Skip links

Delving into Defamation

With the proliferation of social media during this digital age, the pen is truly mightier than the sword. Words written online today have an unimaginable impact on one’s reputation and self-esteem. Businesses, corporations and even political figures are no exceptions. Law, however, has often times proven to do what the sword could not, that is, to punish the pen.

Lo and behold, defamation law a.k.a. the tort of defamation.

INTRODUCTION

The Defamation Act does not define defamation, but there has been a general consensus extracted from Malaysian case law. The High Court case of Mohd Nasir bin Mustafa v Mohd Hanafiah bin Hanafi & Ors and another suit [2013] 9 MLJ 811 quoted Gatley on Libel and Slander (9th Ed), 1998 as to what constitutes defamation:

“There is no wholly satisfactory definition of a defamatory imputation. Three formulae have been particularly influential:

(1)   Would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally’?;

(2)   Would the imputation tend to cause others to shun or avoid the plaintiff?; and

(3)   Would the words tend to expose the plaintiff to ‘hatred, contempt or ridicule’?.

Aside from the above, it is also accepted that a statement is defamatory if it belittles or is injurious to a person’s profession, calling, trade or business. Take note though, as there is no hard and fast rule, the courts will look contextually at a statement made to determine if it is defamatory.

 

Interpretation

In determining whether a statement is defamatory as alleged, the courts will typically adopt the following interpretation principles:

 

Natural and Ordinary Meaning

Words in a statement are defamatory when interpreted in their natural and ordinary meaning if they impute that the Plaintiff is dishonourable or of discreditable conduct or motive, and can be easily understood in societal context to be jeopardising the reputation or integrity of the Plaintiff.

 

Natural and ordinary meaning includes:

  • the literal meaning of the words;
  • the implied or indirect meaning; or
  • any meaning based on general knowledge.

Innuendo

Innuendo refers to situations where ordinary words have special meaning to people with specific knowledge, i.e., in the context of that person, these words have special meaning. So, the words are not defamatory in nature, but due to the special knowledge of another, the words become defamatory to the Plaintiff.

 

For example, a statement that X takes after his father may seem normal to the average person but perhaps to someone who knows that X’s father is a prolific offender, the statement would be taken to me that X is also a prolific offender.

 

TYPES OF DEFAMATION

There are two types of defamation:

  • Libel – written statements, including statements made by email, on social media, on newspapers, via broadcasting media and the like. Libel is also known as defamation in permanent form.
  • Slander – spoken statements, such as in verbal conversations. Slander is also known as defamation in temporary form.

ELEMENTS OF DEFAMATION

In order to prove defamation, be it libel or slander, the Plaintiff must prove that the three elements of defamation are established for the statement in question.

 

This principle is clearly established by the Court of Appeal case of Big Sdn Bhd & Anor v Ang Teck Wang [2017] 3 MLJ 340 which held that:

“In this context, it is trite law (see Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315) that the burden is on the plaintiff to prove three essential elements before he can succeed in an action for defamation, that is, that:

 

(a)   the words complained of are defamatory;

(b)   the words complained of refer to the plaintiff; and

(c)    the words complained of were published to a third party.”

DEFENCES

Once the Plaintiff has established the abovementioned three criteria for defamation are met, the burden is then on the Defendant to raise any defence to justify making the defamatory statement. Below are some of the common defences raised against a defamation claim:

Defence #1: Justification

The defence of justification is an absolute defence. If a statement is true, then it is justified for one to make the statement.

 

To rely on this defence, the Defendant has to prove that the defamatory statement is true or substantially true. Once it is proven to be true, the law will not protect the Plaintiff’s interest.

 

That said, the burden of proof lies on the Defendant to justify their allegation by proving its precise truth. The Defendant may escape liability for his defamatory statement if he can prove the truth of the facts within said statement. If there were multiple allegations made, the Defendant need not prove the truth of all of them. The Defendant need only prove the truth of all allegations which are defamatory and materially injurious.

Section 8 of the Defamation Act 1957

 In an action for libel or slander in respects of words containing two 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.

In the Court of Appeal case of Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242, Abang Iskandar JCA said as follows:

“In relying on the defence of justification the burden of proof is on the defendant to prove that the allegations made are true or substantially true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true. For example, an allegation published by repeating a rumour cannot be justified by proving that there was such a rumour.

Thus, this defence ought to be used with great care. It can often be difficult to obtain sufficient admissible evidence to convince the court that the statement is true, or substantially true.

 

However, once successfully established, it is a complete defence against a defamation suit.

 

Defence #2: Fair comment

The premise of the defence of fair comment is to establish that the Defendant made the statement as an honest expression of their opinion regarding a matter of public interest. For this defence to succeed, the following elements will have to be satisfied by the Defendant:

  • the defamatory words must be comments as opposed to statements of fact;
  • the comments must be based on facts proven to be true;
  • the comments must be fair; and
  • the comments must be on a matter of public interest.

Section 9 of the Defamation Act 1957

 In an action for libel or slander in respects 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.

