The High Court has fixed 5th – 9th March 2018 to hear Prime Minister Datuk Seri Najib Tun Razak’s defamation lawsuit against DAP’s MP Tony Pua, for uttering libellous remarks about 1Malaysia Development Berhad (1MDB). So, what exactly is defamation, libel and slander?
Definition
Defamation occurs when a statement is made to damage the reputation of another person. Defamation be categorised as either “slander” or “libel”:
- Slander– the defamatory statement is made through a temporary form (eg: spoken words, or gestures)
- Libel– the defamatory statement is made through a permanent form (eg: articles, newspaper reports, e-mails, pictures, video recordings)
Malaysian Law on Defamation:
For civil defamation lawsuit, the relevant legislation is the Defamation Act 1957. Defamation is a tort actionable per se (ie: the claimant will not have to prove actual harm to make a defamation claim). However, a successful slander lawsuit may require proof of special damages where libel does not. Damages (ie: monetary compensation) will be assessed by the court taking into account factors like the reputation of the claimant, whether the claimant is a public figure, the severity of the statement, whether malice was involved, and whether the defendant had apologised.
In criminal cases of defamation, the state prosecutes a private person for defamation, covered by Chapter XXI (Sections 499 to 502) of the Penal Code. The punishment for criminal defamation is a jail sentence for a maximum of two years, or a fine, or a combination of both.
How to establish a defamation claim?
Three (3) general criteria must be proven before defamation can be established:
- The statement must be defamatory.
- The defamatory statement must refer to or identify the claimant (ie: the person being defamed).
- The defamatory statement must be published to a third party, other than the person being defamed.
1. When is a statement considered defamatory?
Generally speaking, a statement is defamatory if it would lower the reputation of another person in the eyes of the public. For example, attacking someone’s professional standing, alleging someone has a disease, accusing someone of a crime or implying a person is immoral. Sometimes, even if the name of the person is not expressly mentioned, but readers can infer that the statement actually refers to a specific person, then it may also amount to defamation. In legal term, this is called an “innuendo”.
An innuendo is where ordinary words would have a special meaning to those with special knowledge. For example, the statement “Jack is a regular customer at Motel Mercury” may not appear to be defamatory in its natural and ordinary meaning. However, if Motel Mercury is actually a renowned brothel, the statement can be defamatory for those who know what Motel Mercury is. Here’s another example, a newspaper published a picture with the caption: “Jay Chan and his new girlfriend, Joey Tan are seen dating at Penang Hill”. On the surface, this statement would not be defamatory because there is nothing wrong for a couple to date. However, it could be defamatory to those who know Jay Chan personally and know that he is married, and that his wife is not Joey Tan. The innuendo here is that Jay Chan is unfaithful and is having an affair with the woman in the picture.
2. When does a defamatory statement “refer to the claimant”?
The clearest case is when the defamatory statement refers to the person by name. Sometimes, a name may not be used but can still refer to a specific person. For example, the statement “the current CEO of Company ABC is corrupted” can be defamatory because it refers to a clear identifiable individual, albeit he is not named specifically.
Note that a class of people CANNOT be defamed. The statement “All politicians are liars” cannot amount to an actionable defamation claim by any one politician.
3. What is meant by “publication of the statement”?
For a defamation action to stand, the defamatory statement must have been “published” or conveyed to at least one other person other than the person being defamed. If someone told you in your face that you were a thief, that in itself is not defamation if no one else heard of the accusation. However, if the statement was said in front of another person or a group of people, then there could be a cause for defamation.
Defences to defamation
1. Justification
This means the statements made were actually true.
2. Fair Comment
This is where the statement made is an honest expression of an opinion about a matter of public interest. That being said, the defence can be defeated if the claimant can prove that the maker of the statement was motivated by malice, of the maker of the statement fails to present all relevant facts, thereby presenting a false picture of the whole scenario.
3. Absolute Privilege
Where a situation or person is covered by absolute privilege, they cannot be sued for statements made even if they are defamatory. For example, “a fair and accurate and contemporaneous report of court proceedings” enjoys the defence of absolute privilege.
4. Qualified Privilege
This covers situations where the maker of the statement has a legal or moral duty to make the statement, or where the statement is made to further a legitimate common interest. For example, it may be qualified privilege for a Politician, who is under a duty to serve public interest, to make or publish statements concerning a matter of public interests, provided that he/she has taken responsible and fair steps to gather, verify and publish the information. The defence of qualified privilege will fail if the statements made were motivated by malice or the maker of statement had omitted important facts when conveying the statement, thereby leading to a misleading picture of whole scenario.
