Defamation: Dissecting Elements and Defences

Your reputation is the general belief or opinion that others have about you. It has often been equated to fine china, for it is easy to break and difficult to mend. It is this fragile notion which the law of defamation seeks to protect.

This article will explore what it takes to establish a claim for defamation, and the defences available to a defendant.

What is Defamation?

The Defamation Act 1957 does not define the term “defamation”.

Generally put, defamation happens when something untrue is written or said about a person which damages his reputation in the eyes of others.  

Who can sue for Defamation?

Individuals and corporations can sue for defamation.

An individual must be alive to sue for defamation. His estate is incapable of commencing or maintaining such an action ^[1].While corporations can likewise have a claim for defamation, the defamatory imputation must be in relation to its business or trading reputation ^[2].

The 2 types of Defamation

Defamation can take 2 forms – libel and slander.

Libel

Libel concerns defamatory statements which are permanent in nature. They are not fleeting statements, unlike words spoken.

It covers written statements (such as text messages, emails, letters),advertisements, pictures, and visual images ^[3](such as photographs, drawings, and charts). These instances share a common trait – they are publications which can be seen.

A voice recording on WhatsApp may be argued to be libel, as it is permanently available and can be replayed at will.  

Slander

Slander concerns defamatory statements which only last temporarily. It covers words said, gestures, and sounds.

Examples of slander include speeches at press conferences, oral statements made in a meeting, and telephone conversations. Generally stated, slander has been said to be publications which can be heard.

‍Proof of damage

For libel, once a plaintiff is successful in showing liability, he will be granted general damages. As the law presumes that damage is done, proof of damage is not required. A successful plaintiff will be awarded damages based on a host of factors, which we cover in our next article.

For slander, a plaintiff must show actual damage arising from the slander. For example, a plaintiff claiming inability to secure a job because of the slander must prove this ^[4].  

This requirement is dispensed with if the slander falls within the statutory and common law exceptions. These exceptions are slander of women ^[5],slander affecting official, professional, or business reputation ^[6],and slander imputing a crime ^[7].These forms of slander are “so outrageously injurious that damage is to be presumed” ^[8].

Establishing a Defamation Claim

A claim for defamation is established once the following 3 criteria are shown:

a)            There is a statement which is defamatory in nature

b)            The statement refers to the plaintiff

c)            The statement was published to a third party (i.e. a party other than the plaintiff)

There is a statement which is defamatory in nature

Generally, a statement is said to be “defamatory” if it lowers the reputation of a person in the eyes of right-thinking members of society.

A statement may be defamatory based on its natural and ordinary meaning, or by way of innuendo.

Natural and ordinary meaning

The “natural and ordinary meaning” of words may be their literal meaning, implied meaning, or any meaning based on general knowledge. In this case, the defamatory imputation can be deduced without having knowledge of any special facts/background story.  

Examples

• A statement that “Alfredo stole money from the petty cash box” is in its literal sense defamatory.
• A statement that “Bruno was brought in  handcuffs to the police station for questioning” is likewise defamatory. This is because it is generally known that people suspected/accused of committing  a crime may be handcuffed and taken to the police station for further questioning.  

Innuendo

On the other hand, words may be defamatory through innuendo if the defamatory imputation can be made out only by people with knowledge of some special facts/background.

Without this knowledge, an ordinary person would not find those words defamatory.  

Example

•  A statement that “Catherine is a part-time  employee of Company A” may not appear defamatory to the public. However, it  may be defamatory in the eyes of those who know that Catherine is a full-time employee of Company B, and is prevented by contract from being employed elsewhere.  

Bane and antidote

A publication must be read in totality to determine if the words complained of are indeed defamatory.

Sometimes, a separate part of a publication contains words which neutralise the defamatory imputation of the words complained of. This is akin to an antidote neutralising the effect of a poison – hence the principle of "bane and antidote”.

A defendant may argue that his statement when read as a whole does not carry any meaning defamatory of the plaintiff, because the “antidote” would have negated the “bane” altogether.  

Example

• An article contains a statement that “Dory breached  the golf club rules and was suspended for 6 months”. The article goes on to  say that “However, upon reviewing Dory’s appeal, the investigation committee  was of the view that her conduct did not amount to a breach of the rules, and  she was accordingly reinstated as a member with immediate effect”.

