Revision Defamation

Maaruf – gunner
Sim
Types – libel
Elements 1 – true
Elements 2 -fictional name
Element 3 – publication
Defecnes – unintetnional defamation
Lisa – gunner
sim
Types – libel
Elements 1 – true
Elements 2 – same name
Elements 3 – publication
Defences – unintetnioanl defamation
Lisa – kay choy
Sim
Types – slander
Element 1 – natural
Element 2 – the common one :David case (textbook)
Element 3 – publication (husband and wife)
Defences – justification

Format:
Issue: Whether A can be held liable for defamation?
Definition of defamation
Types of defamation
Elements of defamation (3 elements)
Put conclusion first
Then establish defences
Issue: Whether A can be held liable for defamation?
Definition of defamation
 Sim v Stretch
o In this case, defamation was defined as a false statement in oral or written form will
cause temporary or permanent injury to one’s, lowers his value in right-thinking
members of society, or making them shun or avoid such person.
o Application: Lower reputation liposuction
Types of defamation
There are two types of defamation which are libel and slander.
1. Libel
Libel was any statement in written form that is permanent or visible, such as pictures, visual
images, movies, television broadcast, and live broadcast. S.3 of the Defamation Act 1957
stated that broadcasting of words through radio communication is treated as publication in
permanent form, making it libel. Basically, if a statement is libel if it is permanent and
publicly obtainable. Libel is also actionable per se with damage does not have to be proven.
Cases:
 Datuk Syed Kechik b Syed Mohamad v Datuk Yeh Pao Tzu & Ors (USE THIS
CASE)
o In this case, a caricature was drawn in Sabah that showed a man in 1967 with
a briefcase and papers, having sign of cents at the bottom of his shoes in front
of the magic door, and another door was drawn, showing a man in 1975 with a
briefcase now full of money and with dollar signs at the bottom of his shoes.
The plaintiff claimed that this caricature implied that he used his position to
gain lots of money. The court stated that with caricature along with the words
accompanying them, it did imply that the plaintiff was a dishonest man. Thus,
it was held that the caricature was defamatory.
o Apply: It is permanent published in gossip column of ABC newspaper
 Youssoupoff v MGM
o In this case, a Russian princess, the plaintiff, claimed that a film had been
defamatory when implying that she was raped by Rasputin. The plaintiff was
entitled to damages as the defamatory statement in the film is libel.
2. Slander
Slander was defamation in form of oral, audible, or spoken words that is temporary such as
speech, sound tapes, gestures, that not only restricted to spoken words. However, slander is
not actionable per se as it requires proof and material loss of damage caused. Also, the actual
damage must be reasonably foreseeable and natural because of the words of the defendant.
Nonetheless, exception applies when there are certain circumstances where it is not necessary
to prove actual damage.
a) Imputation of a crime
This means that the words must constitute a crime that the plaintiff can be punished
corporally with, not a crime that can merely be punished by fine.
Case:
 C Sivanathan v Abdullah bin Dato’ Haji Abdul Rahman
o In this case, the plaintiff was called by defendant as dishonest and a liar. As
the words did not constitute corporal punishment and with claim was not
actionable per se. His claim failed with no proof in special or actual damage
b) Imputation of contagious disease or infectious disease
This means that the words must represent that the plaintiff suffers from such a disease at the
time of the publication. To illustrate a statement could be about the plaintiff was suffering
from HIV. However, the plaintiff can only claim at the time the publication was made and not
for past words that represent he is suffering from contagious or infectious disease.
c) Slander to women
In S.4 of the Defamation Act 1957, if the publication of words associates unchastity or
adultery to any woman or girl, it is actionable per se that requires no proof of special damage
for the action to succeed.
Case:
 Luk Kai Lam v Sim Ai Leng
o In this case, in the presence of a third party, respondent called appellant a
prostitute. The respondent further stated that appellant charged RM50 at any
one time to entertain men. Slander was established as the words affected the
appellant’s chastity, also it was actionable per se, and special damage did not
have to be proven.
d) Slander in relation to a person’s professional or business reputation
In S.5 of the Defamation Act 1957, if the words were calculated to disparage the plaintiff in
their office, profession, calling, trade, or business that they held or carried out at the time of
the publication, then the proof for plaintiff’s special damage is not needed. For instance, if A
says that B is a bad lawyer, B can use this exception if it affects his profession as a lawyer.
Case:
 JB Jeyaretham v Goh Chok Tong
o In this case, it was stated that the words must be calculated to disparage the
plaintiff in his office of profit which plaintiff receives monetary salary from.
e) Slander in relation to title, slander of goods and malicious falsehood
In S.6 of the Defamation Act 1957, it was stated that if an action for slander is related to title,
slander of goods or other malicious falsehood, it is not necessary to prove special damage (a)
if the words are calculated to cause pecuniary damage to the plaintiff and have been
published in writing or other permanent form or (b) if the words are calculated to cause
pecuniary damage to the plaintiff in relation to his office, profession, calling, trade or
business that he holds or carries on at the time of publication. Under this requirement, there is
a requirement of malice.
Cases:
 Borneo Post Sdn Bhd & Anor v Sarawak Press Sdn Bhd
o In this case, under S.6 of the Defamation Act 1957, when there is an action for
slander of goods, the plaintiff must prove that the statement had been
published maliciously.
Elements of defamation
There are three elements of defamation that all must be established to constitute defamation.
1. Defamatory meaning: Words complained of must be defamatory.
Under this element, the test that is applied is the lowering of the plaintiff’s reputation. This
means that a statement is defamatory if it lowers the plaintiff’s reputation in the minds of
right-thinking members of society.
Cases:
 Byrne v Deane
 o In this case, the plaintiff, Edward Joseph Byrne, was a member of a Golf Club.
He reported illegal activity at the club and resulting the police took away the
gambling machine. On the next day, there was a notice with phrase, “may he
burn in hell and rue the day”, placed at the initial location of the machine.
Then, plaintiff brought an action, but the court stated plaintiff’s action would
be considered heroic in the minds of reasonable people that would not lower
his reputation in any way. Thus, the element was not fulfilled.
 DP Vijandran v Karpal Singh
o In this case, under provision of the Penal Code, the plaintiff, an advocate, and
solicitor, had faced a claim of committing an offence. It was held that it was
enough for the members of the plaintiff’s fraternity, including those employed
in the judicial service to know the meaning that came with such a provision,
which is the offence of cheating.
 Lau Chee Kuan v Chow Soong Seong & Ors (USE THIS CASE)
o In this case, there was an article about the plaintiff, who was a midwife,
published in a Chinese newspaper. The article stated that she went to a large
mansion to deliver a baby and when she left, she was given money but when
she looked back, the mansion had disappeared and the money she received
turned to ashes. The plaintiff claimed that the article was defamatory as people
would think of her as a silly woman who believed in ghosts and unable to do
her job. With consideration of ridicule towards her and lowered reputation in
right-thinking members of society’s minds that regard her as a silly woman,
the article was held as defamatory.
After establishing the element, one must classify what kind of defamatory words the
statement falls into. There are three types, which are natural and ordinary meaning, innuendo,
and juxtaposition.
a) Natural and ordinary meaning
In Chok Foo Choo v The China Press Bhd, natural and ordinary meaning was defined stating
that words are considered to be defamatory if they attribute the plaintiff as dishonourable or
has a discreditable conduct or motive or lacks integrity. The test that applies is what meaning
would the words convey to ordinary and reasonable person with general knowledge.
Case:
 Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor
o In this case, it was held that by labelling a Muslim man as “Abu Jahal”, is
considered defamatory as it imputes that one as a big liar, untrustworthy and
irresponsible. Also, when one hears “Abu Jahal”, in its natural and ordinary
meaning, one immediately knows that the person labelled “Abu Jahal” is bad.

b) Innuendo
Innuendo defined as not rising from the literal meaning of the words, and the words
themselves are not defamatory, they are defamatory by virtue of either inferences or special
facts or circumstances that are known by the reader or recipient of such words. There are two
types of innuendo.
i) False innuendo
This is when the words are defamatory of the plaintiff as inferences or implications that arise
from them, and when this happens, such words are false innuendo. Even an innocent
statement can be considered defamatory, if it can be proven that the words give rise to false
innuendo when the readers read them. Often, false innuendo arises from combination of
statement and pictures.
Case:
 CS Wu v Wang Look Fung & Ors
o In this case, plaintiff’s picture containing caption of “A lawyer’s activities are
being investigated” at below was printed at newspaper. The combination of
the caption and picture gave an inference that the lawyer was being
investigated for something bad, thus false innuendo was seen.
o Apply: False inuendo – picture of women talking with surgeon, and can be
inferred as Susan B because also got statement Fit me

ii) True or legal innuendo

This will arise when there are special facts that are known to the reader or recipient of the
publication. This special knowledge held by the recipient will cause the words to be
defamatory of the plaintiff. If there is no special knowledge held by the recipient or special
facts known to them, the words will not be considered defamatory in nature. There are three
elements that must be proven for true innuendo.
Example: True innuendo – Ali bought 2 million bungalows (some person who
knows Ali is a public servant, could inferred that he involved in corruption)

Elements + Case:
 External facts exist other than the words by the defendant, and such facts must be
proven, and when they are combined with the defendant’s words, are defamatory in
nature.
 Such facts are known by one or more persons to whom the words of the defendant
have been published.
 The knowledge of such facts can cause the words to be defamatory of the plaintiff in
the eyes of reasonable men who know the special facts.
 Tolley v Fry & Sons Ltd
o In this case, the plaintiff, an amateur golfer, while the defendant was a
chocolate manufacturer. The newspaper showed an advertisement of a
caricature of the defendant’s chocolate bar sticking out of plaintiff’s trouser
pocket while he played golf. Also, with a caddy pointing towards plaintiff as
indicator that plaintiff’s performance was as good as the quality of defendant’s
chocolate. The plaintiff claimed for libel and held that innuendo occurred as
plaintiff had received payment for such advertisement and used his status as an
amateur golfer in some way. Thus, the defendant was liable, as people who
knew the status of the plaintiff will reasonably assume that the advertisement
had been paid and consented to by the plaintiff.
 c) Juxtaposition
This is when visual effects are employed. For example, placing the plaintiff’s photo in a pile
of wanted criminals would make people assume that the plaintiff is a wanted criminal as well.
It was being used more on statues, effigies.
Case:
 Monsoon v Tussauds
o In this case, the plaintiff had been accused of committing a crime in Scotland.
However, as the crime was not proven, the plaintiff was released. Then,
defendant created plaintiff’s statue and placed it with the statues of other
criminals. It was held and imputed that plaintiff was a criminal as well for this
action thus defendant was liable for defamation.

