DEFAMATION

DEFINITIONS
- Not defined in defamation acts
- From past cases: The publication of a statement which reflects on a person’s
reputation and tends to lower him in the estimation of the right-thinking members of
society generally or tends to make them shun or avoid him
“WORDS”
i. Words are controversial – Lewis v Daily Telegraph (HOL)
 Df published ‘officer of the city of London fraud Squad we investigating pf’s
company
 Held: not defamatory because ordinary ppl would wait for the outcome of the
enquiry
ii. Must lower reputation – Mohd Azwan Ali v Sis. Tel (M)
 Held : Words were said in jest for light entertainment – not defamatory
iii. Words uttered as mere abuse/anger/heat of the moment not defamatory – C.
Sivananthan v Abdullah
iv. Knowledge of the df of the facts that makes the word defamatory is immaterial
– Cassidy v Daily Mirror Newspaper
 Df paper published engagement of Mr A to Ms B was recently announced.
Mrs A said this was imputation that she lived in immoral cohabitation w her
husband and suffered damage. Article was published in good faith but df is
liable.
- S.2 DEFAMATION ACT
 “Words” include pictures, visual images, gestures and other methods of
signifying meaning
 Can be either libel or defamatory

Libel
- Actionable per se
- Defamation in permanent form, usually visible to the eye
- Email, letter, pictures, statues, etc
- Broadcasting is treated as publication in permanent form – s3 defamation act 1957

Slander
- Defamation in a temporary form
- Spoken words/gestures
- GR : not actionable per se – damage in financial loss
- Must bring witnesses
- S2 DA – definition of “words” also apply to slander
- Exception to GR:
i. Imputation of the unchastity of a woman
  S4 DA – words which impute unchastity or adultery to any woman or girl
shall not require special damage to render them actionable
 Luk Kai Lam v Sim Ai Leng
i. Resp called appl a prostitute and that she charged RM50 each time
ii. Allegations made in presence of 3rd party
iii. Slander was established
iv. Third party did not understand mandarin – words not published/communicated
ii. Imputation of unfitness in any office, profession
 S5 DA - slander of words to disparage the pf in any office held by him at the
time of the publication no need to proven damage
 Luk Kai Lam v Sim Ai Leng
i. Court held that the slander was against her as a woman and not
profession – no relation to her profession as a nurse
 Wan Abdul Rashid v S Subramaniam
i. Df (lawyer) defamed the Registrar of the Sessions Court in presence
of members of court staff and public
ii. Df liable for accusing the pf as corrupt in front of open court – pf is in
a position where the public must have trust in him – df’s allegation is
damaging to his profession
iii. Imputation to title, goods or other malicious falsehood
 S6 DA – no need to prove special damage when words are calculated to cause
pecuniary damage – usually for trade/business
iv. Imputation of disease
 Contagious / Infectious disease
 E.g. VD, AIDS
v. Imputation of Crime
 Serious crimes – murder, rape
 Crimes attracting death penalty, whipping, imprisonment
 Public will shun and avoid him
 C Sivananthan v Dato Hj Abdul Rahman
i. Df called pf a ‘cheat, dishonest liar’
ii. Held : no defamation
iii. Not a serious crime
iv. Pf must prove actual damage
 ELEMENTS
i. Words are defamatory
 Words that tend to lower the reputation of pf in the minds of right thinking
society so that the pf is shunned or ridiculed
 Syed Husain Ali v Syarikat Perchetakan Utusan Melayu
 Words may be defamatory in 3 ways ;
a. ordinary meaning,
o The words alone must have a tendency to make them look down on the
plaintiff – prostitute, adulterous, abu jahal, no hidden meaning
b. innuendo,
o a remark that suggest something unpleasant- secondary meaning that wont
arise from literal meaning of the words
o False Innuendo: hidden meaning is obvious – no need to prove additional
evidence to prove it was defamatory
 Syed Husin Ali Ayob bin Saud v TS Sambanthamurthi
- Pf – surveyor charged a bill to df for RM 4480
- Df, disgusted, wrote to a 3rd party (C) – saying he’s surprised that a
