2011Intro to Defamation

INTRODUCTION TO THE CONCEPT OF DEFAMATION

Definition of Defamation

Defamation is a situation where something is said or published about a person which would definitely bring him or her to suffer disrepute or lowers their reputation in the minds of right thinking persons in society.


The disrepute caused by the words would actually cause the said right thinking persons in society to avoid or shun him or her as a direct result of what was said or published about them.

This would then result in the loss of esteem and reputation.


This should be more than just suffering hurt feelings.

It would also have to go beyond words that are uttered or written of in a humorous way.


Defamation may either consist of libel or slander.

In Malaysia, the law governing defamation is contained in the Defamation Act 1957.

INTRODUCTION TO THE CONCEPT OF DEFAMATIONCriminal Defamation is defined in Section

499 of the Penal Code.

Punishment for Criminal Defamation is 2 years/fine as explained in Section 500 of the Penal Code.

It can be argued that in some circumstances, the threat of an action for defamation can restrict freedom of expression.


In the case of all situations with regard to freedom of expression, the risk of defamation is substantial.

As the law of defamation is concerned with the protection of reputations, an express casualty of that right would be the erosion of press or media freedom.


What is the difference between libel and slander?

Libel is where defamatory words are written or printed and slander refers to spoken words or some other transient form.


The general legal view now is whether the publication is in a “permanent form”, if it is not in a permanent form then it would be considered as slander.

In the case of SB Palmer v AS Rajah & Ors (1949) MLJ 6

The court held that even if words in the natural and ordinary sense are innocent ormeaningless -


Yet, in deciding whether they are capable of a defamatory meaning the circumstances in which they are written and the context in which they appear must be considered.

That the words used in the articles in this case were capable of being construed in a defamatory sense.


that in a defence of fair comment the onus is on the Defendant to prove any allegation of facts to be true.

that on the facts of the case, the defendants had not discharged the onus of proving the allegations of facts in the articles to be true.


that the plaintiff was entitled to damages for the "invasion of his absolute right to reputation".

In the case of Abdul Rahman Talib v Seenivasagam & Anor (1965) 1 MLJ 142, the court held-


the first defendant's defence of qualified privilege failed:-(i) under heads (a) and (b) because what was said went far beyond a mere report of Parliamentary proceedings.


under head (c) because no privilege attaches where, as in this case, the facts are in controversy and are not ascertained and have not been finally adjudicated upon;


under head (d) because no privilege attaches where, as in this case, the statement was published in advance of its delivery to the proper authority for investigation as to the truth or otherwise of theallegations;


under head (e) because, on the facts, the publication was not procured by the plaintiff;

in any event because the 1st defendant was actuated by malice.


the defendants have succeeded in proving the receipt of favours by the plaintiff, which was one of the two charges made against the plaintiff in thestatements.


although the defendants have failed to prove the truth of the other charge that the plaintiff received the sums of money alleged, the words making that allegation do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges and therefore thedefendant's defence of justification succeeded.

THE ELEMENTS OF DEFAMATION

Any statement which is considered to be defamatory of the Plaintiff must have been published by the Defendant and it must have direct and specific reference to the Plaintiff. The statement may be made through any media.

The defamatory statement must also be published to third parties. Broadcast of statements is considered to be a libel as per Section 3 of the Defamation Act 1975.


When the publication is made to the third parties, this will result in the specific identification of the Plaintiff with no room for error with regard to his or her identity.

At all times, it must be shown that the Defendant was responsible for the defamatory publication.


As indicated earlier, the distinction between libel and slander is as stated in the text, Winfield and Jolowicz on Tort by W. V.H. Rogers (17th edition) Sweet & Maxwell-

Examples of libel are writings, printed material or other mark or sign exposed to view, a picture, waxwork, statue or effigy.


Defamation in sign language affecting the deaf and dumb, mimicry and gesticulation (holding up an empty purse to indicate that a person has been robbed by the defendant would be considered as slander because the movements are transient or temporary (not permanent).

Chalk marks containing defamatory comments on a wall would be libel even though it may be washed away by rain.


In the British case of Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd, the British Court of Appeal held that the showing of defamatory matter contained in a film with a soundtrack was libel.

What will also be considered libel is the playing of a video tape, a record of a audio tape or disc, the calling up of defamatory matter on a computer screen or its distribution on the internet.


It is clear that the difference between libel and slander is quite old fashioned and irrelevant for current times. In very general terms libel is addressed to the eye and slander to the ear.

If an oral utterance is communicated to a person it is a slander which is published and if a written statement is shown it is libel.

A defamatory statement does not become actionable until it is published to a third party.

THE ELEMENTS OF DEFAMATIONAn oral statement made by A can be written

down by B and shown by B to C-here B publishes a libel. A’s original uttering of the words to B is slander but the communication to C was not by word of mouth.

If I dictate a defamatory letter to a typist I publish a slander in doing so but if the typist reads it or hands it back to me then there is no publication by him. I can be liable for a publication by my agent but I cannot publish it back to myself.


In an action for libel, damages will be claimed as there is no need to prove special damage.

In an action for slander, the Plaintiff must be able to prove that he has suffered special damage. This is where there has been pecuniary loss as a result of the slander made by the Defendant.

THE ELEMENTS OF DEFAMATIONIn some situations where the Plaintiff sues

for slander, special damage need not be shown, for example in the case of-

Section 4 of the Defamation Act 1957 with regard to slander of women.

Section 6 of the Defamation Act 1957 with regard to slander of title.


Special damage need not be proven also where the words used indicated that the person had committed a crime which is punishable by imprisonment, whipping or hanging as decided in the case of C.Sivananthan v Abdullah Bin Dato Haji Abdul Rahman (1984) 1 MLJ 62.

