Court rules Nielsen did not owe duty of care to theSun

KUALA LUMPUR: The High Court yesterday ruled that in publishing its Nielsen Media Index (NMI), global market researcher, The Nielsen Company (Malaysia) Sdn Bhd, did not owe a duty of care to theSun.
In dismissing a suit for defamation and malicious falsehood filed by theSun's publisher Sun Media Corporation against the rating company for under-representing the readership of its newspaper between 2006 and 2010, Judge Lee Swee Seng also dismissed a counter-claim by Nielsen.
In his oral judgment, the judge said if such a duty of care was owed to Sun Media, it would expose Nielsen to potential liability to "an indeterminate number of suits from an indeterminate number of parties for an indeterminate period (and) for an indeterminate amount".
He added it would be anomalous to hold that Sun Media can have a better standing in law than Nielsen's subscribers to whom Nielsen owes a limited extent of liability under contract.
Denying Sun Media's claim for loss of potential revenue, Lee opined that "there are a myriad of factors influencing one's decision to advertise and one must of course take into consideration the client's own preferences and the advertising rates and charges and the target audience of one's products and services".
During the hearings, detailed evidence had been presented in court by Sun Media's experts and lawyers, regarding the various flaws in the design and execution of the NMI, including the fact that Primary Sampling Unit (PSU) maps had not been updated for 25-30 years in many cases.
The PSU maps depict geographic areas with around 220 households. These form the basis for initiating the random sampling and interview process in selected geographic areas. The number of households would have increased significantly during the past three decades.
Yet, in his analysis of the evidence, Lee found that, "steps have been taken to ensure that the methodology employed meets the acceptable standards of statistical research method in a survey of this nature where one is concerned with the issue of reliability and validity".
The judge did not find the Audit Bureau of Circulation (ABC) Malaysia's method of auditing circulation for free newspapers to be reliable, although ABC Malaysia uses the same process used by ABC (UK) for auditing free newspapers like Metro and the London Evening Standard.
Lee also did not find merit in using audited circulation and inferred readership per copy as relevant, even though it is a common practice among media planners and sellers, besides being used as a counter-checking mechanism by research companies.
Sun Media has been advised by its lawyers to appeal against the decision.