Task Week 6 (Defamation) PDF

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Notes on defamation. Notes on defamation. Notes on defamation...

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DEFAMATION IN MALAYSIA

Definition 1.

Sim v Stretch [1936] 2 All ER 1237: 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.

2.

Dato’ Seri Anwar bin Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 2 MLJ 492: According to the Oxford English Dictionary, reputation means what is generally said or believed about a man’s character or standing. But reputation is different from character in that a person’s character is what he or she in fact is whereas a person’s reputation is what other people think he or she is.

Types of defamatory statement Libel: statements made in a permanent form 1.

Statues, caricatures, statements in newspapers, signs, pictures, movies, television broadcasts, statements made on the radio.

2.

Section 3 Defamation Act: For the purpose of the law of libel and slander the broadcasting of words by means of radio communication shall be treated as publication in a permanent form.

3.

Libel is actionable per se.

4.

Raub Australia Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 2 MLRA 345: If the publication is made in a permanent form or is broadcasted or is part of a theatrical performance, it is libel.

5.

Datuk Syed Kechik Syed Mohamad v Datuk Yeh Pao Tzu & Ors [1975] 1 LNS 24: The court granted the plaintiff’s 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.

6.

Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581: The court held that the plaintiff was entitled to damages because the defamatory statement contained in the film made by the defendant is libel.

7.

Dato’ Seri S Samy Vellu v Penerbitan Sahabat (M) Sdn Bhd & Ors (No 2) [2005] 5 MLJ 539: An action for libel is captured by the provision to section 8(1) of the Civil

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Law Act thereby excluding the general application of that section to the tort of defamation. A personal action dies with the person when the person dies. This was what happened to the deceased second defendant. This cause of action for libel must abate with the death of the second defendant. 8.

MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other appeals [1995] 2 MLJ 493: Libel is a tort actionable per se, i.e. without proof of actual harm. The law presumes that when a man’s reputation is assailed, some damages must result.

Slander: statements made in a temporary form 1.

Spoken words, sound tapes, records, dictations, etc.

2.

Sabapathy a/l Ramasamy v Subramaniam a/l Kandasamy [2020] 1 LNS 353: According to the first defendant since it was by way of utterance, the claim had to be in slander and as the plaintiff had pleaded libel, the claim should not have been allowed. This was because slander has to be by spoken words which was the case here.

3.

Raub Australia Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 2 MLRA 345: If the publication is in some transient form or is conveyed by spoken words or gestures, it is slander.

4.

Slander is not actionable per se except: 4.1.

If the words impute the commission of a crime. 4.1.1.

A statement made alleging that the plaintiff has committed a crime for which he may have been imprisoned.

4.1.2.

Hellwig v Mitchell: Slander is actionable per se if the words alleging that the plaintiff commits a crime.

4.1.3.

C Sivanathan v Abdullah bin Dato Haji Abdul Rahman [1984] 1 MLJ 62: Where the defendant called the plaintiff a cheat, dishonest and a liar, the court held that the plaintiff’s claim failed as the crimes, which did not attract corporal punishment was not actionable per se. A mere liability to be arrested is not considered corporal punishment. Even if the defamatory allegation imputes a crime, if the plaintiff may be arrested but is only punished with a fine or if the punishment is only a fine, the slander is still not actionable without proof of special damages.

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4.1.4.

Thiruchelvasegaram

a/l

Manickavasegar

v

Mahadevi

a/p

Nadchatiram [200] 5 MLJ 465: Since the slander in this case involves the plaintiff in his profession and imputes him to a crime punishable with a term of imprisonment, there is no necessity for the plaintiff to tender proof of special damages. 4.1.5.

Henry Ong Keng Sem v Patrick Ong King Kok [2008] 4 CLJ 276: A slander imputing that a person committed a crime of a nature that exposes him to corporal punishment is one of the exceptions. The law considers such slander so outrageously injurious that damage is to be presumed. The alleged slander here (attempted murder) fell under this category of slander actionable per se, that is to say, not requiring proof of special damage.

4.2.

If the words impute a contagious disease suffered. 4.2.1.

A statement made alleging that the plaintiff is currently suffering from a contagious or infectious disease.

4.3.

Imputation of unchastity or adultery of woman 4.3.1.

Section 4 Defamation Act: Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable.

4.3.2.

Luk Kai Lam v Sim Ai Leng [1978] 1 MLJ 214: The court found the words used by respondent against appellant were slanderous and plainly defamatory in that they imputed adultery or unchastity.

4.3.3.

Ummi Hafilda Ali v Ketua Setiausaha Parti Islam Se Malaysia (PAS) & Ors [2006] 3 MLJ 252: The plaintiff has lost the possibilities of marriage due to the defamatory statements made about her. Also, her friendships and reputation as a businesswoman was affected by derogatory remarks made by the public against her. Section 4 of DA was applicable.

4.3.4.

