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Defamation: Malaysian Law - Coggle Diagram
Defamation: Malaysian Law
Based on English common law principles except so far its been modified by the Malaysian Defamation Act 1957
The Malaysian Defamation Act 1957 is
para materia
with the English Defamation Act 1952
Definitions
Kho Poh Teck v Digi Telecommunications (2006):
Circumstances held to be defamatory include: one's creditworthiness refers to one's reputation so although
there's a mistake in publication
of a person's creditworthiness,
the cause of action is on defamation
and not negligence
A public of statement that reflects on a person's reputation and tends to
lower him in estimation of right-thinking members of society
, generally / tends to make them avoid him
A reasonable man
There's
no set of criteria
that will define what a reasonable man is
Closest description will be the law-abiding person
within the class of persons to whom the statement is made
This tort
protects a person from loss of reputation by prohibiting publication of information
that will attract negative attention from others
Types of Defamation:
In Malaysia, libel and slander are both torts and crimes (Sections 499-502 of the Penal Code)
Libel:
Its important to note that libel is actionable per se, means that C doesn't need to prove any damage
MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun (1995):
The law presumes that when a person's reputation is assailed, some damage must result
Ng Cheng Kiat v Overseas Union Bank (1984):
A back commits a tort of defamation if it wrongly prints the words "Account Closed" on a cheque that its in fact bound to honour
Bitutech Sdn Bhd & Ors v Bosco Phillip Anthony & Ors (2001):
Items in writing including an email was considered in libel action
Slander
Actual damage:
There must be financial loss / any loss measured in monetary terms
Must be proved
Must be a direct result in D's words
Worker's Party v Tay Boon Too; Worker's Party v AG (1975):
Facts: D uttered defamatory words in Hokkien in a speech at an election rally
Held: C had failed to prove special damage. C pleaded a huge sum, entire election expenses. There was no evidence to link the failure of C to win a single seat with statement from D
Proof of Actual Word Used:
Must prove actual words used
Rainy v Bravo (1872):
If defamatory words used doesn't exist, and secondary evidence is offered for its contents, words must be proved instead of what the witness perceives to be and its effect.
Otherwise witness and not the court / jury will be the judges of what is libel
Special damage
need not be proved in exceptional
circumstances
Imputation of a criminal offence:
There's imputation that C is involved in the commission of the crime
Crime = corporal punishment (fine not sufficient)
C Sivanathan v Abdullah bin Dato' Haji Abdul Rahman (1984):
Facts: D was called C a cheat, dishonest and a liar
Held: Court held that the 'crimes' did not attract corporal punishment, C's claim was not actionable per se
Slander relating to title, slander of goods and malicious falsehood - Per Borneo Post Sdn Bhd v Sarawak Press Snd Bhd (1999):
Malice is required
C must prove that the statement was published maliciously
Ratus Mesra Sdn Bhd v Shaik Osman Majid (1999):
C must prove a claim of malicious falsehood
(i) That D published about C, words that are false; and
(ii) They were published maliciously; and
(iii) Special damage has followed as the direct and natural result of the publication
Imputation of contagious diseases:
Words must infer that C suffer from such disease at the time of publication made
Saying C has AIDS/HIV that results in people avoiding / shunning C
Slander to women:
S4 DA 1957:
Publication of words that imputes unchastity / adultery to any women or girl requires no proof of special damage for the action to succeed
Luk Kai Lam v Sim Ai Leng (1978):
Facts: D called C a prostitute and said that C charged RM50 to entertain men at any time. These allegations were made in presence of 3rd party
Held: Since the words impugned C's chastity, don't have to prove special damage, slander is established
Imputation of professional incompetence / business reputation:
Per S4 DA 1957
In actions for slander
in respect of words
calculated to disparage C in any profession held / carried by him at the time of publication, C don't have to prove for special damage on whether or not words spoken of C in a way by his profession
What is considered to disparage C in any profession / calling / trade? - JB Jeyaretnam v Goh Chock Tong (1985):
For slander to be actionable per se, words must be calculated to disparage C in his office of profit - must receive monetary remuneration from holding that office
What do you mean by "respect of words"?
