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.)
