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Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (form
Opinion Writing (Law 609)
Universiti Teknologi MARA
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Date and Time: Tuesday, 20 July, 2021 6:30:00 PM MYT
Job Number: 148743005
Document (1)
- Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor [2014] MLJU 1768 Client/Matter: -None- Search Terms: damages for defamation Search Type: Natural Language Narrowed by: Content Type Narrowed by MY Cases -None-
STEMLIFE BHD v MEAD JOHNSON NUTRITION (M) SDN BHD
(FORMERLY KNOWN AS BRISTOL-MYERS SQUIBB (M) SDN BHD) & ANOR
CaseAnalysis | [2014] MLJU 1768
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as
Bristol-Myers Squibb (M) Sdn Bhd) & Anor
[2014] MLJU 1768
Malayan Law Journal Unreported
HIGH COURT (KUALA LUMPUR)
SU GEOK YIAM J
CIVIL SUIT NO S6-23-95-2Q
22 September 2014
Rishwant Singh (Farah Shuhadah with him) (Zul Rafique & Partners) for the plaintiff. Yee Mei Ken (K Kavitha with him) (Shearn Delamore & Co) for the first defendant.
Geok Yiam J:
GROUNDS OF JUDGMENT (No. 2) Background
[1] On 22 May 2008, the plaintiff filed this defamation action against the 1st defendant (“Mead Johnson”) and the 2nd defendant (“Arachnid”) to claim for the following reliefs as set put in paragraph 18 of its Statement of Claim (“SOC”):
(i) An injunction to. restrain the defendants from publishing similar libels of and concerning the plaintiff whether on its Website or by way of any other publication and whether through its directors, servants, agents and/or employees;
(ii) General damages for libel;
(iii) Aggravated damages for libel;
(iv) Exemplary damages for libel;
(v) Genera] damages for loss of business and share value;
(vi) Aggravated damages for loss of business and share value;
(vii) Exemplary damages for loss of business and share value;
(viii) Interest at the rate of 8% per annum pursuant to section 11 of the Civil Law Act 1956 from the first date of publication until the date of judgment;.
(ix) Interest at the rate of 8% per annum pursuant to Order 42 rule 12 of the Rules of the High Court 1980 from the date of judgment to he date such judgment is satisfied in full;
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
(ix) a company which practices unhygienic methods and is therefore unprofessional and unfit to be in its line of business;
(x) a company which will resort to harming any person who brings to light the Plaintiff’s (alleged) deceitful practices, crimes, dishonest dealings or unprofessional practices; and
(xi) a company which is generally unethical, incompetent, dishonest, unprofessional and inefficient.
Consequently, by reason of the publication of the defamatory statements in Mead Johnson’s website, the plaintiff has been seriously injured in its general reputation, its professional, business and trading reputation, the goodwill which it has previously enjoyed amongst its existing customers and the goodwill of its potential customers, in addition, the confidence in and the respect of its employees, agents, and representatives have been seriously eroded. This has caused the good name of the plaintiff to be diminished in the eyes of the general Malaysian public as pleaded in paragraph 14 of its SOC.
As a consequence of the publication by Mead Johnson of the defamatory statements, the plaintiff has been the subject of much public scrutiny, debate and contempt and has, therefore, suffered a loss of value, custom, business and profits.
...
Additional issue (6): Whether the court ought to hold Mead Johnson liable in damages to the plaintiff?
During the trial of the action, the plaintiff has led evidence to show, inter alia, the following:
(a) The fact that the plaintiff was subject to much public scrutiny, debate and contempt and has suffered loss of value, custom, business and profits as a result of the publication of the words complained of;
(b) The fact that the plaintiff has suffered a dimunition in the value of its shares. For instance, the value of the plaintiff’s shares had dropped from RM 4 per share as at 12 July 2007 (when the words complained of were first published) to a mere RM 2 per share as at 29 April 2008;
(c) The fact that the plaintiff has suffered a drop in its sales. For instance, the plaintiff managed to secure 720 sales in the month of July 2007.