Dominica Toyat Dominic v Peter Wee Teck Ho [2008] 5 CLJ 679: The alleged words “bekas aku ia you” told to third parties could not by any imagination be imputed to mean unchastity or adultery. In this time and era, the words “ex-girlfriend” or “ex-wife” are commonly used and

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no reasonable man will take it to mean that the woman is of bad character. 4.4.

If the words are calculated to disparage (lower) the plaintiff’s profession or business reputation 4.4.1.

Section 5 Defamation Act: In an action for slander in respect 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, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

4.4.2.

Ismail Shamsudin v Abdul Aziz Abdan [2007] 8 CLJ 65: The effect of the words uttered and published by the defendants, those words had disparaged the plaintiff and imputed that the plaintiff was (i) disloyal to the Undang; (ii) abusing his position as Dato’ Sedia Lela; (iii) guilty of fraud and cheating, in addition to a vile and despicable act, i.e. a betrayal of his own friends and kinsmen and (iv) seeking to overthrow the Undang. The defendants’ utterances disparaging the plaintiff who at the material time held the office of Dato’ Sedia Lela of Rembau constituted slander which was actionable per se under section 5 of DA. Hence, it was not necessary for the plaintiff to allege or prove special damage.

4.4.3.

Perdana Parkcity Sdn Bhd v Lee Hon Kit [2013] 7 CLJ 756: The words “Flood, developer no pay!” uttered by the defendant both in their natural and ordinary meaning and by way of innuendo were clearly defamatory of the plaintiff and were published to third parties at the ceremony organised by the plaintiff for its business partners.

The parties 1.

Only living persons can bring an action in defamation.

2.

A dead person cannot bring an action in defamation no matter how provocative the statement may be.

3.

Derbyshire County Council v Times Newspaper Ltd & Ors [1993] AC 534: Local authorities and other government bodies could not sue for defamation.

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4.

Lembaga Kemajuan Tanah Persekutuan & Anor v Dr Tan Kee Kwong [2012] 4 MLJ 622: Under Malaysian law, statutory bodies are entities which are independent of the government. Both section 64 and 65 of Land Development Act do not make the first plaintiff a public authority. Neither could it be said to be a local authority as defined under section 2 of Local Government Act. The plaintiffs were given the right to sue and be sued by the Act and it was not for the courts to restrict that right.

5.

Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 1) [2013] 7 MLJ 52: The first plaintiff, which is a state government is a public authority. As such, it does not have a personal reputation to protect. Neither does it have a governing reputation, as in the case of a corporation or statutory body/authority, to protect. It is therefore not in the interest of the public that the state government be allowed to institute or maintain any action for libel or slander against any person.

6.

Utusan Melayu (M) Bhd v Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob [2016] 5 MLJ 56: When read as a whole, the article revolved around one person, namely, the respondent, being the Menteri Besar of Pahang, not Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob as a person or in his personal capacity. The article certainly did not impute an improper, unlawful or immoral conduct nor malign the respondent personally which entitled the respondent to sue.

Elements 1.

The statement made must contain a defamatory meaning 1.1.

Test: a statement is defamatory if it lowers the plaintiff’s reputation in the minds of right-thinking members of society.

1.2.

Byrne v Deane [1937] 1 KB 818: The Court of Appeal reversed the trial judge’s decision. It held that the words of the verse could not constitute defamation. Merely alleging that someone started a proper procedure for preventing/suppressing crime (here, illegal gambling) could not prima facie be defamatory.

1.3.

Liew Poon Siak v Low Hing King & Ors [2010] 7 MLJ 731: For the plaintiff to succeed, the following had to be established: (i) did the words refer to the plaintiff; (ii) were the words complained of defamatory; and (iii) was the defendant responsible for the publication.

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1.4.

Lau Yeong Nan v Life Publisher Berhad & Ors [2004] 7 MLJ 7: The court had to first arrive at a conclusion that the words complained of were defamatory. After that pronouncement, the law would then presume that they were false, whereupon the onus would shift to the defendant to prove justification, namely that those words were true.

1.5.

Words may be defamatory in two ways: 1.5.1.

By its natural and ordinary meaning 1.5.1.1.

The statement made contains a literal meaning.

1.5.1.2.

The meaning that the words would convey to ordinary reasonable persons.

1.5.1.3.

Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75: The court found the defendant liable for calling the plaintiff “Abu Jahal” as the statement was defamatory in its natural and ordinary meaning.

1.5.1.4.

Keluarga Communication Sdn Bhd v Normala Samsudin & Another Appeal [2006] 2 CLJ 46: The test to be applied when considering whether a statement is defamatory of a plaintiff is an objective one in which it must be given a meaning a reasonable man would understand and for that purpose, that is, in considering whether the words complained of contained any defamatory imputations, it is necessary to consider the whole article.

1.5.1.5.

Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331: The Court of Appeal held, affirming the lower court’s decision, that the publication in question was capable of constituting defamation. It found that the jury was right to find that the publication made the reasonably minded person believe that the claimant’s moral character was questionable.

1.5.1.6.

