LW/OCT2009/LAW 498/163

Question 1, Part C , Final Examination , Law of Torts 11 , October 2009

What you should know

Why? Host several talk shows

(example) Jerry
Famous television personality Own production company People think he is Very successful, creative artiste and businessman

Jerry married to Elaine

Blessed with 4 children

Then , he direct a documentary on drug abuse ( collaboration between his company and Malaysian police

So, he spent more time at his office with Inspector Gina (to gain information data and resources)

George (close friend of Elaine) saw Jerry and Gina coming out of a hotel restaurant late at night (what you expect?)

He told Elaine that Jerry could be cheating on her and advise her to be cautious (but think wisely whether George just warned her? Definitely , there will be external facts given by george)..

Elaine is very upset about the news and engulfed with emotions, she confronted Jerry at his studio office.

At the studio office.. Very terrible argument happened and Elaine demanded the truth of George statement..

Suddenly , she yelled at Inspector Gina An Ugly Husband Stealer In Uniform angry mode

Office staff host had to calm them down and Elaine eventually agreed to go home

It is expected that third party will be there

Kramer (journalist from Harian Gossip Magazine) published a story heading Trouble In Paradise ? Jerry In Hot Soup When Wife Finds Out Affair With Inspector X

ISSUES

1.

2.

3.

A few issues could be arose from the situation given. Whether George warning toward Elaine can give Jerry the right to sue under torts of defamation ? Whether Gina and Jerry can take legal action against the publication by Harian Magazine and Kramer? Is Elaine can be held liable for defamation when she uttered the words An Ugly Husband Stealer In Uniform toward Inspector Gina while she was in anger?

DEFINTION

Statement which is found not to be true which lowers the Plaintiff reputation in the eyes of right thinking members of society and is published to at least one third party Authority in the landmark case, Sim v Stretch (1936) 2 AER where Lord Atkin state that defamation is

a statement untrue (oral or written , temporary or permanent ) which injures the reputation of another by exposing him to hatred (kebencian), contempt(kehinaan) , or ridicule (kebodohan) or which tends to lower him in the esteem of right thinking members of society or which tends to make them shun or avoid the person.

So in order to protect the plaintiff (defamed person) legal protection is provided in Defamation Act 1957 which is based on English Common Law and English Defamation Act 1952. Purpose- to provide legal protection for ones reputation /good name

Application

In the problem above, Kramer and Harian Gossip Magazine had committed a defamatory statement in form of libel through publication of their magazine. TROUBLE IN PARADISE? JERRY IN HOT SOUP WHEN WIFE FIND OUT AFFAIR WITH INSPECTOR X And in the form of slander when Goerge told Elaine that Jerry might cheating on her and advised her to be cautious. And also when Elaine said to Gina an ugly stealer in uniform

Slander -defamation in a temporary or transient form. -made through spoken words or gestures -direct result and reasonable foresee result -is not actionable per se and need to be proven that actual/special damage(monetary terms loss) occurred in order to succeed unless : *slander in relation of business and persons professional *slander to women *imputation of crime *imputation of contagious disease

What you should know?

Types of defamation Libel -actionable per se (no need to prove actual damage) -defamation in a permanent form and is usually visible to the eye such as item in writing = e-mail, pictures , statues or effigies, chalk mark, signs , pictures, wax effigies ,gestures visual images , movies-live play on stage ,radio , tv broadcast, video tapes , sky writing Datuk Syed Kechik B. Syed Mohamad v Datuk Yeh Pao Tzu & ors(1977)

Words must be defamatory Words must be referred to the plainfiff Publication of the words

Words must be defamatory

As a general rule it is said that the words can be said defamatory when it has a tendency to lower the estimation of the right thinking members of society in which its consequences may exposed the plaintiff to hatred, shunned, ridiculed and avoided. Parmiter v Coupland (1840) 6 M&W 105 -objective test

"do the words tend to lower the plaintiff [claimant] in the estimation of right-thinking members of society generally?"