2. Words complained of must refer to the plaintiff

Under this element, the test is whether an ordinary reader would reasonably infer that the
statement referred to the plaintiff. This means if the public can infer that the statement refers
to the plaintiff, it is enough to constitute this element.
a) Two people, same name
 Newstead v London Express Newspaper
o In this case, statement of “Harold Newstead, 30 years old, Camberwell man,
was punished for bigamy.”, was published at defendant’s newspaper. But there
were two people of the same name, and the fact was only true to one of them,
and it was not true for plaintiff. It was held that the defendant was liable for
defamation as a reasonable man would infer that the statement published was
directed towards the plaintiff. Thus, although the statement was true of another
person, this cannot be counted as a defence for defamation concerning libel.
b) Fictional name
 Hulton & Co v Jones
o In this case, a fiction had been written concerning one Artemis Jones in
Peckham. However, there was indeed a real Artemis Jones in Peckham,
plaintiff, who was a lawyer. Plaintiff’s friends thought that the fictional story
concerned him. As those who knew plaintiff understood that the words were
referring to the plaintiff, although this was not intended by the author and
publisher, thus the court held that defamation was established.
c) No named person
 Sandison v Malayan Times Ltd & Ors
o In this case, an article was published concerning Rubber Industry Replanting
Board’s senior executive, who had been dismissed for corruption. Although
the article did not name the plaintiff, it had indicated a date of dismissal,
which was the same date when plaintiff stopped holding that position. Thus, it
was considered defamatory as words clearly indicated that the plaintiff had
been the dismissed corrupt executive.
o Apply: No name mention, but Fit me is referred as Susan B is Fit me instructor
d) Class defamation
The general rule when it comes to this is that unless there is specific reference to the plaintiff
or certain individuals in a particular group, the defendant will not be liable for class
defamation. A general statement cannot amount to class defamation.
 Bruce v Odhams Press Ltd
o In this case, it was stated that the plaintiff must prove that the words refer to
each or particular individuals in a class or group of persons in which he is
personally implicated.
 Eastwood v Holmes
o In this case, it was held that if a man wrote that all lawyers were thief, no
lawyer can sue unless there had been something to point to that specific
individual lawyer.