(d) However there is an obvious drop in sales for subsequent months, following the publication of the words complained of. As at February 2008, the plaintiff only managed to secure 357 sales;
(e) The learned counsel for Mead Johnson had attempted to suggest that there was ‘no drop’ in the plaintiff’s sales but PW2 had explained during re-examination that the plaintiffs sales went on a ‘decline’ mode after the publication of the words complained of and never did regain the high amount that it used to achieve prior to the publication. His evidence is as follows:
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
Q Mr Lim, you were referred by learned counsel for the 1st Defendant to Bundle H, at Tab 29, page 124 to 125. Specifically to 125 and the question asked was that your sales had actually increased between 2007 to 2008. Would you like, Mr Lim, to describe to the court the trend of StemLife’s sales according to this chart?
A If it’s based on the chart, from the year 2006 to 2007 we have an increase of 1000 units. On a percentage wise, it’s just under 20% growth. From 2007 to 2008, it’s just a mere increase 7258 units to 7360. So one can say that it’s only a 100 units increase in our sales. So the answer yes, the increase in sales is correct But percentage is less than 1%.
Q And a suggestion was made to you by learned counsel for the 1st Defendant that your saies for the years after 2008 are not included and it was left at that. Would you like to explain to the court firstly how your sales proceeded after 2008?
A From 2008 onwards, on an annual basis our sales continued within a decline mode. From 7300 over in 2009, if I can recollect, if I’m not mistaken, it’s about 6500 plus units, it went down, to about 5000 over, so today we are doing about less about, close to 5000 units.
The above is evidence of the general damages suffered by the plaintiff, which the plaintiff ought to be entitled to, arising from the publication of the libels by Mead Johnson.
In this regard, the Court ought to award a sum that would be just and proportionate to compensate the plaintiff for the adverse and damaging effects of the words complained of after having made an assessment based on further evidence, if any, adduced by the plaintiff and Mead Johnson.
In my view, Mead Johnson’s reliance on Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540 and Bonham-Carter v Hyde Park Hotel, Limited [1948] 64 TLR 177 is misconceived as both these cases did not relate to a claim for libel.
In my judgment, the plaintiff is entitled to claim against Mead Johnson for aggravated damages based on the following reasons:
(a) The fact that Mead Johnson allowed the words complained of to be published for approximately 2 months before they were finally removed from the forum and/or the website by Mead Johnson;
(b) The fact that Mead Johnson has not offered to make amends or any apology to the plaintiff to date;
(c) The fact that Mead Johnson had recklessly published the words complained of and were indifferent to its falsity or truth;
(d) The fact that Mead Johnson made available an avenue for the users of the website to post their comments and/or views on issues which are not relevant to Mead Johnson’s business and Mead Johnson would, consequently, have no way of ascertaining the truth of such statements; and
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
[10] In addition, Mead Johnson also submitted as follows in its further submissions for the assessment of damages :
[11] An award of only nominal general damages in favour of the plaintiff is fair and reasonable and should be sufficient. This is because the evidence adduced by the plaintiff showed that the plaintiff did not suffer any real loss or damage.
[12] If Mead Johnson was indeed the cause of the plaintiffs alleged losses, the plaintiff, being a public listed company, could have issued a public announcement or circular to its investors to inform them of this. The plaintiff has not adduced any such evidence and in the absence of which, it is to be presumed that no such evidence existes.
[13] The plaintiff’s own confirmation that its financial position is healthy and intact is irrefutable evidence that there has been no loss or damage to the plaintiff from the postings and hyperlinks that appeared in Mead Johnson’s forum.
[14] The plaintiff also did not take steps to mitigate its losses and damage by immediately making a report to Mead Johnson of the defamatory postings so that the same could be removed immediately by Mead Johnson. Upon receiving the plaintiff’s letter of complaint, Mead Johnson has conducted itself responsibly in immediately removing the material complained of from its forum. Mead Johnson has also taken further steps on its own to introduce new keyword alerts to monitor any further postings concerning the plaintiff.
[15] The relevant timelines and events are as follows:
Date Event Reference
18 September 2007 Plaintiff first complained of the postings and hyperlinks on the forum and requested for its removal
Tab 6/ Bundle C
21 September 2007 Mead Johnson acted immediately and removed not only all the postings and hyperlinks complained of, but also all other related postings thereto within 3 days
Tab 7/ Bundle C List of topics removed- Tab 8/ Bundle C
24 September 2007 Plaintiff’s Finance Director wrote to the Securities Commission Malaysia, assuring them that “the financial condition of the company is healthy and intact with regard to certain defamatory allegations made against us [the plaintiff] on the internet”.
