COM 1104- MEDIA LAW AND
ETHICS
DEFAMATION
INTRODUCTION
What is defamation?
• Defamation is a communication, which exposes a
person to hatred, ridicule or contempt, lowers
him in the esteem of his fellow citizens, causes
him to be shunned or in injuries him in his
business or calling.
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What is defamation?
“Defamation is the publication of a statement which
tends to lower a person in the estimation of right –
thinking members of society generally, or which tends
to cause the claimant to be shunned or avoided”.
(Jones; Tort, 2000)
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What is defamation?
•The principle aim of the law of defamation is the
protection of individual’s reputation.
• Defamation is an injury to the reputation or
character of someone resulting from the false
statements or actions of another, a false attack
on your good name, an improper and unlawful
attack against your proprietary right to your
good name and your reputation.
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Definition of Defamation
• 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 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.
• Defamation can be defined as a false statement about a person that is
likely to damage that person’s reputation in the community.
• In other words, defamation is the publication of a statement which affects
a person’s reputation in that it tends to lower him in the estimation of
right thinking members of society generally making them shun or avoid
him
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Definition of Defamation
• In the case of Datuk Abdul Ghapur Hj Salleh v Cheng Boon Heng (2002)6
CLJ 352, the Chief Editor of New Sabah Times & Ors , it was held that
words published in a newspaper article which mentioned that the
Plaintiff/ respondent was involved in securing government projects were
capable of defamatory meaning and would in fact be defamatory where
such words were calculated to expose a plaintiff to hatred, ridicule or
contempt in the mind of a reasaonable man or would tend to lower him in
the estimation of right thinking members of society generally.
• Also note the case of Syed Husin Ali v Sharikat Perchetakan Utusan
Melayu (1973) 2 MLJ 56 whereby Judge Mohd Azmi stated that “ the test
of defamatory nature of a statement is its tendency to excite against the
Plaintiff the adverse opinion of others, although no one believes the
statement to be true. Another test is would the words tend to lower the
Plaintiff in the estimation of right thinking members of society generally?
The typical type of defamation is an attack upon the moral character of
the Plaintiff attributing crime, dishonesty , untruthfulness , ingratitute or
cruelty
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TYPES OF DEFAMATION
Libel Slander
• A tort as well as crime in certain • Defamation is a
circumstances. temporary/transient form
• It is actionable per se, which through spoken words/gestures.
means by it self without any need • A slander is not actionable per se.
to prove damages or financial • The plaintiff needs to prove
loss. actual/special damage in order to
• Defamatory imputation in a succeed in his action.
permanent form & they targeted • Actual damage refers to actual
to the eyes. financial loss or any loss that may
• Items in writing – emails, pictures be measured in monetary terms.
& statues as well as films & tv
programmes.
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SLANDER
• Exceptions to the requirement of actual
damages;
a) Slander to women (SEC 5)
b) Slander in relation to a person’s professional/business
reputation
c) Slander in relation to title, slander of goods & malicious
falsehood (SEC 6)
d) Imputation of a contagious disease
e) Imputation of a crime
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The Elements of Defamation in Details
1. The Statement must be defamatory;
( the “statement” can be spoken, written, pictured,
or even gestured. Because written statements last
longer than spoken statements, most courts, juries
and insurance companies consider libel more
harmful than slander.)
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The Elements of Defamation in Details
2. The Statement must refer to the Plaintiff
3. The Defamatory must be“Published” means that a third
party heard or saw the statement ~ that is, someone other
than the person who made the statement or the person the
statement was about.
“Published” doesn’t necessarily mean that the statement
was printed in a book ~ it just needs to have been made
public through television, radio, speeches, gossip or even
loud conversation.
Of course, it could also have been written in magazines,
books, newspapers, leaflets, or on picket signs.
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The Elements of Defamation in Details
4. A defamatory statement must be false: otherwise it’s not
considered damaging. Even terribly mean or disparaging
things are not defamatory if the shoe fits. Most opinions
don’t count as defamation because they can’t be proved to
be objectively false. For instance, when a reviewer says,
“That was the worst book I’ve read all year,” she’s not
defaming the author, because the statement can’t be
proven to be false.