Must amount to charge of misconduct or unfitness against him
Ismail Shamsudin v Abdul Aziz Abdan (2007):
An allegation that a committee member of Luak Rembau of Negeri Sembilan that administers Malay Customary Law had abused his position on that committee by misusing letterheads and making improper decisions that will fall squarely within the wordings of S4
Per 6 DA 1957:
"(1) In any action for slander of title, slander of goods or other malicious falsehood, it won
(a) If the words on the action is found to cause pecuniary damage to C and are published in writing / other permanent form; or
(b) If words is found to cause pecuniary damage C in respect of any office / professional calling carried out by him at time of publication
(2) S3 of the Act will apply for purposes of this section as it applied for purposes of law of libel and slander".
Who can be a claimant
Any natural legal person / any living human being:
Any natural person (legal term for human beings) can bring a cause of action if he can satisfy the requirements of the law
Artificial legal persons (companies):
Any company that has legal personality can bring a cause of action
Borneo Post Sdn Bhd v Sarawak Press Sdn Bhd (1999):
Held that a company can claim for libel where the libel injures its reputation in the way of its business
C's action failed
as the alleged
defamatory statements did not contain any specific reference to C's company
and it didn't reflect upon its way of business
Governmental Authorities / Political Parties
Alleged defamatory words uttered must be reproduced in verbatim in statement of claim and a certified translation must be tendered
To merely describe the substance, purpose / effect of the words is not enough
Lim Kit Siang v Ling Liong Sik & Ors (1997):
C (leader of a political party) brought action against D, also a leader of a political party
Cause of action: statement allegedly made by 1st D in a speech later published by the 2nd, 3rd and 4th D with regard to misappropriation of funds collected by C's political party.
Issue: whether the words published, read in ordinary and natural meaning is capable of being defamatory + whether C's allegation in his statement of claim has a sufficient cause of action against them
Held: striking out the C's application with costs because the alleged defamatory words pleaded in C's statement of claim was a product of the reporter's journalistic skills = statement of claim didn't disclose any cause of action against 1st D
Derbyshire Principles:
Government bodies (whether central / local) don't have the right to maintain an action for damages for defamation as it goes against public interest for organs of government (whether central / local) to have that right
Chong Chieng Jen v Government of State of Sarawak & Anor (2019):
C (opposition and Member of Parliament alleged that Sarawak State Government has mismanaged the financial affairs of the state. C's allegations were published in newspapers, and was advertised.
FC decided that Derbyshire principle is not suitable for application in Malaysia due to S3 of Government Proceedings Act (GPA 1956)
Per S3 - both state governments with statutory right to initiate civil proceedings.
Includes the right to sue for defamation
Elements of a defamation cause of action (All elements must be made out)
The words are defamatory:
When are words defamatory?
The words lower the estimation of C in the
minds of right-thinking members of society generally and as a result the C is exposed to hatred, avoided, shunned / ridiculed
Syd Husin Ali Syarikat Penchetakan Utusan Melayu Bhd (1973):
Facts: D's newspaper published the following statements regarding C:
"The prime minister considers C as wanting to arouse the hatred of the Malaysian people against the Government and the British; the University lecturer was spreading subversive ideas to poison the thoughts of Malays'
Issue: Whether the words were defamatory of C
Held: By inference or implication the words conveyed the meaning that C was dishonest, disloyal to Government, a subversive element and ungrateful. C's claim accordingly allowed
Per Mohamed Azmi J:
The test for defamatory natures is "will the words tend to lower C in the estimation of any right-thinking members of society generally"
Right-thinking members of society - per Mark Ignatious Uttley v Wong Kam Hor (2002):
Persons of reasonable intelligence
Law-abiding citizen
Elusive ordinary, reasonable man
Mark Ignatius v Wong Kam Hor (2002):
Assemblywoman published with heading "British conductor's academic qualification questioned".
Held: HC held that whether the meaning is actually defamatory is a question of fact
Test: to see if such words tend to make reasonable people think the worse of C. There is no requirement of C to show that any of the readers thought worse of him
Reasonable man test
- Lau Chee Kuan v Chow Soong Seong & Ors (1955):
Facts: A Chinese newspaper described how C (a midwife) was taken to a house at night where she delivered a child. She was paid RM200. On leaving the house, she experienced paranormal activities. The article said that due to fright, she had been ill.