3. There must be a publication to a third party

The general rule is that there must be publication to a third party. Besides, third party must
understand such publication. If the person does not understand then there is no publication.
Cases:
 Dr Jenni Ibrahim v S Pakiananthan
o In this case, the plaintiff, a psychologist, worked at a Help Centre. The
defendant wrote two letters indicating the plaintiff had committed breach of
trust as the former managing director of the Centre. Copies of one of those
letters were sent to various parties. It was held that sending copies of the letter
to other parties amounted to publication.
 Theaker v Richardson (USE THIS CASE)
o In this case, the defendant had written a defamatory letter to the plaintiff, and
her husband read the letter as he thought it was an election address since both
are alike. Thus, publication established as it was reasonably expected.
o Test: reasonable expected
 Huth v Huth
o In this case, a butler had read a defamatory letter written by the husband to the
wife in an unsealed envelope. Thus, there was no publication as it could not be
reasonably foreseeable that the butler would read the letter.
However, there are certain exceptions to the third-party rule, as no publication is deemed to
exist if the communication is between spouses since spouses are regarded as one entity.
Therefore, if there is gossip between husband and wife about a certain person, there is no
publication here. This is because there is an absolute privilege that arises from the
confidential nature of the relationship between spouses.
Case:
 Wennhak v Morgan
o In this case, it was stated that communication with one’s own spouse will not
be considered as publication when it comes to defamation cases.
However, when defamatory words are conveyed to one spouse about the other spouse, this
amounts to publication and the spouses are no longer regarded as one entity.
Cases:
 Theaker v Richardson
o In this case, the defendant had written a defamatory letter to the plaintiff, and
her husband read the letter as he thought it was an election address since both
are alike. Thus, publication established as it was reasonably expected.
 Wenman v Ash
In this case, it was held that making a statement about a person to his wife is publication
Defences for defamation (one or two)
Issue: Whether the defendant is entitled to any defences for defamation
In a defamation claim, there are several defences available to the defendant.
1. Consent or assent and volenti non fit injuria
They are categorized as different defences, but they are applied together. This defence is
usually used by newspapers and could arise if the plaintiff gave their approval or consent for
the words to be published, express or implied. Thus, the defendant must prove that such
authorisation or consent had been given for this defence to succeed.
Case:
 Cookson v Harewood
o In this case, a real statement about plaintiff not being allowed to ride the
horses at his club had been published by defendant. Later, plaintiff claimed
that an innuendo occurred and implied he was corrupt and indulged in
fraudulent practices. However, plaintiff’s defamation failed as the statement
had been true with permission to publish the statement concerned was
obtained. Thus, as he had given his permission, even if the statement were
defamatory, the plaintiff would have to bear the consequences.
2. Justification
The defence of justification is an absolute defence. The defence works in a way that the
plaintiff will not be protected any longer if the defamatory statement is true. Also, if there is
malice, it does not matter as the state of mind in this defence is irrelevant. However, the
burden is on the defendant to prove that the statement is true. One example of justification is
that A believes B has committed adultery and then published such a statement concerning this
belief. To use the defence of justification, A must prove the publication is true using pictures
or statements as evidence. A cannot just claim that such thing is true without any evidence.
Case:
 Institute of Commercial Management United Kingdom v New Straits Times Press
(Malaysia) Bhd
o In this case, it was stated the plaintiff will not be protected by the law once a
defamatory statement is proven to be true.
Also, if there are two charges, and if only one charge can be proven to be true, the defence of
justification can still be raised and will not fail, as long as the unproved charge does not
materially injure the reputation of the plaintiff as stated by S.8 of the Defamation Act 1957.
Case:
  Abdul Rahman Talib v Seenivasagam & Anor
o In this case, it was published that using his influence as a government
minister, he had received money and favours for his own personal advantage.
The defendant could only prove that the charge of receiving favours was true
but could not prove the validity of the charge of receiving money. Thus, the
court held that since the unproved allegation concerning the money did not
materially injure the reputation of the plaintiff, although only one charge could
be proven, the defence was successfully raised.
3. Fair comment
E.g. Application Need to establish fair comment one by one
She actually joined fit me last year but only managed to lose 1kg
Apply: Joyah just commented to her friend that hr true fact lose 1 kg
No malice – stating that Joyah is merely advising her friend no malice
Public interest advise her friend not to participate the program
S.9 of the Defamation Act 1957 states that when there are words consisting of allegations of
fact and partly of expression of opinion, the defence of fair comment will not fail by the mere
reason that the truth of every allegation of fact is not proven, as long as the expression of
opinion is fair comment in regards to the fact alleged or referred to in the words complained
of as are proved. Basically, this is when there is a mixture of facts and opinion. This defence
is especially famous among journalists and newspapers. Also, unlike justification, for this
defence to work, there cannot be any element of malice. There are also several elements to
establish fair comment.
a) The words must be in the form of comment and not a statement of fact
This means that the defence cannot work if the words are statements of fact.
Cases:
 Lee Kuan Yew v Derek Gwyn Davies & Ors
o In this case, the test to determine whether the words are fact or comment is if
an ordinary and reasonable man who is told of such words would regard them
as a statement of fact or as comment.
 Meeran Lebbaik Maullim & Anor v J Mohamed Ismail Marican & The Straits
Printing Works
o In this case, the plaintiff ‘s was a ‘Kafir’ were statements of fact and not
opinion, resulting the defendant failed in his defence. Conversely, if the
defendant said plaintiff selling an inaccurate translation of the Koran, that he
had made huge profit and thus can be said to have committed a ‘robbery’, then
the statements would be considered a comment and the defence would not
have failed.

b) The comment must be based on true facts

This means that the defendant must prove that the facts based on relevant comment are true.
Cases:
  SB Palmer v AS Rajah & Ors
o In this case, a statement about plaintiff walked out of the meeting in a
dramatic fashion was published by defendant, but the plaintiff only walked out
in an ordinary manner. Since the defendant’s alleged fact that the plaintiff had
walked out in a dramatic fashion were not prove, the defence of fair comment
failed.
 Telnikoff v Matusevitch
o In this case, it was stated that the plaintiff cannot complain that they are
defamatory if the contents of the letter are of fair comment. However, if the
contents are defamatory statements of fact are true, the plaintiff will succeed.
This means that the statement itself does not need to be true if the facts upon
which they are based are true.

c) The comment is fair and not malicious

The general rule is that there must be no ill will or malice by the writer. However, there is an
exception although the writer is prejudiced, if reasonable man would also come to the same
conclusion can be proven, then the defence of fair comment can still be raised.
Cases:
 JB Jeyaretnam v Goh Chok Tong
o In this case, it was stated that although the writer is prejudiced, if the
reasonable man would come to the same conclusion as commenter, it can still
count as a fair comment.
 S Pakianathan v Jenni Ibrahim
o In this case, it was stated that if it can be proven that the defendant himself did
not believe that what he published was true, or knowing the statement was
false, this would constitute conclusive evidence of malice.

