Media Law Case Study, AeU, Malaysia The plaintiff, the publisher of a free five-days-a-week national English-language newspaper called ‘the Sun’

The plaintiff, the publisher of a free five-days-a-week national English-language newspaper called ‘the Sun’, sued the defendant for negligence, defamation, and malicious falsehood for reporting in its annual Nielsen Media Index (‘NMI’) market surveys that the Sun’s readership lagged far behind that of the two other English-language dailies in the country.

Readership of newspapers and magazines was just one part of the NMI which was a random survey carried out over the whole of Peninsular Malaysia to gauge consumer tastes and habits for a wide variety of goods and services. The plaintiff claimed that the defendant’s surveys under-represented the Sun’s readership causing advertisers to shun the newspaper, thereby causing a loss of advertisement revenue.

The defendant [*605] belonged to a global group of companies operating under the ‘Nielsen brand that was in the business of media, consumer, and market research. The results of the NMI surveys, which began in the year 1968, were published in bi-annual reports for the benefit of the defendant’s subscribers – mainly advertisers and advertising agencies – subject to disclaimers and limitations of liability that the survey data were only estimates and not accurate figures and could contain errors for which the defendant could not be held responsible.

The plaintiff subscribed to the NMI survey results for six years from 1995 but stopped subscribing when it felt the design and methodology of the NMI and the manner in which it was carried out was flawed such that it consistently showed a poor readership of the Sun.

In 2008, the plaintiff commissioned the defendant to specifically carry out a prime survey to gauge the Sun’s readership among ‘top management and affluent consumers’ in the Kuala Lumpur/Petaling Jaya (‘KL/PJ’) region.
The participants in the survey had to be residents in the KL/PJ area, aged 20 and above, holding white-collar jobs that paid RM2,500 or more per month and were users of the internet.

Of the 2,521 persons who were approached to participate in the survey, only 888 responded positively. Since the prime survey showed a higher readership figure for the Sun, the plaintiff contended that the NMI results were false and unreliable (‘the offending publication) and influenced advertisers/advertising agencies against advertising in the Sun. The plaintiff published two articles in the Sun (‘the offending articles’) accusing the NMI survey results of being flawed, unreliable, and inaccurate.

In response, the defendant published a letter (‘the offending letter’) for the attention of its subscribers clarifying matters that were raised in the offending articles and assuring the subscribers that the NMI survey data was reliable and accurate. In the instant suit against the defendant, the plaintiff sought general damages for both the offending publication and the offending letter, RM303.5m in special damages as loss of profits from the drop in the Sun’s advertisement revenue and a declaration that data contained in the NMI survey reports from 2006-2010 pertaining to theSun’s readership was false, inaccurate and misleading. The defendant counterclaimed for damages for defamation based on the plaintiff’s offending articles.

• The defendant, in the circumstances of the case, did not owe the plaintiff any duty of care in respect of the results of the NMI survey. Even if it was assumed for a moment that there was a duty of care, the evidence did not show a breach of that duty. The plaintiff was not a subscriber for the NMI survey results during the years in question, ie, 2006-2010.
  The court should be slow to extend the categories of duty of care and of negligence to cover the alleged pure economic loss of a non-subscriber of the NMI survey when there was no privity of contract or proximity of relationship between the parties and when the alleged loss was not foreseeable in that [*606] there was no evidence to show a direct correlation between the results of the NMI survey showing an under-representation of readership of theSun and the newspaper’s alleged loss of advertising revenue.
• While it might be said that the defendant owed a duty of care to the subscribers of its NMI survey — who were mainly advertisers and advertising agencies — even they, in deciding where best to advertise, took into account a multitude of variable factors, one of which might be the results of the NMI survey. Even in that regard, the subscribers were subject to the defendant’s disclaimers and exemptions from liability with regard to the use of data derived from the NMI surveys.
  

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  The defendant specifically restricted its subscribers/customers from reproducing or sharing its survey data with third parties. It was difficult to foresee how it could be said that there was a clear loss of advertising revenue as a result of reliance upon the survey results for the simple reason that advertising decisions were the result of a whole bunch of variables. There was no evidence that advertisers had shunned or advertised less, than based on the advice of advertising agencies relying upon the NMI survey results.
• The evidence, in fact, showed that theSun’s advertising revenue had increased during the years complained of, ie, 2006-2010 and that the plaintiff’s revenue had been consistent during that period. There was no evidence to show the plaintiff’s advertising revenue was impaired by the readership data given in the NMI. The evidence of the plaintiff’s managing director (PW1) taken as a whole was that theSun’s advertising revenue was driven by such factors as circulation, rate increase, or marketing strategy. The advertising revenue was affected by the plaintiff’s own activities and business decisions and had little to do with the NMI data. The claim for loss of profits attributable to the NMI data was therefore far too remote and wholly unsustainable.
• The court was satisfied that steps were taken to ensure the NMI survey methodology met the acceptable standards of statistical research. There was no evidence that the defendant had arrived at the figures for the Sun’s readership contrary to globally acceptable national survey research methods or that the design of the NMI or conduct of the survey was flawed. The results of the NMI survey obviously differed from that of the prime survey which was customized to gauge the readership of a particular segment of the population in a particular area. The two surveys were not comparable and certainly could not indicate which survey was correct and which one was false.
  

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• The results of the NMI survey were not defamatory to the plaintiff. The data were cold, hard figures shorn of any emotive elements and bearing [*607] no description and no adjectives or adverbs. They were not capable of conveying a defamatory meaning.
• The defendant had successfully raised the Lucas-Box plea of justification in showing that the NMI data complained of had an alternative non-defamatory meaning. The plaintiff’s plea of innuendo failed and the defense of qualified privilege was available to the defendant as the allegation of malice against the defendant was unproven. That same absence of malice applied equally to defeat the plaintiff’s claim for malicious falsehood.

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