Tab 19/ Bundle H [Exhibit Plaintif-20]
30 November 2007 Mead Johnson took further steps of its Tab 17/ Bundle C
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
own to deactivate the accounts of two users identified by the plaintiff, ‘kakalily’ and ‘stemlie’ though not requested by the plaintiff
22 May 2008 Notwithstanding: p 456 of Tab 31/ Bundle D
(i) The immediate removal of the material complained of;
(ii) The plaintiff’s own confirmation that its finances are healthy and intact;
(iii) The suspension of the users accounts; and
(iv) Mead Johnson’s addition of new keyword alerts to monitor any future postings concerning the plaintiff,
The plaintiff commenced this suit against the Mead Johnson, 8 months after the postings and hyperlinks were removed from the forum
Tab A/ Bundle A
[16] The plaintiff has also failed to prove any loss of business or share value. In which case, there shall be no special damages payable under this heading.
[17] There has been no malice on the part of the 1st defendant. The plaintiff has also not satisfied the criteria which is necessary for the Court to make an award for aggravated and/or exemplary damages. Hence, there should be no award for any aggravated or exemplary damages at all in favour of the plaintiff.
Submissions of the plaintiff for the assessment of damages
[18] The plaintiff submitted as follows:
[19] The Court ought to award a global sum of RM 500,000 as damages in respect of general damages , aggravated damages , exemplary damages in its favour because its share price has gone down and the number of clients who have signed up with the plaintiff has decreased from the time of the posting of the libels on Mead Johnson’s website and in its forum.
[20] The Court ought to disregard the issue on the failure of the plaintiff to mitigate its losses and damage because there is no duty on the plaintiffs part to mitigate its losses and damage.
[21] Apart from that Mead Johnson did not plead this issue in its Defence.
[22] It is trite law that any issue that is not specifically pleaded by the parties in their pleadings ought to be
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
paragraph 18(v) of the plaintiffs SOC and the dismissal of the plaintiff’s claim for aggravated damages for loss of business did not mean that these two items of damages were disallowed in toto by the Court. What the Court did was to award a global sum of RM 250,000 as general and aggravated damages to the plaintiff for both injury to the plaintiff’s reputation and for loss of business.
5 questions for the determination of the Court
[30] There are 5 questions which require the determination of the Court. These 5 questions are as follows:
(1) What is the quantum of general and aggravated damages to be awarded to the plaintiff?
(2) Whether the plaintiff is required to mitigate its losses and damage?
(3) If the answer to issue (2) is “Yes”, whether there has been any mitigation of losses and damage by the plaintiff?
(4) Whether there is sufficient cause to award special damages to the plaintiff? and
(5) Whether there is sufficient cause to award exemplary damages to the plaintiff? Issue (1): What is the quantum of general and aggravated damages to be awarded to the plaintiff?
[31] The primary remedy of the common law for the tort of defamation is damages. An award of general damages is for the purpose of compensating the claimant for the effect of the defamatory statement. The plaintiff gets damages because the plaintiff was publicly defamed.
[32] It is trite that general damages serve three functions. Firstly, it is to act as a consolation to the claimant for the distress he suffers from the publication of the defamatory statement. Secondly, it is to repair the harm to his reputation (including, where relevant, his business reputation).
[33] Thirdly, it is a vindication of his reputation (see Gatley on Libel and Slander, 11th Edition, para 9, at page 265).
[34] In the case of a company or a corporation, which is undertaking a business, general damages serve two functions.
[35] Firstly, it is a vindication of the plaintiff to the public. Secondly, it is to repair the harm to the plaintiff’s business reputation.
[36] On the issue of general damages , since this Court has already found Mead Johnson liable for the publication of the libelous words complained of, it is trite that the law presumes general damage arising from the publication of the libelous words.
[37] In Gatley on Libel and Slander, 11th Edition , at paragraph 28, the learned author writes as follows:
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
SECTION 9. DAMAGES
General Damages. In an action for libel the claimant need not allege that actual damage has resulted from the words complained of. “The law presumes that some damage would flow in the ordinary course of things from the mere invasion of his absolute right to reputation”, and he is entitled to such general damages as the court may properly award, although he neither pleads nor proves actual damage ....
