Communication Law - Defamation Act 1957 PDF

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The assignment focuses its discussion on the Defamation Act 1957. The subjects for the discussions are principal forms of defamation, analysis of these principal forms of defamation, and elements required in establishing the elements of defamation. ...

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TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION................................................................................................2 1.1 Introduction on Defamation Act 1957..............................................................................2 CHAPTER 2: DISCUSSION AND ANALYSIS..........................................................................3 2.1 Principal Forms of Defamation.........................................................................................3 2.1.1 Libel...........................................................................................................................3 2.1.2 Slander.......................................................................................................................4 2.2

Analysis on the two principal forms of defamation..........................................................5

2.3 Elements in establishing libel or slander...........................................................................7 2.3.1 The statement must be defamatory in nature.............................................................7 2.3.2 Publication of the statement to a third party.............................................................9 2.3.3 The publisher is negligent in publishing the statement...........................................10 2.3.4 Proving special damages suffered...........................................................................11 CHAPTER 3: CONCLUSION...................................................................................................13 CHAPTER 4: REFERENCES....................................................................................................14

CHAPTER 1: INTRODUCTION 1.1

Introduction on Defamation Act 1957

Media plays an important role as the primary channel of democratic communication that allows for freedom of expression and speech in a country. However, unprofessional media practices such may bring potential harm to individuals, organization, and societies at large. The Defamation Act 1957 was enacted in order to protect the interest of the public at large from any harmful effect that may be caused by the unprofessional media practices conducted by irresponsible media practitioners in Malaysia. Defamation Act 1957 refers to the legislation regulating the defamatory act conducted under the civil offences in Malaysia. The Act was enacted to act as a legal mechanism in compensating a person for any injury or damage suffered on his or her reputation as a result of a defamatory statement or action made by another person. The English common law principles were used as the primary basis in enacting the Malaysia’s Defamation Act 1957 with English Defamation Act 1952 was used as the main reference in drafting the legislation. There is no specific definition of defamation provided under the Defamation Act 1957 but this definition can be obtained from the common law perspective that defined defamation as “any publication of a false statement relating to a person’s reputation that resulted to the person being subjected to such false statement being shunned or avoided by the members of the society” (Carry, 1996). Under the common law principles, there are two principal forms of defamation namely libel and slander. According to Talib (2010), libel is considered as both a tort and a crime meanwhile slander is only considered as a tort but does not constitute a crime under the England common law principles relating to defamation. However in Malaysia, both libel and slander are considered as torts and crimes under the provisions of the Defamation Act 1957 and the Penal Code. The Defamation Act 1957 is considered as the biggest obstacle curbing the media freedom in Malaysia. The Act is considered as the primary regulation regulating the communication and publication sector in Malaysia making it necessary to be understood by all parties working in that sector. It is therefore important for communicators such as reporters and

editors especially to be aware of what constitutes a tort of defamation under the Act as well as the differences between the two forms of defamation (Carey, 1996).

CHAPTER 2: DISCUSSION AND ANALYSIS 2.1

Principal Forms of Defamation

As mentioned earlier, England common law principles identify two principal forms of defamation namely libel and slander. The differences between these two forms of defamation must be clearly established and understood in order to better understand the tort of defamation. The subsequent part of this report will elaborate in details on various aspects distinguishing libel and slander as provided under the Defamation Act 1957 2.1.1 Libel The first principal form of defamation as provided under the Act is libel. There is no definite meaning of libel provided under the Defamation Act 1957. However, the interpretation of the act constituting a libel can be found under the England common law principles. Talib (2010) elaborated that any defamatory statement or act made or conducted against a person in a permanent form or nature that is usually visible to the eyes such as defamatory statements in writings constitute a libel under the common law perspectives. Furthermore, under the Defamation Act 1957, Section 3 of the Act provides that any broadcasting of words by means of radio communication shall be treated as publication in a permanent nature and thus constitute a libel if it is found as defamatory. According to Talib (2010), in Malaysia, a libel constitutes both a tort of defamation and a crime allowing both civil and criminal suits to be filed to the court. Civil suit can be filed against any libel made towards a person through the provision of the Defamation Act 1957 while criminal suit on the other hand may be filed in a court of law under the provision of Section 499 to Section 502 of the Penal Code. Since the discussion of this report focus mainly on the context of defamation as provided under the Defamation Act 1957, only the civil suit perspective of a libel will be discussed in details. Under the common law principles, a civil suit filed to a court for any libel is actionable per se which means that the plaintiff filing the case is not required by the court to prove any