Chinese surveyor charged RM 1450, but a bumiputra chared
RM4480
- Pf claimed false innuendo because it implied he was a cheat
- Held : not false innuendo – only implied its excessive
 Lee Kuan Yew v JB Jeyaratnam
- During an election rally, df spoke of the pf
- Held : false innuendo – the words implied that the PM had gained
personal financial advantage from his post as PM
o True Innuendo: The meaning is rly hidden – must plead additional
evidence to satisfy the courts that the words were defamatory
 Tolley v Fry & Sons Ltd
- Pf is an amateur golfer , df chocolate manufacture
- Df advertised in newspaper caricature of pf playing golf w
chocolate bar sticking out of his pocket
- Imply the quality of the chocolate was as good as the pf’s
performance
- The innuendo was that the pf had received payment for the
advertisement therefore sold his status as an amateur golfer (which
amateur golfers weren’t allowed to do) therefore flouting the rules
of his amateur status
 Plaintiff relying on a true innuendo must prove;
i. There exists external facts, when combined with the df’s words,
becomes defamatory
ii. These facts were known to one or more persons to whom the df’s
words have been published
iii. The knowledge of these facts maybe defamatory to the pf in the
eyes of those who have privy to the special facts
  True innuendo means that the pf agrees that the words are not
defamatory in its natural and ordinary meaning
c. juxtaposition
 To place side by side or close together
 Involves visual effects
 Monson v Tussauds Ltd
- Pf was accused of committing murder but was released because it
was not proven
- Df had already made a wax model of the pf to put with the statue of
other criminals in the Chamber of Horrors (display)
- Df liable for defamation
ii. Words refer to the pf
 E. Hulton & Co v Jones
- Humourous fiction written on the morals of Artemis Jones (churchwarden)
- Intended to be fictitious but there is a barrister by that name
- Third parties thought it was him
- Defamation established
 Newstead v London Expressway Newspaper Ltd
- Df’s newspaper: ‘Harold Newstead, punished for bigamy”
- 2 people by the name
- Pf Harold Cecil Newstead – ppl thought it was him
- Defamation established- absence of intention not affect liability
 Morgan v Odgam Press Ltd
- No name mentions – pf journalist interviewed kennel girl who helped a gang to
dope dogs and took her to his flat to protect her
- Df reported that girl was kidnapped and kept at a house in Finchley
- They thought pf was a gang member
- External factors pointed to pf as a gang member
 S7 DA – UNINTENTIONAL DEFAMATION / OFFER OF AMENDS
- Procedure where df can avoid liability to pay for damation
- Publish reasonable correction, apology and pay pf’s cost and expenses incurred as
a consequence
- Apology not a full defence
- If apology accepted then can, if pf doesn’t think it was done innocently
  Tan Sri Dato Vincent Tan Chee Yioun v Hj Hassan b Hamzan
- Pf chief executive officer of Berjaya group
- Df- 7 altgt, publisher of magazine
- It was published that the pf wanted to use the press for his biz advantage
- The pf established the Sun but he was not getting contracts from the minister
- They claimed pf scolded editors not to criticise his friends
- Printed ‘Vincent Tan warns journalists’
- The 7th df entered innocent publication but failed
- Failed due to ; i. clearly referred to the pf
ii. did not make offer of amends according to s7(2)
iii. Ct awarded 10 mil in damage – apportioned
 Normala Samsuddin v Keluarga Communications s/b
- Mingguan Wanita (magazine) printed ‘Mala tebus talak 3 juta’
- N&O/innuendo meaning it meant that pf attached a price tag to her marriage
- Connoted mala is a woman is a loose character
- Aggravated damages was approved by the court as the df had repeated the libel in
4 magazine after pf’s complaint
- Df did not mean his apology
- Court awared 100k GD and 100k AG – exemplary awarded would have been
pleaded – would have been awarded as it was calculated to make profits
- Appeal 2006 : df not liable??
