Dispute Resolution Update: Protective Orders and Defamation: When Justice Demands Privacy

Protective Orders are not frequently discussed within Malaysian jurisprudence. Unlike an Anonymity Order, which is usually granted in matrimonial proceedings to anonymise the names of the parties and children in the marriage, Protective Orders provide tighter protection.

Generally, the notion of open justice, as prescribed under section 15(1) of the Courts of Judicature Act 1964 (“CJA 1964”), serves as the cornerstone of our legal system. As such, Court trials are held in public, where members of the public are free to observe when trials proceed. In fact, the public may even conduct file searches and have access to the documents filed by parties in Court.

That said, the notion of open justice is not absolute. When enacting section 15(1) CJA 1964, the Parliament in its wisdom had conferred certain discretionary powers upon the courts to enable Court proceedings to be held behind closed doors, that is, in camera, when it is in the interest of justice to do so. This is where Protective Orders come to life.

Protective Orders come in different forms. Depending on the wording of the Order, the Order may:

  • prohibit publication of parties’ and/or witnesses’ names in the media;
  • prohibit media/reporters from being present in the courtroom when the proceedings are ongoing; or
  • prohibit public access to the Court papers filed in the Court’s Electronic Filing System.

Local judicial precedents on Protective Orders and exceptions to section 15 CJA 1964 are few and far between. From the limited local precedents, it appears that such exceptions to open justice would usually only be invoked in Court proceedings involving trade secrets and/or confidential business information.

However, this is no longer the case.

In July 2025, we acted for the defendants in three prominent defamation claims before the High Court and applications for Protective Orders were made on their behalf. Amongst others, the applications were supported by reasons such as:

  • the trial will turn on sensitive familial and intimate private matters;
  • witnesses for the defendants may not testify fully and/or wholeheartedly without Protective Orders due to the fear of repercussions; and
  • the defendants’ defence will fail if the witnesses do not cooperate without Protective Orders.

When the applications were made, there were doubts as to whether the law allows for Protective Orders in a defamation action, considering that, amongst others:

  • the objective of a defamation action is to vindicate a person’s reputation which is said to have been tainted in the eyes of a third party; and
  • whether the objective of a defamation action would be compromised if Protective Orders were granted and the trial is held behind closed doors.

On 31 October 2025, the High Court exercised its discretion judiciously by allowing our clients’ applications and granted the Protective Orders sought. However, the plaintiffs were not satisfied with the grant of the Protective Orders and appealed against the High Court’s decisions.

On 1 October 2026, the Court of Appeal dismissed the plaintiffs’ appeals and upheld the High Court’s decisions to grant the Protective Orders.

In their Lordships’ brief oral grounds, their Lordships held that:

  • the Protective Orders shall be maintained as they are capable of preserving the interest of justice; and
  • the interest of justice dictates that parties shall be given reasonable opportunity to present their case to the Court under conditions which do not place one of them at a substantial disadvantage vis-a-vis the other.

With this decision from the Court of Appeal, it is now clear that Protective Orders are not only applicable in matters involving trade secrets and/or confidential business information. As long as the ends of justice are met, the Court is empowered under section 15(1) CJA 1964 to grant Protective Orders, even in a defamation claim.

This update is prepared by Rajasingam Gothandapani, Justin Tong Wei Hang and Ally Ong Tze Xian.

COPYRIGHT © 2026  SHEARN DELAMORE & CO. ALL RIGHTS RESERVED
THIS UPDATE IS ISSUED FOR THE INFORMATION OF THE CLIENTS OF THE FIRM AND COVERS LEGAL ISSUES IN A GENERAL WAY. 
THE CONTENTS ARE NOT INTENDED TO CONSTITUTE ANY ADVICE ON ANY SPECIFIC MATTER AND SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR DETAILED LEGAL ADVICE ON SPECIFIC MATTERS OR TRANSACTIONS.

Back to Alerts