INTRODUCTION TO THE CONCEPT OF

DEFAMATION

Definition of Defamation

Defamation is a situation where something is said

or published about a person which would
definitely bring him or her to suffer disrepute or
lowers their reputation in the minds of right
thinking persons in society.
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DEFAMATION

The disrepute caused by the words would actually

cause the said right thinking persons in society to
avoid or shun him or her as a direct result of what
was said or published about them.

This would then result in the loss of esteem and

reputation.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

This should be more than just suffering hurt

feelings.

It would also have to go beyond words that are

uttered or written of in a humorous way.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

Defamation may either consist of libel or slander.

In Malaysia, the law governing defamation is

contained in the Defamation Act 1957.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION
Criminal Defamation is defined in Section 499 of
the Penal Code.

Punishment for Criminal Defamation is 2 years/fine

as explained in Section 500 of the Penal Code.

It can be argued that in some circumstances, the

threat of an action for defamation can restrict
freedom of expression.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

In the case of all situations with regard to freedom

of expression, the risk of defamation is substantial.

As the law of defamation is concerned with the

protection of reputations, an express casualty of
that right would be the erosion of press or media
freedom.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

What is the difference between libel and slander?

Libel is where defamatory words are written or

printed and slander refers to spoken words or
some other transient form.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

The general legal view now is whether the

publication is in a “permanent form”, if it is not in
a permanent form then it would be considered as
slander.
In the case of SB Palmer v AS Rajah & Ors (1949)
MLJ 6
The court held that even if words in the natural and
ordinary sense are innocent or
meaningless -
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

Yet, in deciding whether they are capable of a

defamatory meaning the circumstances in which
they are written and the context in which they
appear must be considered.

That the words used in the articles in this case were

capable of being construed in a defamatory sense.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

that in a defence of fair comment the onus is

on the Defendant to prove any allegation of facts
to be true.

that on the facts of the case, the defendants had

not discharged the onus of proving the
allegations of facts in the articles to be true.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

that the plaintiff was entitled to damages for the

"invasion of his absolute right to reputation".

In the case of Abdul Rahman Talib v

Seenivasagam & Anor (1965) 1 MLJ 142, the
court held-
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

the first defendant's defence of qualified privilege

failed:-
(i) under heads (a) and (b) because what was said
went far beyond a mere report of Parliamentary
proceedings.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

under head (c) because no privilege attaches

where, as in this case, the facts are in controversy
and are not ascertained and have not been finally
adjudicated upon;
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

under head (d) because no privilege attaches

where, as in this case, the statement was
published in advance of its delivery to the proper
authority for investigation as to the truth or
otherwise of the
allegations;
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

under head (e) because, on the facts, the

publication was not procured by the plaintiff;

in any event because the 1st defendant was

actuated by malice.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

the defendants have succeeded in proving the

receipt of favours by the plaintiff, which was one
of the two charges made against the plaintiff in
the
statements.
INTRODUCTION TO THE CONCEPT OF
DEFAMATION

although the defendants have failed to prove the

truth of the other charge that the plaintiff
received the sums of money alleged, the words
making that allegation do not materially injure
the plaintiff's reputation having regard to the
truth of the remaining charges and therefore the
defendant's defence of justification succeeded.
THE ELEMENTS OF DEFAMATION

Any statement which is considered to be

defamatory of the Plaintiff must have been
published by the Defendant and it must have
direct and specific reference to the Plaintiff.
The statement may be made through any media.
The defamatory statement must also be published
to third parties. Broadcast of statements is
considered to be a libel as per Section 3 of the
Defamation Act 1975.
THE ELEMENTS OF DEFAMATION

When the publication is made to the third

parties, this will result in the specific
identification of the Plaintiff with no room for
error with regard to his or her identity.

