KUALA LUMPUR (Feb 5): Datuk Seri Najib Razak today failed again in the Court of Appeal to strike out the defence by PAS organ Harakahdaily in response to his defamation suit.
A three-man bench chaired by Datuk Mohd Zawawi Salleh said Najib's appeal to dismiss the defence of qualified privilege and fair comment was not sustainable.
"Having perused the appeal records and heard the submissions, we are of the opinion that the defence is not unsustainable," he said of the unanimous decision.
Zawawi said the issue of whether the defence was available to Harakahdaily should be heard in a full trial.
He said it was not for the appeals court to determine at this stage whether the two defendants of the opposition party's online news portal were excluded from relying on the defence of qualified privilege and fair comment.
Najib's lawyer Datuk Mohd Hafarizam Harun had told the court today that the defence of qualified privilege was only available to newspaper publications as defined in the Defamation Act 1957.
"Online media like news portals are not newspapers and cannot rely on this defence," he said.
The lawyer said the defence of fair comment was also not available to Harakahdaily because the defamatory articles were based on statements of facts and not comments.
Hafarizam said the defendants had reproduced a defamatory article published by the New York Times.
Lawyer Faiz Fadzil Noor, appearing for the publisher's managing director Rosli Yaakob, said although the Defamation Act appeared to deny the defence qualified privilege to his clients, common law principles had held otherwise.
"Our superior courts have held such defence is available to defendants in defamation cases based on legal principles established by English courts."
In any event, the lawyer said it was best for the High Court to determine the issue after the end of the defamation trial.
Lawyer Nadzaratun Naimi Hammad Azizi, who represented Harakahdaily portal chief editor Taufek Yahya, adopted Faiz's submission.
Zawawi, who sat with Datuk Zamani A. Rahim and Datuk Hasnah Mohammed Hashim today, also advised the parties to settle the suit out of court.
Hafarizam later told reporters that he would suggest three options to the prime minister.
One, he said, was to file a leave application in the Federal Court to appeal against the Court of Appeal ruling.
"Second is to return to the High Court for a trial or to consider the advice of the bench to settle the suit," he added.
Parties will appear before trial judge Datuk Hue Siew Kheng on Feb 23 for case management.
On Aug 6, the High Court dismissed Najib's application to strike out Harakahdaily's defence over an article linking his stepson to state-owned investment firm 1Malaysia Development Bhd (1MDB).
Judge Hue ruled that the relevance of the defence of qualified privilege and fair comment to news portals could only be decided after a trial.
Najib filed the suit against Taufek and Rosli over an article by Rosli on Feb 19 last year titled "Dana 1MDB biayai syarikat filem Riza Aziz? (Bhg 2)" (1MDB funds used to pay for Riza Aziz's film? Part 2).
In his statement of claim filed on March 18, Najib said the article contained words which implied that he had misused 1MDB funds.
Najib said the publication of the article had damaged his reputation and caused him to be condemned in social media and mass media.
Najib also said Taufek had failed to practise responsible journalism by not verifying the authenticity of the article before publishing it.
The prime minister has been under scrutiny over the Finance Ministry-owned state investment vehicle, 1MDB, of which he is advisory board chairman.