What if what I said is true, will I be liable for defamation?

In essence, the law on defamation always seeks to strike a balance between the public’s freedom of speech and the individual’s right to protect his good name. However, if the defamatory allegations are based on the truth, the maker of the statement may rely on the defence of justification and protect his right to free speech.

Q1: What is the Defence of Justification?

Defence of Justification in the context of laws of defamation connotes the truth of the statement. The rationale is that one who tells the truth should not be held liable for asserting the truth regardless of how defamatory the statement is..

Q2: What is the legal position with regard to the plea of justification?

This defence is also known as justification by truth in that if what is said in the defamatory statement can be proved to be true, irrespective whether the defendant was motivated by malice or bad faith ,it will affords complete exoneration from liability for a defendant. As a result of a successful defence of justification, the claim in defamation becomes unsustainable.

Q3: Who bears the Burden of Proof? What is the standard of proof for establishing a plea of justification?

The defendant who invokes the defence of justification shall bear the burden of proving a defence of justification in defamation and the required standard of proof is based on a balance of probabilities.

A peculiarity of the law of defamation is that, it was not part of the plaintiff’s case to prove that the defamatory words are false. Once the plaintiff has shown that the statement is defamatory in nature, the law presumes in favour of the plaintiff that the allegations are false until proven otherwise.

Q4: Is my honest belief sufficient for a plea of justification?

No, it is not sufficient for a defendant to rely on his honest belief that the statements were true under a plea of justification. The defendant shall prove to the court that all of his defamatory allegations are true in facts.

For example, if X says to Y that Z is a thief, it is not enough for X to merely state that he truly believed Z to be a thief. In other words, the defence of justification will only succeed if X can prove as a fact that Z stole something.

Q5: Does it make a difference when the defamatory statement suggest serious Criminal Offence?

Yes. Generally, The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case. reach the very high standard required by the criminal law.

When the words impute the commission of a crime, then it is not sufficient to prove merely that the plaintiff was suspected of the alleged offence, or that he is generally known to commit the said offence. The degree of probability required increases with the seriousness of the defamatory imputation.

Q6: What if I made the allegations unintentionally?

Unfortunately, you cannot rely on the defence of justification by merely indicating that you did not intend to defame the plaintiff, when in fact you did so. A defendant acting in good faith may have published a defamatory statement believing it to be true. If the words published are false, then he will not succeed in the defence of justification. However, in the case where the defamatory statement is published by mistake, it is advisable to retract the statement as early as possible so that this can become a factor affecting the damages to be awarded should the claim succeed.

Q7: What if I were merely passing a rumour?

According to the case of Abdul Rahman Talib v Seenivasagam & Anor [1965]1 MLJ 142, passing a rumour cannot be justified merely on the ground that the rumour exists, the defendant still has to prove the subject matter of the rumour. In the law of defamation, republication is as good as the first publication, by repeating a defamatory statement will give rise to the same burden as a defendant.

For example, if Billy repeats a rumour, he cannot claim that it is true merely by proving that the rumour existed. Billy has to prove to the court that the subject matter of the rumour is true.

CONCLUSION

Lastly, we would like to end this article with a quote from the Court of Appeal case of Dr Chong Eng Leong v Tan Sri Harris bin Mohd Salleh [2017] 4 MLJ 611 where his lordship Abang Iskandar JCA said as follows:-

“Justification as a defence affords a complete exoneration from any liability for the defendant, although as a matter of fact and of law, the impugned statement was indeed defamatory. Justification connotes the truth of the statement. The rationale upon which this defence is founded is really simple, namely the truth. Stating the truth can never be a wrong in law, though often a time, it may cause hurt to the plaintiff. Nothing can compromise a truth. A truth, however hurtful, once established, cannot be rebutted. Just like antidote is to venom, truth neutralizes falsehoods. For that reason, if a defendant were to publish for the whole world to hear, that the plaintiff is a rogue or a scoundrel, the truth of the same statement, once proven by the defendant, would provide a complete and full defence against any liability for defamation.”

If you require any legal advice or service relating to defamation, please talk to your lawyer or you may contact us via email at info@tnhlaw.com.my.