An idiots introduction to the Law of Defamation

Defamation exists when 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.[1] 

The law operates on the basis that reputation is a legitimate concern which needs to be protected by the law of tort. Liability does not depend on the intention of the defamer but on the fact of defamation.[2]

Justice Vernon Ong, in the High Court case of Kumarasamy a/l Naciappan v The Straits Times Press (M) Bhd [2013] 7 MLJ 361, was quoted to have said the following:

Briefly, defamatory matter means matter which would tend to lower the Plaintiff in the estimation of right thinking members of society generally. The essential nature of a defamatory statement is that it is one that causes an adverse effect of a person’s reputation, that is to say, how he is viewed by others.

Defamation may be divided into two different types, namely libel and slander. Libel is defamation in permanent form and is usually visible to the eye, such as items in writings, pictures, statues or effigies. Libel is actionable per se, which means that a Plaintiff need not prove any damage.

Slander, on the other hand, is defamation in a temporary or transient form. Publication is usually made through spoken words or gestures. A slander is not actionable per se. This would mean that the Plaintiff needs to prove actual or special damage in order to succeed in his or her action. Actual damage refers to financial loss or any loss that may be measured in monetary term.[3]

To sustain a cause of action in defamation, a claimant must prove the following: first, that the statement or representation by the Defendant was defamatory, secondly, that the said statement referred to the claimant; and thirdly, that the defamatory statement was published to a third party.

As noted, if the defamatory material is in a permanent form, ie libel, damage on the part of claimant is presumed whilst if the defamatory material is not in a permanent form, ie slander, the claimant must further prove that he has suffered special damage.[4]

In a nutshell, our law on defamation, which is governed by the Defamation Act 1957, the burden of proof, lies on the plaintiff to show that (1) the words are defamatory; (2) the words refer to the plaintiff; and (3) the words were published.

This principle, which was laid in the classic case of Ayob Bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315, was followed by later judges in cases such as the High Court cases of Kesatuan Kebangsaan Pekerja-Pekerja Bank & Ors v The New Straits Times Press (M) Bhd [2013] 8 MLJ 199 and Kian Lup Construction v Hong Kong Bank Malaysia Berhad [2002] 7 MLJ 283.

In the High Court in the case of Kian Lup Construction , Justice Ramli Ali (as his Lordship then was), following the principles laid down in the case of Ayub Bin Saud, was quoted to have said the following:

In other words, the Plaintiff must prove three elements of the tort of defamation, which are:

a.            the Plaintiff must show that the statement bears defamatory imputations;

b.            the statement must refer to or reflect upon the Plaintiff’s reputation; and

c.            the statement must have been published to a third person by the Defendant.

It is incumbent upon the Plaintiff to prove all these ingredients before this Court need even to consider the defence of the First to the Third Defendants.[5] If the answers to all the above are in the negative, then the action would end, and this case shall be dismissed by this honourable Court without the need to consider the Defendant’s plea of defence.[6] In other word, the burden of establishing those ingredients at the outset rests on the Plaintiff. 

Thereafter, if the plaintiff has succeeded in establishing the three ingredients, certain presumptions in favour of the latter then follows, namely that the matter complained of is true, and that in an action of slander where it is not actionable per se, damage was caused to the Plaintiff. The Defendants in defence must rebut and establish that the remarks made were true and the Plaintiff has suffered no damage.[7]

[taken from my written submission as per filed in the Shah Alam High Court in 2014. We won the case with RM32,000.00 in costs awarded to the clients]

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[1] Norchaya Talib, Torts in Malaysia, University Malaya Press, 1997, p.238

[2] Mohsin Hingun & Wan Azlan, Principles of the Law of Tort in Malaysia, MLJ Sdn Bhd, 1998, p.175

[3] Norchaya, p.239

[4] Mohsin & Wan Azlan, p.178

[5] Dato Annas Bin Khatib Jaafar v Datuk Manja Ismail [2011] 8 MLJ 747

[6] Pemegang Amanah Lembaga Zakat v Hj Shaari Bin Sungib [2014] 10 MLJ 65

[7] Pardeep Kumar a/l Om Prakash Sharma v Abdullah Sani Bin Hashim [2009] 2 MLJ 685