In this example, it can be argued that the second statement had completely negated the defamatory effect of the first statement,  resulting in no damage to Dory’s reputation. ‍

The statement refers to the plaintiff

The defamatory statement must also be shown to refer to the plaintiff. This requirement is easily met if the plaintiff is named. Where the plaintiff is not named but sufficient information is given so that the plaintiff can be identified, this requirement may also be met. 

Examples

• A statement that “The CEO of Company Z  misappropriated company funds in 2018” provides sufficient information for  identification of the person referred to, even though nobody is named.  If Elijah was the CEO of Company Z in 2018,  he will be able to claim that she was the one referred to.

• In the case of Wawasan Rajawali Sdn. Bhd.  v. Toh Shu Hua & 121 Others [2020] MLJU 1516, the plaintiff claimed  that the defendants published photos and images on Facebook and Instagram  referring to a legal battle between a developer and 122 purchasers. The  plaintiff claimed that it was the developer referred to therein, and that the  words were defamatory of the plaintiff. The defendants argued, and the High Court agreed, that the plaintiff and the project were not named, and  that there was insufficient particulars in the statement of claim to allow  the plaintiff to be identified. The Learned Judge also found that the word  “developer” could refer to any developer in Malaysia. As such, the plaintiff  failed to show that the statements indeed referred to it.  The plaintiff’s suit was struck out. ‍               

The statement was published to a third party

Lastly, the defamatory statement must be published to one or more person(s) other than the plaintiff. “Publication” in the context of defamation simply means making something known/communicating something to a third party.

For example, actually publishing a defamatory article on Facebook amounts to “publication”. Likewise, verbally telling someone that “Fernando tortures animals” amounts to “publication”.  

Sometimes, the identity of the publisher is not known. This could happen when defamatory words are disseminated using fake social media accounts. In such a case, a Malaysian court will have to decide if there is an “irresistible conclusion” that the defendant published the words, following the case of Stanislaus a/l Vincent Cross v Ganesan a/l Vyramutoo & Anor [2021] 7 MLJ 202.  We cover this in a separate article.

Defences

Once a plaintiff establishes the 3 requirements above, he will succeed in a claim for defamation unless the defendant can establish one or more of the following defences:

a)            Justification

b)            Absolute Privilege

c)            Qualified Privilege

d)            Fair Comment

The burden is now the defendant’s to discharge.

Justification

Justification is the defence of truth. Once proven, there can be no liability in defamation even if the words were maliciously published. It is an absolute defence to defamation.

As the law presumes the defamatory statements to be false, the onus is on a defendant to show the truth of the defamatory imputation. The venomous portion of the statement, also known as the “sting”, must be shown to be true or substantially true. If a person is alleged to be an “incompetent and incapable businessman”, the “sting” lies in the words “incompetent” and "incapable”.  

Not necessary to prove every imputation

A statement may contain more than one defamatory imputation. However, a defendant need not prove the truth of every imputation.

An imputation which does not materially injure the plaintiff’s reputation having regard to the truth of the other imputations, need not be proven^[9]. Broken down, if the truth of some other (usually more serious) imputation has been proven, a (usually less serious) imputation need not be proven if the reader/listener would not think much less of a plaintiff given the truth of the proven (and more serious) imputation.

Example

• Geralt was accused of lying about his academic  qualifications and age to secure a job. He sued for defamation and claimed  that the information provided at the interview was accurate. At trial, Hikaru, the defendant,  proved that Geralt indeed lied about his academic qualifications. Hikaru did  not prove that Geralt lied about his age. A court may very well hold that  that does not materially injure Geralt’s reputation given that he has already  been shown to have lied about his academic qualifications.  In that case, Hikaru’s defence of  justification will still succeed.   

Offering alternative meanings – the Lucas-Box defence

A defendant may choose to ascribe his own meaning to the words published, instead of accepting that pleaded by the plaintiff. This is usually a meaning, the truth of which is easier to prove.

This defence is known as the “Lucas-Box defence”, following the English case of Lucas-Box v Associated Newspaper Group Pic & Ors [1986] 1 All ER 177.

In the case of Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187, the Federal Court found that the Lucas-Box defence was successfully raised by Tony Pua because:

• He denied that the impugned words carried a defamatory meaning;
• He offered his own version of the meaning of such words, and stated that they were true; and
• He then pleaded particulars to support his own meaning.

