TUTORIAL QUESTION 8

TOPIC: DEFAMATION

Mrs. Moony, the secretary of the Management Committee of Rainbow Condominiums,

circulated an Annual Newsletter to all residents of the condominium, which consists of 3
blocks with 30 units. The newsletter contained reports regarding issues in the condominium,
short fictional stories, and the timetable for night watch duties among the residents. One of
the fictional stories was about a man called Pak Labu who was often seen having
conversations with himself, and at the end of the story, Pak Labu disappeared into the Land of
the Jinn. Unfortunately, there was in fact a man known as Pak Labu, who was the owner of
the grocery shop in one of the blocks. Ever since the newsletter was circulated, Pak Labu
noticed that his customers had decreased. He also overheard that some residents claimed that
he was using jinn to make his business more prosperous. Mrs. Moony alleged that she did not
know that the name of the shop owner was Pak Labu, as she usually called him Encik
Kelabu.

In another column in the magazine, there was a picture of a girl holding a man followed by
the words:

“Warning of a contagious disease !!! A student has brought back a contagious disease from
overseas and is currently residing on the ground floor of the condominium in block A.
Residents are advised not to go near or they might suffer from an incurable disease like
AIDS. ”

In actual fact, Maria had just returned from Alaska, where she was studying to become a
marine engineer and had indeed contracted a slightly contagious disease during her long
flight back to Malaysia. This was indicated by the red spots on her face and body, but it
would eventually be cured by taking medication. She noticed that her friends were avoiding
her.

Mrs. Moony also had a daughter, Clarin. Maria and Clarin had been rivals since they were
young. Maria suspected that Mrs. Moony intentionally published this article because of
Maria’s poor relationship with Clarin.
 a) Discuss whether an action for defamation can be successful by the relevant parties
and the available defences.
b) Substantiate your answer with the relevant provisions under the Defamation Act 1957
and decided cases.

Parties:

Defendant : Mrs. Moony

Plaintiff :

1. Encik Kelabu ( the shop owner)

2. Maria ( Student who had just returned from Alaska)

Definition:

The Defamation Act 1957 does not define the word "defamation". Instead, the
definition of "defamation" is to be found in Malaysian case law and the English common law.
By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April
1956 in relation to defamation is applicable in Malaysia. 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 persons in society and thereby adversely affecting his
reputation

Main Issue:

Whether the statement made by the secretary of the Management Committee of Rainbow
Condominiums in Annual Newsletter are defamatory in permanent form

1. First Sub Issue:

● Whether the statement published by the secretary, Mrs Moony, had a natural and
ordinary meaning.

In Institute of Commercial Management United Kingdom v New Straits Times Press

(Malaysia) Bhd, [1993] 1 MLJ 408, where the plaintiff claimed damages against the
defendant for libel in respect of words contained in an article published by the defendant
entitled ‘British diploma mills step up sales racket’. which the words were calculated to
injure and disparage. The court held that any ordinary reasonable person reading the article
would link Institute Commercial Management with one of those organisations which
operated the ‘diploma mills’. The words had a strong tendency to lower the plaintiff in the
estimation of right thinking members of society generally or the parents of potential students
or the potential students themselves.

By applying the case above, the secretary, Mrs Moony has published an annual
newspaper regarding Pak Labu who has a link with Jinn which can be considered natural and
ordinary meaning where the words itself can be understood by ordinary men with ordinary
intelligence as they have the tendency to make them look down, shun or avoid the plaintiff.
Due to the article that has been published by Mrs Moony, Pak Labu faced a lot of shame as
his customers had decreased and his business was avoided by the condominium residents.
Therefore, the newspaper contains words of badness which have made ordinary and
reasonable men to look down on Pak Labu.

2. Second Sub Issue:

● Whether the statement published by the secretary, Mrs Moony, was false innuendo

In Syed Husin Ali v Syarikat Pencetakan Utusan Melayu Bhd [1973] 2 MLJ 56,
where the defendant newspaper published among others, the following statements regarding
the plaintiff: ‘The Menteri Besar considers Syed Husin Ali as wanting to arouse the hatred of
the Malaysian people against the Government and the British; the University lecturer was
spreading subversive ideas in order to poison the thoughts of the Malays.’ The issue before
the court was whether the words were defamatory of the plaintiff. It was held that by
inference or implication, the words conveyed the meaning that the plaintiff was dishonest,
disloyal to the government, a subversive element and ungrateful. The plaintiff’s claim was
accordingly allowed.