damages suffered as a result of the defamatory statements published or broadcasted. This principle is drawn based on the fact that the law presumes that damage of some extend must exists when a person’s reputation is affected or injured due to the libel and thus, no further evidence or proof must be presented to the court in regards to the injuries or loss suffered as a result of the defamatory statement made in the event where libel managed to be established by the plaintiff (Ahangar, 2007). 2.1.2 Slander Slander which refers to the defamation that is done orally or verbally or in any other method that is not permanent in nature, is the second principal form of defamation. In other words, slander refers to the defamatory words published in a transitory or temporary form. However, as elaborated above, Section 3 of the Defamation Act 1957 provides that any broadcasting words that are found defamatory in nature is considered as libel and not slander although it is done orally. Talib (2010) elaborated that under the England common law perspective, a slander is considered as only a tort of defamation and not a crime. However, in Malaysia, slander is considered as both a tort of defamation as well as a crime under the provision of the Defamation Act 1957 and the Penal Code respectively. Therefore, any act of slander done towards a person may be filed against a court of law under both the civil and criminal suits. However, unlike libel that is deemed as actionable per se, slander is only actionable in court when the plaintiff managed to prove the damage suffered by him or her as a result of the slander such as loss of job or career. In simpler words, action on slander can only be sought if there is an actual damage suffered by the plaintiff (Ahangar, 2007). This is in contrast with libel in which damage is presumed to exist by the law when the elements of libel are successfully established (Singh, 2011). There is, however, a few exceptions to this principle as provided under the Defamation Act 1957. The first exception is in relation to slander to women as provided under Section 4 of the Act that does not require the plaintiff to establish any special damage incurred as a result of any words spoken or published which impute the unchastity or adultery to any woman or girl to render the slander actionable. The second exception is provided under Section 5 of the Act, whereby the section does not impose any requirement upon the plaintiff to establish the actual damage suffered as a result of the slander in respect of any oral or verbal

words said to disparage the plaintiff in any profession, calling, office, or trade or business held or carried on by him at the time of publication.

2.2

Analysis on the two principal forms of defamation

Defamation, as elaborated throughout this report involves the communication of statements that are defamatory in nature to a third party. As according to Williams and Skinner (2008), in establishing whether the tort of defamation exists or not, the court does not place any restriction on the method use in communicating the defamatory statements. This thus means that defamation may exists if a person is defamed by any mode of communication, either through spoken words, written statements, gestures, videos, photographs, music, or any other means of communication. However, the method of communication use in communicating the defamatory statements to a third party will be taken into consideration by the court when it tries to ascertain on which form of defamation does the statement belongs to between the two principal forms of defamation available namely libel and slander. As with many other areas of the law, there is no definite black and white that can be used in order to ascertain whether a defamatory statement is considered as tort of libel or tort of slander. However, as mentioned in the preceding part of this report, there are a few guidelines provided based on the judicial precedence of the England common law principles in differentiating whether the defamatory statement is a libel or slander. The main criteria differentiating these two principal forms of defamation is whether the statement communicated is of permanent or temporary nature. If the defamatory statement exists in a permanent form such as books, newspaper articles, and other written records, it constitutes a libel. Whereas, defamatory statement that exists in a temporary form that can only be heard such as spoken words constitute a slander. However, no clear guidelines are given in determining whether a defamatory statement communicated in a permanent form but can only be heard such as audio recording in a CD constitutes a libel or slander. The Defamation Act 1957 however has clearly defined broadcasting of words by way of radio communication to be considered as communication of permanent nature under the provision of Section 3 of the Act. Based on the judicial precedence established in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, the court has emphasized on the importance of permanency in

determining whether the defamatory statement is a libel or slander. In that case, the Court of Appeal was required to determine whether it is a libel or a slander if the defamatory statement or material is communicated by means of a film. Slesser LJ later stated in regards to the case that no doubt can be raised in regards to the photographic part of the film that it is of a permanent nature that can be seen by the eyes and thus is a proper subject of an action for libel if the material is found defamatory. He also further elaborated that the speech accompanying the photographic part of the film can also be considered as of a permanent nature as it formed part of the surroundings explaining that which is to be seen. From the case, we can thus conclude that the nature within which the defamatory statements are communicated to third party plays an important role in distinguishing between a libel and a slander. It is important to appropriately determine whether a defamatory statement is a libel or a slander in order to determine whether the plaintiff will be imposed with the burden of proving damages suffered or not in pursuing an action for the defamation. A case of libel as mentioned earlier is actionable per se which does not impose any burden on the plaintiff to prove the injury or damage suffered by the plaintiff as a result of the defamatory statement. This means that, the plaintiff is only required by the common law principles to establish the existence of libel for an action to be pursued in the court. The above principle was reflected in the judgement of the Court of Appeal in the case of MGG Pillai v Vincent Tan (1995) 2 AMR 1776 whereby the appellants made an appeal to the Court of Appeal in order to dismiss the judgement made by the High Court judge that found appellants to be liable of libel against the respondent in respect of a series of articles published by the appellants in a magazine called Malaysian Industry. One of the arguments presented by the appellants to dismiss the judgement made by the High Court judge was that the damages claimed by the respondent in his action had not been proved during the trial. Gopal Sri Ram JCA, in dismissing the appeals, stated that libel is a tort that is actionable per se where no proof of actual harm or damage is needed to be established. The law presumes that when a man’s reputation is assailed, some damage must result. Although the claim of special damages is required to be specifically proved, but claim for general damage by the respondent need not be proved before the court. The judge further held that the venom of the defamatory words used by the appellants in their articles to attack the respondent coupled with the influential status that the

respondent has within the society were sufficient evidence of the extend of harm suffered by the respondents as result of the appellants’ actions.

