Publicising a Police Report, At Your Own Risk
by Alliff Benjamin Suhaimi ~ 18 February 2019
The Federal Court in Noor Azman Bin Azemi v Zahida Binti Mohamed Rafik has recently held that the republication of the contents of a police report does not attract the defence of Absolute Privilege.
In that case, the Plaintiff initiated a defamation claim against the Defendant based on the contents of the Defendant’s police report made against the Plaintiff. By way of her police report, the Defendant (a local actress) alleged that the Plaintiff (her driver) has absconded with her money. The Defendant repeated the contents of her police report during a press conference and the same was then reported in one of the local newspapers. The High Court allowed the Plaintiff’s claim but the said decision was then overturned by the Court of Appeal.
The application of Absolute Privilege in respect of police reports was determined in an earlier Federal Court decision in Lee Yoke Lam v Chin Keat Seang. In Lee Yoke Lam, the Federal Court held that the maker of a police report cannot be subject to an action for defamation for the making of such report. Therefore, the maker of a police report is protected by Absolute Privilege.
The reason for the application of such privilege is public policy. The Federal Court held that it will be against public policy to allow makers of police reports to be subjected to any liability for defamation. In coming to its decision, the Federal Court in Lee Yoke Yam held as follows:
“The underlying reason behind this is the overriding public interest that a member of the public should be encouraged to make police report with regard to any crime that comes to his or her notice. Such a report is important to set the criminal investigation in motion. With such report, the alleged crime may be investigated and the perpetrator be brought to justice.”
In coming to its decision, the Federal Court in Noor Azman Bin Azemi held that defences that grant total immunity such as Absolute Privilege are inconsistent with the rule of law.
As a starting point, the Federal Court agreed that with the decision in Lee Yoke Lam v Chin Keat Seng that it is against public policy to allow the maker of a police report to be sued for defamation. To allow such action will discourage honest and well-meaning persons to report a crime.
Defences that grant total immunity such as Absolute Privilege are inconsistent with the rule of law.
However, the conduct of the Defendant (as a well know local actress) repeating the contents of her police reports to reporters during a press conference is a crucial distinguishing factor. The subsequent publications by the Defendant and the media of the said police report were the subject matter of the suit, not the police report itself.
The Court further held as a matter of public policy, there is no basis to extend Absolute Privilege to subsequent publication of a police report. The right of the maker of a report to speak and write freely does not override an individual's interest in protecting his reputation. It was also held that it was unwarranted for the Defendant to repeat and republish her police report to the media. To this end, the Court held:
“In our opinion, there is no valid reason of public why the maker of a police report should be free from accountability by way of defamation action to publish the defamatory words contained in the police report to the world at large. As a matter of public policy, there is no sufficient basis or necessity to expand the ambit of the absolute privilege protection to cover the subsequent publication of the report to the world at large.”
“To be more specific, the absolute privilege must at some point give way to protection against reputational damage that it cannot override the individual’s right to have access to the courts to seek a remedy for the defamation on him.”
“In our opinion, Courts should not extend the ambit of absolute privilege unnecessarily. To hold otherwise would result in persons irresponsibly slandering others with impunity. The laws of libel and slander provide the primary legal means for defending reputation, and responding to unwarranted and damaging allegations”
At first glance, this decision may not seem to be in line with freedom of expression and speech. However, in the present social media and keyboard warriors dominated world, this can be seen to be a positive step towards the protection of one’s personal reputation. There have been many examples of people’s life being destroyed by irresponsible reporting in the media. After all, THE PEN IS MIGHTIER THAN THE SWORD.