Defamation

Definition
According to Lord Atkin in Sim v Stretch: A statement untrue which injures the reputation
of another by exposing him to hatred, contempt or ridicule or which tends to lower him in
the esteem of right thinking members of society or which tends to make them shun or avoid
that person.
The Defamation Act 1957 was enacted to protect the reputation of others.
Types of defamatory statement
Libel: statements made in a permanent form.
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E.g: statues, caricatures, statements in newspapers, signs, pictures, movies,

television broadcasts, statements made on the radio
Live television broadcasts: it reaches more listeners/viewers and has a greater
capacity to do harm.
Libel is actionable per se.

Datuk Syed Kechik Syed Mohamad v Datuk Yeh Pao Tzu & Ors: The court granted
the plaintiffs application for an interim injunction as the defamatory statement
published through caricatures of the plaintiff by the defendant in the newspaper
disclosed a clear case of libel.

Yousoupoff v MGM: The court held that the plaintiff was entitled to damages
because the defamatory statement contained in the film made by the defendant
is libel.

Slander: statements made in a temporary form.

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E.g: spoken words, sound tapes, records, dictations

Slander is not actionable per se, EXCEPT:
- If the words impute the commission of a crime
- A statement made alleging that the plaintiff has committed a crime
for which he may have been imprisoned.
- Sivanathan v Abdullah Dato Abd Rahman: Where the
defendant called the plaintiff a cheat, dishonest, and a liar,
the court held that the plaintiffs claim failed as the crimes,
which did not attract corporal punishment, was not
actionable per se.
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If the words impute a contagious disease suffered

- A statement made alleging that the plaintiff is currently suffering
from a contagious or infectious disease.

If the words impute the non-chastity of a woman

Section 4, Defamation Act: The publication of words which imputes

non-chastity or adultery to any woman or girls requires no proof of
special damage (actionable per se) for the action to succeed.
- Luk Kai Lam v Sim Ai Leng: Where allegations were made by
the respondent in the presence of a third party that the
appellant was a prostitute and charged RM50 to entertain
men, the court held that slander was established as the
words had impugned the appellants chastity.

If the words are calculated to disparage (lower) the plaintiffs profession

or business reputation
- Section 5, Defamation Act: The publication 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 the publication.
-

E.g: An allegation of dishonesty and corrupt practices against the

plaintiff, either on the basis that the office is an office of profit, or
that the defamatory words intimated that the plaintiff had acted
without integrity.

Who can sue?

Principle: Only living persons can bring an action in defamation.
-

A dead person cannot bring an action in defamation no matter how provocative

the statement may be.

Elements
There are three elements of defamation:
1. The statement made must contain a defamatory meaning.
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TEST: A statement is defamatory if it lowers the plaintiffs reputation in the minds

of right-thinking members of society.

Byrne v Dean: The court found the defendant not liable for the statement made
as informing the police of a crime is a heroic act which does not lower the plaintiffs
reputation in the minds of right-thinking members of society.

Words may be defamatory in two ways:

- By its natural and ordinary meaning: The statement made contains a literal
meaning.
- The meaning that the words would convey to ordinary reasonable
persons.

Hasnul Abdul Hadi v Bulat Mohamed: The court found the

defendant liable for calling the plaintiff Abu Jahal as the statement
was defamatory in its natural and ordinary meaning.

By innuendo: The statement becomes defamatory through inferences,

special facts or circumstances known by the reader.
- Words with a special, hidden or inner meaning only known to
certain people.
-

Tolley v JS Fry: The court held the defendant liable as those who
knew the plaintiffs status as an amateur golfer would reasonably
assume by way of innuendo that the plaintiff had consented to, and
had been paid for the advertisement.

2. The statement made must have referred to the plaintiff.

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TEST: Whether an ordinary reader would reasonably come to the conclusion,

based on the statement as a whole that it referred to the plaintiff.
- The ordinary reader must be able to immediately identify the person being
addressed.
- It is sufficient for the plaintiff to be addressed through initial letters.
- It does not matter if the defendant had no knowledge of the plaintiffs
existence.

Morgan v Odham Press (No named person): The court found the defendant liable
as a substantial group of people who knew the plaintiff understood that the
statement made regarding the kidnapping referred to him, even though the
plaintiff was never referred to by name.

Hulton & Co v Jones (Fictional name): The court found the defendant liable as
those who knew the plaintiff understood the words in the article of a fictional
character named Artemis Jones as referring to the plaintiff, although that was not
intended by the author and publisher.

Newstead v London Express Newspaper (Two people of the same name): The court
held the defendant liable even though there were in fact two people, including
the plaintiff, of the same name, and the defamatory statement made was true of
the other, but not the plaintiff.
Knuppfer v London Express Newspaper (Class defamation): The court held the
defendant not liable as the total membership of the party was several thousand
and no particular member, including the plaintiff, could claim that the report made
referred to him.

3. The statement must be published to a third party.

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Publication: Making known the defamatory matter after it has been written to
some person other than the person of whom it is written.

