DEFAMATION

Applicable law• Defamation Act 1957 (Act 286)• Common law

INTRODUCTION• The tort of defamation consists of the publication of a

false and defamatory statement concerning another person without lawful justification.

• Defamation is a personal wrong. It will die with the person.• So a deceased person cannot sue by his relatives and

cannot be sued.

Aims of the law• To provide compensation for those whose reputations are

harmed by untrue statements.• To enable those threatened with loss of reputation to

obtain an interim injunction to prevent the publication of a potentially defamatory statement.

• To balance the competing rights of freedom of expression with protection of reputation.

Protection of reputation?• It is only untrue words which cause harm to the claimant’s

reputation that are protected.• Thus, regardless of how much emotional distress or injury

to feelings is suffered as the result of a true statement that a person is suffering from a communicable disease, this will not be relevant to the question of whether the statement is defamatory.

• Tony Weir (Casebook on Tort) – “The law has an extraordinary regard for truth, and just as it makes a person liable for a white lie, it makes a person immune in respect of a black truth.”

Types of defamation

Defamation

Libel

A defamatory statement made in a permanent form

Slander

A defamatory statement made in a transitory or

temporary form

Differences of libel and slanderLibel Slander

It is not merely an actionable tort but also a criminal offence. (e.g. seditious or obscene libel) - Section 499 of the Penal Code.

Slander is only a civil injury.

In all cases in actionable per.se (without proof of actual damage)

Only actionable on proof of actual damage (subject to exceptions)

E.g of libel• Monson v Taussauds (1894) – The placing of a wax

image of the P in the chamber of horror at Madam Taussauds Waxwork Exhibition amounted to libel.

• Yousoupoff v MGM Pictures Ltd. (1934) – The P was portrayed in a film as having been seduced by Rasputin. The D was held liable for libel (this was permanent form of defamation).

Exceptions slander in not actionable per se

Exceptions

Imputation of unchastity of

women

Imputation of unfit in any

office, profession

Imputation of title, goods or

malicious falsehood

Imputation of disease

Imputation of crime

1st exception• Imputation of unchastity or adultery to any women or girl.

This include an imputation of lesbianism.• Section 4 of the Defamation Act – “words spoken and

published which impute unchastity and adultery to any woman or girl shall not require special damage to render them actionable.”

Luk Kai Lam v Sim Ai Leng• Fact – the appellant was a resident staff nurse in charge

of at a nursing home and the respondent was a staff nurse. The appellant alleged that the respondent said this;

• “Eh, what is there of you to be proud of? Who does not know that you receive guest upstairs at RM50 a time, prostitute!”

• Held: the words above were slanderous in that they imputed adultery and unchastity.

2nd exception• Sec 5 of the Defamation Act 1957 -

“in an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling or trade.”

Wan Abdul Rashid v S.Sivasubramaniam

• The defendant, an advocate and solicitor, was held liable for slander. He had made a statement alleging that the plaintiff, who was then the registrar of the Session Court, a corrupt person, in the presence of the members of court staff and the public.

Cont…• 3rd exception - imputation of title, goods or malicious

falsehood. Section 6 provides “in any action for slander of title, slander of goods or other malicious falsehood, it is not necessary to allege or prove special damage”.

• 4th exception – imputation of disease. Words imputing a contagious or infectious disease (e.g. AIDS) likely to prevent people from associating with the plaintiff is actionable without proof of damage.

5th exception – imputation of crime• Words imputing that a claimant has committed a criminal

offence punishable by imprisonment gives rise to a slander actionable per se.

• C.Sivanathan v Abdullah bin Dato’ Hj Abdul Rahman (1984) – the Federal Court held that the words “dishonest, cheat and liar” taken in the context in which they were said could not possibly impute any crime punishable with imprisonment. Special damage must be proven.

Elements of defamation

Elements

Words must be defamatory

Words must refer to the

plaintiff

Words must be published

What is a defamatory statement?• A defamatory statement was defines by Lord Atkin in Sim

v Stretch [1936] as “one which has a tendency to injure the reputation to whom it refers, which tends to lower him in the estimation of right- thinking members of society generally”.

• In Vander Zalm v Times Publishers (1980) the court went further and said that the ingredients of the defamatory statement should cause the P to be regarded with feeling of hatred, contempt, ridicule, fear, dislike or disesteem.

The test• The test of the defamatory nature of a statement is its

tendency to lower the P’s reputation in the estimation of right-minded person (the test of reasonable man).

• Whether the statement is defamatory or not, it will depend whether the ordinary right-thinking member of society would regard the P as lowered in their estimation if they believe that D’s statement was true of the P.

• Thus, if the words have such a tendency, they will be held to be defamatory even though no one may actually believed the statement to be true.

• Law only looks to its tendency and not the actual effect on a person’s reputation.

Byrne v Deane (1937)• Fact: the police removed a number of illegal gambling

machines from a golf club after somebody had informed them that the machines were in the club house. Soon after, a verse appeared on the notice board of the club “But he who gave the game away, may he byrne in hell and rue the day”. The alleged the statement imputed that he was guilty of underhand disloyalty to his fellow club members.

Judgement• The Court of Appeal held that an allegation that the P had

reported a crime to the police could not be regarded as lowering his reputation because right-thinking members of society would regard this as commendable.

• The fact that disloyalty would damage the P’s reputation among his fellow club members was irrelevant. His claim failed.