In Chua Jui Meng v Hoo Kok Wing & Anor [2000] 6 CLJ 390, where the defendants
alleged at a press conference: that the plaintiff had received at least RM200,000 from a
director of a company in order that the plaintiff, as Deputy Minister of International Trade
and Industry could grant various licences to the director; that the plaintiff owned a RM1.5
million three-storey bungalow in Damansara Heights, and tens of thousands of electrical
goods. The court found that the words, in their natural and ordinary meaning, were
understood to mean that the plaintiff was dishonest and corrupt. The statements had
discredited and disparaged the plaintiff in his office as the Deputy Minister of International
Trade and Industry.

Defamatory is an inference or implication deriving from the plaintiff, resulting in the

words giving rise to a false innuendo. In this scenario, Mrs Moony, the secretary, published
an article that had a negative perspective against Pak Labu, leading ordinary people to believe
that Pak Labu was using jinn to make his business more prosperous. By reading the
statement, even the ordinary man does not require special knowledge about Pak Labu as the
hidden meaning was so obvious. As a result, the statement in the article describing that
behaviour gave birth to a false innuendo.

Main issue:

● Whether the statement made by the secretary refer to Pak Labu

In Atip bin Ali v Josephine Doris Nunis & Anor [1987] 1 MLJ 82, where the
defendant filed a suit against a former chief minister, Datuk Rahim Thamby Chik of a certain
state in Malaysia for breach of promise to marry and later discontinued the suit. The members
of the political party UMNO of that former chief oddly believed that she was insulting their
honour, and sued for defamation. Luckily defamation was held to be personal to the
ex-minister involved, and not to the rest of the UMNO members.

In Hulton & Co v Jones [1990] AC 20, where 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 are referring to
him, although that was not intended to be so by the author and publisher
Main issue:

● Whether the statement has been published to the third party

In Dr Jenni Ibrahim v S Pakianathan [1986] 2 MLJ 154, where the defendant who was
the former managing director of the Centre wrote two letters indicating that the plaintiff had
committed breach of trust amounting to about RM 70000. 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 the societies of Malaysia. The court held that sending copies of the said letter
to the other parties constituted publication. Also in Wan Abdul Rashid v S Sivasubramanian
[1984] 1 MLJ 385, where the defendant lawyer spoke of the plaintiff, who was registrar of
the session court in Kuantan: ‘Ohh… that corrupted fellow, he needs to be taught a lesson… I
am going to get the BSN and then he would know… I am going to get the whole lot of you
fellows because you fellows are nothing but corrupted buggers right from the Registrar’. The
court held there was publication as the words were spoken in public

It is clear that publication refers to the dissemination of defamatory words or material

to a third party other than the plaintiff. Publication does not occur if the words or printed
material are not heard or seen by third parties and are only heard or seen by the plaintiff.
However, in this case, the statement made by Mrs Moony, the secretary of the Management
Committee of Rainbow Condominiums , was published in the annual newspaper and was also
seen by a third party which is all the residents of the condominium As a result, aside from
Pak Labu, those who read the statement in the newspaper are aware of his situation which can
constitute a third party because it is visible to the public.

To summarise, the words are visible to everyone, including matin. As a result, the
statement is distributed to a third party, those who read the newspaper.
 Maria v. Mrs. Moony

Next, we will discuss the scenario between Maria and Mrs. Moony.

The main issue that can be discussed in the case of Maria is whether Maria can sue
Mrs. Moony for the words published by her on the grounds of slander. As we know, slander is
a defamation in a temporary form and the general rule of slander is that it is not actionable
per se where the plaintiff has to prove whether there is actual damage, whether there is a
financial loss as a result of the slander, and whether the damage is a natural and foreseeable
result of the defendant’s words, or a direct result of the defendant's words. However, slander
can be actionable per se in five situations, firstly, in the case where there is imputation of the
unchastity of a woman; secondly, where there is imputation of unfitness in any office or
profession, thirdly, where there is imputation to title, goods, or other malicious falsehood; last
but not least, when there is imputation of disease; and lastly, imputation of crime. By looking
at the scenario of Maria and Mrs. Moony, the words published by Mrs. Moony constitute a
slander, as they involve an imputation of contagious disease. Therefore, in order to answer
the main issue, there are several sub-issues that need to be discussed.

The first sub-issue that was extracted is whether the words published by Mrs. Moony
are defamatory. According to Syed Husin Ali v Syarikat Percetakan Utusan Melayu Berhad
[1973] 2 MLJ 56, it was held that defamatory words is where the words tend to lower the
reputation of the plaintiff in the minds of the right-thinking members of society so that the
plaintiff is avoided, shunned or ridiculed. Those defamatory words can be determined by its
natural and ordinary meaning, or by way of innuendo, or by way of juxtaposition.

