DEFAMATION

DEFINITION
• No proper definition
• Not defined in the Malaysian Defamation
Act 1957
• Definition – from judgments
 DEFINITION
• 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
1. Words are always controversy in Defamation
suit
• Lewis v Daily Telegraph (HOL) –
• Df published “Officers of the city of London
fraud Squad were investigating the Pf’s Co.”
• Pf said the words defamatory that co was
corrupt
• Court said it wasn’t because Ordinary people
would wait for the outcome of the enquiry.
 WORDS
2. If Words uttered as mere abuse, anger, heat of
the moment it will not be regarded as defamatory
•C. Sivananthan v. Abdullah
•The court held that the words “dishonest,
cheat, liar” were uttered in anger and
understood in their context as not imputing a
crime but as mere general abuse
 WORDS
3. Must lower the reputation
•Datuk Syed Kechik v Datuk Yeh Pao Tzu
•Plaintiff was drawn as a horse of the
chairman
•The horse’s saddle was loaded with a sum
of money and the picture of the chairman
was sitting on top of on him
•It clearly depicts him as a corrupt person
 WORDS
4. Knowledge of Defendant, of the facts that make the
words defamatory is immaterial
•Cassidy v Daily Mirror Newspaper
•Df’s paper published an engagement of Mr A to Ms B
was recently announced.
•Mrs A said this was Imputation that she lived in immoral
cohabitation with her husband and suffered damage.
•Although article published in good faith, Df liable
 LIBEL
• A defamatory statement or representation in permanent form
• Eg: e-mail, letters, pictures, statues, effigies
• S. 2 Defamation Act, interpretation
• Defines “words” to include pictures, visual images, gestures and
other methods of signifying meaning.
• Broadcasting of words by means of radio communication shall be
treated as publication in a permanent form
• S. 3 Defamation Act – broadcasting shall be treated as publication in
a permanent form (television and radio)
• ACTIONABLE PER SE
• No need to prove actual damage
• Assumed that damage will result
 SLANDER
• A defamatory statement or representation conveyed by spoken
words or gestures
• It is not a criminal offence although spoken words may amount to
treason, sedition or tending to lead to breaches of the peace
• GENERAL RULE -
• NOT ACTIONABLE PER SE
• Pf has to prove:
• Actual damage which is financial loss
• The damage is the natural and foreseeable result of the Df’s words
• Or Direct result of the Df’s words
• Unlike libel, slander is difficult to prove (
S. 2 DA also applies to slander)
• S. 2 Defamation Act, interpretation
• Defines “words” to include pictures, visual
images, gestures and other methods of
signifying meaning.
• Broadcasting of words by means of radio
communication shall be treated as
publication in a permanent form
Exception to the GR of Slander

• Slander can be actionable per se in 5 situations:

1. Imputation of the unchastity of a woman
• S4 of the DA 1957 – provides words spoken and published that
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
• The respondent called the appellant a prostitute, imputing adultery
or unchastity against the plaintiff.
• Held – respondent is liable under S4 of DA and said that although
the appellant did not plead or prove actual damages or loss, she
had brought her case within the meaning of the section which is
actionable per se
Exception to the GR of Slander

2. Imputation of Unfitness in any office, profession…

•Luk Kai Siam v Sim Ai Leng
•The former FC upheld the trial judge’s finding – the respondent’s statement was not a
slander on the appellant in the way of her profession and office as nurse-in-charge. The
court took into consideration that the parties were fellow nurses, that there were frequent
quarrels amongst the nurses and also the generality of and the extravagance of the
accusation and held that it was a slander against her as a woman and not in the way of
her profession.
•Wan Abdul Rashid v S. Sivaasubramaniam
•Df (lawyer) defamed Registrar of the Sessions Court, in presence of members of court
staff and public
•Held – Df liable
•“Pf as the Registrar of Sessions Court holds an office of trust in which the public must
have confidence ….
• …To impute corruption against any officer of the court without evidence to support it is in
my opinion a wrongful act to be strongly deprecated.”
Exception to the GR of Slander

3. Imputation to Title, Goods or other Malicious Falsehood

•S. 6 Defamation Act
•No need to prove special damage when words are calculated to cause
pecuniary damage .. Usually for trade / business

4. Imputation of Disease
Contagious / infectious disease
Eg: VD, AIDS
To impute the plaintiff a contagious or infectious disease so as to
prevent other persons from associating with him is slander actionable
per se at common law but not in Malaysia
Exception to the GR of Slander

5. Imputation of Crime
•Serious crime – murder, rape
•That Attracts death penalty, whipping, imprisonment
•Idea : Public will tend to shun /avoid him
•C. Sivananthan v Abdullah
•On appeal, judge found 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. They are not actionable without proof of
special damage. The former FC judges upheld the court’s decision
 ELEMENTS
• Pf must prove 3 elements: ( all 3)
• 1. The words are defamatory
• 2. The words refer to the Pf
• 3. The words must be published
 1 Element – words are
st

defamatory
• What are defamatory words?
• Words that tend to lower the reputation of
the Pf in the minds of the right thinking
members of society so that the Pf is
avoided, shunned or ridiculed (TEST)
• Read: Syed Husain Ali v Sykt Perchetakan
Utusan Melayu (contains the test)
 1 Element – words are
st

defamatory
• Words may be defamatory in 3 ways
• 1. In its natural and ordinary meaning
• 2. by way of innuendo
• 3. by way of juxtaposition
1. Natural and Ordinary Meaning

• The words by themselves, as understood by

men of ordinary intelligence must have the
tendency to make them look down on the Pf.
• Eg: Abu Jahal,
• adulterous,
• prostitute,
• Ugly
• There is no hidden meaning
2. Innuendo

• A remark that suggest something unpleasant / disapproving without

saying it directly.
• There is a Secondary meaning behind the said word, that will not
arise from the literal meaning of the words
• It may arise from the words used and also from the facts and
circumstances surrounding the publication surrounding the plaintiff.
• The plaintiff must prove the existence of these facts to support that
meaning.
• The court will also take into consideration the manner of their
publication and the persons to whom they were published.
 Types of Innuendos
1. True Innuendo
•When the hidden meaning is really hidden
•Must plead additional evidence to satisfy the court that the words were
defamatory
•(explain the hidden meaning)
•The court requires plaintiff to prove the existence of these facts that
are extrinsic to the published words to support the defamatory
meaning.
•The plaintiff must show that a person who has the knowledge of
special circumstances would lend to the words a particular meaning
different from their ordinary meaning.
 Ctd’
Pf relying on a True Innuendo must prove;
• 1. There exists external facts, when combined
with the defendants words, it becomes
defamatory
• 2. These facts were known to one or more
persons to whom the defendant’s words have
been published
• 3. The knowledge of these facts may be
defamatory to the Pf in the eyes of those who
have privy to the special facts.
 Case : True Innuendo
• Tolley v Fry & Sons Ltd
• Pf – amateur golfer
• Df – Chocolate manufacturer
• Df advertised in newspaper – caricature of Pf
playing golf with chocolate bar sticking out of
pocket
• Advertisement trying to imply that the quality of
chocolate was as good as the Pf’s performance
• Pf claimed for libel.
• The words of the picture were not clear on
the face of it
• The innuendo was that Pf had received
payment for the advertisement and
therefore sold his status as an amateur
golfer therefore flouting the rules of his
amateur status
• Held : the words were a true innuendo, Pf
succeeded in his claim
• If Pf alleges that the words are a true
innuendo, he is actually admitting that the
words are not defamatory in its N&O
meaning.
 Types of Innuendos
2. False Innuendo
•When the hidden meaning is obvious
•Pf need not to prove additional evidence to prove it was defamatory
•The plaintiff does not rely upon extrinsic facts to support the
defamatory meaning of the words, but merely states a particular
interference that he says, is to be drawn from the words themselves
•It is the meaning that the published words would convey to an
ordianary man – a reasonable man
Ayob b. Saud v TS Sambanthamurthi

• The plaintiff was a land surveyor appointed by the defendant to carry out certain
survey work on the defendant’s piece of property.
• After completion, the plaintiff submitted his bill for the professional services rendered.
Subsequently, the plaintiff received a copy of a letter written by the defendant to one
C containing ““ I am surprised that a Chinese Surveyor has charged RM1450,
whereas a bumiputra asks for RM 4480, which is a daylight robbery”
• On the basis of the above letter, the plaintiff sued the defendant for damages of libel
• Judge dismissed the claim and held that in the context of the whole paragraph in the
letter, the expression daylight robbery and the alleged innuendo, merely conveyed to
all and sundry that the plaintiff charged exorbitant professional fees.
• The defendant used these words to emphasize his utter disgust with respect to the
plaintiff’s bill and used them as words of general abuse. The paragraph complained
of, in its natural and ordinary meaning, does not have the meaning ascribed to them
by the plaintiff. It is not reasonably capable of bearing a defamatory of the plaintiff.
Lee Kuan Yew v JB Jeyaratnam

• The statement made mentioned of his family members holding

positions in few companies was held defamatory.
• As it can be applied that his family members secure their position
because of him.
• The words in their natural and ordinary meaning implied that the PM
had gained personal financial advantage from his post as PM.
• Held – False Innuendo
Syed Husin Ali v Sharikat Penchetakan
Utusan Melayu Berhad
• The plaintiff claimed damages for libel contained in an issue of the
defendant’s newspaper in 1965.
• The defendant admitted publishing it and the plaintiff proved that the
words complained of referred to him.
• The plaintiff alleged, the words were capable of the following false
innuendoes, namely that the plaintiff was dishonest, an ungrateful
person, a supporter of President Sukarno and an instigator of unrest
in the country.
• The only issue was whether the words complained of were
defamatory of the plaintiff.
• Held – in the circumstances of this case, the words complained of
when considered in the context of the news report, were defamatory
of the plaintiff.
3. Juxtaposition

• Juxtapose - to place side by side or close

together
• Involves visual effects, such as effigies or
placing the Pf’s photograph in a pile of
wanted criminals
Monson v Tussauds Ltd

• The defendants, who kept a waxwork exhibition, placed a wax

model of the plaintiff with a gun in a room adjoining the ‘Chambers
of Horrors’.
• The plaintiff had been tried for murder but was released on a verdict
of “Not Proven”.
• A representation of the scene of the alleged murder was displayed
in the ‘Chambers of Horrors’.
• The English COA felt that a jury might find the exhibition was
capable of being defamatory
2nd Element – Words must be referred to the
plaintiff
• Hulton & Co v Jones
• The plaintiffs – newspaper proprietors and published in their paper a
humorous account of a motor festival at Dieppe, France in which
imputations were casts on the morals of one Artemus Jones, a
churchwarden at Peckham. They intended this person to be, and the writer
of the article and the editor of the paper believed it to be purely fictitious.
• There was a barrister named Artemus Jones, who was not a churchwarden,
did not live in Peckham and did not attend the festival. He sued the plaintiffs
for libel and his friends gave evidence that they thought the article referred
to him.
• The HOL upheld the verdict and stated that it is not a defence for the
defendant that he did not intend to defame or he did not intend to defame
the plaintiff, if in fact he did both. He had imputed something disgraceful and
had injured the plaintiff.
2nd Element – Words must be referred to the
plaintiff
• Newstead v London Express Newspaper Ltd
• The defendants published in their newspaper a statement that ‘Harold
Newstead, 30 year old, Camberwell man was jailed for 9 months for
bigamy.’
• Another man, Harold Cecil Newstead, a hairdresser aged about 30 years,
who assisted his father at Camberwell Road, sued the defendants libel and
claim damages.
• The English COA held – reasonable persons would understand the words
refer to the plaintiff and that the presence or absence of intention or
negligence on the part of the defendants did not affect their liability. The
defendants were liable.
2nd Element – Words must be referred to the
plaintiff
• Morgan v Odhams Press Ltd
• HOL held – material may be defamatory of the plaintiff even though it does not
mention his name or any points referred to him
• A kennel girl said that she helped a gang charged with dog doping. The girl told the
story to a journalist and to protect her, the plaintiff, a Sunday newspaper journalist,
took her into his charge at his flat for six days.
• A reporter on the defendant’s newspaper, having heard the rumors of this, wrote a
garbled version of the facts in which he stated that the girl was kidnapped by the
gang and kept at a house in Finchley.
• While staying with the plaintiff, she was seen by 5 people with the plaintiff at a
restaurant, and by 3 others when in his company elsewhere.
• At trial, they gave evidence that they had read the article and believed that it meant
that the plaintiff was a member of the kidnapping gang.
• Held – jury awarded damages to the plaintiff but COA reversed the decision. HOL by
a majority of 3-2 allowed the plaintiff’s appeal and held that COA was wrong in
holding that there must be some pointers in the article itself indicating that it referred
to the plaintiff.
Unintentional Defamation/Offer of Amends

• The defendant is liable in defamation even

if he does not intend the defamatory words
refer to the plaintiff and has no knowledge
of facts that make a statement innocent on
the face of it, defamatory of the plaintiff.
• Defamation may be ‘unintentional’
• Its result produce hardship
 Unintentional Defamation /
Offer of Amends
• S. 7 Defamation Act (read)
• Provides a procedure where the defendant
may avoid liability to pay damages for
unintentional defamation. He must publish
a reasonable correction and apology and
pay the Pf’s cost and expenses incurred as
a consequences of the publication
• Apology not a full defence
Tan Sri Dato’ Vincent Tan Chee Yioun v
Hj. Hassan bin Hamzah
• Pf – chief exec officer of Berjaya group
• Df – 7 altogether, publisher of the ‘Malaysian Industry’ magazine
• It was published that, ‘P wanted to use the press for his business
advantage. He established the sun but he was not getting contracts
from the minsters.’
• Plaintiff scolded the editors to not criticize his friends.
• Later, it was printed ‘Vincent Tan warns journalists’. It was clearly
referred to the plaintiff.
• Ct awarded 10 mil in damages- apportioned
Normala Samsuddin v Keluarga
Communications s/b 1999
• Mingguan Wanita (magazine) printed ‘Mala tebus talak 3 juta’
• Ct said; in its N&O meaning / innuendo, it meant that Pf was a prsn
who had attached a price tag to her marriage and that for a payment
she bought off her marriage
• This connoted a woman of loose character and lax morals
• Aggravated damages was approved by the court as the Df had
repeated the libel in 4 other magazines after Pf’s complaint.
• Therefore, Df did not mean his apology
• Ct awarded 100K – general damages and 100K aggravated
damages
• (unfortunately exemplary damages not pleaded) - cld have been
awarded as it was calculated to make profits
 Ctd’
• Appeal of 2006
• Df not liable
• Read the judgment
 Defamation of a class
• General Rule: Df will not be liable unless there is a direct reference
to the Pf or certain individuals in a particular class or group.
 Knuppfer v London Express
Newspaper (1944)
• Df newspaper reported unethical activities of the Young Russian
Party in France and USA.
• Pf, leader of the British branch failed in his action as the words did
not refer only to him but thousands of people in the party
• General statements like ‘lawyers are liars’ – not referring to any
particular lawyer but if discussing 1 person and then say ‘all lawyers
are liars’, it is actually referring to him
• HOL – a class cannot be defamed as a class, nor can an individual
be defamed by a general reference to a class which he belongs.
 Tengku Jaafar bin Tengku
Ahmad v Karpal Singh 1993
• Df stated that the word ‘any person’ in the ISA
includes the “Raja” (Malay ruler of the state) who
could also be detained under the Act for being a
threat to national security
• Berita Harian reported
• Pf said words were defamatory to Rulers and
malays indirectly
• Ct said there was nothing to show that the word
referred to the Pf.
• However if the words refer to a limited
class of 2/3 people, then it would refer to
the Pf – Foxcroft v Lacey (1613) Hob 89
3rd Element – Words must be published

• Publication means the communication of words to at least 1 person

other than the person defamed
• If the communication is to the plaintiff himself there is no publication
• S. 2 Defamation Act, interpretation
• Defines “words” to include pictures, visual images, gestures and
other methods of signifying meaning.
• Broadcasting of words by means of radio communication shall be
treated as publication in a permanent form
 1. Where does publication take
place
• Involving jurisdiction of the court
• Ying Cheng Ang v Taro Imanaka (letter)
• 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
Ying Cheng Ang v Taro Imanaka

