DEFAMATION

LEARNING OBJECTIVE

• Definition of defamation

• Who can be defamed

• Types of defamation

• Elements of defamation

• Types of Defenses

• Remedies

DEFAMATION

• Sources of Law

- English Common Law

- Defamation Act 1957

WHAT IS DEFAMATION?• “a statement (oral or written, temporary or permanent) which injures the

reputation of another by exposing him in the esteem of right thinking members of society” – Lord Atkin (Sim V Stretch (1936) 2 ALL ER 1237 1240

• Mark Ignatius Uttley @ Mark Ostyn v Wong Kam Hor & Anor (2002)- words tend to make a reasonable person think the worst of the plaintiff or would cause him to be shunned/ avoided

• “a statement concerning any person which exposes him to hatred, ridicule or contempt or which cause him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade” – Frazer on Libel and Slander

• Dato’ Musa bin Hitam v SH Alatass & 2 Ors (1991)- defamation arises when there is a publication which has the tendency to lower the person’s reputation or to cause him to be shunned or avoided by reasonable persons in society, and thereby adversely affecting his reputation.

Who can be defamed?

• Living persons:- Plaintiff is alive- Personal action- Atip bin Ali v Josephine Doris

Nunis & Anor (1987)

• Corporations:

e.g. Electrical, Electronic, Telecoms & Plumbing Unions v Times Newspaper Ltd (1980).

Types of Defamation

Defamation can be divided into two types, namely:

1. Libel (Sec 3 of the Defamation Act 1957)- in a permanent form and - visible to eyes- In writing, email, pictures, statutes/ effigies- Actionable per se

2. Slander-Words spoken or gestures (section 4 DA 1957)

- In a temporary or transient/short-lived form- Not actionable per se (needs to prove actual damage that can be

measured in monetary terms in order to succeed in his/her action)

Exceptions to the requirements of actual damage in case of slander….

Exceptions to the requirements of actual damage in case of slander….

The exceptions in which slander becomes actionable per se (without proof of special damage) are as follows:

1. Slander to women- Section 4 provides that the publication or words

which imputes unchastity or adultery to any women or girl requires no proof of special damage for the action to succeed.

Case: Luk Kai Lam v Sim Ai Leng (1978) 1 MLJ 214 – The respondent called the appellant a prostitute and alleged she charge RM 50 to entertain men at any one time. These allegations were made in the presence of third party. The court held slander was established since the words attributed the appellant’s chastity, special damage need not be proven.

2. Slander in relation to a person’s professional or business reputation-

Sec 5 provides that words calculated to disparage/belittle plaintiff in any office, profession, calling/occupation, trade or business, whether the words are spoken or not need not prove any special damage

E.g: misconduct , unfitness or an allegation of dishonesty and corrupt practices against deputy Minister

Case : -Chua Jui Meng v Hoo Kok Wing (2000) -John Tan Chor-Yong v Lee Chay Tian (1971), -JB Jeyaratnam v Goh Chok Tong (1985)

3. Imputation of Crime-

the words indicate that the plaintiff is involved in a crime (that attracts corporal/physical punishment). Case :

C Sivanathan v Abdullah bin Haji Abdul Rahman (1984)- the defendant called the plaintiff a “cheat, dishonest, and a liar”. The court held that action did not attract corporal punishment, the claim was not actionable per se.

4. Imputation of a contagious disease- a statement of a contagious disease or infectious disease is actionable per se.

5. Slander in relation to title- Sec. 6 provides that in an action of title, slander

of goods or other malicious falsehood, it shall not necessary to allege or prove special damage.

E.g: A tells B that C no longer operating his coffee- shop. The statement may well deprive C of his business and C may sue A for Malicious falsehood without having prove special damage.

ELEMENTS OF DEFAMATION

1. Words are defamatory

2. Words must refer to the plaintiff

3. The words are published to a third party

Words are defamatory

• Words have the tendency to lower the estimation of the plaintiff in the mind of right thinking members of society that cause him is avoided, shunned or ridiculed (Syed Husin Ali v Sharikat Percetakan Utusan Melayu Bhd & Anor (1973)

• The court only looks to the tendency of the response of the reasonable man to the words. Words must be understood and cannot merely guess.

