1. Who can sue?
1.1. Principle: Only living persons can bring an action in defamation.
1.2. A dead person cannot bring an action in defamation no matter how provocative the statement may be.
2. Elements:
2.1. 1. The statement made must contain a defamatory meaning.
2.1.1. TEST: A statement is defamatory if it lowers the plaintiff’s reputation in the minds of right-thinking members of society.
2.1.2. 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 plaintiff’s reputation in the minds of right-thinking members of society.
2.1.3. Words may be defamatory in two ways:
2.1.3.1. i) By its natural and ordinary meaning: The statement made contains a literal meaning.
2.1.3.1.1. The meaning that the words would convey to ordinary reasonable persons.
2.1.3.1.2. 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.
2.1.3.2. ii) By innuendo
2.1.3.2.1. The statement becomes defamatory through inferences, special facts or circumstances known by the reader.
2.1.3.2.2. Words with a special, hidden or inner meaning only known to certain people.
2.1.3.2.3. Tolley v JS Fry: The court held the defendant liable as those who knew the plaintiff’s 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.
2.2. 2. The statement made must have referred to the plaintiff.
2.2.1. TEST: Whether an ordinary reader would reasonably come to the conclusion, based on the statement as a whole that it referred to the plaintiff.
2.2.1.1. 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.
2.2.1.2. 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.
2.2.1.3. 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.
2.2.1.4. 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.
2.2.2. The ordinary reader must be able to immediately identify the person being addressed.
2.2.3. It is sufficient for the plaintiff to be addressed through initial letters.
2.2.4. It does not matter if the defendant had no knowledge of the plaintiff’s existence.
2.3. 3. The statement must be published to a third party.
2.3.1. “Publication”: Making known the defamatory matter after it has been written to some person other than the person of whom it is written.
2.3.2. 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.
3. Defences
3.1. 1. Fair comment
3.1.1. 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.
3.1.2. Requirements:
3.1.2.1. Comment must be an opinion
3.1.2.2. 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.
3.1.2.3. 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.
3.1.2.4. 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.
3.1.2.5. 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.
3.1.3. Dackhyll v Labouchere: The court held that the defence of fair comment was successfully raised against the plaintiff as the defendant’s statement that the plaintiff was a “quack of the rankest species” was only a comment to the plaintiff’s profession as a specialist for ear, nose and throat diseases.
3.2. 2. Justification
3.2.1. Section 8, Defamation Act: A defence of justification is sufficient if the truth of the words that have materially injured the plaintiff’s 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 plaintiff’s reputation cannot be proven.
3.2.2. Conditions to be fulfilled:
3.2.2.1. A defence for the defendant to show that the article complained of is true.
3.2.2.2. The burden of proof is on the defendant to show that the statement made is true.
3.2.3. 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 plaintiff’s reputation.
3.3. 3. Unintentional defamation
3.3.1. Where a defendant unintentionally and innocently publishes defamatory material of another person under three circumstances:
3.3.1.1. 1) 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.
3.3.1.2. 2) 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.
3.3.1.3. 3) In either case, the publisher was not negligent.
3.3.2. 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.
3.3.3. If the plaintiff is named, the defence is not applicable
3.3.4. 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.
3.4. 4. Privilege
3.4.1. Provided under Sections 12(1) and (2), Defamation Act.
3.4.2. There are two types of privileges:
3.4.2.1. 1) Absolute privilege: Where words which are harmful to a person’s 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
3.4.2.2. 2) 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 one’s 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
3.4.2.2.1. 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 plaintiff’s immoral activities with other women was under qualified privilege, but communication of the same matter to the plaintiff’s wife was not privileged as the defendant had no duty to pass on that information to her.
3.5. 5. Innocent dissemination
3.5.1. A defence applicable for mere distributors.
3.5.2. Conditions to be fulfilled:
3.5.2.1. He was not the author, editor or publisher of the statement.
3.5.2.2. 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.
3.5.2.3. When the article was disseminated by him, it was not by any negligence on his part.
3.6. 6. Consent of the plaintiff
3.6.1. Where the plaintiff has consented to the publication, there can be no action.
4. Definition
4.1. Lord Atkin : Sim v Stretch: A untrue statement 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.
4.2. Defamation Act 1957 was enacted to protect the reputation of others
5. Types
5.1. 1.Libel
5.1.1. statements made in a permanent form.
5.1.2. E.g: statues, caricatures, statements in newspapers, signs, pictures, movies, television broadcasts, statements made on the radio
5.1.3. Live television broadcasts: it reaches more listeners/viewers and has a greater capacity to do harm.
5.1.4. actionable per se.
5.1.5. Datuk Syed Kechik Syed Mohamad v Datuk Yeh Pao Tzu & Ors: The court granted the plaintiff’s 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.
5.1.6. 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.
5.2. 2.Slander
5.2.1. statements made in a temporary form
5.2.2. E.g: spoken words, sound tapes, records, dictations
5.2.3. not actionable per se, EXCEPT:
5.2.3.1. a) If the words impute the commission of a crime
5.2.3.1.1. A statement made alleging that the plaintiff has committed a crime for which he may have been imprisoned.
5.2.3.1.2. Sivanathan v Abdullah Dato’ Abd Rahman: Where the defendant called the plaintiff a cheat, dishonest, and a liar, the court held that the plaintiff’s claim failed as the ‘crimes’, which did not attract corporal punishment, was not actionable per se.
5.2.3.2. b) If the words impute a contagious disease suffered
5.2.3.2.1. A statement made alleging that the plaintiff is currently suffering from a contagious or infectious disease.
5.2.3.3. c) If the words impute the non-chastity of a woman
5.2.3.3.1. 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.
5.2.3.3.2. 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 appellant’s chastity.
5.2.3.4. d) If the words are calculated to lower the plaintiff’s profession or business reputation
5.2.3.4.1. 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.
5.2.3.4.2. 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.
6. Remedies
6.1. 1. Damages
6.1.1. In an action for defamation, damages for loss of reputation are involved.
6.1.2. The plaintiff may stipulate the sum he is claiming for as a measure of is worth.
6.1.3. 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.
6.2. 2. Injunction
6.2.1. To prevent further publication or broadcast of the defamatory statement.