and an Internal Audit Division report on the information leak was prepared in April 2021 ( ). Issues for determination [7] The offending statements complained of by the Plaintiff were transcribed and reproduced in the Statement of Claim. They were as follows ( ):

The Offending Statements when uttered to the CCO is possible slander, actionable under section 5 of the Defamation Act 1957. Since the Offending Statements were also published in permanent form in a recording, it is also a possible libel. [9] The Plaintiff relies on the innuendo meaning of the Offending Statements. The Defence case is that the Offending Statements are not defamatory and/or not capable of bearing the pleaded defamatory imputations. [10] As the Defendant did not plead any positive defences to the claim in this case, the only issues for determination are whether the legal elements of the cause of action are established. Per Ayob Saud v TS Sambanthamurthi [1989] 1 CLJ 152, the burden of proof lies on the Plaintiff to show that the defamatory imputations (a) are defamatory (b) refer to the Plaintiff; and (c) were published. Analysis and Findings Identification of the Plaintiff [11] The Defendant admitted that she was referring to the Plaintiff in the Teams Meeting. However, she qualified her concession by saying that people unfamiliar with the Plaintiff and outside of Agrobank are unlikely to connect the Plaintiff.

This Court finds that the element of identification is satisfied. Non-recognition by the public at large (i.e. beyond the community of employees at Agrobank and those in the industry who dealt with the Plaintiff) only goes to the extent of damage if defamation is established. [13] It is not in dispute that the video of the Teams Meeting was viewed within Agrobank. According to the Audit Report, it was viewed by 24 staffs on the public channel of MS Teams itself between 11-2-2021 and 4-3- 2021, and an unspecified number of people including the Chairman and Board members of Agrobank, received and presumably viewed the video via WhatsApp. Defamatory Imputations [14] As mentioned in the opening paragraphs of this judgment, the Plaintiff contends that the Offending Statements are capable of bearing the pleaded defamatory imputations about her professional capability and moral character. The Defendant contends that they are not capable of being understood as such. [15] The proper approach to determine if the words complained of are capable of bearing a defamatory meaning is as explained in Tun Datuk [1996] 1 MLJ 393: reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any references or implication from which persons can r [16] The Court of Appeal in Mohamed Hafiz Mohamed Nordin v Eric Paulsen and another appeal [2019] 1 MLJ 580 referring to Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 2 SLR 310 where LP Thean J, succinctly explained: [21] the natural and ordinary meaning of the words complained of, the sense or meaning intended by the appellant is irrelevant. Nor for such purpose is the sense or meaning in which the words were understood by the respondent relevant. Nor is extrinsic evidence admissible in construing the words. The meaning must be gathered from the words themselves and in the context of the entire speech made by the appellant on that occasion [17] The test for whether a statement is defamatory is thus an objective one, independent of the subjective state of mind of the author or the specific audience to whom it was published. [18] Further, the offending words must be considered in the context of the whole article and not simply on isolated passages. Per Gatley on Libel & Slander, 12th edn, at para 3.31: It follows from the fact that the context and circumstances of the publication must be taken into account, that the claimant cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting. In this regard, the reasonable reader is assumed to have read the whole article complained of. If "in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together". [19] It is also accepted that a statement may be capable of conveying a defamatory meaning but, it may or may not be defamatory in fact, depending on the circumstances in which they were published. Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee [2019] 3 CLJ 729: [38] The test involved in determining whether or not the words complained of are defamatory is a two-stage process. Firstly, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable man would be likely to understand that in a defamatory way (see: Wong Yoke Kong & Ors v. Azmi M Anshar & Ors [2003] 6 CLJ 559; [2003] 4 MLJ 96;) . [20] The generally accepted textbook definition of what is defamatory can be taken from Gatley on Libel and Slander as cited in Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56 There is no wholly satisfactory definition of a defamatory mpt or

Professional Capability [21] In respect of the defamatory imputation that the Plaintiff was professionally incapable, the Offending Statements in question in the context in which it appears is as set out earlier in this Judgment. The pleaded defamatory imputations are as follows ( ): [22] From the transcript of the Teams Meeting, the discussion between the Defendant and the CCO concerned l which apparently entailed building relationships with corporates, handling spillover business and creating vendor development programs. In that context, the capabilities of the Plaintiff as a Relationship Manager was raised. [23] The existing function of the Plaintiff as Relationship Manager was said to be focused on getting customers to place deposits with Agrobank. By her words, the Defendant was saying that the Plaintiff did not know how to structure products or anything else that a proper Relationship Manager could do, and would just refer customer queries to others. The Defendant appeared to be astonished when she said this. [24] The implication is that the Plaintiff was not capable of undertaking the expected role of a Relationship Manager. words were Imputations 1 was not pleaded or proved. Regardless of whether the are true, this Court considers that the Offending Statements are capable of being understood in the manner pleaded. [25] Read as a whole, the Offending Statements were an expression of the Defendant views about the Plaintiff. In expressing those views, the Defendant used words that trivialized and ridiculed the Plaintiff in her professional role. The Defamatory Imputations 1 were therefore calculated to excite feelings of ridicule and contempt for the Plaintiff and lower her in the estimation of right-thinking members of society generally. This is defamatory.

