Statement of Facts and Issues Presented

Bidasari & NowPost Sdn Bhd v Puteri Gunung Ledang & Major Events Sdn
Bhd

-- On Appeal --

1. In November 2017, Major Events Sdn Bhd, an event organizing company, contacted Puteri
Gunung Ledang to see if she would be interested in co-sponsoring a high-profile singing
competition called “Stars of the Stage Malaysia 2018”. Puteri is a businesswoman whose
company is well-known for its line of cosmetics, jewellery and packaged food products.
Although Puteri is famous and extremely wealthy, it is debatable whether she is respected.
Some media outlets have lamented that she gained popularity because of her outrageous
behaviour instead of the quality of her company’s products. For example, she once arrived
to a court proceeding in a purple Land Rover wearing a pink fur jacket (she demanded the
courtroom officials “up” the aircon). Her five bodyguards, all with black sunglasses that they
continued to wear in the courtroom, refused to let anyone near her.

2. Puteri agreed, in her personal capacity, to co-sponsor the event, and in fact demanded that
she be the main sponsor and be on the stage to give the winning prize. Major Events and
Puteri entered into a written agreement (the “Sponsorship Agreement”) of which the relevant
portion provides:

“8.1. Sponsor agrees, as consideration for the publicity gained from her role in the
Event, to provide to Organizer as per the schedule provided in Appendix B of this
Agreement, the full sum of RM 200,000 (Two Hundred Thousand Ringgit
Malaysia).”

“Sponsor” is Puteri, “the Event” is Stars of the Stage Malaysia 2018 and “Organizer” is
Major Events. The contract was signed on 9 January 2018. There are no obligations for
Puteri in the Sponsorship Agreement other than the payment specified in Section 8.1.

The Sponsorship Agreement does not address modification of the Agreement nor does it
contain any indemnity provisions.

3. On 23 January 2018, Puteri informed the director of Stars of the Stage, Amber Lee, that she
would like to make some additional gifts of jewellery from her personal collection to the
winner of the competition. She did not know what the gifts would be yet. She told Amber
that she would decide “when the time came.” Amber was pleased and assured Puteri that
this would increase interest in the competition.

4. Major Events, seeking to attract contestants, publicized the event widely throughout
Malaysia. In the publicity, the prize section announced that the top two contestants would
receive a singing contract with an established Malaysian music production company, a
number of cash prizes and, for the first-place winner, “jewellery from the personal collection
of Puteri Gunung Ledang.”
5. Bidasari is a 38-year-old singer who entered Stars of the Stage Malaysia 2018. She was the
eventual winner. Bidasari comes from a poor family and before entering Stars of the Stage,
she was unknown to the public. She learned about the competition from a friend, who texted,
“chck dis oudda! even got diamonz from putri!” Bidasari replied, “in dat case im n! LOL.”

6. Bidasari joined the competition. She signed a contract with Major Events, of which the
relevant portion provides:

“7. PRIZES

7.1 MAJOR EVENTS reserves the right to alter, substitute or cancel any Prize in an
event deemed appropriate or for reasons beyond our control. If a Prize is unavailable,
we will do our best to substitute the Prize with one similar.

7.2 MAJOR EVENTS accepts no responsibility for any changes in the value of a
Prize.

7.12 When a prize is provided by a third party, MAJOR EVENTS is indemnified

from any obligation or liability in relation to the prize. The nature of a third party
prize is at the sole discretion of the third party.”

7. Puteri forgot about her promise for the additional jewellery and never saw nor heard about
the publicity that mentioned it. Amber did not raise the subject again until the night of the
competition.

8. During the competition on 14 July 2018, Bidasari sang like never before. She won over the
hearts of the audience and impressed the judges. She had charm and charisma that the other
contestants lacked.

9. About 20 minutes before the winner was to be announced, Amber approached Puteri and
reminded her about the extra jewellery prize. Puteri’s expression dropped and her face
reddened as she recalled her promise. She remained quiet.

10. The emcee announced Bidasari as the winner and called Puteri up to the stage. Before she
knew it, Puteri was in front of the star-studded audience, the television camera broadcasting
her image to millions of Malaysians. The emcee added that there would be “an additional
prize awarded to the winner.”

11. Puteri hugged Bidasari, calling her performance “inspirational and melancholic at the same
time.” She then said, “And I want to let you and everyone know that I am giving you this
because I love you so much. The emcee forgot to mention its value. I am going to give you
a diamond bracelet worth 90,000 ringgit. I bet a poor person like you has never seen
something so valuable in all your life. This is from my heart to yours. I know you must’ve
worked really hard to win this competition. You did your part and now I am doing mine.
We can both be famous now. Well, I am already famous lah, ha ha. This is about true
connection between two ladies from the kampung.” She looked in the camera and smiled.
Her eye twinkled a bit.
12. Bidasari was thrilled and returned the hug. She said how grateful she was and how she was
especially delighted about the jewellery.

13. Two weeks later, on 28 July, one of Puteri’s bodyguards delivered to Bidasari a bracelet
from Puteri. What looked like four large diamonds were attached.

14. Bidasari thought that the four diamonds seemed too big for the bracelet, so two days later,
on 30 July, she visited a nearby jewellery store to have them reset into separate pieces of
jewellery. There, to Bidasari’s surprise, the jeweller told Bidasari that she was not sure
whether the stones were true diamonds because it looked like someone had shaved off the
serial numbers. She would need another day to determine their authenticity and value. She
advised Bidasari to get an authentication certificate from Puteri.

15. That night, shocked and upset, Bidasari called her friend who had encouraged her to join
the competition. Together, they decided to get back at Puteri, who they believed had lied
and was a cheat. They created an anonymous NowPost account for Bidasari, who wrote,
“Someone got banyak bodyguards. Her cosmetic products are poison. Diamonds are plastic,
just like her face.”

16. NowPost is a popular Malaysian social media website on which people post celebrity-
related comments, photos and videos. Headquartered and incorporated in Kuala Lumpur,
NowPost has a staff of 27 employees, 6 of whom monitor the posts for inappropriate
comments. As there are sometimes up to 100,000 posts per day, the employees are unable
to filter all posts. Instead, they first use a computer programme to find certain keywords
that may be objectionable. The 6 staff then check those posts, removing the ones that violate
the company’s policies.

17. The next day, the jeweller affirmed that three of the four stones were indeed diamonds but
that one was high quality glass. She appraised the bracelet, diamonds and glass jewel at a
combined RM 10,000.

18. Bidasari’s post was largely ignored, with just 20 likes, 1 , and 3 thumbs down in the
next week.

19. On 11 August 2018, Bidasari, frustrated that her post was not gaining more attention, held
a press conference in which she revealed that the diamond bracelet was, according to the
jeweller, worth only RM 10,000 and that only three of the stones were true diamonds.

20. Puteri responded in her own press conference the next day that the bracelet had been worth
RM 90,000 when she purchased it, but that the value had dropped. She said she was shocked
that one of the stones was glass. She added that she had lost the authentication certificate
and any evidence of the bracelet’s original value.

21. After the duelling press conferences, the NowPost post suddenly went viral. Some people
commented that it must be from Bidasari and about Puteri, but others wrote that it could be
from anyone and about anyone with bodyguards, cosmetic products and diamonds. There
were several celebrities in Malaysia that met these criteria. There were some comments that
were critical of Bidasari, who was among other things called “ungrateful” and a “gold
digger”. There were also
 many critical of Puteri, calling her “a fraud” and “always kampung no matter how much
money”. Other commenters, however, believed that the post was about a controversial
politician who had recently been caught involved in a diamond scam, had a line of her own
makeup products, used bodyguards and was known for dishonesty and acting “fake”.

22. Some of those who thought the post was from Bidasari about Puteri noted that the
Malaysian government has tested Puteri’s cosmetics over the past few years and found that
they contained the highest amount of mercury in the industry but that the levels were not
excessive under current guidelines. Others noted that Puteri was indeed “plastic” because
she appeared to have undergone plastic surgery to make her lips fuller and tighten her facial
skin. Puteri has denied these allegations in the past but sometimes winked after her denial.
She has since refused to divulge any details of her medical history.

23. Puteri was enraged when Bidasari’s post was shown to her. On 16 August 2018, Puteri
instructed her lawyers to demand that NowPost take down the post. NowPost replied on 22
August that their filters had not flagged the post, but that nonetheless they would not remove
it because their legal counsel had advised them that removing it might violate the poster’s
right to freedom of expression. NowPost also stated that they had concluded that the post
did not violate their Terms of Use, which provide, among other things:

“We remove content that contains credible threats or hate speech, content that targets
private individuals to degrade or shame them, personal information meant to
blackmail or harass someone, and repeated unwanted messages. We do generally
allow stronger conversation around people who are featured in the news or have a
large public audience due to their profession or chosen activities.”

24. Although NowPost did not explain why the post did not violate the Terms of Use, they
informed Puteri that they would attach a pop-up message to the post that would state: “This
post is in dispute and may contain objectionable content.” Whenever a NowPost user held
the mouse cursor over the post, the pop-up message would appear.

25. To Puteri’s pleasant surprise, her ranking in “Malaysia’s Top Celebrity Businesspeople” –
a popular online ranking – rose during the six-month period after the incident from #17 to
#11, where it remains today.

26. On 18 February 2019, Puteri, still upset, filed suit against Bidasari and NowPost in the High
Court for defamation. Bidasari counterclaimed for breach of contract against Puteri and
filed suit for breach of contract against Major Events, claiming that Puteri and Major Events
were jointly liable to her for RM 80,000 and costs. During the proceedings, Bidasari
admitted to authoring the post but refused to admit that it was about Puteri.

27. The High Court allowed the actions to be joined and for the same counsel to represent
Bidasari and NowPost, on one hand, and Puteri and Major Events, on the other (after the
necessary waivers had been obtained).

28. The High Court ruled for Puteri on her defamation claims and against Bidasari on her
breach of
 contract claims.

29. On the defamation claims, the High Court held that Bidasari was liable for defamation
because her statement was defamatory, the words referred to Puteri and the words were
published. The Court further held that NowPost failed to remove the post in a timely
fashion, compounding the harm suffered by Puteri, and thus was also liable for defamation.
The Court dismissed all defences raised by both defendants.

30. On the breach of contract claims, the High Court held that no contract was formed between
Puteri and Bidasari and that Major Events was not responsible for the value or authenticity
of the jewellery.

31. Before damages could be assessed, Bidasari and NowPost appealed to the Court of Appeal.
The Court invites submissions on the following issues (and only these issues):

a. Whether the High Court erred in its finding that Bidasari and NowPost were
liable for defamation.

b. Whether the High Court erred in its finding that Puteri and Major Events were
not liable for breach of contract.

A.