• Words will be examined objectively, that is, its effect on a reasonable and ordinary reader (Lee Kuan Yew v JB Jeyaratnam (1979).

• Words are defamatory in THREE ways;- Natural & ordinary meaning- Innuendo - Juxtaposition

Words are defamatory..cont

1. Natural & ordinary meaning- as understood by ordinary men of ordinary intelligence must have the tendency to make them look down, shun or avoid the plaintiff (Rajagopal v Rajan (1972).

Case: Lewis v Daily Telegraph Ltd(1964), the plaintiff’s action failed as the court held that the statement was not capable of giving rise to the meaning that the plaintiff carried out his business fraudulently due to the Fraud Squad Investigation.

2. Innuendo- words sometimes do arise from the literal/factual meaning. It can come from the inferences/presumption or special facts or circumstances by the recipient or reader of the words. Innuendo can be divided into two types: False Innuendo (words derived from combination of statements and pictures) case: members of society that cause him is avoided, shunned or ridiculed (Syed Husin Ali v Sharikat Percetakan Utusan Melayu Bhd & Anor (1973)and Lee Kuan Yew v JB Jeyaratnam (1973); True or Legal innuendo (arises due to special facts which are known to the recipient of the publication) and special knowledge is needed.

3. Juxtaposition- involves a situation that employs visual effects an effigies or placing the plaintiff’s photograph in a pile of pictures of wanted criminals. Case: Monsoon v Tussauds.

Words must refer to the plaintiff

• Words must refer to the plaintiff• The test to establish that words refer to the

plaintiff was laid down in case of David Syme v Canavan (1918). Even if plaintiff is not specifically named in the words, he may be described so as to be recognised.

• It is sufficient that those who know the plaintiff believe that he is the person referred to( Abdul Khalid v Parti Islam Semalaya (2002).

• Case: Hulton & Co v Jones (1910), Newstead v London Express Newspaper Ltd (1939)

The words are published to a third party

• There must be a publication of words to the third party• Publication means the dissemination of the defamatory

words/printed material or material to a third party, other the plaintiff.

• Case: Dr Jenni Ibrahim v S Pakianathan (1986)- the defendant wrote two letters indicating that the plaintiff had committed breach of trust of RM 70,000. Copies of the letter was sent to all directors of the HELP Centre, director of the welfare services, registrar of society. The court held that sending copies of the letter to other parties constituted publication.

• Any other similar cases: Wan Abdul Rashid v S Sivasubramaniam (1984)

The words are published to a third party..cont

• Pullman v W Hill & Co Ltd (1891)- letter to businessman opened by his secretary is publication unless marked “private” or “personal”

• Wenman v Ash (1853)- communication by a third party to one spouse is publication

• Considered NOT publication: - Wenhak v Morgan (1888)- communication between

spouses about third party is not publication- Sadgrove v Hole 1901 – a statement not heard by

recipient (deaf or not understood) is not publication- Huth v Huth (1915)- communication between spouses,

butler read its contents is not publication.

The words are published to a third party..cont

• Defendant need not have intention that the defamatory matter be communicated to any particular person. It is sufficient if publication could be reasonably anticipated (Theaker v Richardson, 1962)

• Repetition and republication of defamatory matter- original publisher is liable if he authorized/ or if republication is the natural and probable consequence of the original publication

• Culter V McPhail (1962) – every repetition & republication constitute a fresh cause of action.

DEFENCES

1. UNINTENTIONAL DEFAMATION

2. CONSENT

3. JUSTIFICATION

4. FAIR COMMENT

5. PRIVILEGE

6. INNOCENT DISSEMINATION

A. UNINTENTIONAL DEFAMATION (UD)

• Sec 7(5) a & b

• Sec 7 (1) a & b

• Sec 7 (2)

• Se 7 (3)

Case: Lee Kuan Yew v Seow Khee Leng (1986) & Sandison v Malayan Times Lt & Ors (1964)

• Defendant unintentionally and innocently publishes defamatory material of another person, he may raise the defence of unintentional defamation provided for under Sec. 7 of Def. Act 1957.

