Defamation – Whether the photograph mistakenly published in a newspaper article was defamatory.

Penerbit Sahabat (M) Sdn Bhd & Anor v Kalairasi Arumugam [2016] 1 CLJ 30

• The respondent (“Kalairasi”) sued the appellants (“PSSB”) for defamation due to a misprint on an article in a newspaper known as Malaysia Namban (Sunday edition) owned and published by PSSB.
• PSSB was alleged to have published an article relating to an interview between one Sarathi Krishnan, a local actor, dramatist and singer, and one Sujatha, also a local actress.
• Sujatha, during the interview, had narrated her experiences in the performing arts and her life.
• However, when the article was published, PSSB had accidentally published the picture of Kalairasi in place of Sujatha.
• Hence, Kalairasi claimed that a portion of the text, particularly the excerpt ‘… I fell in love with Poobalan and married him. I have two daughters by the name of Tharshana and Thulasi…’ were defamatory of her.
• Kalairasi claimed that the article imputed that she had been married previously and hence, damaged her reputation.
• Kalairasi also claimed that her photograph was published without her knowledge and consent.
• PSSB contended that the article was not defamatory to Kalairasi.
• PSSB rebutted that the content of the article as a whole referred to Sujatha and not Kalairasi, notwithstanding that Kalairasi’s photograph was published along with the article.
• PSSB further admitted that there was a misprint and the mistake has been rectified at the earliest possible opportunity upon discovery of the mistake (i.e. in the next Sunday Edition newspaper).
• The trial judge found that Kalairasi had proved her claim of defamation against PSSB on the balance of probabilities and hence, PSSB filed the instant appeal.

• The trial judge had failed to take into consideration the whole paragraph of the statement but instead relied solely upon the disputed words to come to her findings.
• The offending excerpt could not be read in isolation and must be read in reference to the whole paragraph to see the full picture.
• The whole paragraph was purely Sujatha’s brief narrative of her life and involvement in the arts scene and had nothing to do with Kalairasi’s personal life.
• The article had not once referred to Kalairasi either by her name or through other means.
• The translation of the whole article only made reference to Sujatha’s name, neither did the photograph made any reference to any person in particular.
• The testimonies of witnesses also did not coincide with the trial judge’s findings that any reader of the article, with the caption beside her photograph, would infer that Kalairasi was Sujatha.
• The disputed words in the article, having regard to its language (i.e. Tamil), could not be regarded as capable of referring to Kalairasi despite her photograph being published together with the said article.
• Hence, the inference made by the trial judge was baseless.
• Furthermore, the article, in particular the paragraph with the disputed words, did not lead reasonable people who knew Kalairasi to think that the paragraph referred to her.