The burden of proof• The burden of proof is on the P to show that the words do

bear a defamatory imputation. The whole of the statement must be looked at, not merely that the part on which the P relies as being defamatory.

• Nonetheless it may be relevant to take account of greater importance of some part of the statement. For e.g. the headlines of an articles in a newspaper, the emphasis placed on any particular words.

Syed Husin Ali v Syarikat Perchetakan Utusan Melayu Bhd.• The P alleged that the article published by UM was

understood to mean, inter alia, that the P was;

(a) Disloyal to the government of Malaysia

(b) A supporter of President Sukarno

(c) Instigating unrest in the country.

• Held: In the circumstances of this case, the words complained of, when considered in the context of the news report, were defamatory of the P in their ordinary and natural meaning.

Ways defamatory imputation may arise

Ways

Natural and ordinary meaning

Innuendo

False/popular innuendo

Legal/true innuendo

Juxtaposition

Natural and ordinary meaning• As a general rule, where nothing is alleged to give a

statement an extended meaning, such statement must be construed by the judge in their ordinary and natural meaning.

• For e.g. where an allegation of criminal conduct, dishonesty, or immorality is made, the words are clearly defamatory and the natural meaning of the words can be relied on.

Innuendo• It is the term used to describe words that are not

defamatory in their natural and ordinary meaning but which may have a hidden meaning when put into context.

• False innuendo arises when the defamatory imputation have a meaning beyond their literal or ordinary meaning which is inherent in them and arises by inference or implication.

• See Syed Husin Ali v Syarikat Perchetakan UM

Lee Kuan Yew v J.B. Jeyaretnam• During the election rally for a general election, the D made

this statement:• “I’m not very good in the management of my personal

fortunes but Mr Lee Kuan Yew has managed his personal fortunes very well. He is Prime Minister of Singapore. His wife is the senior partner of Lee & Lee and his brother is the Director of several companies, including Tat Lee Bank in Market Street; the bank which was given permit with alacrity, banking permits license when other banks were having difficulty getting their license. ..

Cont…• ...So Mr Lee Kuan Yew is very adept in managing his own

personal fortunes but I am not…if I become Prime Minister, there will be no firm of J.B. Jeyaretnam & Co in Singapore because I would not know how to manage my own personal fortunes.”

• Held: In that context the words implied that the Plaintiff had gained and secured personal advantage from his position. The words were therefore defamatory.

True (legal) innuendo• A true innuendo is where the words in their ordinary

meaning are innocent and only become defamatory when combined with extrinsic facts and circumstances which are known by some of the people to whom the statement is published.

Innocent statement

External facts

Knowledge of the

persons

Defamatory meaning

Elements of true innuendo• In order to establish this type of defamatory imputation,

the P must prove:

(a) that there are facts extrinsic to the words; which such facts give rise to defamatory imputation

(b) that those facts were known to one or more of the persons to whom the words were published; and

(c) that the knowledge of those extrinsic facts could cause the words to convey the defamatory imputation on which the P relies, to a reasonable person possessing knowledge of those extrinsic facts.

Cassidy v Daily Mirror Newspapers Ltd

• The D published a picture of Mr Cassidy with a young woman together with a statement announcing their engagement. However Mr Cassidy already married.

• His wife (Mrs.Cassidy) brought an action for libel v. the D alleging that she has suffered damage to her reputation through the publication. It was understood by several people to mean that Mr Cassidy was not her husband but that he was living with her in immoral cohabitation.

• Held: the publication was capable of a defamatory meaning as it conveyed to reasonably minded people an aspersion on her moral character.

Tolley v Fry (1931)• The P was an amateur golfer who was shown in a

drawing on an advertising poster with a bar of D’s chocolate.

• He successfully claimed that there was an innuendo that he had prostituted his amateur status by accepting money for the advertisement.

Juxtaposition• Literally means the act of placing side by side.• Mere juxtaposition to noxious matter may make an

otherwise innocent representation defamatory.• However, if reliance is placed upon juxtaposition, it must

be shown that a reasonable man, seeing the two objects together, would draw from their relative positions an inference defamatory of the P.

Monson v Tussauds Ltd.• The D, who kept a wax-works exhibition, had exhibited a

wax model of the P, with a gun, in a room adjoining the “chamber of horrors”. The P had been tried for murder and released on a verdict of not proven.

• The exhibition was capable of being found by a jury to be defamatory.

Is intention/knowledge of the D relevant?

• The intention (knowledge) of the D is not relevant.• Thus, whether the D intended the statement to be

defamatory or not is immaterial.• In other words, the tort of defamation may be committed

unintentionally, innocently or negligently.• It follows in a defamation action, it is not necessary for the

P to show or to prove the D’s intention.

Is a mere vulgar abuse defamatory?• In determining whether words are capable of bearing a

defamatory meaning, the circumstances in which they are written and the context in which they are must be considered.

• As a general rule a mere vulgar abuse or words uttered in anger in the heat of the moment will not amount to defamation.

Sivanathan v Abdullah Dato’ Hj.Abd Rahman

• The D had an argument with the P. The argument ended with the D calling the P ‘dishonest, cheat and liar’. He uttered these words in anger.

• Held: Such words were mere vulgar abuse. Did not amount to defamation.

• It has been argued that this rule should only apply to an action for slander. In written words there is an opportunity for reflection prior to publication.