The campaign to curb the cost of free speech, thanks to outdated defamation laws, is well underway in democratic countries where libel actions are recognised as a weapon for the rich and powerful to intimidate those who question (or even mention) their affairs.

In Malaysia the balance is all the more unequal, given the continued use of criminal defamation (abolished elsewhere) and hierarchical society.

When the Sultanah of Terengganu first came after the editor of this site, Malaysian law allowed the printer and distributor of her book in Malaysia to be sued as well.

The complaint was that the book The Sarawak Report had in a single sentence mistaken her for her sister in law, as the person whom the 1MDB fraudster, Jho Low, had identified as having introduced him to her husband who was the chairman of the Terengganu Investment Authority.

The Sultanah’s legal suit demanded RM100,000,000 (one hundred million ringgit) to be paid by each of the three defendants – the author, printer and distributor – a total of Rm300 million.

If she did not receive this sum of cash within 8 days, together with fulsome apologies, her lawyers threatened, they would drag all three into court. The author was protected in the UK, however the Malaysian businesses were not.

Unsurprisingly, the cash was not forthcoming. However, the writer did immediately acknowledge the error that it was the sister of the Sultan, not the wife, whom Jho Low had cited – something that has never been denied.

The sister is a qualified businesswoman who was on the board of one of Jho Low’s companies and also the TIA itself. Jho Low was clearly proud to tell The Star newspaper in an interview in 2010 that this valued royal business connection had smoothed the path to his appointment as an advisor to the TIA.

Q: How did you get to know the Yang di-Pertuan Agong?

A: His Majesty’s sister Tunku Datuk Rahimah introduced us. She is the chairman of Loh & Loh Corporation Bhd, whom I met as a fellow shareholder of Abu Dhabi-Kuwait-Malaysia Investment Corporation (ADKMIC).  [https://www.thestar.com.my/news/nation/2010/07/30/low-dispels-talk-he-received-rm500mil-airbase-job]

The author apologised for the misidentification, issued erratum slips for the existing copies of the book and corrected the word ‘wife’ to ‘sister’ on page 3 in an immediate new imprint of her 500 page narrative of the 1MDB scandal.

However, the author was not prepared to accept that the error was defamatory of the Sultanah nor to accept any of the meanings that the plaintiff’s lawyers sought to ascribe, namely that:

After all, to have agreed that this was the meaning of her words would have been to besmirch the sister of the Sultan of Terengganu who has never denied that she did perform the introduction and who was herself on the board of the Terengganu fund (chaired by her brother the Sultan and then Agong of Malaysia).

Drawing Meaning

It is an unfortunate aspect of libel cases that they tend to draw attention , often in an unfortunate way, to matters better left unexaggerated and forgotten.

Such common sense judgement acts as one of the few restrictions in place to deter the super wealthy and super influential from conducting unrestrained libel actions against folk who do not have the matching finances to defend themselves, let alone to pay up huge sums to prevent such cases from reaching court.

The original Malaysian High Court judgement in this case in fact accepted there was no libel. The judge agreed that the above claims about the meaning of the sentence were exaggerated and that there was no shame in having recommended Jho Low in 2008 to be an advisor to the TIA.

He had seemed a respectable figure at the time.

The author did not mention the royal introducer by name or refer to her again at any other point in the 500 page book.  The case appeared over.

However, an appeal was demanded by the litigant who also succeeded in reopening a parallel criminal  prosecution (four years after it was initially shelved) in 2020.  This criminal prosecution was moved to the home state of the royal litigant.

The Malaysian Appeal Court judges eventually ruled the High Court judge had erred in not being more avid for scandalous connotations when he read the words that himself had found to be innocuous.

Sarawak Report’s refusal to apologise sufficiently was described as a further factor.

The Federal Court has refused to take the case further, leaving the freedom of writers severely impaired in Malaysia compared to other countries where the courts have a far stricter limitation on what can be considered defamatory and leave that interpretation to the judge. [see Koutsogiannis v The Random House Group Ltd [2019]

Sarawak Report, the distributor Gerakbudaya and printer Vinlin are therefore now facing a ruling to pay the Sultanah RM300,000 in damages plus a total of RM155,400 in related costs.

Granted, this is a thousand times less than what the plaintiff was demanding in order to drop the case in the first place.  However, as with so many defamation cases, it is a punishing sum for those who dared open their mouths and report on Malaysia’s largest corruption scandal, namely 1MDB.

Fortunately, the defendants are also indebted to their own lawyers, Americk Sidhu and also Tommy Thomas Advocates Malaysia, who for several years have undertaken this case pro bono (for free) in the belief that they should defend a ‘scandalous claim’.

Had not these Malaysian lawyers stood up for the three defendants, the bills demanded against them would have at least doubled.

However, Malaysian democrats have rallied.

Thanks to these defence lawyers as well as Engage, The Centre for Independent Journalism and other civil society supporters in Malaysia (and also to donors from the UK and beyond) the three defendants have managed to raise all but RM150,000 of the costs demanded by the Sultanah and her legal team.

Every generous contribution from the public has helped make the crucial difference between bankruptcy and survival for two brave businesses in Malaysia.

If we join forces to raise the rest it will help those have stood up for a free media in Malaysia to survive another day and it will help Sarawak Report to continue to inform Malaysians about issues such as 1MDB and the many other concerns raised on this site.

Please find their campaign on: https://www.facebook.com/engage.my

Or seek out SR’s Go Fund Me page in the UK: https://www.gofundme.com/f/help-us-survive-royal-damages-award