(Emphasis added).
[38] In Liew Yew Tiam & Ors v Cheah Cheng Hoc & Ors [2001] 2 CLJ 385 Gopal Sri Ram JCA said as follows in delivering the judgment of the Court of Appeal at p 395 of the report:
In the process of making our assessment we may have not overlooked the recent trend in this country of claims and awards in defamation cases running into several million ringgit. No doubt that trend was set by the decision of this Court in MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun (supra). It is a decision that has been much misunderstood. The underlying philosophy of that decision is that injury to reputation is as, if not more, important to a member of society then the loss of a limb. But we think that the time has come when we should check the trend set by that case. This is to ensure that an action for defamation is not used as an engine of oppression.
[39] In Karpal Singh a/I Ram Singh v DP Vijandran [2001] 4 MLJ 161 , Abdul Hamid Mohamad JCA (as His Lordship then was) said as follows at p 185:
Until the arrival of Vincent Tan in 1995, the highest award ever given by the court in this country was RM 100,000. Vincent Tan skyrocketed the awards. When the award was confirmed by the Court of Appeal, what was an isolated pinnacle in an otherwise undulating plain, the trend is set. When the Federal Court confirmed it, it became a binding precedent in all courts in this country. But, now, the Court of Appeal in Liew Yew Tiam has had second thoughts about it. The learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai has sought to distinguish MGG Pillar’s case. ‘It is a decision that has been much misunderstood and the trend should be checked’, he said.
[40] In Datuk Seri Utama Dr Rais Bin Yatim v Amizudin Bin Ahmat [2011] 1 LNS 1441 the Court referred to and applied the trite law concerning the factors which are to be taken into account by the Court in the assessment of damages. In that case, the Court held as follows:
Damages
It is trite law that a particular libel case cannot be equated with other libel cases. Each libel case is unique and has its own particular and peculiar facts. The Federal Court in MGG Pillai v Tan Sri Vincent Tan [1995] 2 CLJ 912 said in its judgment that:
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
iii) the nature of the libel;
iv) Mode and extent of publication;
v) The absence or refusal of retraction or apology;
vi) The whole conduct of the Defendant from the time the libel was published down to the very moment of the verdict.
(Emphasis added).
[41] In Chin Choon @ Chin Tee Fut v Chua Jui Meng [2005] 3 MLJ 494 the plaintiff was a deputy minister at the time he was defamed by the defendant. The trial court awarded RM 1,500,000 which included compensatory, aggravated and exemplary damages. The case went on appeal and the Court of Appeal having regard to the very special circumstances of this case reduced the award to a global amount of RM 200,000.
[42] In delivering the judgment of the Court of Appeal, Gopal Sri Ram JCA quoted with approval the following factors to be taken into account in assessing damages as laid down in Defamation Law, Procedure & Practice by Price & Duodu (3rd ed, para 20-04 at p 208) at p 498:
The amount of damage awarded in respect of vindication and injury to reputation and feelings depends on a number of factors:
(1) The gravity of the allegation.
(2) The size and influence of the circulation.
(3) The extent and nature of the claimant’s reputation.
(4) The behaviour of the defendant.
(5) The behaviour of the claimant.
This list is most helpful. But it must be borne in mind that it is not by any means exhaustive of the matters Which the court may take into account when making an assessment.
[43] In Utusan Melayu (M) Bhd v Tjanting Handicraft Sdn Bhd & Anor [2005] 1 CLJ 71 the High Court awarded RM 1 million to the plaintiffs after finding the defendants liable for the publication of an article which claimed that the plaintiffs produced unsightly batik and brought shame to the country by allowing world leaders to wear unsightly and ugiy costumes made from such batik material. On appeal, the award was reduced to RM 250,000.
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
[44] The High Court in Dato’ Seri Anwar bin Ibrahim v The New Straits Times Press (M) Sdn Bhd and Anor [2010] 5 CLJ 301 (“Dato’ Seri Anwar bin Ibrahim’s case”) said as follows:
[81] Going by the pleadings, the plaintiff claims the sum of RM100m as general damages as well as aggravated and exemplary damages. I think by all accounts, the claim of RM100m is a gross exaggeration. The principle in damages is that it is compensatory and not a path to untold riches. Even in the most serious cases of defamation in respect of integrity and honour, I cannot imagine general damages to exceed the quantum that is usually awarded in personal injury claims to a claimant who is fully disabled. For a man who has been defamed cannot be said to be in a worse position than one who has lost the use of vital parts of his or her anatomy. In McCarey v Associated Newspapers Ltd & Ors (No 2) [1965] 2 QB 86 at p 109, Diplock LJ said: ‘I do not believe that the law today is more jealous of a man’s reputation than of his life and limb.’
...
[84] The question that arises is therefore this. Should the primary aim of a remedy in defamation be in satisfying the plaintiffs hurt feelings etc or should it be in vindicating his or her standing in the community? In my respectful view, if we concern ourselves primarily with putting the plaintiff in the position he or she was before the defendant’s wrongdoing, vindication of his or her standing in the community should be the focus of the remedy rather than any award of large sums of money for the plaintiff’s hurt feelings. Plaintiff may however also feel that only substantial damages may vindicate or restore their reputation and good name. But I think that vindication of reputation can also be achieved through non- monetary means. For example, the best vindication would be an almost immediate and prominent apology, correction or retraction by the defendant after publication of defamatory material. In that situation, there would be minimal damages. It should also follow that a court-ordered correction on a defendant after a trial would serve just as well if not better in the vindication or restoration of a damaged reputation than large money damages.
[85] In the instant case, there is already some measure of vindication for the plaintiff in that the statutory declaration of Ahmad Murad has now been discredited. The natural effect of this is that the impugned article loses all credibility. Even though the truth or falsity of the impugned article was never the issue as the defendants relied on privilege, as it turned out, the evidence revealed in the trial shows the falsity of the article itself and the imputations that arise from it. The net effect is that the plaintiff has achieved public vindication of the truth. Vindication has however come late and for that the plaintiff must be compensated. There was no evidence that the plaintiff has experienced any economic harm. So all things considered, I do not see any rationale for awarding substantial damages. The law of defamation , as I see it, must be more about truth and reputation than money. Much of the disaffection and criticism in this regard stems from the common law’s passion and preoccupation in reducing disputes to money damages. I think, with respect, the compensation principle in tort defamation should focus primarily on vindication through both monetary and non-monetary means.
[86] Seen in this light, and with respect, earlier cases awarding considerable damages for reputational harm do not offer any guidance in determining the quantum of damages. In any event, these cases cannot serve as precedents for quantum like the case for personal injury claims. There are far too many variables in the damage to a reputation when compared to damaged parts of the anatomy in personal injury claims. This much was also asserted by Abdul Hamid Mohamad JCA (as he then was) in Karpal Singh a/I Ram Singh v DP Vijendran [2001] 4 MJU 161 at p 185 when he said:
This court is bound by the decisions of the Federal Court. But what is binding is the principle laid down by the Federal Court in assessing damages in libel cases, not the amount The amount to be awarded in each case depends on the facts and circumstances of the case. Indeed,, how- much is too much, how much is too little and how much is reasonable is quite subjective. No scale can be fixed.
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
a token sum ...
[50] And further:
The jury (or judge if sitting alone) is entitled to take into consideration the conduct of the claimant, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict. The conduct of the claimant is relevant not only in respect of matters which go to “partial jurisdiction” of the libel but also to his conduct in the course of the litigation...
(Emphasis added).
[51] In Praed v Graham [1890] 24 QBD 53 it was held by Lord Esher, MR as follows at p. 55;
... the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial....
(Emphasis added).
[52] In McGregor on Damages (18th Edition), it is stated as follows at pgs 1611–1612:
The defendant’s conduct is relevant in this way to show whether he has acted with or without malice. Generally, this is malice in the perpetrating of the libel, but conduct subsequent to this is relevant either as evidence of the existence or absence of malice at the time of the tort or merely as showing that the defendant has behaved well or behaved badly since the tort. The practical effect is that the damages will fluctuate, up or down, with the degree of culpability of the defendant’s behavior.
(Emphasis added).
