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Defamation in Malaysia — Elements, Remedies and Defences

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INTRODUCTION

Defamation occurs when a statement made by a person causes damages or lowers the reputation of another person in the eyes of the public. However, proving defamation might not be as straightforward as simply proving that you have suffered damages to your reputation.

For example, if employee A told his employer B in a WhatsApp conversation that another fellow employee, C, had misappropriated the company’s fund (which is true and this conversation was later found out by C), can C now claim against A for Defamation?

This will be revealed at the end of this article.

The governing legislations for defamation in Malaysia are the Defamation Act 1957 (which applies to civil defamation) and Section 499 of Penal Code (which applies to criminal defamation). However, for the purpose of this article, the author will only focus on civil defamation.

TYPES OF DEFAMATION

There are 2 types of defamation, namely:

    (a) Libel: defamatory statements made in permanent form which includes newspapers, articles, broadcasting by means of radio communication, and social media posts.

    (b)Slander: defamatory statements made in temporary form such as verbal conversations or spoken words.
In bringing an action for libel or slander, a person (i.e. the Plaintiff) has to prove that the following 3 criteria are present:-

  1. There is a defamatory statement made. Either in permanent or temporary form;
  2. The defamatory statement concerns the Plaintiff; and
  3. The defamatory statement is published to a person other than the Plaintiff.

WHAT IS “DEFAMATORY STATEMENT”?

A defamatory statement is essentially a statement that either:

  • lower the reputation of a person in the eyes of right-thinking members of society in general;
  • causes a person to be avoided by others or subjected to hatred; or
  • causing injuries to a person’s business reputation or his profession.
In reality, some statements are clear cut defamatory in their natural and ordinary meaning whilst some statements are not as straightforward. The question then is how does one determine whether a statement is defamatory? In this regard, the Court will usually determine whether a statement is “defamatory” by adopting the following interpretations rules:-

    A. Natural and Ordinary meaning
    Statements that are defamatory in their natural and ordinary meaning which includes:-
    1. The literal meaning of the words;
    2. An implied or inferred or an indirect meaning;
    3. Any meaning based on general knowledge.
    An example would be: D is a lazy worker and often arrives late at work.

    B. Innuendo
    Statements that are not defamatory in nature but may, by looking at the circumstances in which the statements were made, make that particular statement defamatory.

    A common example would be: E was seen spending a honeymoon with F. If you do not know E, you would think that E & F are newly-weds. However, it will not be the same if E was already married to G.

WHAT DOES “DEFAMATORY STATEMENT CONCERNS THE PLAINTIFF” MEAN?

Now it is insufficient for a Plaintiff to establish that a defamatory statement has been made. Moving to the 2nd criteria, the Plaintiff will have to show that the said defamatory statement concerns the Plaintiff.

There are two ways in which a defamatory statement can be deemed to concern the Plaintiff:

  1. The defamatory statements make specific reference to the Plaintiff; and/or
  2. The defamatory statements do not make specific reference to the Plaintiff but a reasonable person who, due to the circumstances in which the statements are made, would link such statement to the Plaintiff and/or conclude that such statements are referring to the Plaintiff.

WHEN IS A DEFAMATORY STATEMENT DEEMED “PUBLISHED”?

In order for an action for defamation to succeed, the defamatory statement has to be published to 3rd party(ies) (i.e.  a person other than the Plaintiff or the defamer), be it orally or in written form or in any other means.

WHAT ARE THE DEFENCES AVAILABLE TO THE MAKER OF THE STATEMENT?

In the event that the Plaintiff could establish that the 3 criteria for defamation is present, the burden is then on the person making the statement (i.e. the defamer) to raise any defence to justify the reason of making the defamatory statement. The effect of these defences is that even if the statements are defamatory, the defamer will not be liable to compensate the Plaintiff :-

    A. Defence of Justification
    To rely on the defence of Justification, the person who made the defamatory statement must show that the defamatory statement is true or substantially true.

    B. Fair Comment
    In brief, fair comment is a comment or a conclusion made by a fair-minded person which he could have honestly arrived at notwithstanding however prejudiced or however strong his opinion may be.

    In order to rely on the defence of Fair Comment, the maker of the statement must show that:

    1. the defamatory statements are comments/opinions as opposed to statement of facts;
    2. the comments must be fair and based on true facts;
    3. such statement is a matter of public interest.
    However, do note that the defamer will not be entitled to rely on this defence if it can be shown that the defamatory statements were made with malicious intent.

    C. Absolute Privilege

    The defence of Absolute Privilege is defence for defamatory statements made with the aim of facilitating the effective discharge of your public duty, duty in judicial proceedings or events leading to judicial proceedings.

    For example, if you are describing a person as negligent or simple minded in your police report, but you are doing this in the course of discharging your duty, then you will not be liable for defamation.

    Examples are reports published in Judicial proceedings, Parliamentary proceedings or Police reports.

    D. Qualified Privilege

    Qualified privilege is a defence available for individuals who made statements to a body (usually regulatory bodies/committee) who has duty to receive these statements. A straightforward example would be, a complain made against an individual to a body where he is regulated.

    This defence is available when:-

    1. the maker of the statement has an interest or a duty, legal, social, or moral, to publish the words to a person/entity to whom they were published; and
    2. The person/entity to whom the words were published had a corresponding interest or duty to receive them.
    However, similar to the defence of Fair Comment, the defamer will not be entitled to rely on this defence if it can be shown that the defamatory statements were made with malicious intent.

WHAT CAN YOU POSSIBLY GET FROM TAKING ACTION AGAINST THE DEFAMER?

In the event that the Plaintiff establishes a case of defamation and the defamer has failed to raise any positive defence, the Plaintiff will be entitled to certain remedies under the law.

The more common remedies available to the Plaintiff would be damages, compensation or an apology from the defamer. Although there is no fix formula to calculate damages/compensation, when the proceeding is brought to court, the court will assess damages based on amongst others the reputation of the Plaintiff, the severity and seriousness of the defamatory statements to the Plaintiff, and the intention behind the making of such statements.

Alternatively, depending on the nature of your case, you can also issue a letter to the maker to demand an apology.

It is important to note that the limitation period for a person to bring a defamation suit is 6 years from which the defamatory statement was made. In other words, a person will be time bared from bringing a defamation suit once the 6 years limitation period is over.

CASE SCENARIO

Back to our case scenario above, having read the article, do you think that C can sue A for defamation?

Firstly, the statement made is libel as it is communicated via WhatsApp.

Secondly, the statement is in its ordinary and natural meaning defamatory i.e. C misappropriated company’s fund.

Thirdly, the statement directly points to C and was publish to B.

From these, we can see that the elements of defamation action are made.

However, are there defences available for A?

Since C did in fact misappropriated company’s fund. A will have a valid defence under Justification. Therefore, C will not have a proper action for Defamation against A.
Disclaimer: The contents of this write-up is intended for general informational purposes only and does not constitute legal advice.

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