LAW245

DEFAMATION

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 LEARNING OUTCOMES

Upon completion of this chapter, students shall

be able to:
 Explain the basic principles of the tort of
defamation
 Apply the legal principles.

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 DEFAMATION

 Introduction
 Types of Defamation
 Elements
 Defences

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 Introduction

 A tort of defamation-
› is a type of legal action brought against a
person who is accused of making, usually
false, claims about another person or
organization which are considered
potentially damaging to the reputation of
the person or organization. 

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 Defamation arises when there is publication
which has a tendency to lower the person’s
reputation or to cause him to be shunned or
avoided by reasonable person in society, and
thereby adversely affecting his reputation.
 The interest that is protected by this tort is a
person’s good name and reputation.
 Mere feelings of hurt however, are insufficient for
the award of damages under the tort of
defamation.

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 The law of defamation in Malaysia is
primarily based on the English common
law principles except insofar as it has been
modified by the Malaysian Defamation Act
1957.
 The Malaysian Defamation Act 1957 is in
pari materia with the English Defamation
Act 1952.

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 Example of Defamation

Publication arises when

this statement is made to
Jovi tells Sally either
Sally, and as this statement
orally/writing that PEON is
a dishonest and selfish
may cause a reasonable
person to disassociate
DEFAMATIO
person who likes to take
advantage of those around
himself from PEON’s
company, it therefore
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him.
adversely affects PEON’s
reputation.

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TYPES OF DEFAMATION

LIBEL SLANDER

DEFAMATION

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(1)Libel
 Refer to publication of defamatory words in permanent
form (i.e. visible to the eyes). Such as in written form,
pictures, statutes or effigies.
 Section 3 of Defamation Act 1957 states that broadcastings
of words by means of radio communication shall be treated
as publication in a permanent form and constitutes libel.
 Libel is actionable per se i.e. a plaintiff need not to prove
any damage as a result of the defamatory statement.
 This is because the law presumes that when a person’s
reputation is assailed, some damage must result.

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 SLANDER
(2) Slander:
 Refers to publication of defamatory words in
temporary form. i.e. spoken words or gesture.
 Slander is not actionable per se. i.e. The plaintiff
needs to prove actual or special damage in order
to succeed in his action.
 Actual damage refers to financial loss or any loss
that may be measured in monetary terms.
 For example, loss of business or employment or
the chance to attend a social function that may be
measured in monetary terms.
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Slander…
 The actual loss must be proved.
 The damage must also be the natural and
reasonably foreseeable result of the
defendant’s words.
 The damage must further be a direct result
of the defendant’s words.

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General Rule: A plaintiff must prove actual damage in an
action for slander is a general proposition, subject to some
exceptions.

 Exceptions to the requirement of actual damage in cases of

slander as follows:
Slander to women

Slander to a person’s professional or business

reputation

Imputation of a crime

Imputation of a contagious disease

Slander to Title
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Slander…
(a) Slander to women
Section 4 provides that publication of words
which impute unchastity or adultery to any
woman or girl requires no proof of actual
damage.

Luk Kai Lam v Sim Ai Leng

The respondent called the appellant a
prostitute and alleged that she charge
RM50 to entertain men at any one time.
These allegations were made in the
presence of a third party.
Held: slander was established since the
words impugned the appellant’s chastity
and special damage need not be proved.

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Slander…

(b) Slander to a person’s professional or business reputation

Section 5 provides that where words are calculated to

disparage the plaintiff in any office, profession, calling,
trade or business, at the time of publication, it shall not
be necessary for the plaintiff to prove special damage.

JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334

Court distinguished between an office of profit and an office of
honour. For the slander to be actionable per se, the words must
be calculated to disparage the plaintiff in his office of profit. An
office of profit means that the plaintiff receives monetary
remuneration from holding that office. If he hold an office of
honour, the plaintiff is required to prove special damage unless
he can prove that words indicating he received bribes, acted
dishonestly, acted without integrity will result in him being
dismissed from further holding that position
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Slander…

c) Imputation of a Crime
Slander is actionable per se if words indicate the
plaintiff is involved in a crime which attracts corporal
punishment that includes the death penalty, whipping
and imprisonment.

C Sivarathan v Abdullah bin Dato’ HJ. Abdul

Rahman, the plaintiff was called a cheat,dishonest
and liar. The court held since these crimes does not
involved corporal punishments, he needs to prove
special damage. Since this is not prove, the
action failed.