 Defamation of a class
- GR : Df not liable unless it’s a direct reference to the pf/certain individual in a
particular class/group
i. Knuppfer v London Express Newspaper Ltd
- Df newspaper reported unethical activities of the Young Russian Party in
France and USA
- Pf, leader failed in his action – words refer to not only him but thousands of
people
ii. Tenku Jaafar v Karpal Singh
-Df stated that the word any person in the ISA includes the Raja who could be
detained under the act for being a threat to national security
- BH reported
-Pf said words were defamatory to rulers and malays directly
-Held:nothing to show that the word referred to the pf
iii. Foxcroft v Lacey
-If words refer to class of 2/3 ppl, then it would refer to the pf
iii. Words must be published/communicated to the third
party
 Communication to at least one person other than the person defamed
a. Where the publication take place
o Concerned with the jurisdiction of court
 Ying Cheng Ang v Taro Imanaka (letter)
 Letter wrote in msia but opened in japan – action claim in japan
 Dow Jones v Jameel (internet)
 Dow Jones v Gutnick
-The moment the material is downloaded and read publication is
satisfied- the case should be heard in the country it is downloaded
b. The publication was not meant to be read by third party but was
 Huth v Huth
-Inquisitive butler open unsealed letter and read it
-Held: no publication since it was not part of the butler’s duty
-Foreseeability of the possibility that a third part might see/hear
defamatory words
c. Words unintelligible
 Luk Kai Lam v Lim Ai Seng
-No publication – words spoken in a foreign language not understood
by third party.
d. Publication by husband and wife
o Husband states defamatory about others to wife- no publication
 Theaker v Richardson
-Df wrote a defamatory letter to a married woman- husband read it
-Publication was foreseeable to a third party because of husband can
read
-Defamation established
e. Repetition and republication
o If words are copied/repeated a new cause of action arise- second and other
publications all df may be sued
 Chua Jui Meng v Hoo Kok Wing
-Df wrote letter to ACA
-Release in press statement
-2 Newspaper redistribute and liable
f. Mere Distributor
o Newsagents, libraries, book shop owners
o Liable but with good defence – innocent dissemination if proven;
i. they were innocent of any libel contained in the work
ii. There was nothing in the work for them to assume it was libel
g. Printers
o Printers usually a sign of indemnity from the publisher
 Mirzan Mahathir v Star Papyrus
 DEFENCES
i. Justification
 Good defence even done with malice
 Full defence – dissolved of liability if established – BOP on df
 S8 DA
- 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 fail
by reason only that the truth of every charge is not proved if the words not
proved to be true do not materially injure the plaintiff’s reputation having
regard to the truth of the remaining charges.
- E.g.
o An article was written about a CEO stole and raped an employee in
2008
o CEO was found guilty of rape but not stealing and sues the author for
defamation
o Author could argue through s8 by saying his inability to prove that the CEO
did not commit theft does not materially injure the CEO’s reputation any
further, considereing the other statement (rape) is true.
 Abdul Rahman Talib v Seenivasagam
- Df had made two statements about pf;
a. pf, as a minister, had received various sums of money improperly
b. the pf had received various favours.
- The df successfully proven the 2nd charged (receipt of favours by pf) but not 1st.
- Df is allowed to rely on the defence of justification even though he did not prove
the 1st charge because it did not materially injure the pf’s reputation since its
already tarnished by the truth of the 2nd charge.
 Mirzan Mahathir v Star Papyrus
- The printer first stated they had no ill will
- Then they said the words were true through the defence of justification
- Df liable – have to prove the truth of statement when pleading justification
- They offered an apology instead
ii. Fair Comment
 Words – consisting partly facts and partly comments (opinions)
 S9 DA
- In an action for libel or slander in respect of words consisting partly of
allegations of fact and partly of expression of opinion, a defence of fair
comment shall not fail by reason only that the truth of every allegation of
fact is not proved if the expression of opinion is fair comment having regard
to such of the facts alleged or referred to in the words complained of as are
proved.
