from Theary Seng in Washington, DC

The Cambodian People's Party (CPP) has filed a law suit against Prince Norodom Ranariddh,

the Funcinpec President, alleging that he made defamatory statements against Prime

Minister Hun Sen of being involved in the killing of pro-Funcinpec radio journalist

Chuor Chetharith. Funcinpec has since counter-sued. As a Khmer-American attorney

with bar membership in New York, I would like to highlight the basic elements of

defamation law as practiced in the US, but with principles of fairness and justice

that apply to this case.

What is defamation? Defamation consists of slander (speaking) and libel (written).

To prevail in a defamation suit, the plaintiff must satisfy three elements: the defendant

made (1) a statement harmful to reputation, (2) that was communicated to a third

party, (3) which the speaker/publisher knew or should have known was false.

Here, the CPP is suing Prince Ranariddh for slander, defamation by speaking. In essence,

the plaintiff CPP alleges that Prince Ranariddh made a statement that caused injury

to the reputation of Mr Hun Sen [leader of the CPP, which gives it standing, the

right to sue], either because the statement is so defamatory on its face (per se)

or it causes harm to Mr Hun Sen's reputation and exposes him to public hatred, contempt,

ridicule, or degradation. If the slander is not apparent on its face, the CPP has

the burden of pleading and proving these extrinsic facts.

Furthermore, the CPP is arguing that Prince Ranariddh communicated this alleged defamatory

statement to a third person, that he didn't just mutter it to himself or speak alone

to Mr Hun Sen about it.

And lastly, the CPP is charging that Prince Ranariddh knew or should have known that

his alleged statement against Mr Hun Sen was false.

Defenses to Defamation

Should the court find that the CPP has established these three necessary elements

of defamation, Prince Ranariddh is not left without defenses. Truth is a complete

defense to a charge of defamation. Prince Ranariddh could argue, yes, even if he

did make the defamatory statement causing injury to Mr Hun Sen's reputation, nonetheless,

what he said is true.

Moreover, freedom of speech is a defense, in order to deter frivolous defamation

lawsuits to chill public discourse. As a public figure, Mr Hun Sen has the added

burden not only to show objectively that a "reasonable person", ie, an

average Cambodian, knew or should have known that his statement linking Mr Hun Sen

to the journalist's death was false, but also to prove that Prince Ranariddh maliciously

made the statement with a reckless disregard for the truth. Again, as a public official,

Mr Hun Sen must show defendant's actual malice with convincing clarity.

As this is a matter of public concern, it is Mr Hun Sen's burden to prove the falsity

of Prince Ranariddh's alleged statement.

Another defense gives Prince Ranariddh a qualified privilege to the defamatory statement

if it was made at a proper occasion, from a proper motive, and based on reasonable

and probable cause.

Relatedly, Prince Ranariddh can argue that his right to petition for grievance privileges

him against defamation charges. This defense takes the following line of argument:

the well-known pro-Funcinpec stance of journalist Chuor Chetharith has given Prince

Ranariddh, the President of Funcinpec, the right to petition Mr Hun Sen for redress

of grievances. In doing so, the law absolutely protects him from defamation.

Again, my comments are based on English legal traditions and precedents, but the

aforementioned legal principles nonetheless can work to supplement the less-developed,

still evolving Franco-Khmer laws on this issue.

(It should be noted that the defense of political immunity is outside of defamation.

If Prince Ranariddh has political immunity, the charge of defamation should not have

surfaced in the first instance.)