Law In Malaysia

OFFENCES

Defamation is the communication of a false statement which may damage the reputation of
an individual or a community. In some civil law jurisdictions, defamation is considered as
crime rather than civil wrong. According to e-defamation in Malaysia, there a few actions
that will be counted as wrongdoings or offences which has been stated in the Defamation Act
1957 and also Penal Code. There are two types of defamation which are libel and slander. In
Malaysia, libel and slander are both torts and crimes.

Firstly, libel is defamation in a permanent form and is usually visible to the eye, such as e-
mails, pictures and statutes. According to section 3 of the Defamation Act 1957 stated that for
the purpose of the law of criticism and defamation the telecom of words by methods for radio
correspondence will be treated as distribution in a changeless structure. The Act gives that the
telecom of words by methods for radio correspondence will be treated as distribution in a
changeless structure and in this manner comprises a slander. Defamation is noteworthy
fundamentally, which implies that an offended party need not demonstrate any harm. In the
case of Datuk Seri Dr Mohamad Salleh Ismail & Anor V. Mohd Rafizi Ramli & Anor, the
first plaintiff was the chairman and director of the second plaintiff while the first defendant
was a politician. In a press conference held by the first defendant, the latter alleged that a
portion of the proceeds of government loan given to the second plaintiff for the purposes of
the national feedlot centre had been deposited with a bank. The court held that the first
defendant was liable in damages to the plaintiffs. The first plaintiff was awarded the global
sum of RM150,000 in damages, taking into consideration that, inter alia, firstly, he was a
well-known and respected person; and secondly, the nature of the allegations against him was
serious and suggestive of criminal impropriety. The nature of the allegations against the
second plaintiff was different from that of the first plaintiff. The second plaintiff could not
claim to have a reputation that was as highly-regarded as the first plaintiff. Therefore, the
second plaintiff was awarded the global sum of RM50,000 in damages. The deterioration and
the loss of profits claimed to have been suffered by the second plaintiff's business had
nothing to do with the act of the first defendant.1

PROTECTION

1
DATUK SERI DR MOHAMAD SALLEH ISMAIL & ANOR v. MOHD RAFIZI RAMLI & ANOR [2016] 9
CLJ 813
The protection for e-defamation is given under Penal Code and Defamation Act 1957.
Besides individuals, in general a trading or non-trading corporation which can show that it
has a corporate reputation which is capable of being damaged by defamatory statement, may
sue in libel to protect that reputation in the same way as could a natural person. A company
may claim for libel where the libel concerned injuries its reputation in the way of its business.
There is no need to prove special damage. A company may also sue for slander as provided
under section 6 of the Defamation Act 1957. A corporate body may take an action for libel or
slander in the same way as an individual. The imputation must reflect upon the company
itself and not upon its member or officials only.

In the case of PP V. Mohamad Sabu, the accused was charged with criminal defamation
under s. 500 of the Penal Code when, in a political speech that he made in Tasek Gelugor,
Pulau Pinang, he imputed that the communist forces led by one Mat Indera that attacked the
police station and killed the policemen at Bukit Kepong, Muar, Johor on 23 February 1950 -
for fighting against the British - were actually freedom-fighters and patriots and not traitors as
generally perceived ('the impugned statements'). In substance, the charges alleged that the
accused, by the impugned statements, had defamed three named policemen who died while
defending the said police station and their families, for example by 'merosakkan nama baik
ketiga-tiga anggota polis tersebut dan ahli keluarga mereka'. The Sessions Court Judge, upon
appraisal of the speech and the evidence adduced by the prosecution, including an article
published by Utusan Malaysia on the speech, ruled, however, that the elements of defamation
were not made out and so acquitted and discharged the accused without calling for his
defence. According to the Session Court Judge, no offence under section 500 of the Code
could have been committed as the impugned statements was grounded on expert views from a
book called 'Pengukir Nama Johor, historians were having diverse views on the said Bukit
Kepong incident and the complainants who lodged the police reports did not hear the speech
from the accused, but based their complaint on television news and the article, both of which
were not accurate depictions of the accused's speech. The court held that the charges were
deficient in certain material particulars forming the basis of the offence charged. They were
defective in substance and not merely in form, were not disclosing any offence and were bad
in law. This was sufficient per se to dismiss the appeal.2