The test to determine whether certain words in a defamatory statement are comments or statements of facts was considered in the Singapore case of Lee Kuan Yew v Derek Gwyn Davies & Ors [1990] 1 MLJ 390 and affirmed by Tan Sri Harris bin Mohd Salleh v Dr Shaari Isa & Ors [2019] 7 MLJ 77:

“The question whether the words are a statement of fact or a comment is one of fact, the answer to which depends on the nature of the imputation conveyed thereby and the context and circumstances in which the words were published. The same words when published in one context may be a statement of fact, yet when published in a different context may be a comment. For example, if it is said of a member of the Bar that he is unfit to be a member of the Bar, that statement by itself is one of fact. On the other hand, if the same statement was prefaced by a statement that the member of the Bar has been convicted of cheating, then the statement becomes a comment.”

Defence #3: Qualified privilege

The defence of qualified privilege is a defence available when the defamatory statement was published by a person who has an interest or a duty – legal, social or moral – to publish the statement to the person(s) to whom it was published and the person(s) to whom the statement was published had a corresponding interest or duty to receive it.

 

The mutual interest over the subject matter of the communication in which the defamatory statement was made must exist in both parties at the time of its publication.

 

For instance, this defence may be available to journalists or reporters in circumstances where it is in the public interest for certain information to be disclosed or made known. An individual may also use this defence when writing a letter of complaint pertaining to misconduct or unlawful behaviour of another individual in their professional capacity to a regulatory body (such as the Accountants Disciplinary Board, the Advocates & Solicitors Disciplinary Board, or even the Human Resources Department at a workplace).

 

The nuances of this defence were covered by Tan Sri Norian Mai & Ors v Chua Tian Chang & Ors [2015] 4 MLJ 464 where the Court of Appeal held that:

“The defence of qualified privilege is relied upon primarily when one is unable to prove the truth of the statement, or when the statement made is untrue. The defence of qualified privilege is therefore a defence upon the basis that even though the statement made was unable to be proved as true, or is in fact untrue, it was made in good faith upon an occasion when there is a duty to make the statement to parties who have an interest to receive it. That good faith is negated, and the defence of qualified privilege with it, when the occasion is abused to make the statements that are defamatory.”

Defence #4: Absolute privilege

The common situations that the defence of absolute privilege may be raised include defamatory statements published in:

  • judicial proceedings;
  • parliamentary proceedings;
  • police reports; and
  • statements given to the police under Section 112 of the Criminal Procedure Code.

Hence, an advocate is protected by absolute privilege when making a defamatory statement in the course of legal proceedings, so long as the statement is relevant to the subject matter of the proceedings and uttered in good faith. Likewise, this defence extends its protection to any defamatory words spoken by a Member of the Parliament during a parliamentary debate.

 

MALICE

Of the four defences, two of them – the defences of fair comment and qualified privilege – will fail if it is proven that the defamatory statement was published with malice.

 

The Court of Appeal in Anne Lim Keng See v The New Straits Times Press (M) Bhd & Anor and Other Appeals [2008] 3 MLJ 492 quoted Osborn’s Concise Law Dictionary (7th Ed) in determining what defines malice:

“Ill-will or evil motive: personal spite or ill-will is sometimes called actual malice, express malice, or malice in fact. In law an act is malicious if done intentionally without just cause or excuse. So long as a person believes in the truth of what he says and is not reckless, malice cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair (Horrocks v Lower [1972] 1 WLR 1625). Malice in the law of tort is a constituent of malicious prosecution, defamation, malicious falsehood, and conspiracy.”

If the Plaintiff can prove that the Defendant did not believe the defamatory statement was true or did not truly hold the opinion expressed in the statement or even if the Plaintiff can establish that the Defendant was reckless in publishing the statement (e.g., the Defendant had opportunities to conduct an enquiry into the truth but failed or neglected to do so), malice may be proven.

SUMMARY

It is often hard to draw the line between a defamatory statement meant to tarnish the reputation of another and an honest opinion or review purposed to highlight an issue to the general public.

 

It is imperative that those who take to social media to vent frustrations at let’s say, a faulty product or poor customer service, take proper caution in wording your statements so as to prevent malice being established against you should a defamation suit be filed against you. It would also be good to remember that your words and their subsequent impact on the reputation of the affected party will be assessed in a defamation suit for the court to determine the appropriate remedies, which may include monetary compensation and a public apology.

 

On the other hand, if you are an individual or corporation or any other entity facing criticism border lining on defamation, take note that the limitation period to bring an action in defamation is six (6) years from the date of publication of the defamatory statement. Bear in mind though that the defence of justification is an absolute one, in that if the defamer can prove their statement is true, the defamation suit will be dismissed regardless of the presence of malicious intent.

 

Have a question? Please contact us at general@nazreenoon.com.

This article was co-authored by Derrick Oon (Partner) and Alyssa Lee (Intern) from Nazreen Oon & Partner’s dispute resolution practice.

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter