TORT II [defamation notes]

Information about TORT II [defamation notes]

Published on June 8, 2020

Author: AmaliaSulaiman2

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1. AMALIA SULAIMAN UKM LAW SCHOOL 2020 TORT LAW II- DEFAMATION 1. Definition: “Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.” – Winfiled & Jolowicz. “The tort of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification” – Salmond and Heuston on the Law of Torts 1987. “A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society” – Dias and Markesinis. “The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit.” – Gatley on Libel and Slander. CASE: COLOUR YOUR WORLD CORPORATION V CANADIAN BROADCAST CORPORATION 156 DLR(4TH) 27 A defamatory statement is one which has the tendency to injure the reputation of the person to whom it refers (which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. 2. