Tort Notes Defamation

Defamation
Definition
According to Lord Atkin in Sim v Stretch:
A statement untrue which injures the reputation of
another
by
exposing him to hatred, contempt or ridicule or
which
tends
to
lower
him in the esteem of right thinking members of
society
or
which
tends
to make them shun or avoid that person.
The Defamation Act 1957 was enacted to protect the reputation
of others.
Types of defamatory statement
Libel: statements made in a permanent form.
- E.g: statues, caricatures, statements in newspapers,
signs,
pictures,
movies,
television
broadcasts,
statements made on the radio
- Live
television
broadcasts:
it
reaches
more
listeners/viewers and has a greater capacity to do harm.
- Libel is actionable per se.
- Datuk Syed Kechik Syed Mohamad v Datuk Yeh Pao Tzu
& Ors
The court granted the plaintiffs application for an
interim injunction as the defamatory statement
published through caricatures of the plaintiff by the
defendant in the newspaper disclosed a clear case of
libel.
- Yousoupoff v MGM
The court held that the plaintiff was entitled to damages
because the defamatory statement contained in the
film made by the defendant is libel.
Slander: statements made in a temporary form.

- E.g: spoken words, sound tapes, records, dictations
- Slander is not actionable per se, EXCEPT:
- If the words impute the commission of a crime
- A statement made alleging that the plaintiff
has committed a crime for which he may
have been imprisoned.
- Sivanathan
Rahman
Abdullah
Dato
Abd
Where the defendant called the plaintiff

a cheat, dishonest, and a liar, the court
held that the plaintiffs claim failed as
the crimes, which did not attract
corporal punishment, was not actionable
per se.
- If the words impute a contagious disease
suffered
- A statement made alleging that the plaintiff is
currently suffering from a contagious or
infectious disease.
- If the words impute the non-chastity of a
woman
- Section 4, Defamation Act: The publication
of words which imputes non-chastity or
adultery to any woman or girls requires no
proof of special damage (actionable per se)
for the action to succeed.
- Luk Kai Lam v Sim Ai Leng
Where allegations were made by the

respondent in the presence of a third
party that the appellant was a prostitute
and charged RM50 to entertain men, the
court held that slander was established
as the words had impugned the
appellants chastity.
- If the words are calculated to disparage (lower)
the
plaintiffs
profession
or
business
reputation
- Section 5, Defamation Act: The publication
of words calculated to disparage the plaintiff
in any office, profession, calling, trade or
business held or carried on by him at the time
of the publication.
- E.g: An allegation of dishonesty and corrupt
practices against the plaintiff, either on the
basis that the office is an office of profit, or
that the defamatory words intimated that the
plaintiff had acted without integrity.
Who can sue?
Principle: Only
defamation.
living
persons
can
bring
an
action
in
- A dead person cannot bring an action in defamation no

matter how provocative the statement may be.
Elements
There are three elements of defamation:
1. The statement
meaning.
made
must
contain
defamatory
- TEST: A statement is defamatory if it lowers the

plaintiffs reputation in the minds of right-thinking
members of society.
- Byrne v Dean
The court found the defendant not liable for the
statement made as informing the police of a crime is a
heroic act which does not lower the plaintiffs reputation
in the minds of right-thinking members of society.
- Words may be defamatory in two ways:

- By its natural and ordinary meaning: The
statement made contains a literal meaning.
- The meaning that the words would convey to
ordinary reasonable persons.
- Hasnul Abdul Hadi v Bulat Mohamed
- The court found the defendant liable for
calling the plaintiff Abu Jahal as the
statement was defamatory in its natural and
ordinary meaning.
- By
innuendo:
The
statement
becomes
defamatory through inferences, special facts or
circumstances known by the reader.
- Words with a special, hidden or inner
meaning only known to certain people.
- Tolley v JS Fry
The court held the defendant liable as those
who knew the plaintiffs status as an amateur
golfer would reasonably assume by way of
innuendo that the plaintiff had consented to,
and had been paid for the advertisement.
2. The statement made must have referred to the

plaintiff.
- TEST: Whether an ordinary reader would reasonably
come to the conclusion, based on the statement as a
whole that it referred to the plaintiff.
- The ordinary reader must be able to immediately
identify the person being addressed.
- It is sufficient for the plaintiff to be addressed
through initial letters.
- It does not matter if the defendant had no
knowledge of the plaintiffs existence.
- Morgan v Odham Press (No named person)
The court found the defendant liable as a substantial
group of people who knew the plaintiff understood that
the statement made regarding the kidnapping referred
to him, even though the plaintiff was never referred
to by name.
- Hulton & Co v Jones (Fictional name)
The court found the defendant liable as those who
knew the plaintiff understood the words in the article of
a fictional character named Artemis Jones as referring
to the plaintiff, although that was not intended by the
author and publisher.
- Newstead v London Express Newspaper (Two people
of the same name)
The court held the defendant liable even though there
were in fact two people, including the plaintiff, of the
same name, and the defamatory statement made was
true of the other, but not the plaintiff.
- Knuppfer v
defamation)
London
Express
Newspaper
(Class
The court held the defendant not liable as the total

membership of the party was several thousand and no
particular member, including the plaintiff, could claim
that the report made referred to him.
3. The statement must be published to a third party.

