In re: CPP v Ranariddh

By Theary Seng

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.)

Phnom Penh Post, Issue 12/25, December 5 - 18, 2003.