The law presumes that a person is of good character, unless proven otherwise. If a statement about a person is defamatory and affects the reputation of that person in the eyes of the public, that person may have a claim for defamation against the maker of that defamatory statement.

The governing legislation for defamation in Malaysia is the Defamation Act 1957 ("Defamation Act"). The Defamation Act only applies to civil claims. The Malaysian law on criminal defamation is governed by the Penal Code (particularly, section 499) and will not be the focus of this article.

This article will provide a brief overview of the meaning of defamation, the elements required to bring a defamation action, defences, and the limitation period to bring a defamation claim in West Malaysia.

What is Defamation?

The Defamation Act does not define the word "defamation". Instead, the definition of "defamation" is to be found in Malaysian case law and the English common law. By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April 1956 in relation to defamation is applicable in Malaysia.

At common law, there are two types of defamation:

  1. Libel – defamation in permanent form e.g. written words in articles, newspapers, Facebook posts or Whatsapp messages;
  2. Slander – defamation in temporary form e.g. spoken words.

Statement Must Be Defamatory

For both libel and slander, a defamatory statement is required.

A defamatory statement is a statement that:

  • Tends to lower a person in the estimation of right thinking members of society generally;
  • Causes a person to be shunned or avoided or to expose him to hatred, contempt or ridicule; or
  • Conveys an imputation on a person disparaging or injurious to his office, profession, calling, trade or business.

There are two methods of interpreting the words in an allegedly defamatory statement:

  • By their natural and ordinary meaning; or
  • By innuendo.

Natural and Ordinary Meaning

The natural and ordinary meaning of words may be: 1

  • The literal meaning of the words;
  • An implied or inferred or an indirect meaning;
  • Any meaning based on general knowledge.

Innuendo

Innuendo is used to describe words which have special meaning only to persons who have knowledge of some special background or facts.

For example, the statement that "Kenny recently purchased a luxurious bungalow worth RM10 million" may not be defamatory under its natural and ordinary meaning. Without knowing more about Kenny, it can be taken to mean that Kenny is a wealthy man who recently made another property investment.

However, for those who know that Kenny is employed as a civil servant, the statement can be understood to mean that Kenny may be engaging in corrupt activities. This is because it is usually difficult for a civil servant to be able to afford such a lavish home.

Libel and Slander

Libel

In an action for libel, the following elements need to be satisfied:

  • There is a defamatory statement made or conveyed by written or printed words or in some other permanent form;
  • The defamatory statement concerns the plaintiff; and
  • The defamatory statement is published to a person other than the plaintiff

Example:

You are a member of your neighbourhood committee. You receive a message through Whatsapp accusing you of being a troublemaker and a dishonest person, and that Whatsapp group includes many of your neighbours.

Slander

For an action in slander, the following elements need to be satisfied:

  • There is a defamatory statement made or conveyed by spoken words, sounds or in some other non-permanent form;
  • The defamatory statement concerns the plaintiff;
  • The defamatory statement is published to a person other than the plaintiff.

Example:

In an event attended by many of your colleagues, someone loudly exclaims that you are a lazy and incompetent worker. This person also said that you are only in your current position due to certain "favours" provided to your superiors.

Additionally, for slander to be actionable, generally a person is required to prove that he/she suffered actual damage or special damage. A person will have to show that he/she suffered pecuniary loss or loss that is capable of being estimated in money directly due to the slanderous remarks made against him/her.

Nevertheless, the Defamation Act provides that certain slanders are actionable without proof of special damage suffered:

  • Slander of woman (words that impute unchastity or adultery to any woman or girl);
  • Slander affecting official, professional or business reputation;
  • Slander of title or goods; and
  • Slander which imputes a criminal offence punishable by imprisonment or corporal punishment.

Sufficient Reference to the Plaintiff

To succeed in an action for defamation, the Plaintiff has to prove that the alleged defamatory statement refers to the Plaintiff.

There are two questions that have to be answered on the issue of reference to the Plaintiff: 2

  1. Whether the defamatory words can be regarded as being capable of referring to the plaintiff; and
  2. Whether reasonable persons who know the plaintiff would conclude that the defamatory words refer to him or her.

Case Example 1:

B (company running a private hospital) and C (doctor in the private hospital) sued X and Y for defamatory statements published in a newspaper regarding the quality of medical treatment provided by B and C. However, the article in the newspaper only made reference to a "doctor" or "doctor in charge". Further, the article only mentioned that the private hospital was in Kedah without specifying the name of the hospital. The High Court held that this was insufficient to prove that the article referred to B and C.

