Introduction
The law recognises that individuals have the right to protect their reputation. If someone makes a statement that harms a person's good reputation in the eyes of the public, the affected person can take legal action against the person who made that statement. However, the success of such a claim depends on the defendant's ability to present a valid defence.
Defamation, although not explicitly defined in the Act, has been established through Malaysian case laws and English common law. It is generally accepted that a statement is considered defamatory if it:
a) Diminishes a person's reputation in the eyes of right-thinking members of society.
b) Subjects a person to contempt, hatred, or ridicule.
c) Undermines a person's profession, calling, trade, or business.
Defamation can take two forms:
Libel: Defamation in permanent form. These are written statements, such as those found in newspapers, social media posts, emails etc.
Slander: Defamation in temporary form such as spoken statements/words.
What is a defamatory statement?
Determining whether a statement is defamatory depends on examining its context and meaning. The natural and ordinary meaning of a statement includes its literal interpretation, implied or indirect meaning, or any meaning derived from general knowledge. While some statements have an obvious defamatory meaning, others require an assessment of innuendo to establish their defamatory nature.
What is an innuendo?
In cases where ordinary words carry special meaning to specific individuals, known as innuendo, the statement's defamatory nature must be considered. For an example, if someone says, "Robert is a regular at the Raging Bull Restaurant," the statement may not be defamatory in its ordinary meaning. However, if it is known that the Raging Bull Restaurant is associated with prostitution, the statement could be considered defamatory due to the innuendo that Robert might be involved in such activities.
Elements of Defamation
To succeed in a defamation claim in Malaysia, the claimant must prove three elements:
a) The statement is defamatory, either in its ordinary meaning or through innuendo;
b) The statement refers to the claimant's identity; and
c) The statement was published (either written or spoken) to a third party.
Establishing whether a statement refers to the claimant is straightforward when the claimant is explicitly named, but it can also apply if the person is easily identifiable. For example, if someone states, "The CEO of ABC Sdn Bhd discriminates against female employees," there is typically only one CEO, making it easy to identify the person. Moreover, individuals familiar with the CEO would understand that the statement refers to that specific person.
For a statement to be considered "published," it must reach a third person other than the person being defamed. Private statements directed solely at an individual do not constitute defamation since they are not considered "published" due to their limited audience.
In general, to succeed in a civil claim for damages, the claimant must demonstrate actual damages or financial loss. However, Malaysian Courts do not always require this proof and may award general damages if the all three elements of defamation have been set out.
If a defamation claim is successful, the claimant is entitled to financial compensation, the amount of which is determined at the court's discretion. Factors considered include the claimant's reputation, the seriousness of the statements, the actual loss suffered, the presence of malice, and other relevant factors including the severity of the publication. For example, a publication on the world wide web will have a far more severe implication on an individual’s reputation as compared to a publication to just a group of 10 people. On this note, our Malaysian courts have applied a recent but important English common law principle which allowed a Defamation suit to be struck off on the basis that the publication of the alleged defamatory statement was only confined to a small group of people. The Court opined that although the elements of defamation can be made out, the costs of a lengthy trial will outweigh the possible financial compensation to be received by the claimant due to the limited nature of publication.
Defences available to Defamation
Various defences can be raised against a defamation claim, with the three most common being justification, fair comment, and privilege.
a) Justification
A statement is justified as a defence if it is true. However, an honest belief in the truth of a defamatory statement does not serve as a defence if the statement is, in fact, false. Repetition of a strong but false rumour is also not justified.
Have a look at this example on the defence of justification;
Bob publishes a statement that Jack is an alcoholic after hearing a rumour about it. Bob will not be successful in raising the defence of justification if he can only prove that there was such a rumour.
b) Fair Comment
Fair comment can serve as a defence if the statement represents an honest expression of opinion about a matter of public interest. To succeed with this defence, it must be established that the statement is a comment or opinion rather than a statement of fact, based on proven facts, fair, and related to a matter of public interest. The key question is whether a fair-minded person, considering the proven facts, would honestly hold that opinion, and whether expressing that opinion serves the public interest.
Have a look at this example on the defence of fair comment;
Mayor Quincy, during a highly publicised tv interview, made several statements which were derogatory to women. Susan, a journalist, subsequently wrote an article claiming that Quincy is a male chauvinist and unfit to be a Mayor.
Quincy subsequently brought a defamation action against Susan who successfully raised the defence of fair comment based on her honest and fair observations of what had transpired during the interview.
c) Absolute & Qualified Privilege
Privilege, which can be absolute or qualified, is another defence against defamation claims. Absolute privilege can be invoked in situations where the statements are made in judicial proceedings, parliamentary proceedings, and police reports.
Have a look at this example on the defence of absolute privilege;
Alice has always been suspicious that her neighbour, David, is a drug dealer. Unable to prove her claim, she decides to make a police report for the relevant authorities to investigate. Pursuant to the police investigations, David is exonerated.
Despite the contents of the police report being defamatory, David will be unable to commence a defamation action against Alice as the police report is protected under the defence of absolute privilege.
Qualified privilege applies when the statement's maker has a moral or legal duty to make the statement or when the statement is made in furtherance of a legitimate common interest. Qualified privilege can be utilized when a person has an interest or duty to report allegations to an appropriate authority for investigation.
Have a look at this example on the defence of qualified privilege;
Brinda, who is a subordinate, writes a complaint letter addressing the improper or illegal behaviour of her supervisor, Charlie. This letter is then delivered to Charlie's superiors within the company. It's important to note that the letter contains statements that have the potential to defame Charlie.
If Brinda's letter of complaint to Charlie's superiors is published without malice, it is likely to be protected by the defence of qualified privilege. This defence applies because:
Brinda had a legitimate interest or duty to report Charlie's poor or unlawful conduct to Charlie's superiors within the company.
Charlie's superiors also had a corresponding interest or duty to receive the report in order to safeguard the company's interests and protect the employees from any negative impact caused by Charlie's behaviour.
What if the statements are made with malicious intent?
Instances where malice may be determined include:
a) If the plaintiff can demonstrate that the defendant(s) knowingly made false statements or did not genuinely believe that what they said was true; and/or
b) If the defendant is proven to have displayed apathy towards verifying the accuracy of the published content, particularly when there were available means for them to investigate the truthfulness of the content.
If it is proven that the statements were made with malicious intent, neither fair comment nor qualified privilege can serve as a defence.
The defence of absolute privilege however will not be affected by malicious intent.
Conclusion
In conclusion, civil defamation in Malaysia is governed by the Defamation Act of 1957, supplemented by English common law and Malaysian case laws. Individuals have the right to protect their reputation, and if defamed, they can pursue legal action. The success of a defamation claim depends on various factors, including the defamatory nature of the statement, its publication to a third party, and the availability of valid defences such as justification, fair comment, or privilege.
This article has been produced for general information purposes and further advice should be sought from a professional advisor.
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