Hence, in order to succeed , plaintiff must know what has been said of him , and cannot merely guess. So the actual words are important

The context of the words uttered also play a significant role for court to determine whether the words carry a defamatory statement. e.g- how the words uttered ? If the words are uttered while the plaintiff is engulfed with anger in the heat of the moment it is not relevant to say that the words is defamatory since you know the reaction of person in temper , they may even doesnt know what they are saying.

C Sivanathan v Abdullah bin Dato Haji Abdul Rahman [1984] 1 MLJ 186

However court will not consider the intention of the defendant . Whether it is intended or not , court will only see the tendency of the words The words can be defamatory in three ways By natural and its ordinary meaning Innuendo juxtaposition

1) By nature and its ordinary meaning

The words complained of are defamatory in their natural and ordinary meaning if they impute that the plaintiff is dishonourable or of discreditable The words by themselves , as understood by ordinary of ordinary intelligence must have tendency to make them look down, shun or avoid the plaintiff The natural and ordinary meaning of the worlds includes but is not restricted to the literal meaning of the words

By natural and its ordinary meaning

Lord Morris in Jones v Skelton [1963] 3 All ER 952 958 at p 958 :

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words (see Lewis v Daily Telegraph Ltd [1963] 2 All ER 151 ). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules] of construction, would draw from the words. The test of

Ummi Hafilda bte Ali v Ketua Setiausaha Parti Islam Se Malaysia (PAS) & Ors

Whether or not the words complained of are defamatory or not, must be understood in their ordinary and natural sense, ie the meaning that the words would convey to the ordinary man. What is natural and ordinary meaning of words is a matter of construction. It was clear that the Article clearly put the plaintiff in a bad light. It portrayed that the plaintiff was a prostitute, a mentally unstable person obsessed with the former Deputy Prime Minister of Malaysia, and that she had a bad taste in clothing, that she was disowned by her own father, that she

In Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75

In Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75, the court held that to call a person a liar, Abu Jahal, is defamatory and the publication of the words Abu Jahal is actionable per se. The plaintiff need not prove that he had suffered any damage. Ibrahim J said: It is established that Abu Jahal was the nickname given to a person named Amru bin Hisham who was one of the chief enemies of Prophet Mohamad. Abu means father and Jahal means stupid (or ignorant). Abu Jahal may be used to denote a Muslim who has one of the qualities, character and attitudes of Amru bin Hisham eg a person who tells lie and that one of the ways of disrupting the good work of another would be by telling lies about him. I am therefore of the view that the words used were defamatory of the plaintiff.

Innuendo

Defamatory imputations sometimes does not arise from its nature and ordinary meaning but become so by virtue of either inferences or special facts or circumstances known by the recipient or readers of the words Types False Innuendo words are defamatory of the plaintiff due to inferences or implications arising from them Legal innuendo words are also capable of bearing defamatory meaning by way of true or legal innuendo

The plaintiff was a champion amateur golfer. In June 1928, the defendants caused to appear in certain newspapers an advertisement of their chocolate. In the middle of statements about kinds and prices of the chocolate, there appeared a caricature of the plaintiff playing a stroke at golf, with a carton of the defendants' chocolate protruding from his pocket, in the company of a caddie who was holding up packets of the defendants' chocolate. Below this picture there appeared the following verse:"The caddie to Tolley said: 'Oh, Sir! Good shot, Sir! That ball, see it go, Sir My word, how it flies, Like a Cartet of Fry's. They're handy, they're good, and priced low, Sir.'" The plaintiff brought an action for libel, and alleged as an innuendo that the defendants meant and were understood to mean that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants' chocolate, that he did so for gain and reward, that he had prostituted his reputation as an amateur golf player for advertising purposes, that he was seeking notoriety and gain by those means, and that he had been guilty of conduct unworthy of his status as an amateur golfer. Evidence was given that a golfer who so acted would not be regarded as maintaining his amateur status as a golfer and would be called on to resign from the membership of any reputable golf club

Application:

In the first issue above, the natural and ordinary meaning in words :
Jerry and Gina Coming out of a hotel restaurant late one night = imputes that they might having an affair and just finished their intimacy in the hotel before went to the restaurant for late night supper. Further strengthened when George advised Elaine to be more cautious as Jerry might be cheating on her = imputes that they do have an affair + George are a closed friend of Ellaine and he was serious about it.