Held: CA found the article defamatory. Court also found that false statement had been made to discredit and ridiculed C.
Reasonable man definition:
[as people who would agree with such a person. But diverse opinions exist on all questions so you cannot select one over another]
Right-thinking member of society
- DP Vijandran v Karpal Singh (2000)
Facts: There was an allegation that C's lawyer committed an offence under S4(20) Penal Code Malaysia
Held: Court held that its irrelevant that the public may not understand the implication of the allegation.
It was sufficient that C's
fraternity
- including
those in judicial service
knew the meaning
Types of defamatory words
Natural and ordinary meaning:
Are the words abusive / defamatory?
Have to look at the circumstances and context in which words appeared must be taken into account
Ayob bin Saud v TS Sambanthanmurthi (1989):
Facts: C (land surveyor) who valued D's land, received a copy of a letter sent by D to a 3rd party that stated - "I am surprised that a Chinese surveyor has charged RM1,450 whereas a Bumiputra ask for RM4,480 which is
"daylight robbery"
Held: Court held that the words were general abuse and not defamatory in its literal sense
Innuendo
False Innuendo:
Words are defamatory to C due to inferences / implications arising from them
The words must speak for themselves
Syed Husin Ali v Syarikat Penchetakan Utusan Melayu Bhd (1973):
"The Menteri Besar considers Syed Husin Ali as wanting to arouse the hatred of the Malaysian people against the Government and the British. The University lecturer was spreading subversive ideas in order to poison the thoughts of the Malays".
C alleged that the words complained of were capable of the following innuendoes, namely that C was disloyal and irresponsible politician.
Chua Jui Meng v Hoo Kok Wing & Anor (2000):
Courts held that in their natural and ordinary meaning were understood to mean that C was dishonest and corrupt
Statements had discredited and disparaged C in his office as Deputy Minister of International Trade and Industry
True Innuendo:
Where words appear to be innocent to some people but appear to be defamatory to others as they have special knowledge or extra information
How to prove the following:
There exist external facts other than words by D, and these facts must be proven, combined with D's words are defamatory in nature; and
Facts are known by one or more persons to whom D's words have been published, and
The knowledge of these facts may cause the words to be defamatory of C in the eyes of reasonable men, who are privy to special facts
R Murugason v The Strait Time Press (1975):
C held that by claiming words are defamatory on a legal innuendo, C was admitting that in their natural and ordinary meaning the words are not defamatory
C failed to prove that one or more person to whom the words were published were privy of the special knowledge with regard to institution of court proceedings
Hence, evidence is important in cases of legal innuendo, C's claim was dismissed
Words have been published
Preliminary considerations:
Publication can take a variety of forms:
Communication;
Media
Writing - articles, newspaper, letters etc
Publication must be intelligible to the recipient, therefore no publication if:
Its a foreign language if recipient doesn't understand
If too deaf / blind to see
notified of statement through wrongful acts like theft of document / deception
Publication: Actual words used must be set out in claim
Lim Kit Siang v Ling Long Sik & Ors (1997):
Facts: C (leader of a political party) brought action against D (leader of a political party). Cause of action: statement made allegedly by 1st D in a speech that was later published by the 2nd, 3rd, and 4th D regarding misappropriation of funds collected by C's political party
Issue: Whether the words published, read in ordinary / natural meaning are capable of being defamatory, and whether C's allegation in his statement of claim disclosed sufficient cause of action against D
Held: Striking out C's application with costs (words should be reproduced verbatim
There has to be dissemination of the defamatory words / material to a 3rd party
- Dr Jenni Ibrahim v S Pakianathan (1988):
Facts: C (psychologist) and D (former managing director) of where C worked at wrote 3 letters indicating that C committed breach of trust amounting to RM70,000,00.
Copies of those letters were shared to important directors of the protection.
Held: sending copies of said letter to other parties constituted a publication
Publication to 3rd party - must the actual words be proven?
