The Court held that D could not rely on the defence of qualified privilege as D did not have a duty to issue press statements regarding the information he received from the businesswoman and the press did not have a corresponding duty to receive the information. By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April 1956 in relation to defamation is applicable in Malaysia. B, a court reporter, published a newspaper article reporting proceedings of a trial. privilege and the acceptance that written statements includes digital publications. Further, the Court also held that D’s actions were actuated by malice as D failed to inquire from P to verify the truth of the information that D received from the businesswoman when he could have done so but instead chose to publicise the information to the press to score political capital for himself and his political party ahead of the impending general elections. At common law, there are two types of defamation: For both libel and slander, a defamatory statement is required. Tort I (LIA 1004) Book title Law of Torts in Malaysia; Author. By Raymond Mah and Eric Toh @ MahWengKwai & Associates. Conveys an imputation on a person disparaging or injurious to his office, profession, calling, trade or business. The Malaysian law on criminal defamation is governed by the Penal Code (particularly, section 499) and will not be the focus of this article. However, the Defamation Act has remained unchanged since its enactment despite technological advances in communication, maturing standard in journalism and evolving societal values. At common law there are two types of defamation: 1. in relation to defamation is applicable in Malaysia. To prove defamation, the plaintiff must show (1) that the statement is false, (2) that it was published or communicated to a third person, (3) that there is fault amounting to at least negligence, and (4) that some harm was caused to the person or entity. Slander (any false oral statement or representation that amounts to … Taken at face value this definition is obviously far reaching. D published a defamatory statement that he received information from a businesswoman that P had sought and obtained bribes from her. A+ A- ... To explain this further, we’ll need to look at the law of defamation. Defamation occurs when a person expresses words or actions that may lower another person's reputation in the eye of public. Section 3 of the Malaysian Defamation Act 1957 provides that the broadcasting of words by means of radio communication shall be treated as publication & permanent form & therefore constitutes a libel. Why do I need a will? The common law evolves to keep up to date, for example, with the adoption of new principles such as the Reynold’s privilege and the acceptance that written statements includes digital publications. B will not be successful in raising the defence of justification if B can only prove that there was such a rumour. The Defamation Act only applies to civil claims. There are distinct differences of these two forms of defamation. 2020-10-01 Mikaela A. The defence of qualified privilege is available where the defamatory words were: However, this defence will fail if the defamatory words were published with malice. TYPES OF DEFAMATION • Defamation may be divided into two different types, namely, libel and slander. B (subordinate) authors a letter of complaint regarding the poor or unlawful conduct of C (supervisor) and delivers the letter to C’s superiors in the company and the president of the union of employees in the company. B, an educational institution, sued C, a newspaper for publishing an article which contained statements which were defamatory of B. There are two types of defamation that a plaintiff can establish in his suit for defamation. Generally, there are three types of damages in a defamation case: (1) actual damages, (2) assumed damages, and (3) punitive damages. The term "defamation" is an all-encompassing term that covers any statement that hurts someone's reputation, also called defamation of character. Essentials of Defamation – There are three main essentials of Defamation viz., 1. The common law evolves to keep up to date, for example, with the adoption of new principles such as the Reynold’s privilege and the acceptance that written statements includes digital publications. [2] Pardeep Kumar a/l Om Parkash Sharma v Abdullah Sani bin Hashim [2009] 2 MLJ 685, [3] Abdul Rahman Talib v Seenivasagam & Anor [1965] 1 MLJ 142, [4] Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187, [5] Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127, [6] Gwee Tong Hiang v Boo Cheng Hau [2016] 2 MLJ 388, [7] JB Jeyaratnam v Goh Chok Tong [1985] 1 MLJ 334. and will not be the focus of this article. There are two methods of interpreting the words in an allegedly defamatory statement: – By their natural and ordinary meaning; or, The natural and ordinary meaning of words may be:[1]. D published a defamatory statement that he received information from a businesswoman that P (a local councillor) had sought and obtained bribes from her. B had an interest or duty to report the complaints against the professional conduct of C to the DB for the DB to investigate the complaint under the Legal Profession Act 1976; The DB had a corresponding interest or legal duty as mandated by the law to receive the complaints. For the defence of fair comment to succeed, the following elements will have to be satisfied by the defendant:[6]. Cases that seek monetary rewards, as