The Institute of Commercial Management United Kingdom v The New Straits Times Press (Malaysia) Bhd [1993] 2 CLJ 365: The imputations set out in the offending article can only be regarded as having a strong tendency to lower the plaintiffs in the estimation of right thinking members of society

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generally. The inevitable conclusion which any ordinary reasonable reader of the article could arrive at was that the article was defamatory of the plaintiffs. 1.5.1.7.

Liew Poon Siak v Low Hing King & Ors [2010] 7 MLJ 731: The test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true.

1.5.1.8.

Sivabalan a/l P Asapathy v The New Straits Times Press (M) Bhd [2010] 9 MLJ 320: The words complained of as contained in the offending news report, were not defamatory of the plaintiff because the said words were set out merely as allegations. Readers of the news report will not form the view that the plaintiff was guilty, purely on the basis that he had been detained for police investigations.

1.5.1.9.

Datuk Seri Anwar bin Ibrahim v Wan Muhammad Azri bin Wan Deris [2014] 9 MLJ 605: The statements had exposed the plaintiff to hatred, ridicule or contempt in the mind of a reasonable reade and would tend to lower the plaintiff in the estimation of right thinking society generally. It also attacked the moral character of the plaintiff. Hence, the statements were defamatory of the plaintiff.

1.5.1.10.

Chew Peng Cheng v Anthony Teo Tiao Gin [2008] 5 MLJ 577: The words complained of did not expose the plaintiff to hatred, ridicule or contempt in the mind of a reasonable man in this time and era, or would tend to lower the plaintiff in the estimation of right thinking members of society. Therefore, the words complained of could not be construed as defamatory.

1.5.1.11.

Tan Sri Harris bin Mohd Salleh v Dr Shaari Isa & Ors [2019] 7 MLJ 77: Any allegation to the effect that a holder of a public office had defied the written law deliberately to victimise someone out of hatred or jealousy was clearly defamatory.

1.5.1.12.

Lau Yeong Nan v Life Publisher Berhad & Ors [2004] 7 MLJ 7: The article was capable of being defamatory. Any reader in

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the court selected group, after reading the article would naturally arrive at an opinion that not only was the plaintiff an untalented and unsuccessful signer who thrived on sympathy from recording companies but was also a liar, a homosexual, a sexually perverted person, a sodomised victim, someone no parent would want his or her child to emulate and someone who breached all rules of decency. 1.5.1.13.

Sandison v Malayan Times Ltd & Ors (1964) 30 MLJ 332: The headlines and the article were defamatory in their ordinary and natural meaning and the plaintiff was clearly pin-pointed in the article so as to be instantly recognisable by all those readers of the newspaper who happened to know him.

1.5.1.14.

Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393: The test whether the words complained of in the article were capable of being, and were in fact, defamatory of the plaintiff was, whether such words were calculated to expose him to hatred, ridicule or contempt in the mind of a reasonable man or would tend to lower him in the estimation of right-thinking members of society generally. The words complained of in the article were capable of being, and were in fact, defamatory of the plaintiff.

1.5.2.

By innuendo 1.5.2.1.

The statement becomes defamatory through inferences, special facts or circumstances known by the reader.

1.5.2.2.

Words with a special, hidden or inner meaning only known to certain people.

1.5.2.3.

Tolley v Fry & Sons Ltd [1931] AC 333: The House of Lords held that the defendant liable as those who knew the plaintiff’s 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.

1.5.2.4.

Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56: The plaintiff alleged that the

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words complained of were capable of the following false innuendoes, namely that the plaintiff was dishonest, disloyal to the government, a subversive element, an irresponsible political, an ungrateful person, a supporter of President Sukarno and an instigator of unrest in the country. The court held that in the circumstances of this case, the words complained of when considered in the context of the news report were defamatory of the plaintiff. 1.5.2.5.

Eagle One Investment Ltd & Ors v Asia Pacific Higher Learning Sdn Bhd [2020] 3 CLJ 218: Under the circumstances in which the article was published, it is most likely that a reasonable man would understand the article in a defamatory way. As pointed out by the learned trial judge, the article was riddled with unverified facts, falsity, inaccuracies, false statements and so forth, designed to draw an unfavourable impression of the plaintiff and lower the plaintiff in the estimation of right-thinking members of society generally.

2.

The statement made must have referred to the plaintiff 2.1.

Test: whether an ordinary reader would reasonably come to the conclusion, based on the statement as a whole that it referred to the plaintiff.

2.2.

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.

2.3.

It does not matter if the defendant had no knowledge of the plaintiff’s existence.

2.4.

Morgan v Odham Press [1971] 1 WLR 1239: The House of Lords held that the article would be defamatory if it contained defamatory imputations and pointed to the claimant as the person to be defamed. The Lords were of the view that in the present case the article complied with these requirements and was thus defamatory.

2.5.

Newstead v London Express Newspaper Ltd [1940] 1 KB 377: The Court of Appeal noted that it is established law that liability for libel does not depend

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on the intention of the defamer; but on the fact of the defamation. It was held tha...