- Publication: Making known the defamatory matter
after it has been written to some person other than the
person of whom it is written.
- Theaker v Richardson
The court held that there is publication where the
defendant knew or ought to have foreseen that
the statement would come to the attention of a
third party as is reasonably expected in circumstances
where a defamatory letter is sent to the house of a
married woman and is read by her husband.
Defences
1. Fair comment
- Section 9, Defamation Act: A statement in the form of
opinion, which is based on true facts, and which is
made with fairness on a matter of public interest and
without malice.
- Requirements:
- Comment must be an opinion
- Comment must be based on true facts
- TEST: Whether the fair minded, ordinary man

upon being told of the words, would regard
them as a statement of fact or comment.
- Comment must be fair
- TEST: Whether someone who honestly held
that opinion could fairly make the same
comment.
- Comment must be an honest expression of
the writer made in good faith.
- Comment must not be malicious
- Malice: Ill will or spite or any improper
motive in the mind of the writer at the time
the statement was made.
- Where the language used is unnecessarily
strong and disproportionate to the
occasion, it might give rise to malice.
- Comment must refer to matters of public
interest
- Where the comment concerns a matter which
affects people at large, so that the public
may be interested in or concerned of what is
going on or what may happen.
- Dackhyll v Labouchere
The court held that the defence of fair comment was
successfully raised against the plaintiff as the
defendants statement that the plaintiff was a quack of
the rankest species was only a comment to the
plaintiffs profession as a specialist for ear, nose and
throat diseases.
2. Justification
- Section 8, Defamation Act: A defence of justification is
sufficient if the truth of the words that have materially
injured the plaintiffs reputation can be proven. The
defence shall not fail only for the reason that the truth
of the words in the statement which have not materially
injured the plaintiffs reputation cannot be proven.
- Conditions to be fulfilled:
- A defence for the defendant to show that the
article complained of is true.
- The burden of proof is on the defendant to
show that the statement made is true.
- Abdul Rahman Talib v Seenivasagam
Where the defendant could prove the truth of one of the
allegations made, the court held that the defence of
justification was successfully raised against the
plaintiff as the unproved allegation did not materially
injure the plaintiffs reputation.
3. Unintentional defamation
- Where a defendant unintentionally and innocently
publishes defamatory material of another person under
three circumstances:
- The publisher did not intend to refer to the
plaintiff and did not know of any circumstances
whereby they might have been understood to do
so.
- The words were not defamatory on the face
of them and the publisher did not know of any
circumstances whereby they might have been
understood to be defamatory.
- In either case, the publisher was not negligent.
- Must be followed by an offer of amends under
Section 7, Defamation Act.
- An offer of amends: A sufficient apology to the
aggrieved party and an offer to correct the words
complained of, as well as to take reasonable steps
in notifying the third party

distributed were defamatory.
- If the plaintiff
applicable.
is
named,
the
that
the
defence
words
is
not
- Sandison v Malayan Times Ltd & Ors

Although the plaintiff was not named, the court
rejected the defence of unintentional defamation
as the article clearly referred to the plaintiff, which
proved that the defendant had not published the
defamatory article unintentionally, and because there
was a time lapse of more than a month before the first
offer of amends was made.
4. Privilege
- Provided under Sections 12(1) and (2), Defamation
Act.
- There are two types of privileges:
- Absolute privilege: Where words which are
harmful to a persons reputation are not
actionable.
- Statements made in or reports made of
Parliamentary proceedings
- Statements made in or reports made of
judicial proceedings
- Communication between officers of state
under an official duty
- Communication between spouses
- Qualified privilege: Where communication is
made in good faith 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

the matter.
- Statements made between parties who
have a mutual interest over the subject
matter
- Statements made to fulfil a legal, moral or
social duty
- Statements made to protect ones own
interest or property
- Statements
made
to
settle
public
nuisances or disputes
- Accurate or fair report of proceedings
such as Parliamentary proceedings, judicial
proceedings and public meetings
- Watt v Longsdon (to fulfil a legal, moral or
social duty)
The court held that a report made by the
company director to the chairman of the
plaintiffs immoral activities with other
women was under qualified privilege, but
communication of the same matter to
the plaintiffs wife was not privileged as
the defendant had no duty to pass on
that information to her.
5. Innocent dissemination
- A defence applicable for mere distributors.
- Conditions to be fulfilled:
- He was not the author, editor or publisher of
the statement.
- He took all reasonable care in relation to the
publication and he did not know, and had no
reason to believe, that he caused or contributed to
the publication.
- When the article was disseminated by him, it was
not by any negligence on his part.
6. Consent of the plaintiff
- Where the plaintiff has consented to the publication,
there can be no action.
Remedies
1. Damages
- In an action for defamation, damages for loss of
reputation are involved.
- The plaintiff may stipulate the sum he is claiming
for as a measure of is worth.
- Tan Sri Dato Vincent Tan v Hj. Hassan Hamzah
The court found the defendant liable for defamation
and granted the plaintiff damages worth RM10 million.
2. Injunction
- To prevent further publication or broadcast of the
defamatory statement.

Tort Notes Defamation

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What are the different types of defamatory statements?

What are the elements required for a statement to be considered defamatory?

Defamation

Slander: statements made in a temporary form.

Where the defendant called the plaintiff

Where allegations were made by the

- A dead person cannot bring an action in defamation no

- TEST: A statement is defamatory if it lowers the

- Words may be defamatory in two ways:

2. The statement made must have referred to the

The court held the defendant not liable as the total

3. The statement must be published to a third party.

- TEST: Whether the fair minded, ordinary man

in notifying the third party

- Sandison v Malayan Times Ltd & Ors

corresponding interest or duty to be informed of

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