DEFAMATION I

Prepared by Ms. Julia Farhana binti Rosemadi

Definition of defamation
 Lord Atkin in Sim v Stretch (1936) 2 AER
 Defamation means “a statement untrue (oral or written,
temporary or permanent) 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.”
 Types of
Defamation

Libel Slander
Libel

 Any statement made in written, permanent, visible form is

said to be libel.
 Examples: Pictures, visual images, movies, TV broadcast
especially live broadcast
 S3 of Defamation Act 1957: Broadcasting of words by
means of radio communication shall be treated as
publication in permanent form
 Actionable per se
Case: Datuk Syed Kechik b Syed
Mohamad v Datuk Yeh Pao Tzu & Ors
 From the caricature, together with the caption
and words accompanying them indicated that the
plaintiff is a dishonest and untrustworthy man.
Case: Youssoupoff v MGM

 The plaintiff was entitled to damages because

defamatory statement in a film is considered as
libel.
Slander

 Defamationin transient form – oral, audible and

temporary, spoken words
 Example: Speech, sound tapes, gestures
 Not actionable per se: Requires proof and material loss
 Theactual damage must be natural and reasonably
foreseeable as a result of the defendant’s words.
Exceptions to the requirement of actual
damage in cases of slander
1. Imputation of a crime
 The words must impute the commission of a crime for
which the plaintiff may be punished corporally
 Imputation of an offence punishable by fine is insufficient
 Case: C Sivanathan v Abdullah bin Dato’ Haji Abdul
Rahman
 The plaintiff’s claim was not actionable per se as the
defendant words, calling the plaintiff a cheat, dishonest
and a liar does not attract corporal punishment
2. Imputation of contagious disease or infectious
disease
The words must impute that the plaintiff suffers such disease
at the time the publication was made.
Also actionable per se.

3. Slander to women
S4 Defamation Act 1957
Case: Luk Kai Lam v Sim Ai Leng [1978] 1 MLJ 214
Held: The words impugned the appellants chastity, thus
actionable per se. Slander was established.
4. Slander in relation to a person’s professional or
business reputation
S5 Defamation Act 1957
“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 for the plaintiff to
prove special damage whether or not the words are spoken
of the plaintiff in the way of his office, profession, calling,
trade or business.
Case: JB Jeyaretham v Goh Chok Tong
The words must be calculated to disparage the plf in his
office or profit
5. Slander in relation to title, slander of goods and
malicious falsehood.

 S6 Defamation Act 1957.

 Requirement of malice: Borneo Post Sdn Bhd & Anor v
Sarawak Press Sdn Bhd [1999] 1 AMR 1030. In-Comix Food
Industries Sdn Bhd v A Clouret & Co (KL) Sdn Bhd [1997] 2
AMR 1554.
Elements of Defamation

1. Defamatory meaning: Words complained of must

be defamatory.
2. Words complained of must refer to the plaintiff
3. There must be a publication to a third party.
Element 1:Defamatory meaning: Words complained of
must be defamatory.

 Test:A statement is defamatory if it lowers the plaintiff’s

reputation in the minds of right thinking members of society.
 Cases:
 Byrne v Dean
 InDP Vijandran v Karpal Singh it was held that it is sufficient
that members of the plaintiff’s fraternity including those of
the judicial service know the meaning attributed to an office
under s 420 Penal Code(offence of cheating)
 Lau Chee Kuan v Chow Soong Seong & Ors
Defamatory words

 Natural and ordinary meaning

 Innuendo : i) False innuendo
ii) True/legal innuendo
 Juxtaposition
Natural and ordinary meaning
 Chok Foo Choo v The China Press Bhd [1999] 1 AMR 846 CA
 The words complained of are defamatory in their natural and
ordinary meaning if they impute that plaintiff is dishonorable or
of discreditable conduct or motive or lacks integrity.
 Test:What meaning the words would convey to ordinary
reasonable persons using their general knowledge and common
sense.
 Case: Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor
[1978] 1 MLJ 75
 Labelling a Muslim man as “Abu Jahal” is defamatory as it
imputes that person as a big liar, untrustworthy and
irresponsible
Innuendo

 Does not arise from literal meaning of the words

 Thewords by themselves are not defamatory but
become so by virtue of either inferences or
special facts or circumstances known by the
recipient or reader of the words.
i) False innuendo