Case Example 2:

P and D are neighbours. P sued D for putting a notice up at the front wall of D's house which stated, among others, that D's neighbours have been stealing his mail. As D's house was located at a corner of the housing area and P was D's only immediate neighbour, the Court held that the notice with the words: "jiran mencuri surat-surat kami" sufficiently referred to P.

Defences

Once the elements for libel or slander are satisfied, the following are common defences that may be raised:

  • Justification
  • Absolute privilege
  • Qualified privilege
  • Reynold's Privilege
  • Fair Comment

Justification

To rely on this defence, a person has to show that the defamatory words are true or substantially true.

Example:

B publishes a defamatory statement about C having an extramarital affair. B will be successful in raising the defence of justification if B can prove that C did indeed engage in adultery.

Case Example:

D published a defamatory statement that he received information from a businesswoman that P had sought and obtained bribes from her. D did not succeed on his defence of justification as D failed to prove that P had sought and obtained bribes from the businesswomen.

A person's honest belief in the truth of the defamatory words is no defence if the defamatory words turn out to be untrue.

Example:

B publishes a statement about C having an extramarital affair, honestly believing it to be true. B will not be successful in raising the defence of justification unless B can prove that C did indeed engage in adultery.

Defamatory words published by repeating a rumour cannot be justified by proving that there was such a rumour.

Example:

B publishes a statement about C having an extramarital affair after hearing a rumour about it. B will not be successful in raising the defence of justification if B can only prove that there was such a rumour.

Absolute Privilege

The common situations that the defence of absolute privilege may be raised are for defamatory words published in:

  • Judicial proceedings;
  • Parliamentary proceedings;
  • Police Reports (First Information Reports under Section 107 of the Criminal Procedure Code); and
  • Statements given to police under Section 112 of the Criminal Procedure Code.

The defence of absolute privilege can still succeed even if the statement was made with malice by the defamer.

Qualified Privilege

The defence of qualified privilege is available where the defamatory words were:

  • Published by a person who has an interest or a duty, legal, social, or moral, to publish the words to the person(s) to whom they were published; and
  • The person(s) to whom the words were published had a corresponding interest or duty to receive them. 3

However, this defence will fail if the defamatory words were published with malice.

Case Example 1:

B (subordinate) authors a letter of complaint regarding the poor or unlawful conduct of C (supervisor) and delivers the letter to C's superiors in the company and the president of the union of employees in the company. The letter contains statements that potentially defame C.

B's letter of complaint to C's superiors is likely to be protected by the defence of qualified privilege if the letter was published without malice as:

  • B had an interest or duty to report the poor or unlawful conduct of C to C's superiors and the president of the union of employees in the company;
  • C's superiors and the president of the union had a corresponding interest or duty to receive the report to ensure C's conduct does not affect the company's interests or the employees' welfare.

Case Example 2:

B wrote and published a letter to the Advocates & Solicitors Disciplinary Board containing allegations that C (advocate & solicitor) intentionally deceived the Court and is unfit to practice as an advocate and solicitor.

B's letter to the Advocates and Solicitors Disciplinary Board ("DB") is likely to be protected by the defence of qualified privilege if the letter was published without malice as:

  • B had an interest or duty to report the complaints against the professional conduct of C to the DB for the DB to investigate the complaint under the Legal Profession Act 1976;
  • The DB had a corresponding interest or legal duty as mandated by the law to receive the complaints.

Reynold's Privilege

There are two (2) elements which have to be satisfied for a defendant to succeed in raising the defence of Reynold's Privilege: 4

  • The defendant will first have to establish that the defamatory words were uttered on a matter of public interest and the public had a corresponding interest in receiving the same;
  • Once that was established, the court must consider whether the defendant acted reasonably in publishing the defamatory words (more conveniently known as the 'responsible journalism test', although the Reynold's Privilege defence is not limited to journalists).

Some factors which can be taken into account in determining whether the defendant exercised 'responsible journalism' are: 5

  • The seriousness of the allegation;
  • The nature of the information, and the extent to which the subject matter is a matter of public concern
  • The source of the information;
  • The steps taken to verify the information;
  • The status of the information (the allegation may be already the subject of an investigation);
  • The urgency of the matter;
  • Whether comment was sought from the plaintiff;
  • Whether the article contained the gist of the plaintiff's side of the story;
  • The tone of the article; and
  • The circumstances of the publication, including the timing.