We explore this and the different levels of meaning in a separate article.  

Failing to justify imputation

A defendant should ensure that he has sufficient evidence before pleading justification. A reckless plea of justification is reason to order aggravated damages against him. This is so because the defendant continues to damage the plaintiff’s reputation through repetition of the untrue words in a public forum (i.e. the courtroom) ^[10].

Absolute Privilege

“Absolute privilege” is a total defence to defamation. It shields a maker even from a statement made with malice. However, its application is limited and is not as wide as “qualified privilege”, which we cover below.

This defence aims to safeguard freedom of speech and public policy in important settings such as parliamentary proceedings. The proper functioning of these proceedings, which at times inevitably include the making of certain defamatory words, outweigh a person’s interest in protecting his reputation.

Examples of circumstances where absolute privilege applies include:

• Statements made in Parliamentary proceedings.
• “Fair and accurate and contemporaneous” report of publicly heard court proceedings (including any judgment, sentence or finding made).
• Pleadings in court proceedings ^[11].
• Client-solicitor communication.
• Police reports made for the genuine purpose of reporting a crime, and not to vent frustration publicly^[12].

Qualified Privilege

In certain occasions deemed to be “privileged”, publishing an untrue statement about a person will not attract liability in defamation. However, unlike absolute privilege, this “privilege” is said to be “qualified” because it can be defeated by a plaintiff proving malice on the defendant’s part.

This defence may be established where ^[13]:

• Statements are made between parties who share a common interest in the matter.
• Statements are made due to the existence of a duty/interest to do so, and the receiving third party has a corresponding duty/interest to receive it.
• Statements are made for the protection of one’s self-interest.
• Reports which are fair and accurate of certain proceedings are made.

Examples of occasions which have been found to be privileged are:

• Communication between directors and/or shareholders of a company in relation to matters concerning the company.
• Communication between employer and employee.
• Communication between teachers and parents.
• Communication between traders and credit agencies.
• Complaints to authorities/disciplinary bodies.
• Communication between members of an association, and between them and a domestic tribunal.
• Communication between a landlord and visitors o fa premise that the plaintiff had been evicted.

Reciprocity is an essential element of the defence. The maker and recipient of the statement must have a duty/interest to respectively make and receive it.

As such, where a statement is published to 20 persons but only 15 are shown to have a corresponding duty/interest to receive the information, the defence of qualified privilege extends to only those 15 persons ^[14]. A defendant may well be found liable for defamation in respect of the remaining 5 persons unless he successfully establishes other defences.

What is “malice” within the context of qualified privilege?

As stated, a defence of qualified privilege can be defeated by express malice. “Malice” in this context does not necessarily mean “malice” in its popular dictionary sense, that is the “desire to harm someone, or ill-will” ^[15].

In Malaysia, the courts have found the existence of “malice” in the following broad scenarios:

• Where a statement is made with the dominant purpose of injuring the plaintiff (and not pursuant to a duty/interest).
• Where a statement is made with reckless disregard as to its truth or falsity. For example, where a defendant did not bother investigating the truth of a matter or asking the plaintiff for his version of an event before making a defamatory statement, the defendant may be found to have acted with malice.
• Where a defendant makes a statement knowing it to be false. In such a case, knowledge of falsity is conclusive evidence of malice ^[16].
• Where a statement is made with the dominant purpose of using the occasion for a purpose other than to communicate that which he has an interest/duty to do.
• Where the words used are unneccessarily strong and disproportionate to the requirements of the situation.
• Where there is a significant slant against a plaintiff in the statements made.

As malice involves a person’s state of mind, unless he so admits, it is usually proven through circumstantial evidence. The inference of malice may be drawn from a defendant’s conduct. For example, if a defendant is shown to harbour serious grudges against a plaintiff at the time the defamatory statement was made, it may be argued that he was motivated by malice (and not a sense of duty) when publishing those words.

To negate the defence of qualified privilege, the particulars of "malice” must be expressly pleaded by a plaintiff in his Reply (to Defence)^[17]. Failing to do so is fatal.   