Where the words have been published, the actual words must be pleaded
Where words have not been published, C is seeking for an injunction to prevent publication,
the actual words need not be pleaded
What you only need for the words is
"with reasonable certainty"
Ng Kim Ho v Chai Szhe Shin (2006):
Proving and setting out the actual words may be dispensed with if it doesn't cause injustice or prejudice to the case
Republication:
Every repeat or copy of the defamatory words = new cause of action
Publication - liability of Website facilitator: Stemlife Bhd v Bristol Myers Squibb (M) Sdn Bhd (2010):
Facts: C filed a libel claim against D based on numerous messages including a hyperlink to an blog created and posted by users of 1st D's website forum. Was there publication by D's?
Trial judge, Zabariah Mohd Yusof J ruled that its a publication when:
(1)
there is some positive overt act on part of D in disseminating the alleged defamatory remarks or statements;
and
(2)
D must have control on circulation of statement / words complained of
Held: These elements were not present in the case of 1st D and was merely an internet service provider that performed a passive role in facilitating posting on the internet and hence can't be deemed a publisher at common law (Bunt v Tiley 2006)
Place of Publication - Ing Cheng Ang v Taro Imanaka (1997):
Facts: A letter was written and sent from Malaysia to a person in Japan
Issue: Whether the court in Malaysia had jurisdiction over the matter and was there publication?
Cause of action: arises when the place where the publication takes place, whether its read, seen or heard
Held: Alleged libel (publication) was committed outside of Malaysia as its addressed to a citizen of Japan, the Malaysian courts have no jurisdiction. D resides in Singapore, no publication of libel in Malaysia
Words must refer to C
The test laid down per David Syme v Canavan:
"Are the words such that it would be reasonable in the circumstances to lead person acquainted with C to believe that he was the person referred to?"
There has to be sufficient reference to him
Abdul Kalid v Parti Islam Se Malaysia (2002):
C contended that the issue of Harakah of 29th March 1999, D's maliciously and with intent to vilify him, wrote and printed and published the article.
Held: HC held that it was not necessary that the words must refer to C by name, provided that the words understood by reasonable people refers to C
Only defamed can bring the action. And only when they are alive - Civil Law Act 1956 S8(1)
Atip bin Ali v Josephine Doris Nunis & Anor (1987):
D was to marry someone. She sued him for breach of promise but withdrew her claim. Local newspaper found out about it and due to publication, C and members of UMNO claimed that PAS avoided them as D was an adulterer
Held: The words "UMNO" did not appear on the writ. And the only party defamed was the someone who did not take any action
Per Wan Yahya J: "defamation is a personal action maintainable by person defamed and not by individuals who are
remotely related to him"
Can be reference through caricature - Datuk Syed Kechik bin Syed Mohamed v Datuk Teh Pau Tzu (1977):
Can be reference through external or extrinsic facts
- Chew Sew Khian v Saniboey Mohd Ismail (2003):
C claimed against D for damages for libel in respect of an article published in a newspaper. Article said that police was pursuing C and named in a "jurujual"
Held: Claim against D was dismissed. A fair-minded reader "not avid for scandal and not "unduly suspicious" on reading the article cannot be assumed to reasonably understand that the article was referring to C.
Factors:
That there's external / extrinsic facts that must be proven, which link the defamatory words to him;
The words published to persons who had actual knowledge of those external / extrinsic facts; and
That imputing knowledge of these facts to a reasonable man, he can reach a conclusion that the words indeed referred to C
Class or Group defamation:
Defamation can arise if a group of people are referred to and C can prove that words refer to each / particular individuals in the class / group of persons where he himself personally implicated
Tengku Jaffar bin Tengku Ahmad v Karpal Singh (1993):
Facts: Suit arises out of a press statement allegedly made my D which was published in the issue of a newspaper. Statement alleged to be seditious and libellious.
It is alleged by C that by "such impertinent slander as to aforesead, D is insinuating that most rulers are capable of committing offences under the International Security Act and has directly classified the Malays as hooligans".
Held: Reference to a ruler does not mean reference to the Malay race generally and C who is of the Malay race cannot sue as the words don't specifically refer to him