d) The comment concerns an issue of public interest

Case:
 London Artists Ltd v Littler
o In this case, it was held that there is no definition for public interest. However,
when a matter affects the people massively resulting them to be legitimately
interested in, or concerned at what is happening, or what may happen to them
and others, this can be said to be a matter of public interest which everyone is
entitled to make a fair comment.
(D) Privilege
Qualified Privilege
(1) Statutory Qualified Privilege
 Statutory qualified privilege could not be raised if the author of the statement has
malicious intention.
 It is used for publication made by newspaper or broadcasting station.
Law:
 S.12(1) of Defamation Act 1957
Subject to the provisions of this section, the publication in a newspaper of any such
report or other matter as is mentioned in Part I of the Schedule to this Act shall be
privileged unless the publication is proved to be made with malice.
Explanation: Only newspaper and broadcasting can use defence of statutory qualified
privilege. If the newspaper published reports which are contradicting with the
statement made, it would be defamation.
Note: Part I of the Schedule
1. A fair and accurate report of proceedings—
(a) of the legislature of any part of the Commonwealth other than in Malaysia;
(b) of an international organization of which Malaysia or the Government thereof is a
member;
(c) of an international conference to which the Government sends a representative;
(d) before any court exercising jurisdiction throughout any part of the Commonwealth
(as defined in the Constitution) outside Malaysia or a court martial held outside
Malaysia under any written law in force in Malaysia or under any Act of the United
Kingdom Parliament; and
(e) of a body or person appointed to hold a public enquiry by the Government of
Malaysia or any State thereof or by the legislature of any part of the Commonwealth
outside Malaysia.
2. A fair and accurate copy of or extract from any register kept in pursuance of any
written law in force in Malaysia which is open to inspection by the public or which
members of the public are entitled to have searched or of any other document which is
required by any such law to be open to inspection by the public or to which members
of the public are entitled on payment of a fee to a copy.
3. A notice, advertisement or report issued or published by or on the authority of any
court within Malaysia or any Judge or officer of such court or by any public officer or
receiver or trustee acting in accordance with the requirements of any written law.
 S.12(2) of Defamation Act 1957
In an action for libel in respect of the publication of any such report or matter as is
mentioned in Part II of the Schedule to this Act, the provisions of this section shall not
be a defence if it is proved that the defendant has been requested by the plaintiff to
publish in the newspaper in which the original publication was made a reasonable
letter or statement by way of explanation or contradiction, and has refused or
neglected to do so, or has done so in a manner not adequate or not reasonable having
regard to all the circumstances.
 Note: Part II of the Schedule
1. A fair and accurate report of the findings or decision of any association formed in
Malaysia for the purpose of—
(i) promoting or encouraging the exercise of or any interest in any art, science,
religion or learning; or
(ii) promoting or safeguarding the interests of any trade, business, industry or
profession or of persons carrying on the same or engaged therein or the interests
of any game, sport or pastime to the playing or exercise of which members of the
public are invited or admitted:
 Provided that such finding or decision relates to a person who is a member of
such association or is subject by virtue of any contract to the control of such
association and that such association is empowered by its constitution to exercise
control over or to adjudicate upon the matters to which such finding or decision
relates.
2. A fair and accurate report of the proceedings of any public meeting held in
Malaysia.
3. A fair and accurate report of the proceedings at any meeting or sitting in any
part of Malaysia of—
(a) any local authority or committee thereof;
(b) any Commission, tribunal, committee or person appointed for the purpose
of any enquiry by or under any written law or by the Yang di-Pertuan Agong, or
by the Ruler, or Yang di-Pertua Negeri of any State, or by any public officer of
any Government in Malaysia; or
(c) any other tribunal, board, Commission, committee or body whether
incorporated or not constituted and exercising functions by or under any written
law in force in any part of Malaysia or the Republic of Singapore or under any
other lawful warrant or authority for public purposes:
Provided that such meeting or sitting is one to which admission is not denied
to representatives of newspapers or other members of the public.
4. A fair and accurate report of the proceedings at a general meeting wherever
held of any joint-stock company or corporation wherever registered whose
business is in any way directly concerned with Malaysia or any part thereof or of
any company constituted, registered or incorporated under the provisions of any
written law in force in Malaysia not being a private company within the meaning
of the Companies Act 1965 [Act 125].
5. A copy or a fair and accurate report or summary of any notice or other matter
issued for the information of the public by or on behalf of any Government in
Malaysia or by any public officer or local authority.
 S.13(1) of Defamation Act 1957
The provisions of this Act shall apply in relation to reports or matters broadcast by
means of radio communication as part of any programme or service provided by
means of a broadcasting station within Malaysia, and in relation to any broadcasting
by means of radio communication of any such report or matter, as they apply in
relation to reports and matters published in a newspaper and to publication in a
newspaper.
 S.13(3) of Defamation Act 1957
In this section “broadcasting station” means any radio communication station in