[53] In Collins Stewart Ltd and another v The Financial Times Ltd [2004] EWHC 2337 , the plaintiffs alleged that the publication of the words complained of caused a fall in their share prices and sought for damages. It was held as follows in the headnotes (p 1):
There were well developed rules governing damages for torts generally, and defamation in particular. Those rules existed
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
to ensure that a successful claimant obtained the compensation that was just, but no more than what was just. The Court could do no more than speculate as to the factors which had influenced the fluctuations in the market capitalization of the second defendant since the publication of the article. Whatever those factors might be, it was plain that they were not confined to the publication of the words complained of. In any event, it was difficult to see that market capitalization could be an appropriate basis of assessing damages , since it relied on the assumption that the market price did not already reflect the chance of judgment being obtained. If the market price was assumed to be rational so as to afford a reliable measure of damages , then it was inconsistent to assume that there was not also factored into the market price a figure which represented the market’s assessment of the value of the instant claim.
(Emphasis added).
[54] In my judgment, Mead Johnson’s submissions that this Court ought to award nominal damages to the plaintiff is misconceived. This is because the evidence before the Court showed positively that the plaintiff has suffered real loss and damage. Therefore, an award of nominal damages would neither reflect the real loss and damage suffered by the plaintiff nor compensate the plaintiff for the inconvenience that the plaintiff was put through as a result of the libelous postings on Mead Johnson’s website and in its forum.
[55] In my judgment, the sum of RM 250,000 for general and aggravated damages which was awarded by the Court was fair, reasonable, proportionate and not excessive and it was made in order to appropriately compensate the plaintiff for the injury to the plaintiff’s general, professional and business reputation which had caused the plaintiff to suffer a diminished reputation and loss of value, custom and business, resulting from the serious libels that have been committed by Mead Johnson in the instant case.
[56] In assessing the quantum of damages to be awarded to the plaintiff and before making the award, the Court took into consideration the following matters:
(a) The plaintiff is a public listed company and it is the first stem-cell banking company in Malaysia. Hence, the goodwill which it has built up over the years should not be reduced and eroded by the libels published by Mead Johnson in its website and on its forum;
(b) Mead Johnson is part of an international and established company involved in the business of manufacturing infant nutrition and feeding products. It also claims to be “a world leader in infant nutrition for over 100 years” in its website. Hence, any libel committed on its website is bound to occasion serious damage and harm to the plaintiff;
(c) The extent of the publication or circulation of the libelous postings and the hyperlinks is worldwide because they were published on Mead Johnson’s website which is accessible over the internet “at a click of a button”;
(d) The libels published on the website were published by Mead Johnson maliciously as they were recklessly indifferent to the truth or falsity of the statements;
(e) The fact that to date Mead Johnson has not offered to make amends or an apology to the plaintiff for the libelous posts which have been posted on its website;
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
accurate information have to be provided before the individual is allowed to be registered as a user of its forum;
(i) Based on the conduct of Mead Johnson after the publication of the serious libels and upon being notified thereof by the plaintiff, the Court was able to make a reasonable inference that there was malice on the part of Mead Johnson based on the following reasons:
(i) Mead Johnson refused to admit liability over the publication of the libelous posts on its website and, instead, attempted to deny responsibility over what it had permitted to be published on the website;
(ii) Mead Johnson also refused to provide the plaintiff with the necessary information of the individuals who had posted the libelous publications on the website. Hence, the plaintiff was constrained to seek a Norwich Pharmacal Order against Mead Johnson to produce the relevant documents;
(iii) The fact that Mead Johnson allowed the words complained of to be published for approximately 2 months before they were finally removed from the forum and/or the website by Mead Johnson;
(iv) Despite allowing the users of its website the latitude to post defamatory words of and concerning the plaintiff at ‘a click of a button’ it took Mead Johnson 3 full days to remove the defamatory postings from its website;
(v) The fact that Mead Johnson attempted to raise the defence of accord and satisfaction even though no such agreement ever existed in the first place; and
(vi) The fact that Mead Johnson had filed a Counterclaim against the plaintiff based on the non-existent ‘accord and satisfaction agreement’. In this regard, the plaintiff had raised the issue of the non-existent ‘accord and satisfaction agreement’ from day one and had reiterated this position throughout the Striking Out Proceedings but Mead Johnson only decided to withdraw its Counterclaim at the very last minute, that is, on the first day of the trial.