opposed to just injunctive relief, are usually highly contentious and may last longer than other types of defamation … The Defamation Act does not define the word “defamation”. In this article, we’ll be looking at civil defamation as this is more relevant to the topic. Instead, the definition of “defamation” is to be found in Malaysian case law and the English common law. Note: This article does not constitute legal advice to any specific case. If the statement is made in writing and published, the defamation is called "libel." In an event attended by many of your colleagues, someone loudly exclaims that you are a lazy and incompetent worker and you are only in your current position due to certain “favours” provided to your superiors. It goes through the nature and function of tort law, the rules and principles that govern it and the remedies available. Libel means that the statement was made in printed form. The Defamation Act does not define the word “defamation”. It is arguable, however, that progressive judgment and incremental changes come too slowly. Among the defences relied on by C was the defence of fair comment. B (company running a private hospital) and C (doctor in the private hospital) sued X and Y for defamatory statements published in a newspaper regarding the quality of medical treatment provided by B and C. However, the article in the newspaper only made reference to a “doctor” or “doctor in charge”. Feel free to contact us for complimentary legal consultation. efendant did not believe what he said was true (for defence of qualified privilege) or did not honestly hold the opinion expressed (for defence of fair comment); efendant to conduct an enquiry into the truth of the content. The matter is governed by common law. There are two (2) elements which have to be satisfied for a defendant to succeed in raising the defence of Reynold’s Privilege:[4]. A person will have to show that he/she suffered pecuniary loss or loss that is capable of being estimated in money directly due to the slanderous remarks made against him/her. The Tort of Defamation: Concepts and Cases on Libel and Slander in Malaysia and Singapore Print The Tort of Defamation is an authoritative specialist text covering various defamation situations occurring in context of the Malaysian and Singapore's landscape. Malaysia: Defamation Act 1957 Type of defamatory statement 1) Libel: statements made in a permanent form. For example, the statement that “Kenny recently purchased a luxurious bungalow worth RM10 million” may not be defamatory under its natural and ordinary meaning. This act is in pari materia with the English Defamation Act 1952 and governs civil defamation whilst sections 499 and 500 of the Malaysian Penal Code deal with criminal libel. Instead, the definition of “defamation” is to be found in Malaysian case law and the English common law. At common law, there are two types of defamation: Libel – defamation in permanent form e.g. 266 2. It's heard by a civil – not criminal – court and it can result in the defendant being ordered to pay punitive or monetary damages. spoken words. Police Reports (First Information Reports under Section 107 of the Criminal Procedure Code); and. 18/19 This Act may be cited as the Defamation Act 1957. Case Example 2: Arbitration in Malaysia is governed by the Arbitration Act 2005 (Amended 2011), which is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. written words in articles, newspapers, Facebook posts or … Defamation - Summary Law of Torts in Malaysia. There are two questions that have to be answered on the issue of reference to the Plaintiff:[2], 1. B publishes a statement about C having an extramarital affair honestly believing it to be true. This is because it is usually difficult for a civil servant to be able to afford such a lavish home. You receive a message through Whatsapp accusing you of being a troublemaker and a dishonest person, and that Whatsapp group includes many of your neighbours. However, the Defamation Act has remained unchanged since its enactment despite technological advances in communication, maturing standard in journalism and evolving societal values. provisions specifically on liability of internet service provider in Malaysia. The article contained a few statements which C, an advocate and solicitor, claimed was defamatory of him. B publishes a statement about C having an extramarital affair, honestly believing it to be true. 2. An implied or inferred or an indirect meaning; There is a defamatory statement made or conveyed by written or printed words or in some other permanent form; The defamatory statement concerns the plaintiff; and, The defamatory statement is published to a person other than the plaintiff. Kenny recently purchased a luxurious bungalow worth RM10 million. Among the defences relied on by C was the defence of fair comment. Published by a person who has an interest or a duty, legal, social, or moral, to publish the words to the person(s) to whom they were published; and. You receive a message through Whatsapp accusing you of being a troublemaker and a dishonest person, and that Whatsapp group includes many of your neighbours. Nevertheless, the Defamation Act provides that certain slanders are actionable without proof of special damage suffered: To succeed in an action for defamation, the Plaintiff has to prove that the alleged defamatory statement refers to the Plaintiff. B’s letter to the Advocates and Solicitors Disciplinary Board (“DB”) is likely to be protected by the defence of qualified privilege if the letter was published without malice as: There are two (2) elements which have to be satisfied for a defendant to succeed in raising the defence of Reynold’s Privilege:[4], Some factors which can be taken into account in determining whether the defendant exercised ‘responsible journalism’ are:[5], For the defence of fair comment to succeed, the following elements will have to be satisfied by the defendant:[6], A fair comment may be defined as a comment which a fair-minded man holding strong views, obstinate views or prejudiced views could have honestly made based on the facts proved.