• UD is appropriate in a situation where a reporter writes what is alleged to be defamatory article in a magazine, and the plaintiff sues both the reporter and the publisher of the magazine.

• Section 7 (5) a & b- For the purposes of this section, words shall be treated as published by one person (referred to in this subsection as the publisher) innocently in relation to another person if and only if the following conditions are satisfied:

(a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or

(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person;

and in either case that the publisher exercised all reasonable care in relation to the publication

• Sec 7 (1) a & b- —(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case-

(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);

(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove :

- that the words complained of were published by the defendant or were published by the defendant innocently

- the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff,

- and has not been withdrawn

• Sec 7 (2)- An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit/ official declaration specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under subsection (1) (b) no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.

• Sec 7 (3)-An offer of amends under this section shall be understood to mean an offer —

• (a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;

• (b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.

B. CONSENT/ASSENT• Plaintiff gives his/her consent for publication to be

made. E.g: consent for being interviewed, knowing that the contents of the interview will be printed in a magazine.

• The defendant must prove such authorization or consent in order for this defence to succeed ( Normala Samsudin v Keluarga Communication Sdn Bhd (1999)- consent not proven.

• Case: Cookson v Harewood (1932)- the plaintiff claimed that the innuendo was that he was corrupted and indulged in fraudulent practices. The Court held that the plaintiff could not claim from the defendant as the statement was true and that permission was obtained to published that statement.

C. JUSTIFICATION

• Section 8 of Def. Act 1957- defendant must prove the truth of all the material statements in the defamatory statement.

• The defence of justification or truth.

• Once the statement is proven to be true, the law will not protect the plaintiff (Institute of Commercial Mgmt United kingdom v New Straits Times Press (Malaysia) Bhd (1993)

• The burden of proof lies on the defendant to prove his allegations. Case: S Pakianathan v Dr Jenni Ibrahim- the defendant alleged that the plaintiff had committed a criminal breach of trust amounting to RM 70,000. The court held that the burden rested on the defendant to prove JUSTIFICATION and it was not sufficient to state that he believed the allegation to be true.

• Case; M’Pherson v Daniels (1829)- where the defendant has succeeded in discharging the burden, the plaintiff cannot recover damages

• Case: E Hulton & Co. v Jones (1910)- no defence merely by showing no intention to defame

• Where the defamatory statement was true, it is irrelevant if the defendant was motivated by malice.

D. FAIR COMMENT

• Sec 9• A comment which is honestly and fairly made

may also absolve/free the defendant from liability.

• In order to establish this defence, the defendant must show that;

1. The words must be in the form of comment and not a statement of fact;

2. The comment must be based on true facts;3. The comment is fair and not malicious; and 4. The comment concerns an issue of public

interest.

The words must be in the form of comment and not a statement of fact;

• This defence does not apply if the words are statements of fact.

• Case: Meeran Lebbaik Maillin & Anor v J Mohamed Ismail Merican & The Straits Printing Works (1926)- the defendant failed as the words that the plaintiff had robbed and was a ‘Kafir’ were allegations of FACT and not of OPINION.

• Case: SB Palmer v Rajah & Ors (1949) and JB Jeyaretnam v Goh Chok Tong (1985).

• Eg: if A were to allege that X is a liar and a cheat and therefore a dishonest person, ‘dishonest’ may well be the comment based on the allegation that he is a liar and a cheat. But all the three words, liar, cheat and dishonest may well amount to allegations of fact, and fair comment cannot be used to defence.

The comment must be based on true facts

• The defendant must prove that the TRUTH OF THE FACTS on which the comments is based.

• It is sufficient that the facts which form the basis of the comment are proven (Mohd Jali bin Haji Ngah v The new Straits Times Press & Anor (1998).

• Case: SB Palmer v AS Rajah & Ors (1949)- the defendant failed to prove his allegations that the plaintiff had walked out of a meeting in a dramatic style/fashion. The plaintiff had in fact walked out in an ordinary manner. Since the truth of this alleged fact was not proven, the defence of fair comment failed.

The comment is fair and not malicious

• A comment that is made maliciously is NOT a fair comment.

• In order to be fair, the comment must be an honest expression of the writer made in good faith.

• If it can be proved that the defendant did not believe that what he published was true, or that he knew the statement to be false, that is generally conclusive evidence of express malice (Chong Siew Chiang v Chua Ching Geh & Anor (1992) & S Pakianathan v Dr Jenni Ibrahim (1988))

The comment concerns an issue of public interest.

• The comment must be on an issue of public interest, otherwise the defence is not available (Henry Wong Jan Fook v John Lee & Anor (1976).

• Comments concerning the acts and activities of people who are influential in a particular society, such as the conduct and acts of ministers are also regarded as matters of public interest (Abdul Rahman Talib v Seenivasagam & Anor (1965)

• Government and public admin issues, contents of the mass media, all forms of art and entertainment, utilization of public funds and religious issues would be regarded as matters of public interest.

• Eg; comments in a newspaper with regard to the quality and contents of secondary school textbooks, comments in newspaper that consultants architects in a project to build additional car-park floors of a hospital did not comply with building plans and etc…

E. PRIVILEGE

• There are TWO types of PRIVILEGE: 1. QUALIFIED PRIVILEGE: the defence of

qualified privilege is provided for both through Statute and Common Law.

2. ABSOLUTE PRIVILEGE: the publication of words is protected by absolute privilege, connected to the administrative system within a particular government, whether the statement is made by legislative bodies, the executive or the judiciary. E.g: an advocate is protected by absolute privilege if he makes a defamatory statement while in the course of legal proceedings.

STATUTE: STATUTORY Q.P

• Statutory q.p is provided for in Sec 12 of the Act. “Subject to this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice”

• ‘Newspaper’ has been defined in Sec 2 as any paper containing public news or observation consisting wholly or mainly of advertisements, and which is printed for sale and is published in Malaysia periodically or in parts at interval not exceeding thirty six days.

• Therefore the only parties which are entitled to rely on the defence of statutory qualified privilege under Sec 12 are NEWSPAPERS and BROADCASTING STATIONS.

• Section 12(1)- protects reports of matters that are listed in Part I of the Schedule of the Act. - For reports of matters listed under this Part I, the privilege is LOST if the

author and/publisher is FOUND TO BE MALICIOUS with regard to the publication.

• Sec 12(2) provides that a publication of any report or matter covered

under Part II of the Schedule to the Act is also privileged. - However, the privilege is LOST if the author and/the publisher (a) has been requested by the plaintiff to publish either an

explanation or contradiction to the original publication, and the defendant has not done so either through refusal or neglect;

(b) has been requested by the plaintiff to publish either an explanation or contradiction, to the original publication, and the defendant has done so but the explanation or contradiction is inadequate or unreasonable in circumstances;

(c) is found to have acted maliciously

Common Law Qualified Privilege

• If the defendant is neither a newspaper nor a broadcasting, it is not entitled to raise the defence to qualified privilege under sec 12.

• Publication made by other than by a newspaper or broadcasting, may still be privilege under Common Law principles.

• There are circumstances under which a person is allowed by law, to make defamatory remarks without his being liable for the tort of defamation.

Four Recognised circumstances of privileged occasions

1. Statements made between parties who have a mutual interest over the subject matter of the communication

2. Statements made to fulfill a legal, moral and social duty

3. Statements made to relevant authorities in order to settle public nuisance or disputes

4. Statement made in order to protect one’s own interest or property

ABSOLUTE PRIVILEGE

• There are certain publication of words that are protected by absolute privilege.

• The circumstances are usually connected to the administrative system within a particular government, whether the statement is made by legislative bodies, the executive or the judiciary. E.g: an advocate is protected by absolute privilege if he makes a defamatory statement while in the course of legal proceedings.

F. INNOCENT DISSEMINATION

• A person who participate in the publication of a defamatory article is subject to suit.

• If he is only a distributor or delivery boy, he is entitle of defence of innocent dissemination.

• Case: Vizetelly v Mudie’s Select Library Ltd (1900), it was held that the defence of innocent dissemination is available to a defendant who is not the author, printer or first or main publisher of the defamatory article.

REMEDIES

• Damages

• Injunction