(j) The fact that the libel was directed at and affected the plaintiffs business;
(k) The manner in which Mead Johnson conducted its defence in the trial in attempting to evade responsibility for a website which it had set up, ran and edited.;
(l) The fact that Mead Johnson is not a business rival of the plaintiff;
(m) The fact that Mead Johnson does not have any prior connection or association with the plaintiff;
(n) The fact that Mead Johnson removed the libelous postings within 3 days upon being informed by the plaintiff;
(o) The fact that the postings complained of were the views and opinions of individual users of the forum much like the letters which are sent to a newspaper by the readers of the newspaper for publication in the newspaper;
(p) The fact that the postings and hyperlinks were part of a long thread of discussion between the forum users on the subject of baby cord blood banking;
(q) The fact that the libelous posting and hyperlinks appeared alongside other positive and complimentary postings concerning the plaintiff (see Notes of Proceedings (“NOP”) p 124 line 15–p 124 line 8, p 126 line 3–p 127 line 12 and p 153 line 6–line 36);
(r) The fact that the plaintiff’s Managing Director (PW3) had admitted that the contents of the External Blog did not appear in the forum at all;
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor ....
(s) The conduct of the plaintiff which indicated that the plaintiff did not view the defamatory postings and hyperlinks seriously and that the plaintiff had, instead, adopted a lax approach in dealing with them by failing to exercise the “Report Bad Posting” option provided by Mead Johnson and to immediately report the libelous postings and hyperlinks;
(t) The fact that the plaintiff itself did not bother to respond to the libelous postings and/or hyperlinks on the forum at any time even though it is undisputed that access and use of the forum is free of charge and if the plaintiff truly viewed these postings and hyperlinks seriously, it could have taken immediate steps to make a response thereto but it did not do that;
(u) The fact that the plaintiff also did not lead any evidence at the trial that it had issued any statements or letters of clarification to its customers as a consequence of the postings and hyperlinks appearing in the forum;
(v) The fact that the postings and hyperlinks did not imply that the plaintiff had committed any criminal act but were about the personal experiences of certain individuals with the plaintiff’s services;
(w) The fact that the plaintiff chose to commence this action against the Mead Johnson after 8 months of the postings and hyperlinks appearing in the forum (and long after the libelous materials were removed by Mead Johnson), knowing fully well that Mead Johnson is part of an international and established company and was thus, an easy target for a claim for damages ; and
(x) The plaintiff’s filing of this action is despite the original source of the hyperlinks, ie the External Blog itself, remaining in existence until today and the plaintiff is well aware of this. Yet, the plaintiff has done little (or nothing) to stop these publications.
[57] Had the Court not taken into account the matters stated in paragraphs (I) to (x) above which were relied upon by Mead Johnson to justify and to urge the Court to make an award of only “nominal damages ” in favour of the plaintiff, the Court would have awarded to the plaintiff a global sum of RM 500,000 as general and aggravated damages.
Issue (2): Whether the plaintiff has a duty to mitigate its losses and damage?
[58] In my considered view, there is an inherent duty on the part of the plaintiff to mitigate its losses and damage. Therefore, it is unnecessary for Mead Johnson to plead that the plaintiff has failed to mitigate its losses and damages. This is because it is reasonable to expect that a plaintiff who is claiming for losses or damage suffered by him will take reasonable steps to mitigate his losses or damage when his right is infringed by another person who is a potential defendant.
[59] A plaintiff cannot be allowed to just fold his arms and do nothing when his right is infringed and/or is being infringed by that person and, thereafter, make a claim for substantial damages against that person as the defendant.
Issue (3): Whether the plaintiff had failed to mitigate its fosses and damage?
[60] In my considered view, based on the proven facts and circumstances of the instant case, the plaintiff has failed to mitigate its losses and damage.
[61] In my judgment, the following conduct of the plaintiff indicates that it did not view the postings and hyperlinks seriously and instead adopted a lax approach in dealing with them:
Stemlife Bhd v Mead Johnson Nutrition (M) Sdn Bhd (form
Course: Opinion Writing (Law 609)
University: Universiti Teknologi MARA
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