• The appellant wrote a letter allegedly defamatory of the respondent

to one T Nagai, a citizen of Japan who resided in Japan at the
material time.
• The respondent sued him for libel in the Sessions Court and the
appellant applied for the statement of claim to be struck on the
ground that there was no publication of the libel in Malaysia.
• Judge allowed the appeal – held – when “a letter or paper is sent
from one country to another, the tort is committed in the place where
the publication takes place.”
• The tort was committed in Japan and the court here has no
jurisdiction over the matter.
 2. What if the publication was not meant to
be read by a third party but was
• Huth v Huth
• The inquisitive butler opened an unsealed letter
and read it.
• Held: no publication since it was not part of the
butler’s duty.
• Question : Should the defendant have
reasonably foreseen the possibility that a
third party might read it.
 3. If the defamatory words were not intelligible or
could not be understood by the 3 rd party

• Luk Kai Lam v Sim Ai Leng

• The former FC stated that if defamatory
words are spoken in Mandarin and those
who hear do not understand Mandarin,
there is no publication
 4. Publication between husband
and wife
• If husband states a defamatory statement to his wife regarding another person, it is
not considered as defamation
• But if a person says to one spouse something defamatory about the other spouse,
there is publication.
• Theaker v Richardson
• The defendant wrote a defamatory letter to the plaintiff, a married woman and a fellow
member of the local urban district council.
• Her husband read the letter as he thought it was an election address as the letter was
sealed in a manila envelope, similar to the kind used for distributing addresses.
• COA held – publication was reasonably expected in the circumstances
• Question to be asked – was it a natural and probable consequence of the defendant’s
writing and delivery of the letter that the plaintiff’s husband would open and read the
letter?
• If the answer yes, then publication existed and vice versa
 5. Repetition and republication
• If words are copied or repeated, a new cause of
action arises. For second and other publications
all defendants may be sued
• Chua Jui Meng v Hoo Kok Wing
1. Df wrote letter to A.C.A
2. Released in press statement
3. 2 newspapers re-published
Held : All liable
 6. Mere Distributor
• Newsagents, libraries and booksellers who are concerned with
mere mechanical distribution of libelous matters are presumptively
liable but have a good defence if they can prove 3 conditions:
1. They were innocent of any knowledge of the libel contained in the
work.
2. There was nothing in the work or in the circumstances for them to
suppose that it contained libel.
3. When they disseminated the work, it was not by any negligence on
their part that they did now know it contained libel
 7. Printers
• Mirzan Mahathir v Star Papyrus s/b
• The plaintiff sued the printer of the Asian Wall Street Journal that
published words defamatory of the plaintiff.
• The defendant, in reply to the plaintiff’s letter of complaint before the
filing of writ, stated that it was merely the printer and that it bore
neither ill will nor malice against the plaintiff whatsoever, giving the
impression that it was an innocent pawn in the publication.
• Judge gave judgment for the plaintiff and awarded damages against
the printer.
• It would be advisable then that printers extract a promise of
indemnity from the publisher.
 DEFENCES
• Justification
• Fair Comment
• Absolute Privilege
• Qualified Privilege
• Apology
• License
 DEFENCES IF DONE WITH
MALICE
• Justification – still a good defence
• Fair Comment – defence will fail
• Absolute Privilege – still a good defence
• Qualified Privilege – defence will fail
 1. JUSTIFICATION
• Full defence