[7]. – The defendant will first have to establish that the defamatory words were uttered on a matter of public interest and the public had a corresponding interest in receiving the same; – Once that was established, the court must consider whether the defendant acted reasonably in publishing the defamatory words (more conveniently known as the ‘responsible journalism test’, although the Reynold’s Privilege defence is not limited to journalists). A person will have to show that he/she suffered pecuniary loss or loss that is capable of being estimated in money directly due to the slanderous remarks made against him/her. By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April 1956 in relation to defamation is applicable in Malaysia. B will be successful in raising the defence of justification if B can prove that C did indeed engage in adultery. Where a Plaintiff can prove that a defendant did not believe what he said was true (for the defence of qualified privilege) or did not honestly hold the opinion expressed (for the defence of fair comment); Where a Defendant is proven to be indifferent to the truth of the content published, especially where there are avenues for the defendant to conduct an enquiry into the truth of the content. For an action in slander, the following elements need to be satisfied: In an event attended by many of your colleagues, someone loudly exclaims that you are a lazy and incompetent worker. – Conveys an imputation on a person disparaging or injurious to his office, profession, calling, trade or business. • In Malaysia, libel and slander are both torts and crimes (Sections 499-502 of the Penal Code). In West Malaysia, the limitation period to bring an action in defamation is six (6) years. This might be true for some issues. Thus, statements in newspapers, books, letters, notices, articles are libels. B (subordinate) authors a letter of complaint regarding the poor or unlawful conduct of C (supervisor) and delivers. B, a court reporter, published a newspaper article reporting proceedings of a trial. P sued D for putting a notice up at the front wall of D’s house which stated, among others, that D’s neighbours have been stealing his mail. In Malaysia, the law which governed defamation is the Malaysian Defamation Act 1957. Types of Parliamentary Privilege: (Continuation) In Malaysia, save for one exception relating to sedition, the privilege of freedom of speech during parliamentary proceedings is absolute. ”) is likely to be protected by the defence of qualified privilege if the letter was published without malice as: Privilege defence is not limited to journalists). Additionally, for slander to be actionable, generally a person is required to prove that he/she suffered actual damage or special damage. No civil or criminal action can be taken against an MP for defamation or for the violation of the Penal Code, Official Secrets Act or any other criminal statute in relation to his parliamentary words. B will not be successful in raising the defence of justification if B can only prove that there was such a rumour. NOTES PREPARED BY UNIVERSITY MALAYA LAW STUDENTS: Kaviarasan, Thareehnee, and Dhana. Whether reasonable persons who know the plaintiff would conclude that the defamatory words refer to him or her. Slander to women 268 2. Further, the article only mentioned that the private hospital was in Kedah without specifying the name of the hospital. The Court held that the words published in their natural and ordinary meaning imputed to C the following: – That C was a rude and inconsiderate lawyer which caused everyone present in court, including the judge, to be uncomfortable; – That C was non-compliant of the judge’s directions; and. The Defamation Act only applies to civil claims. The Malaysian law on criminal defamation is governed by the Penal Code (particularly, section 499) and will not be the focus of this article. Instead, D should have reported the alleged wrongdoing to the MACC or the police. The statements implied that B was a ‘diploma mill’. Keywords: Cyber Defamation, Internet Service Provider, Communication and Multimedia Act 1998 _____ Introduction Cyber Defamation, also known as Internet Defamation or Online Defamation, is defamation that occurs in the world of Internet and its users. The term defamation is actually an umbrella for two types of wrongdoing: libel and slander. The Court held that the defence of fair comment was defeated by malice on the part of C as C “deliberately or at least recklessly abstained from availing themselves of means of information which lay at hand when the slightest inquiry would have shown that the imputation appearing in the article complained of were groundless”. The defamatory words must be comments as opposed to statements of fact; The comments must be based on facts proven to be true; The comments must be on a matter of public interest. The Court held that the words published in their natural and ordinary meaning imputed to C the following: However, B succeeded on the defence of fair comment on the basis that B’s statements were fair comment based on B’s honest and fair observations of what happened in the case. There is a defamatory statement made or conveyed by spoken words, sounds or in some other non-permanent form; The defamatory statement concerns the plaintiff; The defamatory statement is published to a person other than the plaintiff. Without knowing more about Kenny, it can be taken to mean that Kenny is a wealthy man who recently made another property investment. Libel – defamation in permanent form e.g. • In England, libel is a tort as well as a crime whereas slander is only a tort and not a crime. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. C. Types of defamation 266 1. In West Malaysia, the limitation period to bring an action in defamation is six (6) years. Academic year. That C’s impolite and non-compliant conduct caused the judge to become angry or upset so as to cause the judge to walk out of the court without warning. In an action for libel, the following elements need to be satisfied: – There is a defamatory statement made or conveyed by written or printed words or in some other permanent form; – The defamatory statement concerns the plaintiff; and, – The defamatory statement is published to a person other than the plaintiff. However, for those who know that Kenny is employed as a civil servant, the statement can be understood to mean that Kenny may be engaging in corrupt activities. University. Examples of situations where malice may be found to exist are: B, an educational institution, sued C, a newspaper for publishing an article which contained statements which were defamatory of B. The Defamation Act 1957 was drafted and passed at the time when print and post were the technology of the day. For both libel and slander, a defamatory statement is required. The Malaysian Defamation Act 1957 does not define defamation. B (subordinate) authors a letter of complaint regarding the poor or unlawful conduct of C (supervisor) and delivers the letter to C’s superiors in the company and the president of the union of employees in the company. Instead, the definition of “defamation” is to be found in Malaysian case law and the English common law. [7]  However, this defence will fail if the defamatory words were published with malice. Whether reasonable persons who know the plaintiff would conclude that the defamatory words refer to him or her. Libel 266 Libel by omission? At common law there are two types of defamation: 1. 4 Laws of Malaysia ACT 286 Defamation 5 LAWS OF MALAYSIA Act 286 DEFAMATION ACT 1957 An Act relating to the law of libel and slander and other malicious falsehoods. In Malaysia, the law on defamation is contained in the Malaysian Defamation Act 1957. For an action in slander, the following elements need to be satisfied: – There is a defamatory statement made or conveyed by spoken words, sounds or in some other non-permanent form; – The defamatory statement concerns the plaintiff; – The defamatory statement is published to a person other than the plaintiff. If a statement is made about a person which is defamatory and affects the reputation of that person in the eyes of the public, that person may have a claim for defamation against the maker of that defamatory statement. Both defences of qualified privilege and fair comment will fail if it is proven that the defamatory words were published with malice. – The steps taken to verify the information; – The status of the information (the allegation may be already the subject of an investigation); – Whether comment was sought from the plaintiff; – Whether the article contained the gist of the plaintiff’s side of the story; – The circumstances of the publication, including the timing. "This book simplifies a very specialised area of law and considers the latest cases in the area of defamation in Singapore and Malaysia, including defamation cases on the internet. Perhaps a comprehensive review of the Defamation Act is necessary with the advent of the internet and various social media platforms, which can allow the spread of defamatory statements far faster and wider than ever envisioned by the drafters of the Defamation Act. 1.The statement must be published Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to … Innuendo is used to describe words which have special meaning only to persons who have knowledge of some special background or facts. Defamation is the publication of a statement which reflects on a persons reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him. Slander – defamation in temporary form e.g. Slander 266 D. Exceptions to the requirement of actual damage in cases of slander 268 1. At common law, there are two types of defamation: Libel – defamation in permanent form e.g. – Statements given to police under Section 112 of the Criminal Procedure Code. You agree & accept our Terms & Conditions to signup. A person’s honest belief in the truth of the defamatory words is no defence if the defamatory words turns out to be untrue. Libel – defamation in permanent form e.g. B publishes a statement about C having an extramarital affair after hearing a rumour about it. The information was obtained in 2012 but was not acted upon until 2013 (just before the 13th General Election) where D made the defamatory statement in two press conferences. This is because it is usually difficult for a civil