In the event where the defamatory words is a form of slander and not a libel, the burden to prove damage to the court lies on the shoulder of the plaintiff in order for the action on slander can be pursued. However, unlike libel that is easier to be established since there is a specific and permanent record of the defamatory statements or materials that can be submitted to the court as an evidence in establishing libel, slander is harder to prove and establish considering the transitory nature of the defamatory materials. One of the example of cases involving defamation in the form of slander is the case between the former Perak Menteri Besar, According to Loh (2015) in his article, Datuk Seri Mohammad Nizar Jamaluddin was charged for defamation in the form of slander by Malaysia Prime Minister, Datuk Seri Najib Razak. Datuk Seri Nizar was charged for defaming Datuk Seri Najib during a public speech given by him at Taman Desa Pakatan in Ipoh. He however was later acquitted and discharged from the defamation suit after a public apology was issued by him to the Prime Minister in regards to the baseless remarks uttered by him against Datuk Seri Najib during his speech. The defamatory speech given by Datuk Seri Nizar is an example of slander as against the Prime Minister of Malaysia as the defamatory statements were made orally and no permanent record of the statements were available. Since the method of communication of the defamatory statements was transitory in nature, therefore the defamation is considered as a form of slander and not a libel. 2.3

Elements in establishing libel or slander

In order for a defamation case to be pursued in a court of law, libel or slander must be established. There are four elements that must first be established by the prosecution in order for a statement to be deemed as either a libel or a slander. These four elements thus must exists in a given defamation case in order for the plaintiff to claim any damages or compensation against the defendant. 2.3.1 The statement must be defamatory in nature The essential element in any defamation suit pursued by a plaintiff is that the plaintiff must be able to prove that a defamatory or false statement is made against the plaintiff by the defendant. In any defamation suit, the plaintiff must be able to prove to the court that the defendant has

published a defamatory statement regarding the plaintiff in any article, news, letter, or any other method used in communicating such defamatory statement to a third party. Talib (2010) elaborated that on the part of the plaintiff, it would be sufficed to note that the plaintiff is only required to prove that the statement or action that formed the subject matter of his action is indeed defamatory in nature. As a general rule that can be seen to have been applied in the case of SB Palmer v AS Rajah & Ors (1949) MLJ 6, this element can be established if it tends to harm the reputation of the plaintiff in the society. It is also important to note that a statement may be defamatory in any one of the two ways namely in its original and natural meaning or by way of innuendeo (Rogers, 2010). A statement is considered as defamatory in its original and natural meaning if its falsely accused and defamed another person directly such as by falsely informing a third party that a certain person is a convicted criminal. Statement that is defamatory by way of innuendo on the other hand refers to a statement containing ordinary words that would have a special meaning to a person with a special knowledge. The statement would not be defamatory to most people in its ordinary and natural meaning but it could be defamatory to a certain person who may have a certain additional knowledge about the individual subjected to such statement and resulted to the reputation of the individual being harmed. It is however proven to be difficult for a judge to establish whether defamatory element exists in a certain statement or action. Awad (1999) argues that since there is no definite list of criteria that can be used as a guideline in determining whether a statement is defamatory in nature or not, the court has long struggled in determining the accepted standard or benchmark that can be used for deciding whether defamatory element exists in a statement or not. A statement may be viewed as defamatory by a minority of individuals but not to the majority others. Due to this, the court usually determines whether a defamatory element exists or not in a given statement by determining on whether the plaintiff has been defamed in the eyes of the community or society at large or not. This thus requires the plaintiff to prove that the defendant has defamed him in the eyes of the community or society at large or within a defined group of people (Hussain, 2009). Besides the struggle in determining whether defamatory element exists in a certain statement or not, the court is also struggling in determining the most accurate treatment to be used in dealing with statements of opinion. Some statements that are deemed as defamatory by

the plaintiff may be mere statements of opinion made by the defendant and the court thus must determine whether such statement is defamatory in nature or not. According to Williams and Skinner (2003), the common law principles provide that any statement of opinion made can be used as the basis in defamation action pursued by a plaintiff similar to that of a statement of pure fact. Based on this principle, the court will usually consider a statement to be defamatory in nature if it implies defamatory facts that act as the underlying basis of the statement of opinion made by the defendant. 2.3.2 Publication of the statement to a third party The second element that must be established in order to pursue a libel or slander action is that the defamatory statement must be published to a third party. According to Williams and Skinner (2003), publication can be...