• GR – a defence to an action for libel and slander that the words are
true in substance and fact.
• Defendant’s state of mind is irrelevant
• If the words complained of are true in fact and substance, the
defendant is not liable even though he published the word with
malice and intent to cause damage to the plaintiff
• Burden lies on defendant tot establish that the alleged defamatory
words are true
• No longer the duty of the plaintiff to prove the defamatory words are
false because law will presume in his favor
 s. 8 Defamation Act
• For example, you write an article saying the CEO of a well-known
company sexually harassed, assaulted and raped an employee in
2008.
• In fact, the CEO was found guilty of sexual assault and rape but not
sexual harassment and sues you for defamation.
• You could defend your statement through S.8 Defamation Act ;
saying the CEO sexually harassed an employee doesn’t harm their
reputation any further, considering your other statements about the
sexual assault and rape convictions are true.
 Abdul Rahman Talib v Seenivasagam
[1965] 2 MLJ 66,
• Df made 2 charges against Pf:
(a)P had as a minister improperly received various sums of
money; and
(b)that the plaintiff had received various favours.
• Df successfully proved the 2nd charge, i.e., receipt of
favours by Pf but not the first charge
Held:
Df could rely on the defence of justification although
they had failed to prove the truth of the first charge that
Pf had received sums of money, because not being able
to prove the first charge did not materially injure Pf’s
reputation, having regard to the truth of the second
charge.
Mirzan Mahathir v Star Papyrus
• The printer first stated they had no ill
will/malice
• Then they said the words were true by
adducing the defence of justification
• They should have issued an apology
• Df liable – have to prove the truth of the
statement when ‘justification’ is proved.
And this they could not do.
 2. Fair Comment
• A defence to an action of defamation that the statement is a fair
comment on a matter of public interest
• Words – consisting partly facts and partly comments (expression of
opinion)
• S. 9 Defamation Act
• “In an action for libel or slander in respect of words consisting partly
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.”
• To succeed in defence, Df must prove 4 things
- Ratus mesra s/b v. Shaikh Osman Majid
• 1. Words must be in the form of comment
• 2. It must be based on true facts
• 3. It must be fair and not malicious (Tjanting
handicraft)
• 4. It concerns issues of public interest (Mohd
Azwan Ali v SisTel M’sia)
 Utusan Melayu v Tjanting
Handicraft
• Appellants – publisher, editor, journalist, printer of Wanita Magazine
• Respondent – the manufacturer of batik that supplied batik
costumes to all APEC leaders. They claimed that the Appellants had
stated a defamatory word that meant that they produced unsightly
batik and claimed for slander of goods and libel for aggravated
damages.
• The damages awarded to the respondent were RM200k for general
damages of libel and slander whereas RM50k for aggravated
damages on the finding of the fact that the appellants were actuated
by malice.
 Example
• if Df says that Pf is a convicted thief, it is a
statement of fact.
• Based on this fact If Df says that Pf is a
bad person, that is a comment.
• If Df says: Pf has stolen things and is
therefore untrustworthy, it is both a
statement of fact and a comment.
Fairness of Comment
• Df’s honesty is the cardinal factor.
• The test of fairness is an objective one and 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)
Matter of Public Interest
• Whenever a matter is such as to affect people at large,
so that they may be legitimately interested in what is
going on, or what may happen to them or to others, then
it is a matter of public interest on which everyone is
entitled to make fair comment. (Mohd Azwan Ali)

