The Sun (Malaysia)
Why Ganad lost suit
> Articles on billboards were fair comment, rules court
PETALING JAYA: Three articles on outdoor advertisements or billboards, published in theSun newspaper eight years ago were fair comment, a High Court ruled.
High Court judge Datuk Lau Bee Lan said Sun Media Corporation Sdn Bhd had established the defence of justification and fair comment, on the balance of probabilities.
“I dismiss the plaintiffs’ claim with costs of RM60,000 to be paid by the plaintiffs to the defendants,” stated Lau in a 52-page written judgment released on Oct 21, 2015.
“It was the opinion of Terence Fernandez (the writer of the article) that the new MBPJ would take action against illegal outdoor billboard operators. Therefore, applying the objective test such as opinion is not unreasonable, based on the facts and it was a fair comment,” said Lau.
Ganad Media Sdn Bhd and Gan Kok Beng, the chief executive officer and one of the directors of Ganad, had filed for defamation in 2009 against Sun Media, its former editorin-chief, Chong Cheng Hai, and former deputy editor (special reports and investigations), Terence Fernandez.
The plaintiffs sought RM10 million in general damages, special damages amounting to RM3,974,373.75, aggravated and exemplary damages and costs, an injunction to restrain the three defendants from further publishing the defamatory words and a written apology.
They claimed that three articles published in theSun on Nov 18, 2008 in the “Down2Earth” column (titled “A day of many firsts”), another article titled (“State rep’s name used to halt ops”) published on Nov 24, 2008 and (“A little more consultation, please”) published on Nov 25, 2008, were defamatory.
“In my judgment, the first plaintiff (Ganad)’s advertising billboards on state land had to comply with the Local Government Act 1976, The Street, Drainage and Building Act 1974 (SDBA) and National Land Code 1966 (NLC) in order to be legal.
She said the requirement for approvals under the NLC, the SDBA and LGA are independent of each other and address different concerns. “Non compliance with any of the acts and the subsidiary legislations, thereunder, makes the billboards illegal,” she said.
“As at November 2008, when the three articles were published, none of the requirements had been complied with and therefore, I find the defendants were correct to describe the billboards as illegal and to call advertisers not to advertise on illegal structures and that the first plaintiff (Ganad) was carrying on an illegal business, in respect of the billboards.
“Hence, regarding the need to prove that the plaintiff’s billboard was illegal because of failure to obtain the necessary approvals, permits and licences, on a balance of probabilities, I find the alleged defamation have been justified in substance,” said Lau in her judgment.
According to the judgment, Gan was prepared to twist and turn his evidence to serve his own end. She said when he received exhibit P30, which reminded the company that it had not paid the advertising licence renewal fees, the company’s reaction was to ask for time to pay and by letter dated Dec 1, 2008, the first plaintiff paid.
“There was no allegation of backdating of notices or that the notices were issued late as the plaintiffs alleged during the trial,” she said.
She also said Donald Teh Teng Kiat, the chief operating officer of the first plaintiff (Ganad) reports to the CEO Gan, is the only witness, who supports Gan’s evidence on the issue that the second plaintiff (Gan) did not admit making payment for some sites.