All those bad impression mention above as the likelihood of response reflect in the mind of reasonable men when it comes to common sense and general knowledge.

Application:

1.

2. 3.

Implication of George statement towards Ellaine: Jerry relationship with Ellaine is in jeopardy. Their relationship would not be as happy as before. Cold feeling will overwhelming Ellaine. They might get divorced and their childrens future might be affected and growing without one of their mom/dad.

Application:

In the second issue above, the natural ordinary meaning in words:

TROUBLE

IN PARADISE ? JERRY IN HOT SOUP WHEN WIFE FINDS OUT AFFAIR WITH INSPECTOR X = [Jerry] imputes that Jerry relationship with his wife in trouble causing by the third party. Also imputes Jerry had a mistress, dishonest, a liar, and a Casanova/womanizer. [Gina] imputes that Gina is a husband stealer and pemusnah rumah tangga, immoral policewoman.

Application:

Implication of Kramer and Harian Gossip Magazine towards Jerry and Gina.
[Jerry]
Lost

credibility as a famous TV personality, His production will suffer lost, His rating talk shows will decrease, Lost business partner, Go bankrupt, Lost income.

[Gina]
Lost

credibility as a leader in her unit, lost respect within her colleague, she might be taken to the disciplinary board, her reputation will be tarnished.

Application:

In the third issue above, the natural and ordinary meaning in words :
AN

UGLY HUSBAND STEALER IN UNIFORM = imputes that Gina is a husband stealer and immoral.

*the words are uttered by Ellaine after she had a terrible argument with her husband and she is in anger therefore it is irrelevant to say that the words are defamatory. [C Sivanathan v Abdullah bin Dato Haji Abdul Rahman]

Words must refer to the plaintiff

Plaintiff must prove the words are referred to him/her. In establishing this element a test have been set out which is laid down in case of David Syme v Canavan David Syme & Co v Canavan (1918) 25 CLR 234 at 238 The test of whether words that do not specifically name the respondent refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe he was the person referred to?

Whether with name or the name is not mentioned or Description takes the form of words-pictures or His physical pecularities or Referring to his law firm(Wong Yoke Kong v Azmi M Anshar or class or person of which he is belong to . As long as the person hear or read about the statement know or believe that the plaintiff is referred to, it would be sufficient reference to him

Words may also refer to the plaintiff through external and intrinsic facts . This means that persons who possess these external facts of the plaintiff , combined with the words , may reasonably be led to believe that the statement refers to him.

case Sandison v Malayan Times Ltd & ors [1964] MLJ 332 In an artticle which published that a senior expatriate executive of the Rubber Industry Replanting Board had been dismissed for corruption . The court held that although the executive was not named , the date of dismissal was mentioned and indeed that was the date plaintiff the ceased holding that position The article also reported on who succeeded the dismissed executive and as identity of the successor was well known , the defamatory words

Application:

For the first issue above, applying the concept, the statement made by George towards Ellaine referred to Jerry that he might had an affair and cheating on her after coming out from a hotel restaurant. And ss a result, Jerry was confranted by Ellaine and he was contempt and hatred in the eyes of public.

Application:

As for the second issue above, applying the concept, the statement that were written by Kramer and published in Harian Gossip Magazine, clearly referred to Jerry as his name was in that statement and plus he is a famous television personality and a successful businessman, and public at large do have external facts about him. And while for Gina, the inspector X was referred to her, public at large may not knowing her but her colleague know that it was her after the publication of the article.

Application:

And as for the last issue above, applying the concept, the statement that were uttered by Ellaine towards Gina that she is AN UGLY HUSBAND STEALER IN UNIFORM clearly referred to her because it was said right in front of her eyes.

Words must be published

The second element that need to be assessed is whether the defamatory words is published . The publication means the dissemination of the defamatory words or material to the 3rd party other than plaintiff himself. Why? If the defamatory words are not disseminated , it means that the 3rd party will not tend to have any bad contemplation that will tarnish the reputation and dignity of the plaintiff.