(ii) Moral Character [26] The defamatory imputations from the Offending Statements by the Defendant are pleaded as follows ( : [27] In assessing whether the Offending Statements were capable of bearing the Defamatory Imputations 2, the Court disregarded the accompanying comments in the WhatsApp circulation of the video file, but considered the Offending Statements in the context of the discussion in the Teams Meeting. [28] However, it must be assumed that viewers watched the video they received in full, even if their interest might have only been piqued by the file name and comments, in the same way a newspaper headline might. Per & Anor [2021] 4 CLJ 327 : [34] On our part, we would much prefer to accept the view in Charleston that the publication must be taken to have been viewed as a whole especially when considering whether any sting contained in the headlines, for example, has been neutralised by the context when viewed as a whole. We are nevertheless prepared to accept that in an exceptional case, where the particular facts and circumstances so warrant, the impugned material may be defamatory when viewed in isolation. A lot, we think, depends on the way new technology is being used to mislead viewers intentionally by some media either for the sake of sensationalism to deepen their pockets or to promote some insidious agenda by their backers. It cannot be right and just that there be no remedy in such a case [29] The Federal Court held in Lim Guan Eng v Ruslan Kassim & Another Appeal [2021] 4 CLJ 155 held as follows: [29] The defamatory nature of the imputation is to be judged by the ordinary and reasonable members of the community or an appreciable and reputable section of the community (see Jones v. Skelton [1963] 3 All ER 952; Peak v. Tribune Co [1909] 214 US 185; Hepburn v. TCN Channel Nine Pty [1983] 2 NSWLR 682). The ordinary person has been held to be one of fair average intelligence (see Slayter v. Daily Telegraph Newspaper Co Ltd [1908] 6 CLR 1, who is not avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234) but who may engage in some degree of loose thinking (see Morgan v. Odhams Press Ltd [1971] 2 All ER 1156) and reading between the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374), but who, at the same time, should not be unduly suspicious (see Keogh v. Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577) . [30] This Court finds itself agreeing with the Plaintiff that the Defamatory Imputation 2 was not off the mark. was capable of being understood to is a term associated colloquially with women working in entertainment venues such as night clubs and lounges, whose role is to entertain patrons, often with a suggestive connotation. [31] The pleaded innuendo was why SD-1 was observed to have chuckled (as she put it) in the video recording of the Teams Meeting when she heard it and why the video generated interest. [32] -1 who also claimed to have understo This Court is not -1 about the Plaintiff for these reasons:

There was no such designation in Agrobank.

Although the Defendant claimed that it is a common term in the banking industry, no evidence was led to that effect.

The explanation also appeared wholly incongruous with the fact that SD-1 chuckled when she heard the Defendant use in the Teams Meeting.

was consistent with the impression created by the

Witnesses for the Plaintiff whose credibility were not impeached during cross examination, came forward to testify [33] The Defendant also attempted to explain that she did not say that the Plaintiff was a GRO, but likened her job scope to one. This Court does not see how this helps the defence case whether the Plaintiff is referred to as a GRO or had her job likened to that of a GRO. [34] Per Syed Hussin the Defamatory Imputations 2 from the Offending Statements were clearly defamatory in their tendency to lower the Plaintiff in the estimation of right thinking members of society. There is no pleaded antidote to the sting of the defamation. Even if no one believed the imputations to be true of the Plaintiff, this does not remove the sting of the defamation. [35] As a general observation, one of the arguments by the Defence is that the snippet of the entire Teams Meeting that mentions the Plaintiff is only very short (6 minutes 47 seconds from a 1 hour 21 minute video). In this regard, this Court finds that the brevity of the statement is not generally a measure of its sting. Something defamatory said in passing, with no legitimate purpose in the overall statement, is no less a defamation. [36] That said, cases like Mohamed Salleh explained that impugned statements must not be take in isolation and a holistic approach applied to determine if the sting of the defamation was ameliorated by the [37] In this case, the Defendant and the CCO admittedly moved on after the sting of the Defamatory Imputations 2 was delivered and elicited a chuckle. However, there was also nothing else said that mitigated its effect. Publication by the Defendant [38] The Defendant admitted that she uttered the Offending Statements attributed to her in the Teams Meeting. However, the Defendant denied publishing the Offending Statements to anyone else but the CCO. [39] There are two ways in which the Offending Statements came to be widely published in this case:

secretary and saved on the public channel with access by all employees of Agrobank ( ); and

When unknown person or persons leaked the video recording via WhatsApp to the broader public ( -Pub ). [40] The burden of proof was on the Plaintiff to also establish that the Defendant was responsible for the Publication and the Re-Publication of the Offending Statements. In Justine Jinggut [2003] 6 MLJ 433, it was explained that an unauthorized repetition of a libel is novus actus interveniens which broke the chain of causation, with the following exception, i.e. the defendant is liable for the republication or for the damage caused by it:

Where she authorized or intended the republication;

Where the person to whom the original publication was made was under a duty to repeat the statement;

Where the republication was, in the circumstances of the case, the natural and probable result of the original publication. [41] The Plaintiff sought to prove through circumstantial evidence that the Publication and Republication were the natural and probable result of original publication of the Offending Statements i.e.