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Slander…
(d) Imputation of a Contagious Disease
A defamation statement which relates
to imputation of contagious or
infection disease is actionable per se.
(such as venereal disease, AIDS)
(e) Slander to Title
Section 6 (1) (b) provides action for slander of title,
goods or other malicious falsehood. The plaintiff need
not prove special damage if the words were made
calculated to cause pecuniary damage in respect of the
trade, business, profession, office or calling.
Ex: A tells B that C is no longer operating his coffee
shop. This statement may deprive C of his business.
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 ELEMENTS OF DEFAMATION
To prove defamation, the plaintiff must
establish the elements of Defamation,
namely :-

(ii) The words

(i) The words are refer to the
defamatory; and plaintiff; and

(iii) The words have

been published
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(1) The words are defamatory

The words have a tendency to lower the

estimation of the plaintiff in the minds of right-
thinking members of society generally, so that
the plaintiff is exposed to hatred, avoided,
shunned or ridiculed.

The question for the court is whether the

words are capable of conveying a
defamatory meaning concerning the
plaintiff.

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The words are defamatory…

In other word, the court will

look to the tendency of
response by a reasonable man
to the words.
If the words are mere word of
abuse, uttered in anger in the
heat of the moment, the words
will not be defamatory.

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The words are defamatory…
 Words may be defamatory in one of three ways:-

(a) natural and

ordinary meaning
(b) innuendo

(c) juxtaposition

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The words are defamatory…
(a) Natural and ordinary meaning
The words by themselves as understood by
ordinary men of ordinary intelligence to have
a tendency to make them shun or avoid the
plaintiff.

In Lewis v Daily Telegraph, a

newspaper printed the news that a Fraud
squad was investigating the plaintiff’s
company. The court held the statement
was not defamatory as it was not capable
to have a meaning that the plaintiff
carried out his business fraudulently.
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The words are defamatory…
(b) Innuendo
• Defamatory words which contain a hidden meaning or inner meaning.
• Defamatory imputation does not arise from the literal meanings of the
words but by special facts or circumstances known by the recipient or
reader of the words.

In Tolley v Fry & Sons Ltd the plaintiff was an amateur

golfer, and the defendant a chocolate manufacturer. The
advertisement of the D’s chocolate’s in the newspaper showed
a caricature of P playing golf with a bar chocolate sticking out
of his pocket. P sued for libel. The words and picture were not
defamatory but the innuendo was that P received payment for
the advertisement and had prostituted his status as an
amateur golfer. The House of Lords held D liable as those
who know of P’s status may assume that P had consented and
had been paid for the advertisement
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The words are defamatory…
CASE

Syed Husin Bin Ali V. Sharikat Percetakan Utusan Melayu Sdn Bhd
 The newspapers published a statement accusing Syed Husin Ali as

wanting to arouse the hatred of the Malaysian people against the

government and the British and University lecturer was spreading the
subversive ideas in order to poison the thoughts of the Malay.
 
 The issue whether these words are defamatory of the plaintiff and it

was held that throughout the inference or implication, the words

conveyed the meaning of that the plaintiff was dishonest disloyal to
the government and subversive element and ungrateful. Pt. was
awarded with damages for the defamatory statements.

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The words are defamatory…
(c) Juxtaposition
• Placing two things side by side or close together.
• This involves the use of visual effects such as effigy or
placing the Plaintiff’s photograph in a pile of wanted
criminals.

In Monsoon V Tussauds, the P was accused of

committing a crime in Scotland, but it was never
proved and he was released. The D erected a
statue of the P and placed it with other criminals.
The P sued the D. the court held the liable for
defamation. D’s intention is irrelevant.

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 (2) The words must refer to the
plaintiff i.e identify him
 The plaintiff must prove the defendant’s words
are referring to him.
 The test is whether the words are such in
reasonably in the circumstances would lead
persons acquainted with the plaintiff to believe
that he was the person refer to. Only the person
defamed can bring an action in defamation.
 A person’s reputation dies with him, so a next-
of-kin cannot institute proceedings on behalf of
the deceased.
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Refer to the plaintif…

In Atip Bin Ali V. Josephine Doris Nunis & Anor the

defendant sued Datuk Rahim Thamby Chik for breach of
a promise to marry. The defendant then did not pursue
her claim after filling the writ. The plaintiff, Secretary of
UMNO, Alai Melaka, claimed that other parties and
Wanita UMNO avoided them for supporting an adulterer.
The court held UMNO was not defamed but Datuk
Rahim Thamby Chik and only he can take up a
defamation suit against the defendant.

In Hulton & Co v Jones, the defendant wrote a fiction

concerning Artemis Jones in Peckham. There was in fact a real
Artemis Jones, a lawyer on that town. His friend thought the
story was about him. The court held defamation was established.

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 (3) The words must be published
 Communicated at least one person other than
the plaintiff. In practice the statement is
always in the from of words but it can take any
form which conveys meaning, for example a
picture, cartoon or a statue.
  Publication means dissemination of the
defamatory words or materials to a third party,
other than then plaintiff.

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It must be published…
CASE

Dr. Jenni Ibrahim V. S. Pakianathan

 The plaintiff was a psychologist working on voluntary
basis at a Help Centre in Kg.Bercham, Perak.
 The defendant wrote 2 letters indicating that the
plaintiff has committed breach of trust amounting to
RM70,000. Copies of these letters were sent to
directors of the centre, the Director of Welfare
Services of Perak and the Registrar of Society.
 Court held sending copies of the said letter to other
parties constituted publication. Words spoken in
public can amount to publication.
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It must be published…
CASE

 In Theaker v Richardson, the defendant wrote a

defamatory letter to the plaintiff a married
woman and fellow member of the local urban
district council. Her husband read the letter
which was sealed in a manila envelope similar to
the kind used for distributing election addresses.
The Court of Appeal held that publication
existed. Since the defendant delivered the letter
to the plaintiff’s address it would likely to be
opened and read by the husband.
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It must be published…
 To establish publication of the words the
following factors needs to be considered :
i. The language used is understood by the 3rd party
ii. The plaintiff must be able to specify what exactly
was said or written by the defendant.
iii. The plaintiff must be able to prove the identities
of persons to whom the defamatory words are
published.
iv. If the words are repeated or copied, a new
defamation arises. Generally, the first person
who produces the defamatory material is liable
for subsequent publication
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 DEFENCES TO DEFAMATION
A person who has been sued for
defamation may raise a number of
defences:-

(vi) Innocent
(i) Consent Dissemination

(ii) Justification/ (v) Unintentional

Truth Defamation

(iii)Fair comment (iv) Privilege

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i) Consent
 Plaintiff has given his consent
(express/implied) for publication to be made.
 E.g. consent to be interviewed, knowing that
the contents will be published.

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ii) Justification
 Justification or truth is an absolute defence.
 Once proven that the defamatory statement is
true, the P action for defamation fails.
 The burden of proof lies on the D. The D must
justify his allegation or statement by proving
its truth.
 S. Pakianathan v Dr Jenni Ibrahim
o D alleged that the P had committed a breach of
trust amounting to RM70,000.
o Ctt held: the burden rested on the D to prove
justification. It was not sufficient for the D to
state that he believed the allegation to be true.
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iii) Fair comment
A comment which is honestly and fairly made
may free the defendant from liability for
defamation. (S.9 Defamation Act 1957)
 4 conditions that must be fulfilled by the D:
1. The words are in the form of comment, not
facts.
2. The comment must be based on true facts.
3. The comment is fair and not malicious.
4. The comment concerns an issue of public
interest (administration of justice,
acts/activities of ministers or person
influential in society)
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iv) Privilege
 Can be divided into 2 types:
1. Qualified privilege
2. Absolute privilege

 Qualified privilege can be further divide into 2:

a. Statutory qualified privilege.
 S.12 & S.13(1) Defamation Act 1957 : specifically for
newspapers and broadcasting stations.
 Covers matters : parliamentary proceedings, court
proceedings, companies meetings & matter listed in
Part I and II of the Schedule to the Defamation Act 1957
 However, for the defence of qualified privilege to
succeed the defendant must satisfy the court that the
report is fair and accurate and is not made with malice.
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(Cont….)
b. Common law qualified privilege
- Applies in certain situations:
 Statements made by a person under a legal or
moral duty to another person, such as information
given to the police concerning a suspected offence.
 Statement made to further a common interest
such as communication between an employee
regarding the operation of business.
 Statements made in the protection of oneself or of
one’s property.
 Statements made to the proper authorities in order
to obtain the redress of public grievances.

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(Cont….)
Absolute privilege
 The defence of absolute privilege arises in the following
situations:
 Statements made in Parliamenet during parliamentary
proceedings/debates;
 Reports, paper, votes and proceedings ordered to be
published by either House of Parliament;
 Judicial proceeding;
 Communication between solicitor and client made in
connection with litigation;
 Communication made by one officer of state to another in
the course of official duty;
 S.11 Defamation Act 1957 – a defence of absolute privilege as
regards fair, accurate and contemporaneous reports of
judicial proceedings in Malaysia.
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v) Unintentional Defamation
Absolute privilege
 S.7Defamation Act 1957
 Applies in situation where a publisher
unintentional and innocently publishes a
defamatory statement written by a reporter.
 The publisher must prove:
 He did not intend to publish them
 He did not know of circumstances in which the
words might be understand to be referring to the
P.
 He has exercised all reasonable care in relation to
the publication.
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vi) Innocent Dissemination
 Available to mere distributor and
delivery man.
 He must prove that he was innocent of
any knowledge that the publication
contains a libel.

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~THANK YOU~

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