Can statistical data not premised on words be found to be defamatory in nature?

SUN MEDIA CORPORATION SDN BHD v. THE NIELSEN COMPANY (MALAYSIA) SDN BHD [2020] 7 CLJ 751

• Sun Media Corporation Sdn Bhd (“Sun Media”) was the publisher of a newspaper called ‘the Sun’.

• Nielsen Company (Malaysia) Sdn Bhd (“Nielsen”) was known for its annual syndicated survey called the Nielsen Media Index or ‘NMI’.

• The NMI survey was a wide ranging survey that sought to measure the consumption of different print and electronic media, viewership of satellite TV channels, as well as readership of, amongst others, newspapers.

• The results of the survey were contractually intended only for Nielsen’s paid subscribers with contractual limitations as to disclosure.

• Sun Media was not a subscriber and had obtained unauthorised access to the results of the survey.

• The dispute between Sun Media and Nielsen centred on the NMI surveys for the years 2006 to 2010.

• Sun Media asserted that the NMI surveys had, in that period, under-represented the readership numbers of the Sun. I.e. the NMI survey had inaccurately portrayed the Sun as being read by a lesser amount of people than was actually the case.

• Sun Media contended that this under-representation of readership was the result of flaws in the design, methodology and conduct of the NMI survey by Nielsen.

• Sun Media then launched this suit against Nielsen for negligence, defamation and malicious falsehood arising from the NMI survey for the years 2006 to 2010.

• In response to the results of the NMI survey, Sun Media had published two (2) articles in the Sun newspaper in which Sun Media took issue with the accuracy of the NMI survey results (“Offending Articles”).

• In response, Nielsen published a letter to its subscribers and customers which sought to address the issues raised by the Offending Articles and to allay the fears that its subscribers may have with respect to the reliability of its data and findings in their NMI survey.

• Sun Media sued for, inter alia, damages to be assessed for the NMI survey as well as special damages for loss of profit from advertisements and a declaration that the readership data published in the NMI survey report from 2006 to 2010 in respect of the Sun newspaper was false, inaccurate and misleading.

• The High Court judge dismissed Sun Media’s claim and Sun Media appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal on the basis, amongst others, that:

• The results of the NMI survey were contractually intended only for Nielsen’s paid subscribers with contractual limitations and restrictions to its disclosure. Sun Media who ceased to be a subscriber around the year 2000 had obtained unauthorised access to the results of the NMI survey in respect of the low readership of the Sun.

• An action in defamation and malicious falsehood were also not proven. The data in the NMI survey, which was primarily statistical and not premised on words, was not found to have a defamatory meaning in itself or by innuendo. There was also no evidence of malice of Sun Media to sustain an action in malicious falsehood.