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The Elements of Defamation in Details
5. The statement must be “injurious”.
Since the whole point of defamation law is to take care of
injuries to reputation, those suing for defamation must show
how their reputations were hurt by the false statement –
- for example, the person lost work; was shunned by
neighbors, friends, or family members; or was harassed by the
press.
Someone who already had a terrible reputation most
likely won’t collect much in a defamation suit.
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Examples of cases on Elements of
Defamation
• 1) Statement/ Words must be defamatory
• As a general rule, this requirement is satisfied when 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.- SB Palmer v AS Rajah & Ors
• But the question is who is this right thinking mind of society?
• The Court will looks therefore to the tendency of the response or reaction
of the reasonable man to the words.
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• The application of the reasonable man test an what or whose opinion
counts as reasonable may be seen in the case of Lau Chee Kuan v Chow
Soong Seong (1955) MLJ 21, the facts of the case was that an article in
Chinese newspaper described how the Appellant a midwife was taken to a
house at night where she delivered a child. She was paid RM200. On
leaving the house, she turned round to look at it and found that the house
had disappeared and she was in a cemetery. The article explained that
due to fright, ever since she had been ill. The trial judge dismiss the
appellant claim on the ground that in the eyes of the average thinking
man, the article did not tend to lower the appellant’s reputation and
therefore the article was not defamatory. However, on appeal, the article
is said to be defamatory and that the article depicts that this woman is
silly who believes in ghost to such extent that she makes herself ill and is
unable to pursue her profession.
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• Case 2 : Chua Jui Meng v Hoo Kok Wing (2000) 6 CLJ 390
• Facts: The Defendants alleged at a press conference that the
Plaintiff had received at least RM 200k from a director of a
company in order that the Plaintiff as Deputy Minister of
International Trade could grant various licenses to the
director, that the Plaintiff owned a RM 1.5 million house and
10k electrical goods.
• Held : The Court found that the words in their natural and
ordinary meaning were understood to mean that the Plaintiff
was dishonest and corrupt.
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2) Words must refer to the Plaintiff
•The second element that must be proven by a Plaintiff in a cause of action for
defamation is that the words must refer to him.
•The test to establish was laid down in the case of David Syme v Canavan , the
test being are the words such that it would be reasonable in the circumstances to
lead persons acquainted with the Plaintiff to believe that he was the person
refered to.
•Case 1: Hulton & Co v Jones
•Facts: a fiction was written concerning an Artemis Jones in Peckham. There was
in fact a real Artemis Jones , the Plaintiff, a lawyer in that town. His friends
thought the story concerned the Plaintiff.
•The Court held that defamation was established as those who knew him
understood the words as referring to him, although that was not intended to be
so by the author and the publisher.
•Case 2: Newstead v London Express Newspaper Ltd
•Facts: A statement in the defendant newspaper stated that Harold Mewstead, 30
years old , Chamberwell Man was punished for bigamy. There were in fact 2
people by the same name and the statement made was true of one but not the
other , the Plaintiff. The Court held that the Defendant liable to the Plaintiff.
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Case 3: Sandison v Malayan Times & Ors
•Facts: An example of reference to the Plaintiff by external or
extrinsic facts can be found in this case. In an article which was
published that a senior expatriate executive of the Rubber
Industry Replanting Board had been dismissed for corruption.
•The Court held that although the executive was not named, the
date of dismissal was mentioned and indeed that was the date
the Plaintiff ceased holding that position. The article also
reported who succeeded the position.
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3. Words must be published
•The third element that needs to be fulfilled
•Publication means the dissemination of the defamatory words or material to
a 3rd party , other than the Plaintiff.
•The rationale is that if the defamatory words are not made known to any
other person , then the Defendant’s words cannot injure the Plaintiff’s
reputation for in whose estimation would his reputation be lowered.
•Therefore, if the words or printed material are not heard or seen by 3rd
parties, and only the Plaintiffs hears or sees them, publication does not arise.