At all times, it must be shown that the

Defendant was responsible for the defamatory
publication.
THE ELEMENTS OF DEFAMATION

As indicated earlier, the distinction between libel

and slander is as stated in the text, Winfield and
Jolowicz on Tort by W. V.H. Rogers (17th
edition) Sweet & Maxwell-

Examples of libel are writings, printed material or

other mark or sign exposed to view, a picture,
waxwork, statue or effigy.
THE ELEMENTS OF DEFAMATION

Defamation in sign language affecting the deaf and

dumb, mimicry and gesticulation (holding up an
empty purse to indicate that a person has been
robbed by the defendant would be considered as
slander because the movements are transient or
temporary (not permanent).
Chalk marks containing defamatory comments on
a wall would be libel even though it may be
washed away by rain.
THE ELEMENTS OF DEFAMATION

In the British case of Youssoupoff v Metro-

Goldwyn-Mayer Pictures Ltd, the British Court of
Appeal held that the showing of defamatory matter
contained in a film with a soundtrack was libel.
What will also be considered libel is the playing of a
video tape, a record of a audio tape or disc, the
calling up of defamatory matter on a computer screen
or its distribution on the internet.
THE ELEMENTS OF DEFAMATION

It is clear that the difference between libel and

slander is quite old fashioned and irrelevant for
current times. In very general terms libel is
addressed to the eye and slander to the ear.
If an oral utterance is communicated to a person it
is a slander which is published and if a written
statement is shown it is libel.
A defamatory statement does not become
actionable until it is published to a third party.
THE ELEMENTS OF DEFAMATION
An oral statement made by A can be written down
by B and shown by B to C-here B publishes a libel.
A’s original uttering of the words to B is slander but
the communication to C was not by word of
mouth.
If I dictate a defamatory letter to a typist I publish
a slander in doing so but if the typist reads it or
hands it back to me then there is no publication by
him. I can be liable for a publication by my agent
but I cannot publish it back to myself.
THE ELEMENTS OF DEFAMATION

In an action for libel, damages will be claimed as

there is no need to prove special damage.

In an action for slander, the Plaintiff must be

able to prove that he has suffered special
damage. This is where there has been pecuniary
loss as a result of the slander made by the
Defendant.
THE ELEMENTS OF DEFAMATION
In some situations where the Plaintiff sues for
slander, special damage need not be shown, for
example in the case of-

Section 4 of the Defamation Act 1957 with

regard to slander of women.

Section 6 of the Defamation Act 1957 with

regard to slander of title.
THE ELEMENTS OF DEFAMATION

Special damage need not be proven also where

the words used indicated that the person had
committed a crime which is punishable by
imprisonment, whipping or hanging as decided in
the case of C.Sivananthan v Abdullah Bin Dato
Haji Abdul Rahman (1984) 1 MLJ 62.
THE ELEMENTS OF DEFAMATION
Here, the court held that the words "dishonest, cheat,
liar" taken in the context in which they were said could
not possibly impute any crime -- let alone a crime
punishable by imprisonment.
The words were therefore not actionable without proof
of special damage. Since the words were not capable of
imputing the crime of cheating, and no special damage
was proved, the plaintiff's action must fail. Moreover,
the words were uttered in anger and understood in
their context as not imputing a crime but as mere
general abuse.
THE ELEMENTS OF DEFAMATION

In a defamation action, the statement which is

considered to be defamatory by the Plaintiff must
be “particularised”, i.e. the particulars must be
given or presented.
There 2 ways of looking at the defamatory
content of the words or statement-
1. The literal meaning.
2. Innuendo.
THE ELEMENTS OF DEFAMATION

In the case of Lewis v Daily Telegraph Ltd (1963) 2

All ER 151, -

The defendants had published a paragraph in their

newspaper stating that officers of the City of London
Fraud Squad were investigating the affairs of the
claimant and they alleged that the words carried by
the newspaper carried the meaning that the
company’s affairs were conducted fraudulently.
THE ELEMENTS OF DEFAMATION

The House of Lords held that the words did not

carry that meaning as the ordinary sensible person
is not capable of thinking that whenever there is a
police inquiry, there is guilt, otherwise, it would be
almost impossible to report criminal investigations.
To quote Lord Reid, “the question is what the
words would convey to the ordinary man”. “ I leave
aside questions of innuendo where the reader has
some special knowledge”.
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Is a person who republishes defamatory

words to a third party liable to the Plaintiff?

The starting point is that a republication by the

voluntary act of another will break the chain of
causation. The Plaintiff may not only sue for the
original defamatory action but also for the
republication as separate actions.
THE ELEMENTS OF DEFAMATION

Every republication of the defendant will be

liable where he authorized or intended the
republication by sending a letter to the
newspapers, speaks at a press conference or he
should have realized there was a high risk that the
word would be republished.
THE ELEMENTS OF DEFAMATION

In the British case of Slipper v BBC (1991) 1 QB 283

the defendants gave a preview of a television film to
press journalists who then reviewed the film.