respect of which a licence granted under the *Telecommunications Act 1950, being a
licence which (by whatever form of words) authorizes the use of the station for the
purpose of providing broadcasting services for general reception.
(2) Common Law Qualified Privilege
 If publication is made other than by newspaper or broadcasting station, can claim
under common law qualified privilege.
 Newspaper or broadcasting station cannot use this defence, however, there are still
some existence of cases which used both common law qualified privilege and
statutory qualified privilege.
 Common law qualified privilege could not be raised if the author of the statement has
malicious intent.
 Case: Rajagopal v Rajan
 Held: Defendant could not raise the defence of common law qualified privilege
successfully; it the defendant was malicious when making the statement at time of
publication.
 Case: Hoe Thean Sun & Anor v Lim Tee Keng
 Held: The burden of proof is on the plaintiff to rebut the common law qualified
privilege raised by the defendant, by proving that the defendant has express or actual
malice at time of publication. The burden of proof is not on the defendant to show that
he was not malicious at time of the publication.
 Six Recognised Circumstances of Privileged Occasions
 Note: Choose which circumstance is applicable to the question
 (A) Statements made between parties who have a mutual interest over the subject
matter of the communication.
 Case: Chop Kim Lee Seng Kee v Yeo Kiat Jin
 Held: The maker who make the statement must be obliged with the responsibility to
communicate the statement to the recipient who has interest over the subject matter of
the communication, and the maker must truly believe in the statement that he made.
 S.14 of Defamation Act 1957: Statements made by candidates to the electorate at a
general election is not protected by privilege.
 (B) Statements made to fulfil a legal, moral, or social duty
 Case: John Lee & Anor v Henry Wong Jan Fook
 Held: The court held that if the statements are made by a person to fulfil his moral,
legal, or social duty, such statement is protected under common law qualified
privilege.
 Case: Stuart v Bell
 Held: The court held that there is no fixed definition to prove what shall amount to
moral or social duty. It is up to the judge to decide whether it shall constitute as
moral, or social duty. The test that is used to determine this is the reasonable man’s
test, in which the court will ask whether a reasonable man that is equipped with the
standard level of intelligence and who is obliged to uphold moral principles, would
agree that the communication be made to fulfil moral or social duty.
 Case: Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr Mahathir Mohamad
 Held: The court held that it is matters of public interest if such matter concerning on
the removal of the Deputy President of UMNO and Deputy Prime Minister of a
country, hence the statements made to explain the removals to the public is said to
fulfil a duty.
 Example for legal duty would be A reported to Bar Council that B is an advocate and
solicitor who made unlawful conduct, A is said to fulfil his legal duty and can be
protected under common law qualified privilege.
 No privilege
 The general rule is the common qualified privilege will be lifted if the defendant who
made the statement at time of publication did not honestly believe in the truth of the
statement, he made during police report.
 Case: Abdul Aziz Jelani v Peter Chua Swee Lai
 Held: The court held that the common law qualified privilege could not be raised
because the defendant had made the police report with the intention to seek help from
police to locate the plaintiff for purpose of investigations, in such situation, it amounts
to abuse of the process of law.
 Note: If essay question asks about qualified privilege, need to include no privilege.
 (C) Statements made to relevant authorities in order to settle public nuisance or
disputes.
 Case: Blackshaw v Lord
 Held: The court held that there are 2 requirements needed to be fulfilled if the maker
made such statement on grounds of public interest, the requirements are the maker is
obliged with the duty to make such statement for the purpose of the benefits of the
public and the individual is possessed with reciprocal interest to receive the statement
from the maker of the statement.
 E,g, If a person makes a statement in relation to harmful contents inside some goods,
the person who made that statement with the purpose of settling some public
nuisance, he could raise the defence of common law qualified privilege if he managed
to prove the two requirements.
 Case: Gould v Dobb & Co Ltd
 Facts: The defendant made a defamatory contention to plaintiff’s lawyer concerning
plaintiff, in response to the claim brought by plaintiff on the grounds of plaintiff’s
wrongful dismissal.
 Held: The court held that the defendant is protected by common law qualified
privilege when he was making such statement.
 Case: Dr Jenni Ibrahim v S Pakianathan
 Held: The court held that if the defendant has malicious intention when he was
making such statement, he will fail to raise the defence of qualified privilege.
 (D) Statement made in order to protect one’s own interest or property
 Case: Lee Kuan Yew v JB Jeyaretnam
 Held: The court held that common law qualified privilege will protect the defendant if
the defendant made such statement with the purpose to protect his reputation,
moreover, the defendant could raise the defence successfully, if he made the defence
in absence of malicious and the statement made is relevant to the allegations made by
the other party.
 E.g. A called B a thief, in response B called A liar, if A sued B for defamation, B can
be protected under this privilege because the reason B called A liar is to rebut the
statement made by A.
 Case: Osbourn v Boulter
 Facts: The brewers received complaints from the seller who complained that the
brewers sold bad quality beers, however, the brewers argued that the beers became
bad quality because the seller had watered down the beer. Later, the brewers
