DEFENCES TO DEFAMATION  Words must be in comment form

 Case: JB Jeyaretnam v Goh Chok Tong

Consent and Volenti Non Fit Injuria
 P who gives his consent for publication to be made,
express or implied, cannot hold D liable.
 E.g: being interviewed (like ofc org tu akan publish
duh)
 Case: Cookson v Harewood
 Held: P could not claim from D as the statement was
true and that permission was obtained to publish that
statement. If statements is defamatory, P had to bear
with the consequences.
 Held: facts were stated before alleged
defamatory statement was made, defence
succeeded and not an allegation of fact
 Reasonable man test (would he regard the
statement as a comment or statement of fact)
 If it is so mixed up, defence will not be available.
 E.g: alleging a member of Parliament is an
immoral and dishonest person would be an
allegation of fact, but if alleged that member has
been seen gambling 6 nights a week and he is a
dishonest man, would be a comment.

 Comment based on true facts

Justification
 D must prove the truth of facts
 Is an absolute defence
 Sufficient that the facts form basis of comment
 State of mind of D is irrelevant. are proven

 Malice does not defeat this defence.  Case: SB Palmer v AS Rajah & Ors

 Burden of proof lies on D to prove his allegation.  Held: the truth of alleged fact was not proven,
defence of fair comment failed
 Case: S Pakianathan v Dr Jenni Ibrahim
 Comment must be fair and not malicious
 Held: burden rested on D to prove justification. D was
required to prove the truth of his allegation and not  Maliciously made comment is not fair comment
sufficient for him to Cstate that he believed the
 It is ill will or any indirect or improper motive in
allegation to be true.
the mind of D at the time publication was made.
 Passing around a rumour cannot be justified, D must
 Comment must be honest expression of writer
prove the truth of subject matter of rumour (can
made in good faith.
escape liability)
 If language is unnecessarily strong, it would give
rise to malice
Fair Comment

 Comment concerns issue of public interest

 If a comment is made honestly and fairly, it may  Comments on acts or activities of people who
absolve D from liability are influential in a particular society
 D must show that: (littlemisskhan and how nak glow up mcm dia) is
a matter of public interest (YASS)
- words are in the form of comment, not a statement
of fact  Case: London Artists Ltd v Littler

- based on true facts  Held: whenever an issue affect people at large

so that they may be legitimately interested in,
- not malicious everyone is entitled to make a fair comment
- comments made are concerning issue of public
interest
Privilege

(a) Statutory qualified privilege
 S 12(1)- any report or publication in a newspaper
mentioned in Part I of the Schedule shall be
privileged.
 S 2- newspaper’s definition
 S 13(1)- reports or matters broadcast thru radio
comm
 Parties entitled to rely on defence of statutory
qualified privilege under s 12 are newspapers and
broadcasting stations
 If P requested D to publish in newspaper where
original publication was made & D refuses or neglects
to do so, D will not succeed for this defence
 This privilege is subject to explanation or
contradiction
 Seditious or any matter which the publication is
prohibited by law, will not be protected under this
section
 Privilege is lost when author or publisher is found to
be malicious on publication
 How is it lost?:
- requested by P to publish an explanation of or
contradiction to original publication, D has not done
so due to refusal or neglect,
- D has published the explanation but is inadequate
- acted maliciously
 If one D is malicious, it does not affect other Ds
(b) Common law qualified privilege
 A person is allowed by law to make defamatory
remarks even if it’s untrue
 Communication is made bona fide where party
communicating it has an interest or duty to do so
 Privilege is qualified bcs P can prove during the
publication, D was malicious or had exceeded
boundaries of privilege, then defence is not available
 P must prove express or actual malice on D (to rebut)
 Only available to person who falls under the
circumstances:
(i) Mutual Interest
 Case: Aloysius Tan Ting Kai v Ng Hong Kheng &
Ors
 Held: President did not have an interest to
receive a copy of the said letter
 Qualified pleaded by D failed
 Recipient of defamatory statement is a trade
union (there’s contractual agreement), meaning
between employers and employees, there’s
mutual interest
 Mutual interest must exist between both parties
during publication
 E.g: employer explaining to his employees why
one of the employees was retrenched
 If 3rd party repeats libel/ slander in public, at P’s
request, defence is still applicable
 If original party repeats slander/ libel in public at
P’s request, defence is not available
 Same goes with D repeats his allegations
 S 14- statements made by candidates to the
electorate at general election (not protected)
(ii) fulfill legal, moral or social duty
 Case: Reynolds v Times Newspaper Ltd
 Publisher is under a legal, moral or social duty
 Material was published to people that have an
interest to receive that material
 Nature, status and source of material and
circumstances of publication in public interest in
absence of malice
 D’s honest and bona fide belief is insufficient
 Case: John Lee & Anor v Henry Wong Jan Fook
 Held: letter by D was privileged. Since P had
appealed to his Union, there’s a probability that
the matter would be brought to Industrial Court
and Union would have interest to receive the
copy of letter written by D.
 Moral or social duty arises if it is reasonable for
D to publish the statement.
 Comm will not be privileged if a person or
authority has no power to investigate the
alleged conduct.
 (iii) Settle public nuisance or disputes proccedings can be protected up until a fortnight
later)
 Case: Blackshaw v Lord (2 requirements were
laid down):  Must be spoken in good faith

 Duty on maker of statement to make that  Parliamentary debates and proceedings are
statement for public benefit protected (even if it’s malicious)

 Person to whom statement is made must have
reciprocal interest to receive or have knowledge
of the statement
 Recklessness or malice on D’s part will defeat
defence of qualified privilege
 Case: Times Publishing Bhd & Ors v S Sivadas
 Held: absolute privilege for proceedings in Parliament
covers written opinions by public, made in response
to issues raised to public by Parliamentary
Committee.

(iv) Protect one’s own interest/ property Unintentional Defamation

 Can be protected as long as statement is made
bona fide and relevant to the allegations made
 Can raise under s 7 (publisher je, not reporter)
by other party.

 Cam kau panggil aku penipu, aku boleh panggil
kau pencuri or smtg (alahai mcm budak2)

 But cannot exceed initial accusation

 Case: Osborn v Boutler

 Held: statement made by brewers that there

were rumours that poorness of beer was due to
watering of it by the publican to be privileged.
(Publican complained to brewers who supplied
the beer to him that it was poor quality)

(v) ancillary qualified privilege

 Publication to other persons in ordinary course

of business would be protected under this.

 E.g: dictating defamatory letter to secretary or

typist

 Balancing in Reynolds v Times Newspapers:

 Held: D’s appeal was dismissed bcs the need to

balance freedom of expression must be
exercised in caution, and newspaper failed to
attain the standard of responsible journalism.

(c) Absolute privilege

 Statement made by legislative bodies, executive or

judiciary

 Advocate is protected if he makes the statement in

course of legal proceeding (statement made outside
courtroom will not be protected, reports for judicial