It would be reasonable to assume that the press

reviews would repeat the alleged libel for otherwise
the reviewers would not be able to deal fairly with
the film.
THE ELEMENTS OF DEFAMATION
In the British case of Cassidy v Daily Mirror
Newspapers Ltd (1929) 2 KB 331, the defendants
published a photograph of Mr C and a Miss X stating
that they were engaged. But, there was a still a Mrs C
who was C’s wife even though they were not living
together.
The defendants had got their information from C and
had made no verification of the story and Mrs C sued
them for libel, the CA held that the news would convey
to reasonable persons that Mrs C was not married and
that she only cohabited with C and this caused harm to
her character.
THE ELEMENTS OF DEFAMATION
With regard to “innuendo”, the British case of
Monson v Tussauds Ltd (1894) 1 QB 671, the
defendants kept a wax work exhibition and placed
an effigy of the claimant with a gun in a room
adjoining the Chamber of Horrors.
The claimant had been tried for murder in Scotland
and released on a verdict of not proven. A
representation of the murder scene was displayed in
the Chamber of Horrors.
The Court of Appeal held that the exhibition was
defamatory to the claimant.
THE ELEMENTS OF DEFAMATION

Distributors and news stand vendors will not

be liable as long they do not have guilty
knowledge of the libel.

Online service providers like Google are also

not liable if they are not creators of the libel
and are only transmitting the content created by
others.
THE ELEMENTS OF DEFAMATION

In every action for defamation, the words or

statement complained of must refer to the Plaintiff,
it must concern him or her.

Identification of the Plaintiff may come from his or

her name, nickname, a photograph or any other
point of reference which would leave no room for
doubt that it is the Plaintiff who is being referred to.
THE ELEMENTS OF DEFAMATION
Generally, defamatory statements made
concerning a large group cannot be the basis of a
legal action by just 1 member of the group.

In the case of Atip bin Ali v Josephine Doris

Nunis & Anor (1987) 1 MLJ 82, the court held
only the person defamed could bring the action
and not the UMNO members of Alai, Melaka.
ELEMENTS OF DEFAMATION
In the case of Kamalanathan Ponnumbalam v
Tenaga Nasional Bhd (2007) 3 CLJ 83, the defendant
repeatedly sent notices and sought payment of
RM1,248.60 as the estimated sum payable by the
plaintiff, in spite of the plaintiff’s repeated objections
and contrary to the Act that the bill is to be based on
the meter reading.
The defendant disconnected the electricity supply and
restored the same after the plaintiff protested, more
than once. The defendant’s actions were in breach of
the contract with the plaintiff and wrongful.
ELEMENTS OF DEFAMATION
The defendant’s staff had prepared the notices and
they would have read the contents, which were to
the effect that the plaintiff owed the defendant and
wrongfully or wilfully refused to pay the sum due.
The disconnection of electricity would have
attracted the attention of, and been noticed by, the
plaintiff’s neighbours and maid, who would have
assumed that the plaintiff was unable to pay for the
electricity consumed and/or had refused to pay
what was due and owed by him to the defendant.
ELEMENTS OF DEFAMATION
Hence, the notices and acts, taken together and in
the context of the matters under consideration,
were defamatory. Although the plaintiff had not
adduced evidence of damages suffered by reason of
the defendant’s breach of contract and did not call
any witnesses in respect of the claim for damages
for defamation and exemplary damages, he and his
family would have been subject to inconvenience
and loss of amenities when the electricity was
disconnected in breach of the contract.
ELEMENTS OF DEFAMATION

REFERENCES

DEFAMATION ACT 1957

Winfield and Jolowicz on Tort by
W.V.H.Rogers. (Sweet & Maxwell)
Law of Torts in Malaysia by Norchaya Talib
(Sweet & Maxwell Asia)
TUTORIAL QUESTIONS
1. Is there a difference between the terms libel and
slander? Give examples.

2. What are the three elements of Defamation?

3. In order to bring an action for defamation what must

the Plaintiff show?

4. What do sections 3,4,5 and 6 of the Defamation Act

1957 mean?