 published the statement concerning that the seller had watered down their beers to
third party.
 Held: However, the court held that the statement made by them was protected under
privilege.
 (E) Accurate and Fair Report of Proceedings
 Case: Abdul Rahman Talib v Seenivasagam & Anor
 Held: The court held that the defence of common law qualified privilege will be lifted
if the report of parliamentary proceedings is unclear that it harms the reputation of an
individual.
 (F) Ancillary Qualified Privilege
 An individual will be protected by ancillary qualified privilege if the publication is
made to third party with the purpose of ordinary course of business.
 Case: Mahadevi Nadchatiram v Thiruchelvasegaram Manickavasegar
 Facts: A defamatory letter was sent by one legal firm to another and it is read by the
clerk of the receiving firm.
 Issue: Whether it would be considered as defamation?
 Held: The clerk is protected by ancillary qualified privilege, because the publication
to other person is in the ordinary course of business.
(3) Absolute Privilege
 Absolute privilege can be used when it is in relation to the administration system of a
nation like legislative, executive or judiciary.
 E.g. Lawyers who made statement inside the courtroom are protected by absolute
privilege, but if the lawyers made the statement outside the courtroom, he would not
be protected.
 Case: Times Publishing Bhd & Ors v S Sivadas
 Held: The court held that the absolute privilege included the Parliamentary
proceedings, especially the proceedings that is in relation to the public issues that is
discussed by the Parliamentary Committee.
 Case: Abdul Rahman Talib v Seenivasagam & Anor
 Held: The court held that a person who engaged in parliamentary debate will be
protected by absolute privilege even though the statement he made was with
malicious intention, however, if he reported such remarks outside the parliamentary
debate, he would not be protected by the privilege.
 Law:
 S.11(1) Defamation Act 1957:
A fair and accurate and contemporaneous report of proceedings publicly heard before
any court lawfully exercising judicial authority within Malaysia and of the judgment,
sentence or finding of any such court shall be absolutely privileged, and any fair and
bona fide comment thereon shall be protected, although such judgment, sentence or
finding be subsequently reversed, quashed or varied, unless at the time of the
publication of such report or comment the defendant who claims the protection
afforded by this section knew or ought to have known of such reversal, quashing or
variation.
 Explanation: This means that reports of Malaysian judicial proceedings which are
being done fairly and accurately will be protected under absolute privilege.
  S.11(2) Defamation Act 1957:
 Nothing in this section shall authorize the publication of any blasphemous, seditious
or indecent matter or any matter the publication of which is prohibited by law.
 Explanation: If the publication consists elements of blasphemous, seditious or
indecent or prohibited by law, it will not enjoy absolute privilege.
Unintentional Defamation (USUALLY USED BY PUBLISHER)
Application: If no offer of amend would failed.
 A reporter made defamatory statement in relation to a person, the publisher published
such report, which resulted the plaintiff to sue the reporter and the publisher, the
publisher and the reporter may raise the defence of unintentional defamation in order
to escape the liability of defamation.
 Law:
 S.7(1) Defamation Act 1957
 (1) A person who has published words alleged to be defamatory of another person
may, if he claims that the words were published by him innocently in relation to that
other person, make an offer of amends under this section; and in any such case—
(a) if the offer is accepted by the party aggrieved and is duly performed, no
proceedings for libel or slander shall be taken or continued by that party against the
person making the offer in respect of the publication in question (but without
prejudice to any cause of action against any other person jointly responsible for that
publication);
(b) if the offer is not accepted by the party aggrieved, then, except as otherwise
provided by this section, it shall be a defence, in any proceedings by him for libel or
slander against the person making the offer in respect of the publication in question,
to prove that the words complained of were published by the defendant or were
published by the defendant innocently in relation to the plaintiff and that the offer was
made as soon as practicable after the defendant received notice that they were or
might be defamatory of the plaintiff, and has not been withdrawn.
 Note: Need to choose whether it falls under the first or second situation
 Situations where unintentional defamation may be raised
 (i) If the words are defamatory in their natural and ordinary meaning which includes
false innuendo, the publisher can raise the defence of unintentional defamation if the
publisher could show that
 (a) The publisher did not publish the statement concerning the plaintiff intentionally
 (b) The publisher is not aware that people will infer the words of statement to be
related with the plaintiff and
 (c) The publisher had carried out reasonable care concerning such publication
 Note: Must prove all these 3 elements to prove innocent defamation
 (ii) If the words are defamatory of the plaintiff due to certain external factors by way
of true innuendo, the publisher can raise the defence of unintentional defamation if the
publisher could show that
 (a) The publisher is not aware that the words might be defamatory of the plaintiff
  (b) The publisher had carried out reasonable care concerning such publication
 Law:
 S.7(3)(a) of Defamation Act 1957 states that “An offer of amends under this section
shall be understood to mean an offer in any case, to publish or join in the publication
of a suitable correction of the words complained of, and a sufficient apology to the
party aggrieved in respect of those words
 Explanation: This means that defendant could still make an offer of amends to the
plaintiff if the defendant could prove the defence of innocent publication.