 Ratus Mesra s/b b Shaikh Osman
- Defence of fair comment must prove;
a. In the form of comment
b. Based on true facts
 c. Fair and not malicious
- Df’s honesty is the cardinal factor
- Test of fairness is objective – once df shows that his comment is objectively fair in
the sense that any prudent man could honestly have held the views expressed, the
court will presume that his comment is honest unless pf can plead and prove actual
or express malice (Tjanting Handicraft)
d. Concerns issues of public interest
- Whenever a matter is affecting people at large, so that they may be legitimately
interested in what is going on, then it is a matter of public interest which everyone
is entitled to make a fair comment (Mohd Azwan Ali case)
iii. Absolute Privilege
 Fail if done with malice
 Freedom of communication is justified without fear of action of defamation
 Absolute – CL ST
- When harmful words that are uttered by th df about the pf’s reputation are ‘not
actionable’ as the publication of these are protected by absolute privilege
- When it is necessary for efficiency – parliamentary debate, judicial proceeding
(where you need to tell the truth even though it will be derogatory)
 S11 DA
 Times Publishing v Sivadas
- Held: absolute privilege for proceedings in Parliament covers written opinions by
the public made as a response to the issues that are publicly made known, even if
it is malicious
 Wong Chan Mew v Hong Leong Finance Bhd
- Held: Notice of substituted service of originating summons is a ‘report’ of judicial
proceedings
iv. Qualified Privilege
 Qualified privileged is the defence of common law which protects the maker of
defamatory statements on an occasion of privilege if he had acted honestly without
malice.
 BOP is on df to prove that the words said on an occasion of privilege
 A privileged occasion is only when the df is entitled to say something which a person
not within the privilege is not entitled to say
a. Statements made btween parties who have a mutual interest over the subject
matter of communication.
- Surjit Kaur v Belinda Ghoi
o Appl was cabin crew of MAS who sued the resp for libel
o Resp had written a letter on behalf of other crew members to the VP and exec
VP of MAS seeking appl’s removal – they didn’t approve her supervision
because she was a bad person
b. Statement made to fulfil a legal, moral or social duty
- The third party must have the interest to receive the communication
- Dato Seri Anwar Ibrahim v Dato Seri Dr Mahathir bin Mohamad
o When pf was dismissed from his political position, he claimed that df had
published to journalists accusing him of homosexuality
 o Defences: i. Justification – it was already public knowledge and based on true
facts (information from the police)
ii. Qualified Privilege – As PM, the df was under a legal, moral,
social duty to inform nation to his dep pm was removed from post.
- Dr Jenni Ibrahim v S. Pakianathan
o Pf replaced df in a help centre
o Df wrote that she had appropriated money to Chief police officer, secretary
of the centre, copies to all directors and Registrar of Societies.
o Defence of QP failed because it had gone outside of the occasion of
privilege (person w no interest in the matter)
- Jameel v Wall Street Journal
o Df said online they were monitoring Abdul Lateef Jameel Group at the
request of US govt to ensure there were no terrorist link
o Pf sued claiming defamation for himself and the company
o 5 ppl had alr read it
o COA in pf, HOL in favour of df
o Note : df never relief on justification
o They pleased QP – the article was clearly of public interest although the df
had breached the agreement btw US and Saudi Gov to keep the monitoring
secret
o The gathering and reporting was responsible and fair and only 5 ppl read it
– Reynolds Privilege
- Reynolds Privilege – Reynolds v Times Newspaper
o Extended the traditional common law qualified privilege to a wider
audience on a matter of public interest.
o Df needs to show that:
i. Publication was made responsibly establishing a duty-interest qualified
privilege
ii. responsible journalism
o Lord Nicholls set out 10 factors to determine a responsible journalism:
 o
o First used in Anwar Ibrahim v Mahathir Mohamad where FC refused leave
to appeal but agreed w COA
o Endorsed by FC in Dr Syed Azman & Ors v Dato Seri Haji Ahmad b Said
o Use of df unclear in Malaysia
o
v. Apology
vi. License