•In the case of Dr Jenni Ibrahim v S Pakianathan (1988) 2 MLJ 173, the
Plaintiff was a psychologist who was working on a voluntary basis at a Help
Centre. The Defendant who was the former managing director of the Centre
wrote 2 letters indicating that the Plaintiff had committed breach of trust
amounting to about RN70,000. Copies of one of these letters were sent to all
the directors of the Centre, to the Director of the Welfare Services of Perak
and to the Registrar of Societes of Malaysia. The Court held that sending
copies of the said letter to the other parties constituted publication.
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DEFENCES IN DEFAMATION
1. Consent or Assent and Volenti Non Fit Injuria
•The Plaintiff who gives his consent for publication to be made,
be it express or implied, cannot hold the Defendant liable.
•For instance, if the Plaintiff consents to being interviewed,
knowing that the contents of the interview will be printed in
magazine.
•The defendant must prove such authorisation or consent in
order for this defence to succeed- Normala Samsudin v Keluarga
Communication Sdn Bhd (1999) 2 MLJ 654
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2. Justification (section 8 of Defamation Act)
The defence of justification or truth, is an absolute defence. Once the defamatory
statement is proven to be true, the law will not protect the Plaintiff.
The state of mind of the Defendant at the time of the publication is irrelevant
The burden of proof lies on the Defendant to prove his allegation and the defendant
must justify his allegation by proving its precise truth.
If several allegation are made, the defendant is not required to prove the truth of all
the allegations. Section 8 of the Defamation Act provides that “ in an action for libel or
slander in respect of words containing 2 or more distinct charges against the Plaintiff,
a defence of justification shall not fall by reason only that the truth of every charge is
not proved
3. Fair Comment (section 9 of Defamation Act)
A comment which is honestly and fairly made may also absolve the defendant from
liability.
Section 9 of the Defamation Act provides that “ in an action for libel or slander in
respect of words, consisting partly of allegations of fact and partly of expressions of
opinion, a defence of fair comment shall not fail by reason only that the truth of every
allegation…”
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• In order to establish this defence, the
Defendant must show that-
a. The words must be in the form of comment
and not a statement of fact (although it may
consist or include inference of fact)
b.The comment must be based on true facts;
c. The comment is fair and not malicious; and
d.The comment concerns an issue of public
interets or importance.
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4. Priviledge
• There are 2 types of priviledge , qualified and absolute.
Qualified Privilege
•The Defence of Qualified Priviledge is provided for both through statute and
common law.
•Qualified Priveledge- Statutory Protection
-Section 12 & 13 of the Defamation Act
-Common law qualified priveledge –
a.Publication by a newspapper or broadcasting station or other agent and for
purposes other than those listed in the Schedule of Defamation Act may still
be priviledge under Common law principles of qualified priviledge.
b.There are occasions whereby on grounds of public policy and convenience,
a person is allowed by law, to make defamatory remarks, even if untrue
without incurring liability.
c.These occasions of qualified privilege are where the communication is
made bona fide 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 such matter.
d.This duty may be legal, moral or social in nature.
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Absolute Privilege
• there are instances where words which are harmful to a person’s reputation
are not actionable, as the publication of these words is protected by absolute
privilege.
• The circumstances are usually connected to the adminsitrative system
within a particular government, whether the statement is made by legislative
bodies, the executive or the judiciary.
•An advocate is protected by absolute privilege if he makes a defamatory
statement while in the course of legal proceedings.
•Absolute privilege is also extended to statement made during parliamentary
debates and proceedings
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THE IMPLICATIONS TOWARDS MEDIA
PRACTITIONERS IN MALAYSIA
Media Practitioners have to be more careful in their writings and
reporting’s.
Media Practitioners have to be more aware on the impacts of
defamation because it will affect their career in the industry.
Media Practitioners should always remember that they can be
banned.
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Additional Cases on Defamation
• Case 1: Anwar Ibrahim v Khalid Jefri
• Case 2: Lim Guan Eng v Utusan Malaysia
• Case 3: Normala Samsudin v Keluarga
Communications Sdn Bhd
• Case 4: Umi Hafilda v Ketua Setiausaha Pas
(facts and held will be given in class)
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