As in our current scenario, we can see that the words used by Mrs. Moony can be
understood by its natural and ordinary meaning. This is because the words “A student has
brought back a contagious disease from overseas and is currently residing on the ground floor
of the condominium in block A” clearly and directly shown its meaning and easily can be
understood by the residents of the condominium. To make it clearer, the case of Datuk Seri
Utama Dr. Rais bin Yatim v Amizudin bin Ahmat [2012] 2 AMR 266 is applied in illustrating
the defamatory words in its natural and ordinary meaning. In this case, an article was
published by the defendant, mentioning that the plaintiff was guilty of raping his Indonesian
maid and capable of murdering her, which resulted that the plaintiff unfit to hold the office.
The court in this case held that the words were proven to be defamatory in its natural and
ordinary meaning.

Furthermore, it can be seen that the words stated by Mrs Moony in the article can be
categorised as false innuendo. This is because in the first place, the picture has a hidden
meaning as it cannot be understood by looking at the picture itself, however, since it came
together with the words, people can understand its meaning right after they look at the both
picture and words. Regarding this matter, the case of Syed Husin Ali v Syarikat Penchetakan
Utusan Melayu Bhd [1973] 2 MLJ 56 is applied, where the court found that the defamatory
words in the case were false innuendo. In this case, the plaintiff alleged that the words
published by defendant’s newspaper were capable of false innuendoes, saying that the
plaintiff was dishonest, disloyal to the Government, a subversive element, an irresponsible
politician, an ungrateful person, a supporter of President Sukarno and an instigator of unrest
in the country.

Thus, it is believed that the words published by Mrs. Moony are defamatory because
the words are straightforward and can be understood by the third party and might result in the
tendency to lower Maria’s reputation in the minds of the right-thinking members of society.

2ND SUB ISSUES

The second sub-issues that can be illustrated from this scenario is whether the words
published by Mrs Moony referred to Maria. According to the case of Tengku Jaafar bin
Tengku Ahmad v Karpal Singh [1993] 2 AMR 2062, the court held that the defendant will
not be liable unless there is a direct reference to the plaintiff or certain individuals in a
particular class or group.

Back to our current scenario, Mrs Moony stated that “a student has brought back a
contagious disease from overseas and is currently residing on the ground floor of the
condominium in block A”. However, Maria is a student that is studying overseas and
accidentally got a slightly contagious disease during her long flight back to Malaysia. And
furthermore, it also can be proven as when she safely arrived at the condominium, she
noticed that her friends were avoiding her. From this, clearly it can be seen that the words “a
student that brought back contagious disease from overseas” which is stated by Mrs Moony is
referred to Maria because, only Maria was a student who lived in that condominium and she
was coming back from overseas and she also got a contagious disease. Despite the fact that
her friend was avoiding her because of the “contagious disease” that stated in Mrs Moony’s
words strengthened the argument that the words were indeed addressed to Maria.

Thus, it is believed that the words published by Mrs. Moony referred to Maria.

3RD SUB ISSUES

The third sub issue that can be determined from this scenario is whether the words
were published to the third party. According to the case of Luk Kai Lam v Sim Ai Leng
[1978] 1 MLJ 214, the court held that the words ‘prostitute’ called by defendant and
statement that plaintiff had been sleeping with Sia in the nursing home for over a year before
they got married is a defamatory. The court also laid down that there would be no publication
if words spoken in a foreign language are not understood by a third party.

By distinguishing the case above with the current scenario, it can be seen that the
words stated by Mrs Moony in the magazine were understood by all residents in the
condominium and there also no hidden meaning or words implied behind what Mrs. Moony
said. And Mrs Moony also not using any foreign language can lead to the misunderstanding
of the residents who read and saw the picture with the words in the magazine.

Thus, it can be seen that the words that were published in the magazine were indeed
aimed to the residents who are third parties in this case and understood by them. This also
made Maria’s reputation as a smart student who studied abroad was denigrated and her
friends also shunned her after reading the magazine.

Conclusion to the main issue

To conclude, Maria can sue Mrs. Moony for the words published by her on the grounds of
slander because she proved all the elements of defamation as well as bringing witnesses to
strengthen her arguments. Moreover, based on the discussion before, it is believed that Mrs.
Moony can be held liable for defamation as the words published by her are defamatory
words, it referred to Maria and has been published to the third party.