DEFAMATION

What is defamation? Defamation is defined as defamatory words which tend to lower

the plaintiff in the estimation of the right thinking members of the society, by exposing
him to hatred, contempt and ridicule.

There are two types of defamation namely libel and slander.

1) Libel is a defamatory statement, which is contained in a permanent form that can

be seen for example by writing. It also can be in the form of a statute, a caricature
and an effigy, chalk marks on the wall, signs or pictures. Libel can be crime as
well as a tort and it is actionable per se.

2) Slander is a defamatory statement, which is not in permanent form and can be

listened such as spoken statement. Slander is only tort and not actionable per se.
means it only actionable where plaintiff can show that he had suffered special
damage or suffer loss that can be estimated in money such as loss of hospitality,
loss of marriage prospect, loss of business or loss of job.

Condition for defamation claim

1) The Plaintiff must first show that the statement is defamatory to his reputation.
Libel: Datuk Musa Hitam v. A.H. Al Attas. In this case, the Defendant wrote in
his book, The Challenge: Siapa Lawan Siapa. “So long as Musa is not expelled from
UMNO, so long as will be UMNO members bear the sins that Musa has committed.
Datuk Musa is responsible for the killing of 14 innocent Muslims in Memali. Who
was the Home Minister at the time of the incident...it is Musa who was responsible
for the killing of innocent children and folks. Is it right that you should protect one
who should be punished in accordance with his sin?” It was held that the words
complained of in their nature and ordinary meaning is defamatory of the
Plaintiff.

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 Slander : Luk Kai Lam V Sim Ah Leng. The defendant uttered this statement:
“Eh, What is there about you to be proud of? Who doesn’t know that you received
guest RM50 a time.” Held : The defendant was liable for slander.

2) The defamatory statement must refer to the Plaintiff. It either direct or innuendo.
Innuendo - is a situation where the statement that made was not physically
referred to the Plaintiff but when it combined with some extrinsic facts known to
certain people, it can be defamation examples if the words contain a hidden or
inner meaning. The case of Tolley v. JS Fry & Sons shows the example of
innuendo. This case involved Plaintiff who was an amateur golf champion. He
was used as a feature on an advertisement poster with a chocolate bar
protruding from his pocket without his consent. Plaintiff claimed that it was
innuendo because it implied that he had agreed to appear on the advertisement
for financial gain and that he had breached the rules relating to his amateur
status. It was held that this is defamatory and Plaintiff can recover damages.

Direct – refer to natural and ordinary meaning and it refers directly to the
Plaintiff’s name. In the case of Newstead V London Express Newspaper, An
article in the defendant’s newspaper entitled, “Why do people commit bigamy?
Referred to a self-confessed bigamist called Harold Newstead, a 30 year old,
Camberwell man”.The plaintiff who was the same name and lived in Camberwell
claimed libel.
Held : It is defamation and it was irrelevant whether the defendant did not intent
to defame the Plaintiff.

3) There must be publication of the defamatory statement to the third party other
than the Plaintiff. A communication between spouses about the 3 rd party is not
publication but communication by a 3 rd party to someone else’s spouse is
publication. Example is Theaker v. Richardson where the Defendant wrote a
defamatory letter to the Plaintiff accusing her of being whore and a brothel
keeper. The Plaintiff, a married woman, was a fellow local councillor with the
Defendant. The Defendant had placed the letter in Plaintiff’s letterbox in an
envelope similar to the type used to send election materials. The Plaintiff’s

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 husband picked up the envelope and thinking that it contained election material,
opened it and read its content. The Jury found that the Defendant was liable
because in the circumstances of the case, it was reasonable to expect that the
letter would be opened and read by the husband.

Defences available to the defendant.

1) Consent – if the Defendant can show that the Plaintiff consented to the
publication of the statement, then it is not defamation.
2) Justification or truth. – Defendant must show that the statement was true.
3) Fair comment – means its only Defendant’s opinion and must be honestly made,
on the matter of public interest.
4) Unintentional defamation
5) Absolute privilege – for example statement made in Parliament, judicial
proceeding, and communication between officers in the course of his official
duties.
6) Qualified privilege – legal moral or social duty to make statement and without
malice.
7) Apology section 10 of the Defamation Act 1957
8) Offer to Amends the article as soon as possible- section 7

REFERENCES :
 Rogers, W.V.H, Winfield and Jolowicz on Tort, Sweet & Maxwell Ltd,
London(2003).
 Winfield and Jolowicz on Tort, (Terjemahan ) International Law Book Services, KL

 Norchaya Talib, Law Of Tort in Malaysia, second edition, 2003 Thomson Sweet &

Maxwell.
 Lee Mei Pheng, General Principles of Malaysian Law, 5 th Edition 2005, Oxford

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