Are Half-Truth Statements Defamatory?

 

To succeed in a defamation claim, it must be established that (1) a defamatory statement exists, (2) such statement refers to the plaintiff, and (3) such statement was published to others. In turn, a defendant may raise the defence of justification if the statement in question is substantially true. 

What happens when the statement made does not set out the full story? Can a statement setting out a half-truth and omitting mention of the full story be capable of being defamatory? 

It is timely to revisit the Federal Court decision in Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong [Civil Appeal No. 02(f)-54-09/2023(W)], where questions of law were posited on the effect of a “half-truth” statement on defamation law in Malaysia.

 

What Are the Facts?

 

• Seema Elizabeth Isoy (the “Defendant”) is a unit owner and management committee member of Waldorf & Windsor Tower Serviced Apartments (“W&W”) developed by Malaysia Land Properties Sdn Bhd (“Mayland”). Tan Sri David Chiu Tat-Cheong (the “Plaintiff”) is the Chairman and founder of Mayland.

• The Defendant together with 55 other persons were in a WhatsApp chatgroup consisting of W&W unit owners or their representatives (“Chatgroup”).

• There were several legal disputes in Court involving Mayland and W&W. In one of these cases, the High Court found that Mayland had defrauded and/or made false representation to W&W owners in respect of a common area in W&W. This decision was affirmed by the Court of Appeal and leave to appeal to the Federal Court was not granted.

• On 17-08-2017, the Defendant sent a text message within the Chatgroup where the said text message set out, among others, that Mayland had been convicted of fraud and misrepresentation at all levels of the courts, the Plaintiff had been “arrested and charged” for offenses related to falsifying documents and concluded with “please google these names to read more” (“Impugned Statement“). The Defendant’s Impugned Statement did not state that the Plaintiff was acquitted from the said charges despite her being aware of this fact.

• The Plaintiff brought an action against the Defendant for defamation based on the Impugned Statement in that the natural and ordinary meaning of the same tended to suggest that he was convicted of fraud, is dishonest and untrustworthy, and tended to lower him in the estimation of the right-thinking members of the society. 

• The Defendant’s defence pleaded that (1) the Impugned Statement was not defamatory; and (2) in the alternative the Impugned Statement was justified, made in good faith without malice, a fair comment and a qualified privilege for the benefit of the Chatgroup participants.

 

What Did the Lower Courts Decide?

 

• The High Court Dismissed the Plaintiff’s Claim – The High Court found that the Impugned Statement was not defamatory as it was substantially true, was published without wrong motive and represents a fair expression of opinion. The High Court found that the Impugned Statement is such that a fair-minded person can honestly make and was stated in a matter-of-factly manner not exceeding the bounds of fair comment and just criticism. The Plaintiff appealed to the Court of Appeal.

• The Court of Appeal Reversed the High Court’s Decision and Allowed the Plaintiff’s Claim – The Court of Appeal found that the Impugned Statement was defamatory as its natural and ordinary meaning had the tendency to disparage and injure the Plaintiff’s standing, character and reputation. The Plaintiff was awarded RM100,000.00 as damages alongside a permanent injunction to restrain the Defendant from publishing or spreading the Impugned Statement or similar defamatory words concerning the Plaintiff. Crucially, the Court of Appeal found that the posting of the Impugned Statement was actuated with malice as the Defendant deliberately omitted to mention that the Plaintiff was acquitted from the said charges despite being fully aware of the same. Leave was granted to the Defendant to appeal to the Federal Court.

 

Decision and Findings of the Federal Court

 

• The Federal Court affirmed the decision of the Court of Appeal and dismissed the Defendant’s appeal with costs of RM50,000.00.

• The Ordinary and Natural Meaning of the Impugned Statement Must Be Considered in the Context of the Whole Message, Not in Isolation – In determining the ordinary and natural meaning of the Impugned Statement, Courts may consider its literal meaning or its implied, inferred innuendo or indirect meaning. This would include any implication or inference which a reasonable reader, guided by only general knowledge would draw from the words. 

• The “Half-Truth” in the Impugned Statement Resulted in a Defamatory Impression of the Plaintiff – The Federal Court found that the Impugned Statement in totality imputes upon readers that the Plaintiff was not a person of good character and tended to excite against the Plaintiff the adverse opinion of others. The fact that the Plaintiff was acquitted of the said charges about 2 decades ago, if stated, would have neutralised the sting in the eyes of the readers. The defence that readers were asked to google for more information on the matter could not neutralise the defamatory nature of the Impugned Statement. The Federal Court considered and adopted the English position that a half-truth statement that presents a false impression and that harms the reputation of a person is, no doubt, defamatory and can be considered false in the circumstances

• The Absolute Defence of Justification Has Its Qualifications – “The truth must not be stated without being fully stated”. The Federal Court in considering English case law cited that an allegation of fact must tell the whole story, as a statement of fact or of opinion which consists the raking up of a long-buried past may, without an explanation, be defamatory as to suggest that a taint upon character or conduct still subsists, and that the plaintiff is accordingly held up to ridicule, reprobation and contempt. A” half-truth” statement although meticulously true in fact, would be false in substance.

• No Departure from Settled Principles of Defamation Law in Malaysia – As the issue of half-truth statements was not governed by the Defamation Act 1957 (“Act”), the common law of England is applicable pursuant to Section 3(1) of the Civil Law Act 1956. The Federal Court emphasised that reliance on common law concept of a half-truth statement does not entail a duality approach to defamation law in Malaysia. It is still required that the three elements to establish a defamation claim are proven, being (1) the existence of defamatory words, (2) the words refer to the plaintiff, and (3) the words were published.

 

Practical Considerations

 

• Consider What You Say and Whether You Should – It is important to apply careful thought before publishing a statement i.e. whether the contents of such statements made are true in substance and what the intent is behind issuing the same. The possibility of a defamation suit lurking in the future is a real risk if any part of what is said does not ring true or if there are omitted parts to a story which could have allowed readers to fairly evaluate the statements made. 

• Remember the Implications of An Incomplete Story – The truth of a statement must be presented in its entirety to avoid being caught by the doctrine of half-truth. General caveats that merely require readers to browse or research for further information and / or the complete picture is an insufficient defence as a “half painted truth” if found to have been deliberately misleading, would be false in substance.

• The “Intent” to Publish “Half-Truths” Will Defeat General Defences to a Defamation Claim – The usual defences of justification, qualified privilege and fair comment would not aid a defendant who is found to have intentionally suppressed the true facts in publishing a statement injuring another’s reputation. Statements which are literally true will not be sufficient justification if the words reasonably convey an overall impression that is false. The finding of “intent” is a factual assessment based on the overall circumstances and publication of the impugned statement.

• Be Wary; A Statement Made May Travel Far – With the advent of social media and technology, it is important to appreciate that statements made may be uncontrollably published or republished. While this may not have been intended by the publisher of such statement, the risk of quick and easy republications in this day and age is a matter to be contemplated as this could be a reasonably foreseeable consequence depending on the original mode of publication.