Theaker v Richardson

In this case the plaintiff and the defendants wife was a member of the local urban district council. The facts appear to be that on May 5, 1960, the defendant's wife was standing in a street at Mablethorpe in conversation with a neighbour when the plaintiff passed by, and, on being greeted by the neighbour, spoke of the defendant's wife and the defendant in terms of the vulgarest abuse which so seriously distressed the defendant's wife She was seriously distressed and the defendant who being highly incensed by her story , determined to issue a counter attack against plaintiff by writing the plaintiff the most wounding thing of which he could think .

He insered this diatribe in a cheap, Flimsy, manilla envelope, licked it down and addressed it in type to the plaintiff, and, adding a small strip of Sellotape for good measure, sallied into the street and repaired to the plaintiff's house. He had intended, he says, to hand the letter to the plaintiff at her door, but could not trust himself not to strike her if she confronted him, so he popped his billet-doux through the letter-box and made himself scarce. At this time, as it happened, the plaintiff was not at home. She was in fact occupied in putting copies of her election address through the letter-boxes of her neighbours in the very same road, and the next person to come on the scene was the plaintiff's husband, who, as the jury believed, entered the house, picked the document up off the mat and opened and read it. It appears that he at once handed it to his stepdaughter and sent her off with it to give it to the plaintiff, who, not having her spectacles with her, handed it to another neighbour and so published the glad news round the town.

The court held that the publication is not established since the defendant has take all reasonable care to make sure the plaintiff herself get the letter. Plus, the plaintiffs husband is the one who mistakenly open the letter( assuming the letter related to election) and the defendant herself published the statement right after he got the letter by handed the letter to third party around her. Hence, the statement made to the plaintiff herself is not considered as defamatory words and no publication existed

Application of the 1st issue

Applying the law to the circumstances between Jerry and George, Jerry evidently must proof the publication is established. In their situation, George obviously has published the defamatory words to the third party when he warned Elaine about Jerry and the 3rd element is proven.

Application of the 2nd issue

In the second issue relating to the dispute between Jerry, Gina, Harian Magazine and Kramer, the publication is need to be proven by Gina and Jerry in order to file a suit against Harian Magazine on behalf of Kramer. In their situation the publication is totally existed when the magazine published the story titled Trouble In Paradise ? Jerry In Hot Soup When Wife Finds Out Affair With Inspector X. Since it is published, it is inevitable to claim the nonexistence of the readers who is the 3rd party here. They got the idea about Jerry and Gina thus the 3rd element is established.

Application of the 3rd issue

In the situation of Gina and Elaine, the defamatory words is published when Elaine yelled at her An Ugly Husband Stealer in uniform eventhough the words is not intended to be heard by the 3rd party but she must take into considerations that the people around her will come across the words . The 3rd element is established .

Defences

On behalf of the defendant, they also may raise the defences possible to escape the liability.

Hence , the defendat should take into attention the possible defences that may hinder their claim.
Defences that are relevant to be raised in this case are unintentional defamation.

Unintentional defamation

it

is provided under s 7 of the Defamation Act 1957

Applicable

- where a defendant unintentionally and innocently publishes defamatory material of another person. Nevertheless, there is no such protection for defamation made by maker of the statement. (only for publisher)

 Subject

to s 7(5) of Defamation Act 1957, words are innocently publish if it fulfill the following conditions :
The

publisher did not intend to publish them of and concerning plaintiff. The publisher did not know of circumstances by virtue of which they might be understood to be referring to him. The publisher had exercised all reasonable care in relation to the publication.

Defendant can discharge his/her liability by making an offer of amends by provision laid down in s 7 of Defamation Act 1957:
Publishing suitable correction and apology Necessary steps taken to notify the person to whom copies has been distributed.

If plaintiff accept the offer of amends then there will be no suit for libel. Unless vice versa then defendant must prove in his defence: s 7(1)(b) of Defamation Act 1957
That the words published innocently Offer was made as soon as practicable The author other than defendant has written it without malice.

Conclusion :

As for conclusion, since all elements of defamation are fulfilled for the first and second issues, Daud and Gina would likely succeed in their legal action against George, Kramer and Harian Gossip Magazine. While for Gina against Ellaine, she failed to fulfilled the first element as the words were uttered while Ellaine in anger therefore she would not succeed.

Conclusion

EUREKA!!