Defamation Mly essay

In Malaysia, defamation law is governed by the Defamation Act 1957, though it lacks a

clear definition of defamation. Winfield & Jolowicz define defamation as publishing a statement

that harms one's reputation to the extent that reasonable people might avoid them. According to

Norchaya Talib in Law of Tort in Malaysia, the aim is to protect an individual’s reputation.

Defamation can be categorised into libel and slander. Libel, involving permanent defamation

through various written materials and broadcasts(s3), is actionable per se, meaning the plaintiff

does not need to prove actual damage. In Ng Cheng Kiat v Overseas Union Bank, the bank

was liable for libel for incorrectly marking a cheque as 'Account Closed.'. Slander, on the other

hand, is temporary and usually requires proof of actual or special damage to be actionable. In

Workers’ Party v Tay Boon Too, the plaintiff lost his claim as he failed to prove that

defamatory speech led to his election loss. In Malaysia, libel and slander are both torts and

crimes.

There are exceptions where slander becomes actionable per se. Firstly, slander to

women provided under s4 of DA 1957. In Luk Kai Lam v Sim Ai Leng, the defendant called the

appellant a prostitute that charged RM 50 to entertain men at any one time. Special damage

need not be proven since the words assaulted the appellant’s chastity. Secondly, slander related

to professional or business reputation under s5. In Ismail Shamsudin v Abdul Aziz Abdan, it

was actionable per se as there was an allegation that a committee member who administers

Malay Customary Law has abused his position. Thirdly, slander of title, slander of goods or other

malicious falsehood under s6 of the Act. In Ratus Mesra Sdn Bhd v Shaik Osman Majid &

Ors, the court held that the plaintiff must prove that the statement was published maliciously,

and is false. Fourthly, imputation of a contagious disease is actionable per se. Historically, this

applied to sexually transmitted diseases, as in Bloodworth v Gray (1844). However, the status

of modern diseases like COVID-19 remains unclear under this principle. Lastly, slander is
actionable per se for imputation of criminal offence. It must be a crime that is punishable by

corporal punishment. In C Sivanathan v Abdullah bin Dato’ Haji Abdul Rahman, accusations

of cheating, which did not involve corporal punishment, did not meet this criterion.

In order to prove defamation, three elements must be established: serious harm to

reputation,claimant’s identity, and publication. The first element is the serious harm to

reputation. Words may be defamatory in its natural meaning, or by way of innuendo. A

statement is defamatory if it lowers the plaintiff’s reputation in the minds of right thinking

members of society. This is stated by Mohamed Azmi J in Syed Hussin Ali v Syarikat

Penchetakan Utusan Melayu Berhad & Anor. There is no absolute answer for who exactly

are ‘right-thinking members of society’. In DP Vijandran v Karpal Singh [2000] 6 CLJ 433,

there was an allegation that the plaintiff had committed an offence. The court decided that it was

sufficient for the plaintiff's peers, including those in the judicial service, to understand the

allegation, even if the general public did not. In Lau Chee Kuan v Chow Soong Seong & Ors,

an article in a Chinese newspaper described a midwife experiencing bizarre events. The words

were defamatory because they portrayed her as a "silly woman," indicating that she was

irrational and unfit for her profession, thus damaging her reputation. Apart from that, innuendo

means the words are not defamatory on their own but become so due to special facts known to

the reader. It can be divided into two types, which are false innuendo and true innuendo.

The second element is the claimant’s identity. The test was laid down in David Syme v

Canavan: whether the words could lead someone familiar with the plaintiff to believe they are

being referred to. In Sandison v Malayan Times Ltd & Ors, An article reported that a senior

executive was fired for corruption. While the article didn't name the plaintiff, it included the date

of their dismissal, making it obvious the article was about them. For group defamation, if the

plaintiff can show that the words refer to them specifically within a group they belong to, they
can prove defamation. In Tengku Jaffar bin Tengku Ahmad v Karpal Singh, the plaintiff

argued that a press statement implied most rulers, including Malays, were criminally liable under

the Internal Security Act, which he claimed was libel against him. The court decided that

referring to a ruler doesn’t automatically imply a general reference to Malays, so a Malay plaintiff

can only sue if the statement specifically targets him. In Eastwood v Holmes, it was held that if

someone wrote that "all lawyers are thieves," no specific lawyer could sue for defamation unless

the statement referred to an individual lawyer.

Publication refers to the dissemination of the defamatory words or material to a third

party. Each time a libel is republished, it is considered a new instance of libel. In Tan Chee

Kong v Lee Ee Liat,The court decided that the letter was considered published because it was

handled by postal workers. However, communication between spouses is not considered

publication because they are seen as one entity as in the case of Wennhak v Morgan.

Publication must be intelligible to the recipient. In Luk Kai Lam v Sim Ai Leng, it is in a foreign

language which the recipient does not understand, therefore there was no publication.

Defamation cases can generally only be heard in the country where the defamatory material is

published and perceived. In Ying Cheng Ang v Taro Imanaka, a letter with defamatory content

sent from Malaysia to Japan was not actionable in Malaysia because the publication occurred in

Japan.

There are six main defences for defamation. Firstly, justification. This is an absolute

defence as according to the judgement in Dato’ Seri Anwar B Ibrahim v Dato’ Seri Dr

Mahathir B Mohamad “what is true, cannot be defamatory” . Secondly, fair comment under

section 9 of the Act requires the defendant to show that the words were opinions based on true

facts, fair, and without malice. In Meeran Lebbaik v Mohamed Ismail Marican, calling the

plaintiff a robber was not considered a fair comment since the words were deemed statements

of fact. Thirdly, the defence of qualified privilege is divided into statutory and common law

qualified privilege. Statutory qualified privilege is governed by s 12 of the Defamation Act 1957.
According to A Masum's journal article ‘Media and the Libel Law: The Malaysian

Experience,’(2014) media outlets may be protected by common law qualified privilege even if

their publications don't meet the specific criteria of the Defamation Act. Fourthly, absolute

privilege. It covers parliamentary, judicial, and executive privilege. In Times Publishing Bhd &

Ors v S Sivadas, parliamentary privilege protected public responses to Parliamentary

Committee issues. Fifthly, unintentional defamation under s 7 of the Act can be used when the

publisher shows no intent to defame. Lastly, innocent dissemination is available to those not

responsible for the article’s creation, as in Vizetelly v Mudie’s Select Library Ltd, where the

defendant who is not the author, printer or first publisher of the defamatory article was not liable.

In Malaysia, remedies for defamation involve both damages and injunctions. Damages

aim to compensate for harm to reputation and feelings on a case-by-case basis. Aggravated

damages may be awarded for especially severe misconduct, while minimal harm might result in

a nominal award. Injunctions are less commonly granted because of concerns about limiting

free speech.

In the journal article ‘Defamation on the Internet- Malaysia’ by C Drahaman(2006), it

is argued that Malaysia should update its 66-year-old defamation laws to align with modern

internet and social media practices. Although Article 10 of the Federal Constitution guarantees

freedom of speech in Malaysia, this freedom does not protect false accusations or harmful

statements, as noted by Andrew T. Kenyon(2010) in ‘What Conversation? Free Speech and

Defamation Law’. Defamation laws are necessary to balance this freedom with the need to

protect public order and individual reputations.