Theaker v Richardson: The court held that there is publication where the
defendant knew or ought to have foreseen that the statement would come to
the attention of a third party as is reasonably expected in circumstances where a
defamatory letter is sent to the house of a married woman and is read by her
husband.

Defences
1. Fair comment
- Section 9, Defamation Act: A statement in the form of opinion, which is based on
true facts, and which is made with fairness on a matter of public interest and
without malice.
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Requirements:
- Comment must be an opinion
- Comment must be based on true facts
- TEST: Whether the fair minded, ordinary man upon being told of
the words, would regard them as a statement of fact or comment.
- Comment must be fair
- TEST: Whether someone who honestly held that opinion could
fairly make the same comment.
- Comment must be an honest expression of the writer made in good
faith.
- Comment must not be malicious
- Malice: Ill will or spite or any improper motive in the mind of the
writer at the time the statement was made.
- Where the language used is unnecessarily strong and
disproportionate to the occasion, it might give rise to malice.
- Comment must refer to matters of public interest
- Where the comment concerns a matter which affects people at
large, so that the public may be interested in or concerned of what
is going on or what may happen.

Dackhyll v Labouchere: The court held that the defence of fair comment was
successfully raised against the plaintiff as the defendants statement that the
plaintiff was a quack of the rankest species was only a comment to the plaintiffs
profession as a specialist for ear, nose and throat diseases.

2. Justification
- Section 8, Defamation Act: A defence of justification is sufficient if the truth of the
words that have materially injured the plaintiffs reputation can be proven. The
defence shall not fail only for the reason that the truth of the words in the
statement which have not materially injured the plaintiffs reputation cannot be
proven.
-

Conditions to be fulfilled:
- A defence for the defendant to show that the article complained of is true.
- The burden of proof is on the defendant to show that the statement made
is true.

Abdul Rahman Talib v Seenivasagam: Where the defendant could prove the truth
of one of the allegations made, the court held that the defence of justification was
successfully raised against the plaintiff as the unproved allegation did not
materially injure the plaintiffs reputation.

3. Unintentional defamation
- Where a defendant unintentionally and innocently publishes defamatory material
of another person under three circumstances:
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The publisher did not intend to refer to the plaintiff and did not know of
any circumstances whereby they might have been understood to do so.

The words were not defamatory on the face of them and the publisher did
not know of any circumstances whereby they might have been understood
to be defamatory.

In either case, the publisher was not negligent.

Must be followed by an offer of amends under Section 7, Defamation Act.

- An offer of amends: A sufficient apology to the aggrieved party and an offer
to correct the words complained of, as well as to take reasonable steps in
notifying the third party that the words distributed were defamatory.

If the plaintiff is named, the defence is not applicable.

Sandison v Malayan Times Ltd & Ors: Although the plaintiff was not named, the
court rejected the defence of unintentional defamation as the article clearly
referred to the plaintiff, which proved that the defendant had not published the
defamatory article unintentionally, and because there was a time lapse of more
than a month before the first offer of amends was made.

4. Privilege
- Provided under Sections 12(1) and (2), Defamation Act.
- There are two types of privileges:
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Absolute privilege: Where words which are harmful to a persons

reputation are not actionable.
- Statements made in or reports made of Parliamentary proceedings
- Statements made in or reports made of judicial proceedings
- Communication between officers of state under an official duty
- Communication between spouses

Qualified privilege: Where communication is made in good faith on a

matter in which the party communicating it has an interest, or duty to do
so and the recipient of the communication has a corresponding interest or
duty to be informed of the matter.
- Statements made between parties who have a mutual interest
over the subject matter
- Statements made to fulfil a legal, moral or social duty
- Statements made to protect ones own interest or property
- Statements made to settle public nuisances or disputes
- Accurate or fair report of proceedings such as Parliamentary
proceedings, judicial proceedings and public meetings
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Watt v Longsdon (to fulfil a legal, moral or social duty): The court
held that a report made by the company director to the chairman
of the plaintiffs immoral activities with other women was under
qualified privilege, but communication of the same matter to the
plaintiffs wife was not privileged as the defendant had no duty to
pass on that information to her.

5. Innocent dissemination
- A defence applicable for mere distributors.
- Conditions to be fulfilled:
- He was not the author, editor or publisher of the statement.
- He took all reasonable care in relation to the publication and he did not
know, and had no reason to believe, that he caused or contributed to the
publication.
- When the article was disseminated by him, it was not by any negligence
on his part.
6. Consent of the plaintiff
- Where the plaintiff has consented to the publication, there can be no action.

Remedies
1. Damages
- In an action for defamation, damages for loss of reputation are involved.
- The plaintiff may stipulate the sum he is claiming for as a measure of is
worth.
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Tan Sri Dato Vincent Tan v Hj. Hassan Hamzah: The court found the defendant
liable for defamation and granted the plaintiff damages worth RM10 million.

2. Injunction
- To prevent further publication or broadcast of the defamatory statement.