PUNISHMENT

2
PP v. MOHAMAD SABU [2017] 7 CLJ 214
The punishment is given to the accused is using the Penal Code. According to section 500 of
the Penal Code, it stated that whoever defames another shall be punished with imprisonment
for a term which may extend to two years or with fine or with both. Whereas in section 501
of the Penal Code it stated that whoever prints or engraves any matter, knowing or having
good reason to believe that such matter is defamatory of any person, shall be punished with
imprisonment for a term which may extend to two years or with fine or with both. In
addition, in section 502 of Penal Code, it explains that whoever sells or offers for sale any
printed or engraved substance, containing defamatory matter, knowing that it contains such
matter, shall be punished with imprisonment for a term which may extend to two years or
with fine or with both

For instance, in the case of Irene Fernandez V. Utusan Melayu (M) Sdn Bhd & Anor, The
plaintiff, a director of Tenaganita Sdn Bhd (Tenaganita), a public figure and well known
social activist in primarily migrant workers' rights and women's rights, was claiming for
damages and a permanent injunction for defamation. The first defendant, publisher and owner
of the newspaper Utusan Malaysia, had published a publication ('the impugned article') which
was featured in the said newspaper on 20 September 1995 written by the second defendant,
an employee of the Utusan Malaysia. The heading of the impugned article 'Sikap Irene
Lengahkan Siasatan' was made by the third defendant, the acting Ketua Meja Rencana of
Utusan Malaysia at the material time. The plaintiff claimed that the impugned article was
defamatory of the plaintiff and that it conveyed the following to a reasonable reader that
firstly, the police was investigating into the matters raised by the plaintiff, for an example
mistreatment of migrant workers and the abuse by the police officer charged with handling
the migrant workers. Secondly, the matters raised national and international interests and had
created a controversy and that the plaintiff was responsible for the ensuing controversy.
Thirdly, the police had contacted the plaintiff for assistance in the said investigation and that
the plaintiff had deliberately avoided the police for interview and to that end, lied about her
health. Fourthly, the plaintiff had intentionally refused to meet the police and was adamant in
her position. Furthermore, the plaintiff had no real good reason not to meet the police as her
reason, for instance illness was untrue as she had actually left for Chiang Mai, Thailand for
her own purposes thereafter. Finally, the plaintiff must have had no basis in raising
allegations of corruption and mistreatment of migrant workers, otherwise she would be co-
operating. As such, the plaintiff was to be blamed for stalling the police investigation by not
cooperating with the police when so requested. The plaintiff alleged that she was painted as a
trouble maker who was prepared to recklessly threaten national interests and as such had
acted in a treasonous manner against the government of Malaysia. The issue before the court
was whether the impugned article and the impugned words in their natural and ordinary
meaning in the context of the impugned article as a whole was simply capable of bearing the
defamatory meanings alleged by the plaintiff. The defendants pleaded that in view of the
gravity of the allegations made publicly by the plaintiff and Tenaganita of the ill treatment of
illegal immigrants and corruption of the Semenyih Detention Camp which had become a
national and international issue, and which had adversely affected the image of Malaysia, the
plaintiff ought to have extended her fullest cooperation to the police in their investigation.
The defendants also claimed the alternative imputation was in the nature of a statement and
not a charge of allegation. In other words, the alternative was mild, vague and non-offensive
of the defamatory meanings which arose from the impugned article and the impugned words.
The defendants also pleaded defence of justification, defence of fair comment and defence of
qualified privilege. The alternative imputation did not sit with the entire impugned article
looking at the language, the theme and underlying negative suggestions of the article. The
alternative imputation pleaded by the defendants was a contrived and strained meaning.
Therefore, the alternative imputation was rejected as being utterly unreasonable
interpretation. The defendants herein were liable.3

3
IRENE FERNANDEZ v. UTUSAN MELAYU (M) SDN BHD & ANOR IRENE FERNANDEZ v. UTUSAN
MELAYU (M) SDN BHD & ANOR