TORT OF DEFAMATION
Introduction
Based on English common law
Defamation Act 1957
The
interest protected: a person’s good
name and reputation.
Ariseswhen there is a publication which
has a tendency to lower the person’s
reputation or to cause him to be shunned
or avoided by reasonable persons in
society and thereby adversely affecting
his reputation.
Types of Defamation
• In permanent form
LIBEL • E.g: picture, email
• Actionable per se
• Temporary form
• By spoken words or
gestures
SLANDE • Not actionable per se-
R
need to prove actual or
special damage
Elements of defamation
Elements
Words refer Words have
Words are
to the been
defamatory
plaintiff published
Words are defamatory
o The statement that forms the subject
matter of his complaint is defamatory
Way the words
are uttered
relevant
Natural and
ordinary Innuendo Juxtaposition
meaning
Cont..
GR: Words that have a tendency to lower the
estimation of the plaintiff in the minds of right-
thinking members of society
As a result, the plaintiff is avoided, shunned or
ridiculed.
Case: DP Vijandran v Karpal Singh
Case: Lau Chee Kuan v Chow Soong Seong &
Ors
Natural and ordinary meaning
If they impute that the plaintiff is
dishonourable or of discreditable
conduct or motive or lacks integrity.
Meaning of words that would convey
to ordinary reasonable persons using
their general knowledge and common
sense
Cont…
Cases:
- Institute of Commercial Management
United Kingdom v News Straits Times
Press (Malaysia) Bhd
- Lewis v Daily Telegraph Ltd
- Ayob bin Saud v Ts Sambanthamurthi
Innuendo
1) False innuendo
- May arise from a combination of
statements and pictures.
- Case: Syed Husin Ali v Sharikat
Penchetakan Utusan Melayu Bhd
- Case: Lee Kuan Yew v JB Jeyaratnam
- Case: Chua Jui Meng v Hoo Kok Wing &
Anor
Cont…
2) True or legal innuendo
- Arises due to special facts which are known to
the recipient of the publication.
- Must prove 3 things:-
a) Exists external facts
b) Facts are known by one or more persons
c) The knowledge of these facts may cause the
words to be defamatory of the plaintiff, in the
eyes of reasonable men who are privy to the
special facts.
Cont..
Cases:
- Tolley v Fry & Sons Ltd
- R Murugason v The Straits Times
Press
Juxtaposition
Involves a situation that employs visual
effects
E.g:An effigy or placing the plaintiff’s
photograph in a pile of pictures of
wanted criminals.
Case: Monsoon v Tussauds
Case:Datuk Syed Kechik bin Syed
Mohamed v Datuk Yeh Pao Tzu & Ors
Words refer to the plaintiff
A cause of action for defamation is that,
the words must refer to him
Thetest: Are the words such that it would
be reasonable in the circumstances to
lead persons acquainted with the plaintiff
to believe that he was the person referred
to?
Case: David Syme v Canavan
Cont..
Only the person defamed can bring an
action in defamation
Section 8(1) of the CLA 1956.
Case:Atip bin Ali v Josephine Doris Nunis
& Anor
Case: Hulton & Co v Jones
2nd requirement is satisfied if the words
refer to the plaintiff directly
Cont..
If words referred to plaintiff by external
or extrinsic facts?
Need to prove 3 factors:-
(i) the external or extrinsic facts must
be proven to have been linked the
defamatory words to the plaintiff
(ii) the words were published to
persons who had actual knowledge of
those external or extrinsic facts
Cont..
(iii)that imputing knowledge of these
facts to a reasonable man, he would
come to the conclusion that the words
indeed referred to the plaintiff
GR: The defendant will not be liable
unless there is a specific reference to
the plaintiff or certain individuals in a
particular group.
Words must be published
The statement must be published to a
person other than the claimant
Case: Dr Jenni Ibrahim v S Pakianathan
Case: Wan Abdul Rashid v S
Sivasubramaniam
Cont..
No publication is deemed to exist:
(i)between spouses, however, there is
publication where the defamatory words
are conveyed to one spouse concerning
the other spouse.
In order to establish publication..
i) Understand the language used
ii) Must the actual words be proven?
Case: Hassan & Anor v Wan Ishak & Ors
Case: Lim Kit Siang v Datuk Ling Liong
Sik
Case: Karpal Singh a/l Ram Singh v DP
Vijandran
Principles of law
1) There is neither statutory provision nor
rules of court that the actual words
must be pleaded in toto failing which
the action fails, no matter what
2) Where the words are spoken in a
foreign language, the words should be
reproduced in that same language in
the statement of claim
Cont..
3) It is not crucial that the words in the
original language are pleaded as long as
the translated version corresponds in
meaning with the words in the original
language.
4) The plaintiff does not have to prove
every word that is pleaded but proof of
words that are substantially the same
as those pleaded is sufficient.
In order to publish publication, cont..
iii) Identity of persons the statement is
published
- The identity of the defamed person must be
proved
iv) Republication
Case: Chua Jui Meng v Hoo Kok Wing
v) Place of publication
- Cause of action in defamation arises in the
place where publication takes place, whether
it is read, seen or heard.
DEFENCES
1) Consent or Volenti Non Fit Injuria
2) Justification
3) Fair Comment
4) Privilege
5) Unintentional defamation
6) Innocent dissemination
7) Immunity
CONSENT/VOLENTI NON
FIT INJURIA
Plaintiffconsented to the publication
of the statement
Express or implied consent
If the plaintiff consented to the
alleged defamatory publication – no
liability arises
Case: Cookson v Harewood
JUSTIFICATION/ TRUTH
Absolute defence
Section 8 of the Defamation Act
Cases: S Pakianathan v Dr Jenni
Ibrahim
AbdRahman Talib v Seenivasagam &
Anor
FAIR COMMENT
If
the defendant had made a comment
which is honest and fair, no liability
Opinion, not facts
Section 9
Elements:-
1) Words must be in the form of comment
2) The comment must be based on true
facts
3) The comment must be fair and is not
malicious
4) The comment concern an issue of
public interest.
Words must be in the form of
comment
Cases: SB Palmer v Rajah & Ors
JB Jeyaratnam v Goh Chok Thong
The comment must be based on true facts
Cases: SB Palmer v Rajah & Ors
Telnikoff v Matusevitch
The comment must be fair and is not
malicious
Honestexpression of the writer made in
good faith
The comment concern an
issue of public interest
E.g: Administration of justice, acts and
activities of people who are influential in
a particular society of public figures
Case: London Artists Ltd v Littler
PRIVILEGE
Privilege
Statutory qualified Common law qualified
privilege privilege Absolute privilege
Ss 12, 13 (circumstances of S 11
privileged occasions)
UNINTENTIONAL DEFAMATION
Section 7
Case: Sandison v Malayan Times Ltd v
Ors
INNOCENT DISSEMINATION
Case: Vizetelly v Mudie’s Select Library
Ltd
Defendant must prove:-
i) he was innocent of any knowledge that
the publication in question contained a
libel; and
Nothing that was disseminated led him to
suppose that it contained libel
Not his negligence and did not know that
it contained libel
IMMUNITY
Case:Dato’ Param Cumaraswamy v
MBf Capital Bhd
MITIGATION OF DAMAGES
Apology
Section 10
Case:
Normala Samsudin v Keluarga
Communication Sdn Bhd
FACTORS TAKEN INTO ACCOUNT
IN ASSESSING DAMAGES
Plaintiff’s position and standing in the
society
Seriousness of the libel
Mode and extent of publication
Any mental disturbance, disappointment
and hurt feeling
Uncertainty, etc.
