WHAT IS DEFAMATION? “the key elements to establish in a defamation claim”

In this day and age, almost everyone is on some form of social media, be it Facebook, Twitter, WhatsApp, Instagram, etc. This increased access to social media has made it easy for people to share their thoughts, opinions, statements, or even make remarks about others with the world at large. However, netizens might or might not be concerned about whether the comments made are true or untrue. As such, it is not surprised to see the cases involving defamatory statements made on social media platforms are on the rise.

In this article, we will address some of the common questions being asked about Defamation:-

‘What is Defamation?’

‘What’s kind of statement will be deemed as the Defamatory Statement?’

‘What is the law governing the Tort of Defamation in Malaysia?’

For the purpose of this article, we will focus on the law of Civil Defamation in Malaysia. While defamation may be a criminal offence, we shall save this topic for another day.

Q1: What exactly is ‘Defamation’? 

Generally, if a statement about a person is defamatory and negatively affects the good reputation of that person in the eyes of the public, then that person may a claim based on tort of defamation against the statement’s maker.

In simple language, Defamation occurs and/or is committed when the defendant publishes to a third person words or matters containing untrue allegation or imputation against the plaintiff which then led to an injury to the plaintiff’s reputation.

Q2: How many types of Defamation are there? 

Generally, there are two (2) species of defamation, namely “Libel” and “Slander”. The different lies in the means or medium by which the defamatory material is communicated, as follows:-

1. Libel means any defamatory statements expressed in written form and permanent form. For instance, the posts published on social media, emails, newspapers, etc;
2. Slander occurs when the defamatory statement is made through a temporary or transient form. For example, spoken words, gestures, etc.

The effect of libel is deemed heavier as the defamatory statement has been reduced to a permanent form, which will remain for a long time and capable of being republished, and naturally, the reputation of the defamed person will be affected so long as the defamatory statement exists.

Q3: What is the governing law for Defamation in Malaysia? 

In Malaysia, defamation can be both a Civil and Criminal Offence. For Civil Defamation, it is governed by the common law and Defamation Act 1957 (“DA 1957”) whilst the governing legislation for the Criminal Defamation is the Section 499 of the Penal Code.

Essentially, the law of Defamation in Malaysia is primarily based on the English Common Law principles except insofar as it has been modified by the DA 1957. Also noteworthy, the Malaysian DA 1957 is in pari materia with the English DA 1952.

A civil defamation action is meant to vindicate one’s character or reputation when it has been damaged as result of untrue statement.

Q4: When are the elements of defamation?

It is impossible to provide an exhaustive list of what statements would be considered defamatory. A statement that lowers one’s reputation in the eyes of the public would constitute a defamatory statement. The definition of “Defamation” can be found in the Malaysia Case Precedents and also the English Common Law.

The cause of action for defamation requires three key elements to be established.

As made clear by the High Court in KIAN LUP CONSTRUCTION v HONGKONG BANK MALAYSIA BHD [2002] 7 MLJ 283, his Lordship RAMLY ALI J clearly laid down three essential and necessary elements to be satisfied by the Plaintiff in establishing an action of Defamation were as follows:-

• The matter complained of must bears defamatory imputations;
• The matter complained of must refers to or reflect upon the Plaintiff’s reputation; and
• The matter complained of must has been published to a third person.

In simple language, a plaintiff (or a defamed person) has to establish the abovementioned elements in order to succeed in suing based on defamation.

Once the plaintiff has established the above elements, there is no need for the plaintiff to show that those defamatory words are false, the law presumes the defamatory words to be false until proven otherwise by the publisher. This is illustrated in the case of Abu Hassan bin Hasbullah v Zukeri bin Ibrahim [2018] 6 MLJ 396 where the honourable court held that:-

“[42]  The learned judge erred in deciding in the manner he did, as the plaintiff need not prove that the defamatory words were false in order to prove his case as the law presumes that the defamatory words were false (see Miles v Logan (1851) 1 Ky 80 (Civ); Abdul Rahman Talib v Seenivasagam & Anor).”

Q5: Some case precedents on successful defamation claim?

1. Institute of Commercial Management United Kingdom v News Straits Times Press (Malaysia) Bhd (1993) 1 MLJ 408

• This is the case where the plaintiff claimed damages against the defendant for libel in respect of words contained in an article published by the defendant entitled ‘British diploma mills step up sales racket’. The plaintiff alleged that the words were calculated to injure and disparage the plaintiff in its trade as an educational establishment and examining body. In fact, eventually the plaintiff herein had been injured in its credit and reputation as such.
• The Honourable Court reiterated and held that any ordinary reasonable person reading the article would link to the Plaintiff herein with one of those organisations which operated the ‘diploma mills’.
• The words had a strong tendency to lower the plaintiff in the estimation of right-thinking members of society generally or the parents of potential students or the potential students themselves.

1. Sandison v Malayan Times Ltd & Ors ((1964) MLJ 332)

• This is the precedent where an article was published in a newspaper claiming that a senior expatriate executive of a Rubber Industry Replanting Board had been dismissed for corruption.
• The Honourable Court held that although the executive was not named, the date of dismissal was mentioned and indeed that was the date the plaintiff ceased holding that position. The article also reported on who succeeded the dismissed executive and the identity of the successor was well known, the defamatory words clearly indicated the plaintiff as the corrupt executive.

PART 2  ARTICLE PREVIEW

“If I am the Plaintiff in a Defamation suit,

What is the damages I can get if I am successful in a Defamation Action?”

“If I am the Defendant in a Defamation Suit,

How can I defend myself?”

Stay Tuned

Author: Soo Jess Min, Intern

Editor: Patrick Tan