Example

• In a board meeting, Indiana announced to 10  others that a fellow director made secret profits through the operations of a  competing business, thus being in breach of his fiduciary duty. Indiana was  sued for defamation. In his defence, Indiana argued that he had a duty to  disclose that matter to the other board members who had an interest in it,  and was thus protected by qualified privilege. It was later shown that his allegation was false, and  that Indiana had not investigated the matter or made any enquiry on it before  making the statement. It would be easy find that the statement was made  recklessly without regard to its truth or falsity. This would amount to “malice”  sufficient to defeat the defence of qualified privilege.  

Fair Comment

Broadly stated, a “fair comment” is a person’s comment/opinion on a matter, which is derived from facts proven to be true. This defence is made up of the following elements ^[18]:

• The words must be “comments” and not statements of fact (although they may consist of certain facts).
• The comment must be premised on truly stated facts.
• The comment is on a matter of public interest.
• The comment is one which a fair-minded person could make having knowledge of the facts proved.

‍Distinguishing a “comment” from “statement of fact”

Simply put, a “statement of fact” is a fact proven to be true, while a “comment” is an inference/opinion/deduction made having regard to the truth of that fact. The fact upon which a comment is predicated must be shown to be true.   

Example

• “Jericho was convicted of criminal breach of  trust” is a statement of fact. “Jericho is a dishonest person” may be a comment derived from this fact.    

“Public interest”

A matter of “public interest” is generally a matter which affects a significant amount of people. It could relate to matters of national importance, religion, sports, and politics.  

“Fair comment” and “malice

Just like the defence of qualified privilege, this defence can be defeated by a plaintiff showing express malice. To show this, the test is whether a defendant genuinely believed the comment/view expressed ^[19].

A plaintiff intending to defeat the defence of fair comment by claiming malice is required to so plead in his Reply (to Defence) ^[20]. Failure to do so has been held to be fatal.

Conclusion

One should always think twice before saying something which affects the reputation of another. Generally, before making such a statement, ask yourself: 

_{“Is my statement true? If so, am I able to show that it is true?”} 

If your answer to one or both questions is “no”, not saying those words would better serve your interest.

This is because in defamation, the person publishing the words bears the burden of proving their truth. If the statement is not true, the defence of justification will fail. Likewise, if one knows a statement is not true but makes it anyway, this is conclusive evidence of malice (at least in Malaysia) which can defeat the defences of qualified privilege and fair comment.

A successful claim in defamation entitles a plaintiff to certain remedies including damages, which we explore in our following article.

References :

[1] Section 8(1) of the Civil law act 1956

[2] South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894]1 QB 133 (Court of Appeal)

[3] Section 2 of the Defamation Act 1957

[4] Nazeera Hanie Khairudin v Nazlan Baharudin [2019] 9 CLJ 661 (HighCourt)

[5] Section 4 of the Defamation Act 1957

[6] Section 5 of the Defamation Act 1957

[7] C Sivanathan v Abdullah bin Dato’ Haji Abdul Rahman [1984] 1 MLJ 62(High Court)

[8] Henry Ong Keng Sem v Patrick Ong King Kok [2008] 4 CLJ 276 (HighCourt); and Pardeep Kumar a/l Om Parkash Sharma v Abdullah Sani bin Hashim[2009] 2 MLJ 685 (Court of Appeal)

[9] Section 8 of the Defamation Act 1957

[10] MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other appeals[1995] 2 MLJ 493 (Federal Court)

[11] Kinta Riverfront Hotel & Suites Sdn Bhd v Chang Yoke Yee &Anor [2023] 1 MLJ84 (Court of Appeal)

[12] Nor Aziz bin Mat Isa v Sun Teoh Tia (SAC) (Pengerusi LembagaTatatertib Polis Diraja Malaysia Bukit Aman) & Ors [2021] 2 MLJ 142(Federal Court)

[13] Puneet Kumar v Medical Centre Johore Sdn Bhd [2004] 5 MLJ 573 (HighCourt)

[14] Chan Yoke Sim v Choong Teck Fook & Ors [2014] 2 MLJ 117 (HighCourt)

[15] As defined by Oxford Languages

[16] S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173

[17] Order 78 Rule 3 (3), Rules of Court 2012

[18] Tan Sri Dato’ Lim Guan Teik v Tan Kai Hee [2014] 9 MLJ 363

[19] Tan Sri Dr Muhammad Shafee Abdullah [2018] 12 MLJ 98

[20] Order78 Rule 3 (3), Rules of Court 2012

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