The Defendant knew or ought to have known that the Teams Meeting would b ; and

office to organize and record meetings in the public channel. [42] Th Information Technology Department (ITD) had issued a guideline on 27-10-2020 to advise staff to use the private Teams channel for meetings and/or discussions. However, ITD records also show that this advice was not understood as an instruction or direction. The employees did not appear to be aware of the existence of the ITD email. [43] There was no prohibition against the use of the public Teams channel and it was in fact the norm to use it. These were objective facts established by the Audit Report. To this Court however, this is besides the point. There is no expectation of privacy when employees use office facilities for work. The Defendant was carrying on a formal work function when the Teams Meeting was conducted. [44] There were also no surreptitious circumstances in the recording of the Teams Meeting. The Defendant was aware that it was being recorded and either knew or ought to have known from past experience that such recordings would be saved by the who set up the meeting and was initially present. [45] The circumstances did not lend credence to the Teams Meeting conduct her in circumstances that accorded it the necessary safeguards for an occasion warranting privacy. In this case, this Court finds that the natural and probable consequence of recording and saving the Teams Meeting was for future reference. [46] In other words, the saved recording of the Teams Meeting was meant to be viewed and it was in fact viewed by employees within Agrobank. There are any number of legitimate reasons why an employee of Agrobank might access the cache of saved video recordings of meetings. This Court finds that there is sufficient legal basis to attribute legal responsibility to the Defendant for the Publication. [47] In respect of the Re-publication, the Defendant clearly did not authorize or intend it nor was any viewer of the recording under any duty to republish it. The manner in which the Re-publication occurred pointed to mischief-making by a provocateur and cannot be said to be the natural and probable consequence of the Publication by the Defendant. The chain of causation was broken here and thus, there is no sufficient legal basis to attribute legal responsibility to the Defendant for the Re-publication. Remedies [48] Libel is actionable per se, so the Plaintiff is not required to show any actual damage. The quantum of recoverable damages are also at large, guided only by precedents with similar factors. In Dato Harris Mohd Salleh v Datuk Yong Teck Lee [2018] 1 CLJ 145, the Federal Court cited Defamation Law, Procedure & Practice by Price & Duodu (3rd edition, para 20-04 at p. 208) on the several factors that a court must take into account in assessing compensatory damages: injury to reputation and feelings depends on a number of factors:

The gravity of the allegation.

The size and influence of the circulation.

The effect of the publication.

The extent and nature of the claimant's reputation.

The behaviour of the defendant.

The behaviour of the claimant. This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court may take [49] In this case, an award of damages is due to vindicate the Plaintiff for injury to her reputation from the insult of the Defamatory Imputations 1 and 2 about her capability and moral character. The libel subjected the Plaintiff to ridicule and contempt within Agrobank and caused embarrassment and distress. However, the quantum is limited by the size and influence of the circulation that the Defendant is legally responsible for. [50] The Offending Statements initially communicated by the Defendant to the CCO and the subsequent Publication of the recording of the Teams Meeting on the Agrobank server were a contained publication that may not have seen the light of day but for the Re-publication. Whatever the impetus for the 24 employees in Agrobank to access the recording before it was taken down, it was nevertheless accessed and viewed. [51] Notwithstanding the limited Publication, this Court awards aggravated damages to express e unapologetic conduct of the Defendant and the manufactured defence advanced by her at the trial that by GRO, she meant to refer to the Plaintiff as a function and not the Plaintiff herself, These defences were mutually contradictory and not in the least believable. [52] Considering the factors, an award of RM30,000.00 in general and aggravated damages is appropriate. The other reliefs sought are not justified and are denied. There is no evidence of any risk that the Defendant would repeat the Offending Statements and considering the extent of the publication for which the Defendant is legally responsible, the the publication of an apology would do more harm in re-agitating an issue that should be put to rest. Conclusion [53] In summary and conclusion, s claim is allowed. The prayers allowed by the Court are as follows:

General and aggravated damages in the sum of RM30,000.00;

Interest at 5% per annum from the date of the Writ until full payment;

Costs in the sum RM25,000.00. Bertarikh : 31 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif : Chang Carrie, Messrs Nazri Aziz Masura Mak & Tan Untuk Defendan : Deepak Mahadevan (with Faeza Suraya Roselan), Messrs Azmi