• Eg. the behaviour of public figures, public officials and

institutions and even some private organizations.

• It also includes matters submitted for public criticism,

e.g., books, public exhibitions, theatrical performances,
newspapers, etc.
 3. Privilege
• Defence of which freedom of
communication is justified without fear of
an action of defamation.

• 2 types of privilege;
• 1. Absolute privilege – CL and Statute
• 2. Qualified privilege – CL and Statute
 3. Absolute Privilege –
common law
• A person defamed on an occasion of absolute privilege has no legal redress, however
outrageous the untrue statement and malicious the motive of the maker of it may be.
• S11 of DA – provides that a fair and accurate and contemporaneous report of
proceedings publicly heard before any court in Malaysia and the court’s judgment,
sentence or finding shall be absolutely privileged. Any fair and bona fide comment
thereon shall be protected although such judgment, sentence or finding be
subsequently reversed, quashed or varied. However if at the time of publication the
defendant knew or ought to have known of such, the privilege does not apply. The
section does not authorize the publication of any blasphemous, seditious or indecent
matter or any matter that the law prohibits its publication.
• When harmful words that are uttered by the defendant about the Pf’s reputation are
not actionable, as the publication of these words are protected by absolute privilege
• On certain occasions this protection is necessary to cater for efficiency
• Eg: Words can be uttered without apprehension of law suit, like in Parliamentary
debates, judicial proceeding
 cases
• Times Publishing v Sivadas
• Held : Absolute Priv for proceedings in
Parliament covers written opinions by the
public, made as a response to the issues
that are publicly made known. – Even if
the statements are malicious
• Meant for forums in which there can be no
fear or favour
 Absolute Privilege - statutory
• S. 11 DA
• Wong Chan Mew v. Hong Leong Finance Bhd
• The appellant claimed that he had suffered considerable damage to
his credit and reputation in his profession as a public accountant
when the respondent named him as a defendant in an originating
summons and published notice of substituted service of the
originating summons in the newspaper. The appellant submitted that
S11 does not apply since it referred to the report on the court
proceedings whilst this case referred to the notice on the court
action.
• Held: Notice of a substituted service of originating summons IS A
‘REPORT’ of judicial proceedings
 4. Qualified Privilege
- common law
• The defence of Common law Q. P. protects the maker of defamatory
statements on an occasion of privilege if he had acted honestly
without malice.
• BOP on defendant to prove that the words said on an occasion of
Privilege.
• If there is malice – defence will fail
• A privileged occasion is only when the Df is entitled to say
something which a person not within privilege is not entitled to say
• In common law there are few occassions of privilege, but this is not
exhaustive
1. Statements made between parties who have a mutual
interest over the subject matter of communication

DF 3rd party

PF

common interest must be reciprocal

 Surjit Kaur v Belinda Ghoi
• Appl. was cabin crew of MAS. She sued the
Resp. for libel
• Resp had written a letter on behalf of other crew
members to the VP and exec. VP of MAS
seeking Appl’s removal – they did not approve of
her supervision – fear, bad mouthed them,
backstabbed.
• Resp. relied on defence of QP
2. Statements made to fulfill a legal, moral or social duty

Legal, social and moral duty

DF 3rd party

Interest to receive communication

PF
Dato’s Seri Anwar b. Ibrahim v Dato’ Seri Dr.
Mahathir b. Mohamad

• When Pf was dismissed from his political position, he claimed that

Df had spoken maliciously and published to the national and
international journalist accusing him of homosexuality.
• Df relied on 2 defences;
• Justification – it was already public knowledge before the words
were spoken by the Df, based on true facts (info from the police)
• Qualified Privilege – As the PM, the Df was under a legal, moral and
social duty to inform the nation as to why his Deputy PM was
removed from office (nation is a wider audience – justified as the
attack on Mahathir was public)
Dr. Jenni Ibrahim v S. Pakianathan

• The defendant was removed as an executive managing director of

Pusat Pertolongan in Kampung Bercham and the plaintiff, a
psychologist, replaced him.
• The defendant wrote to the Chief Police Officer alleging
misappropriation of money at the centre by the plaintiff. He made the
same allegation in a letter to the secretary of the centre and sent
copies of the said letter to all directors of the centre, to the Director of
Welfare Services Perak and to the Registrar of Societies of Malaysia.
• The plaintiff successfully sued him for damages for libel against her.
• Held – the defendant’s plea of guilt of QP failed, as there was no
common and corresponding duty or interest between the defendant
and the several persons who received and read the libelous
statements.
Jameel v Wall Street Journal (2006) HL