Fair Comment

For the defence of fair comment to succeed, the following elements will have to be satisfied by the defendant: 6

  • The defamatory words must be comments as opposed to statements of fact;
  • The comments must be based on facts proven to be true;
  • The comments must be fair; and
  • The comments must be on a matter of public interest.

A fair comment may be defined as a comment which a fair-minded man holding strong views, obstinate views or prejudiced views could have honestly made based on the facts proved. 7

However, this defence will fail if the defamatory words were published with malice.

Case Example:

B, a court reporter, published a newspaper article reporting proceedings of a trial. The article contained a few statements which C, an advocate and solicitor, claimed was defamatory of him.

The Court held that the words published in their natural and ordinary meaning imputed to C the following:

  • That C was a rude and inconsiderate lawyer who caused everyone present in court, including the judge, to be uncomfortable;
  • That C was non-compliant of the judge's directions; and
  • That C's impolite and non-compliant conduct caused the judge to become angry or upset so as to cause the judge to walk out of the court without warning.

However, B succeeded on the defence of fair comment on the basis that B's statements were fair comment based on B's honest and fair observations of what happened in the case.

Malice

Both defences of qualified privilege and fair comment will fail if it is proven that the defamatory words were published with malice.

Examples of situations where malice may be found to exist are:

  • Where a Plaintiff can prove that a defendant did not believe what he said was true (for the defence of qualified privilege) or did not honestly hold the opinion expressed (for the defence of fair comment);
  • Where a Defendant is proven to be indifferent to the truth of the content published, especially where there are avenues for the defendant to conduct an enquiry into the truth of the content. Case Example 1:

B, an educational institution, sued C, a newspaper for publishing an article which contained statements which were defamatory of B. The statements implied that B was a 'diploma mill'. Among the defences relied on by C was the defence of fair comment. The Court held that the defence of fair comment was defeated by malice on the part of C as C "deliberately or at least recklessly abstained from availing themselves of means of information which lay at hand when the slightest inquiry would have shown that the imputation appearing in the article complained of were groundless".

Case Example 2:

D published a defamatory statement that he received information from a businesswoman that P (a local councillor) had sought and obtained bribes from her. The information was obtained in 2012 but was not acted upon until 2013 (just before the 13th General Election) where D made the defamatory statement in two press conferences. The Court held that D could not rely on the defence of qualified privilege as D did not have a duty to issue press statements regarding the information he received from the businesswoman and the press did not have a corresponding duty to receive the information. Instead, D should have reported the alleged wrongdoing to the MACC or the police.

Further, the Court also held that D's actions were actuated by malice as D failed to inquire from P to verify the truth of the information that D received from the businesswoman when he could have done so but instead chose to publicise the information to the press to score political capital for himself and his political party ahead of the impending general elections.

Limitation Period

In West Malaysia, the limitation period to bring an action in defamation is six (6) years.

The time begins to run from the date of publication of the defamatory statement and not from the date the plaintiff first had knowledge of the defamatory statement.

Defamation today

The Defamation Act 1957 was drafted and passed at the time when print and post were the technology of the day. However, the Defamation Act has remained unchanged since its enactment despite technological advances in communication, maturing standard in journalism and evolving societal values. The common law evolves to keep up to date, for example, with the adoption of new principles such as the Reynold's privilege and the acceptance that written statements includes digital publications.

It is arguable, however, that progressive judgment and incremental changes come too slowly. Perhaps a comprehensive review of the Defamation Act is necessary with the advent of the internet and various social media platforms, which can allow the spread of defamatory statements far faster and wider than ever envisioned by the drafters of the Defamation Act.

Footnotes

1. Jones v Skelton 1963. 3 All ER 952

2. Pardeep Kumar a/l Om Parkash Sharma v Abdullah Sani bin Hashim 2009. 2 MLJ 685

3. Abdul Rahman Talib v Seenivasagam & Anor 1965. 1 MLJ 142

4. Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee 2015. 6 MLJ 187

5. Reynolds v Times Newspapers Ltd and others 2001. 2 AC 127

6. Gwee Tong Hiang v Boo Cheng Hau 2016. 2 MLJ 388

7. JB Jeyaratnam v Goh Chok Tong 1985. 1 MLJ 334

Originally published 29 November, 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.