 Where the words are defamatory of plaintiff due to

inferences or implications arising from them, this is
when the words are described as giving rise to a false
innuendo. It may arise from a combination of
statement and pictures.
 CS Wu v Wang Look Fung & Ors [1981] 1 MLJ 178
A newspaper prints the plaintiff’s picture and below
this picture is a caption which reads: “A lawyer’s
activities are being investigated”.
ii) True or legal innuendo

A true or legal innuendo arises due to special

facts which are known to the recipient of the
publication. This special knowledge will cause the
words to be defamatory of plaintiff. Otherwise
the words are not defamatory in nature.
Elements of true innuendo;

 thereexists external facts other than the words by

defendant, and these facts, which must be proven,
combined with defendant’s words are defamatory in
nature; and
 these
facts are known by one or more persons to whom
defendant’s words have been published; and
 theknowledge of these facts may cause the words to
be defamatory of plaintiff, in the eyes of reasonable
men who are privy to the special facts.
Case: Tolley v Fry & Sons Ltd [1931] 1
All ER 131
 Anadvertisement of the defendant’s chocolate
indicating that the plaintiff’s performance is as
good as defendant’s chocolate
 Houseof Lords: An assumption that plaintiff had
been paid and consented to the advertisement
iii) Juxtaposition

 Involves a situation that employs visual effects,

such as an effigy or placing the plaintiff’s
photograph in a pile of pictures of wanted
criminals.
 Monsoon v Tussauds [1894] 1 QB 171
 The defendant created plaintiff’s statue and
placed it together with statues of criminals
Element 2: Words must refer to the
plaintiff
 Test:
Whether an ordinary reader as a whole would
reasonably infer that the statement referred to the plaintiff.
 Two people, same name;
 Case: Newstead v London Express Newspaper (1940)
 The court held that the defendant was liable as a reasonable
man would infer that the statement is directed towards the
plaintiff. It is established law that liability for libel does not
depend on the intention of the defamer; but on the fact of
the defamation. Even though the statement is true of
another person, it is not a defence for libel defamation.
 Fictional name
 Case: Hulton & Co v Jones
 Defamation was established as those who knew the
plaintiff understood that ‘Artemis Jones’ are referring to
him, although that was not intended to be so by the author
and publisher.
 No named person
 Case: Sandison v Malayan Times Ltd & Ors
 An article was published concerning a senior executive of
the Rubber Industry Replanting Board that was dismissed
for corruption. Although there was no name, the date of
dismissal was indicated, which was the date of the
plaintiff ceased holding that position.
 Class defamation
 General rule: Defendant will not be liable unless there is a
specific reference to plaintiff or certain individuals in a
particular group.
 Group defamation:
 Bruce v Odhams Press Ltd [1936] 1 All ER 287
 The plaintiff must prove that the words refer to each or
particular individuals in the class or group of persons in
which he is himself personally implicated.
 Eastwood v Holmes [1858] 1 F & F 347
 Ifa man wrote that all lawyers were thieves, no particular
lawyer could sue unless there was something to point to
the particular individual lawyer.
Element 3: The words must be published
 General rule: There must be a publication to a third party.
 Case: Dr Jenni Ibrahim v S Pakiananthan [1986] 2 MLJ 154;
[1988] 2 MLJ 173 SC
 Sending copies of letter to the other parties constituted
publication.
 Case: Theaker v Richardson
 The defendant wrote a defamatory letter to the plaintiff, a
married woman. Her husband read the letter as he thought it
was an election address, as the letter was sealed in a manila
envelope(similar with distribution of election address) – COA:
Publication reasonably expected
 Case: Huth v Huth : Butler read defamatory letter by defendant
husband to plaintiff wife. The publication was unforeseeable
 Exceptions
 No publication is deemed to exist if the communication is
made between spouses, as husband and wife are regarded
as one entity.
 Alternatively, the communication is protected by absolute
privilege arising from the confidential nature of the
relationship between spouse (Wennhak v Morgan [1988] 20
QBD 635)
 But, where the defamatory words are conveyed to one
spouse, concerning the other spouse, it amounts to
publication. (Theaker v Richardson [1962] 1 WLR 151 CA at
262; Wenman v Ash [1853] 13 CB 836)
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