• Wall street Journal UK said online they were monitoring accounts of Abdul
Lateef Jameel Group at the request of the US Government to ensure
there no terrorist link
• Pf sued claiming defamation for himself and the company
• 5 people had read it in UK
• Trial Court and COA held in favour of Pf
• HOL – in favour of Df
• Note : Df never relied on defence of Justification
• However they pleaded QP –
• HOL said that the article was clearly of public interest although the Df had
breached the agreement between US and Saudi Gov to keep the
monitoring secret.
• The gathering and reporting was responsible and fair (responsible
journalism) – Reynolds Privilege and only 5 people had read it
 Reynolds Privilege
• Reynolds v Times Newspaper (2001) HOL
• Established the the Reynolds defence or privilege,
extending the traditional common law qualified privilege
to a wider audience on a matter of public interest.
• Here the Df needs to show that publication was made
responsibly establishing a duty-interest qualified
privilege and protect responsible journalism (altho not
confined only to journalist)
• Lord Nicholls in this case set out 10 factors or steps that
are to be taken the journalist for it to be considered as
responsible journalism.
 Reynolds 10 factors for responsible
journalism
• 1. The seriousness of the allegation.
• 2. The nature of the information, a matter of public concern.
• 3. The source of information.
• 4. The steps taken to verify the information.
• 5. The status of information.
• 6. The urgency of the matter.
• 7. Whether comment was sought from the claimant.
• 8. Whether the article contained the gist of the claimant’s side
of the story.
• 9. The tone of the article.
• 10. The circumstances of the publication, including the
timing.37
• The Reynolds Privilege (RP) was first used in Anwar
Ibrahim v Mahathir Mohamad (2001) FC – FC refused
leave to appeal but agreed with COA
• Many Malaysian cases have used Reynold’s defence
following this case
• Recently endorsed by our Federal Court on Nov 16th 2015,
in the case of Dr. Syed Azman & Ors v Dato’ Seri Haji
Ahmad bin Said.
• However, the court said that RP has to be pleaded as a
separate defence and will not require the the need for the
court to consider express malice (as in the traditional
qualified privilege defence)
 Qualified Privilege-
Statutory
• S.12 Defamation Act
• ONLY MEANT FOR NEWSPAPERS AND
BROADCASTING (s 13)
• S. 12 (1) – Part I of the schedule
• S. 12 (2) – Part II of the schedule
• s. 12 (4) – common law privileges still in
use
• S. 12 (1) – if newspapers publish anything
stated in Part I , then it is qualified Priv,
except if it is proven malicious.

• S.12 (2) – If matters stated in Part II

already published and Pf asks the Df
newspaper to publish an explanation or
contradiction – if the Df does not, defence
of Q.P. will not avail to him
 5. Apology
• Not a defence
• However, in mitigation of damage, an apology has the effect of
reducing the amount of damages awarded.
• S10 of DA – provides that in an action for defamation, the defendant
may give in evidence in mitigation of damage, the fact that he made
or offered an apology to the plaintiff for such defamation before the
commencement of the action. In the event, the plaintiff commenced
an action before there was an opportunity of making or offering such
apology, the defendant must do so at the earliest opportunity
afterwards.
6. License
• Df alleges in his defence that the Pf had
given him Permission to publish the words
 Limitation
• S. 6 Limitation Act 1953
• Wong Chan Mew v. Hong Leong
• Pf brought action for defamation– 9.8.1994
• Df said limitation period expired (6 years)
- 2 dates involved
- 11.4.88 (date Hong Leong filed initial suit)
- 9.12.88 (date of substituted service in
newspaper)
 Abatement
• S. 8 (1) Civil Law Act
• Dato Seri Samy Vellu v Penerbit Sahabat
• Defamation is a personal action and dies with
the person when the person dies.
• actio personalis moritur cum persona.
[A personal action dies with the person].
• An action for the tort of defamation as purely
punitive and only later as compensatory
• Df died – defamation suit abated (others went
on)
 Remedies
• GR – an award of damages for defamation is meant to compensate
the plaintiff for the harm caused to him by defamatory words. The
law presumes that some damage will flow in the ordinary course of
events from the mere invasion of his right to his reputation.
• Damages
• Injunction
 REMEMBER !!!!
• The Prophet (peace be upon him) once asked his Companions: “Do
you know who is bankrupt?”

They replied: “The person among us who is bankrupt is the one who
possesses neither money nor provision.”

The Prophet (peace be upon him) said: “The one who is bankrupt
from among my followers is he who comes on the Day of
Resurrection with prayer, charity, and fasting to his credit. However,
he had insulted this person, struck that person, and seized the
wealth of another, on account of which his good deeds will be taken
from him. Then, if his good deeds are exhausted, the sins of those
whom he wronged will be taken from them and foisted upon him and
then he will be cast into the Fire.” [Sahîh Muslim (2581)]