servant to be able to afford such a lavish home. Libel – defamation in permanent form e.g. Below are the two types of defamation: Libel: Libel is defamation in a permanent form. As D’s house was located at a corner of the housing area and P was D’s only immediately neighbour, the Court held that the notice with the words: “jiran mencuri surat-surat kami” sufficiently referred to P, D published a defamatory statement that he received information from a businesswoman that P had sought and obtained bribes from her. Instead, the definition of "defamation" is to be found in Malaysian case law and the English common law. 1.2 Problem Statement. . The law presumes that a person is of good character, unless proven otherwise. P sued D for putting a notice up at the front wall of D’s house which stated, among others, that D’s neighbours have been stealing his mail. B publishes a defamatory statement about C having an extramarital affair. B wrote and published a letter to the Advocates & Solicitors Disciplinary Board containing allegations that C (advocate & solicitor) intentionally deceived the Court and is unfit to practice as an advocate and solicitor. The statements implied that B was a ‘diploma mill’.  Case Example 1. The applicable legislation for defamation in Malaysia is the Defamation Act 1957 (“Defamation Act”). By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April 1956 in relation to defamation is applicable in Malaysia. A defamatory statement is a statement that: – Tends to lower a person in the estimation of right thinking members of society generally; – Causes a person to be shunned or avoided or to expose him to hatred, contempt or ridicule; or. ” may not be defamatory under its natural and ordinary meaning. – The defamatory words must be comments as opposed to statements of facts; – The comments must be based on facts proven to be true; – The comments must be on a matter of public interest. Whether the defamatory words can be regarded as being capable of referring to the plaintiff; and. This person also said that you are only in your current position due to certain “favours” provided to your superiors. The common situations that the defence of absolute privilege may be raised are for defamatory words published in: – Police Reports (First Information Reports under Section 107 of the Criminal Procedure Code); and. However, B succeeded on the defence of fair comment on the basis that B’s statements were fair comment based on B’s honest and fair observations of what happened in the case. B’s letter to the Advocates and Solicitors Disciplinary Board (“DB”) is likely to be protected by the defence of qualified privilege if the letter was published without malice as: – B had an interest or duty to report the complaints against the professional conduct of C to the DB for the DB to investigate the complaint under the Legal Profession Act 1976; – The DB had a corresponding interest or legal duty as mandated by the law to receive the complaints. B publishes a statement about C having an extramarital affair after hearing a rumour about it. Under the Malaysia Law which based on English Common Law liability, there are two types of defamation, libel and slander. D did not succeed on his defence of justification as D failed to prove that P had sought and obtained bribes from the businesswomen. Examples of situations where malice may be found to exist are: B, an educational institution, sued C, a newspaper for publishing an article which contained statements which were defamatory of B. Course. Retention sum is a…, “Prestige Malaysia 40 Under 40 2020: Meet the all-female honour roll Prestige Malaysia rings in…, Since the announcement by the Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin on 16.3.2020…, The importance of preparing a will could not be overemphasised. written words in articles, newspapers, … The Court held that D could not rely on the defence of qualified privilege as D did not have a duty to issue press statements regarding the information he received from the businesswoman and the press did not have a corresponding duty to receive the information. There are two questions that have to be answered on the issue of reference to the Plaintiff:[2]. This article will provide a brief overview of the meaning of defamation, the elements required to bring a defamation action, defences, and the limitation period to bring a defamation claim in West Malaysia. The letter contains statements that potentially defame C. B wrote and published a letter to the Advocates & Solicitors Disciplinary Board containing allegations that C (advocate & solicitor) intentionally deceived the Court and is unfit to practice as an advocate and solicitor. written words in articles, newspapers, Facebook posts or Whatsapp messages; Slander – defamation in temporary form e.g. The common law recognized two forms of defamation that is libel and slander. Statements given to police under Section 112 of the Criminal Procedure Code. Defamation Definition Types Elements Defences Remedies Definition: Sim v Stretch Publication of untrue statement which tends to lower a person’s reputation in the estimation of right-thinking members of society – tends to make them shun or avoid him. The person(s) to whom the words were published had a corresponding interest or duty to receive them. Famous Defamation Cases. In an action for libel, the following elements need to be satisfied: You are a member of your neighbourhood committee. 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