 If the plaintiff had opted for rejecting the offer of amends made by the defendant, the
defendant could use this fact as a defence subjected to
 (a) The defendant had made the defamatory statement innocently as provided in
S.7(5) of Defamation Act 1957.
 (b) The defendant made the offer of amends to the plaintiff as soon as possible after
the defendant is being served the notice that the statement had defamed the plaintiff.
 (c) The offer of amends is not withdrawn by the defendant.
 Case: Sandison v Malayan Times Ltd & Ors
 Facts: Executive is being dismissed, but no name is mentioned in the newspaper, but
date of dismissal is mentioned in the newspaper, when the reader read it, they could
relate the incident to the executive. However, the newspaper publisher made their
offer of amends to the plaintiff after the statement were being published two months
later.
 Held: The court held that the offers of amends were not made by the defendant to the
plaintiff as soon as possible because the period between the dates of publication and
that of the first offer of amends is more than a month.
Innocent Dissemination
 A person is subject to suit if he engaged in the publication of such defamatory
statement.
 E.g. Delivery boy, distributor is the one who participate in the publication of such
defamatory statement.
 Case: Vizetelly v Mudie’s Select Library Ltd
 Held: Individuals who could raise the defence of innocent dissemination are the
persons who are not the author, or first publisher of such defamatory article against
the plaintiff.
 In order to raise the defence of innocent dissemination, the defendant must satisfy the
requirements, which are
 (a) He was not aware that the publication of the statement contained a libel and
 E.g. Delivery boy was merely delivering the letter.
 (b) There was absence of circumstances which made him had the knowledge that the
publication contained a libel and
 E.g. As a delivery boy, he would not know that the envelope that he delivered
contained a libel.
 (c) He did not act negligently when the article was disseminated by him and he was
not aware that the publication contained a libel.
  E.g. If delivery boy delivered letter to the wrong person, it could show that he had
acted negligently when the letter was disseminated by him, under such circumstances,
he would fail to raise the defence of innocent dissemination.
 Note: If the question is about delivery boy, distributor, must discuss innocent
dissemination.
Immunity
 Case: Dato’ Param Cumaraswamy v MBf Capital Bhd
 Held: A person could raise the defence of immunity and would be immune from any
claims if he had carried out his acts or words in accordance with his function when he
was in the United Nations Special Rapporteur on independence of judges and lawyers.
Mitigation of Damages
 Mitigating factors of awarding damages include the plaintiff’s existing reputation, the
plaintiff’s behaviour towards the defendant and the extent of the publication.
 S.10 of Defamation Act 1957 also stipulated that the apology made by the defendant
to the plaintiff is also one of the mitigating factors of awarding damages.
 Law:
 S.10(2) of Defamation Act 1957
In an action for libel contained in any newspaper any defendant who has paid money
into court under the provisions of any written law relating to civil procedure may state
in mitigation of damages, in his written statement of his case, that such libel was
inserted in such newspaper without actual malice and without gross negligence and
that, before the commencement of the action or at the earliest opportunity afterwards,
he inserted or offered to insert in such newspaper a full apology for the said libel, or,
if the newspaper in which the said libel appeared should be ordinarily published at
intervals exceeding one week, had offered to publish the said apology in any
newspaper to be selected by the plaintiff in such action.
 Case: Normala Samsudin v Keluarga Communication Sdn Bhd
 Held: If the apology letter did not show the remorse on part of defendant, it would be
constituted as insufficient.
 Factors taken into account in assessing damages
 The purpose of awarding damages for defamation to the plaintiff are to compensate
the plaintiff in terms of his feelings and disappointment due to the defamatory
statement, to fix the damages done to the plaintiff’s business and his personal
reputation, and to ensure that the plaintiff’s reputation can be made up as a whole.
 Note: The higher the reputation of the plaintiff, the higher amount of damages could
be awarded to the plaintiff.
 Factors that been taken into account by the court when awarding damages are
established as follows:
 (a) Plaintiff’s social standing and position
 (b) The graveness of the libel
 (c) Means and extent of the publication
 (d) Whether the plaintiff had suffered any mental illnesses, disappointment, and
feelings of hurt
  (e) Whether the plaintiff had suffered any uncertainty during the trial
 (f) The defendant’s conduct between the period of the libel to the period of judgement
is delivered
 (g) The defendant failed or refused to apologise to the plaintiff in relation to the libel
and
 (h) Whether the defendant had acted maliciously
 Note: Amount of damages is determined by the judge, however, the plaintiff is the
one who need to justify the reason he claimed such amount of damages.
 Case: Ling Wah Press (M) Sdn Bhd v Tan Sri Dato’ Vincent Tan Chee Yioun & Ors
 Held: The court held that the purpose of awarding damages in defamation cases is not
to punish the defendant, but it is to ensure that the plaintiff could get compensation for
his pain and suffering arise from the defamatory statement.
 Award of Damages Trend
The award of damages granted by the court before the case of Vincent Tan Chee Yioun v
Haji Hassan b Hamzah & Ors is between RM 500 to RM 100,000. In Vincent Tan Chee
Yioun v Haji Hassan b Hamzah & Ors, the court awarded the plaintiff RM 10 million of
damages against the 7 defendants. However, after the case of Vincent Tan Chee Yioun v Haji
Hassan b Hamzah & Ors, the award of damages granted by the court is between RM 100,000
to RM 3 million.