THE ELEMENTS OF DEFAMATIONHere, the court held that the words "dishonest,

cheat, liar" taken in the context in which they were said could not possibly impute any crime -- let alone a crime punishable by imprisonment.

The words were therefore not actionable without proof of special damage. Since the words were not capable of imputing the crime of cheating, and no special damage was proved, the plaintiff's action must fail. Moreover, the words were uttered in anger and understood in their context as not imputing a crime but as mere general abuse.


In a defamation action, the statement which is considered to be defamatory by the Plaintiff must be “particularised”, i.e. the particulars must be given or presented.

There 2 ways of looking at the defamatory content of the words or statement-

1. The literal meaning.2. Innuendo.


In the case of Lewis v Daily Telegraph Ltd (1963) 2 All ER 151, -

The defendants had published a paragraph in their newspaper stating that officers of the City of London Fraud Squad were investigating the affairs of the claimant and they alleged that the words carried by the newspaper carried the meaning that the company’s affairs were conducted fraudulently.


The House of Lords held that the words did not carry that meaning as the ordinary sensible person is not capable of thinking that whenever there is a police inquiry, there is guilt, otherwise, it would be almost impossible to report criminal investigations.

To quote Lord Reid, “the question is what the words would convey to the ordinary man”. “ I leave aside questions of innuendo where the reader has some special knowledge”.


Is a person who republishes defamatory words to a third party liable to the Plaintiff?

The starting point is that a republication by the voluntary act of another will break the chain of causation. The Plaintiff may not only sue for the original defamatory action but also for the republication as separate actions.


Every republication of the defendant will be liable where he authorized or intended the republication by sending a letter to the newspapers, speaks at a press conference or he should have realized there was a high risk that the word would be republished.


In the British case of Slipper v BBC (1991) 1 QB 283 the defendants gave a preview of a television film to press journalists who then reviewed the film.

It would be reasonable to assume that the press reviews would repeat the alleged libel for otherwise the reviewers would not be able to deal fairly with the film.

THE ELEMENTS OF DEFAMATIONIn the British case of Cassidy v Daily Mirror

Newspapers Ltd (1929) 2 KB 331, the defendants published a photograph of Mr C and a Miss X stating that they were engaged. But, there was a still a Mrs C who was C’s wife even though they were not living together.

The defendants had got their information from C and had made no verification of the story and Mrs C sued them for libel, the CA held that the news would convey to reasonable persons that Mrs C was not married and that she only cohabited with C and this caused harm to her character.

THE ELEMENTS OF DEFAMATIONWith regard to “innuendo”, the British case of

Monson v Tussauds Ltd (1894) 1 QB 671, the defendants kept a wax work exhibition and placed an effigy of the claimant with a gun in a room adjoining the Chamber of Horrors.

The claimant had been tried for murder in Scotland and released on a verdict of not proven. A representation of the murder scene was displayed in the Chamber of Horrors.

The Court of Appeal held that the exhibition was defamatory to the claimant.


Distributors and news stand vendors will not be liable as long they do not have guilty knowledge of the libel.

Online service providers like Google are also not liable if they are not creators of the libel and are only transmitting the content created by others.


In every action for defamation, the words or statement complained of must refer to the Plaintiff, it must concern him or her.

Identification of the Plaintiff may come from his or her name, nickname, a photograph or any other point of reference which would leave no room for doubt that it is the Plaintiff who is being referred to.

THE ELEMENTS OF DEFAMATIONGenerally, defamatory statements made

concerning a large group cannot be the basis of a legal action by just 1 member of the group.

In the case of Atip bin Ali v Josephine Doris Nunis & Anor (1987) 1 MLJ 82, the court held only the person defamed could bring the action and not the UMNO members of Alai, Melaka.

ELEMENTS OF DEFAMATIONIn the case of Kamalanathan Ponnumbalam

v Tenaga Nasional Bhd (2007) 3 CLJ 83, the defendant repeatedly sent notices and sought payment of RM1,248.60 as the estimated sum payable by the plaintiff, in spite of the plaintiff’s repeated objections and contrary to the Act that the bill is to be based on the meter reading.

The defendant disconnected the electricity supply and restored the same after the plaintiff protested, more than once. The defendant’s actions were in breach of the contract with the plaintiff and wrongful.

ELEMENTS OF DEFAMATIONThe defendant’s staff had prepared the notices

and they would have read the contents, which were to the effect that the plaintiff owed the defendant and wrongfully or wilfully refused to pay the sum due.

The disconnection of electricity would have attracted the attention of, and been noticed by, the plaintiff’s neighbours and maid, who would have assumed that the plaintiff was unable to pay for the electricity consumed and/or had refused to pay what was due and owed by him to the defendant.

ELEMENTS OF DEFAMATIONHence, the notices and acts, taken together and

in the context of the matters under consideration, were defamatory. Although the plaintiff had not adduced evidence of damages suffered by reason of the defendant’s breach of contract and did not call any witnesses in respect of the claim for damages for defamation and exemplary damages, he and his family would have been subject to inconvenience and loss of amenities when the electricity was disconnected in breach of the contract.

ELEMENTS OF DEFAMATION

REFERENCES

DEFAMATION ACT 1957Winfield and Jolowicz on Tort by

W.V.H.Rogers. (Sweet & Maxwell)Law of Torts in Malaysia by Norchaya

Talib (Sweet & Maxwell Asia)

TUTORIAL QUESTIONS1. Is there a difference between the terms libel

and slander? Give examples.

2. What are the three elements of Defamation?

3. In order to bring an action for defamation what must the Plaintiff show?

4. What do sections 3,4,5 and 6 of the Defamation Act 1957 mean?

2011Intro to Defamation

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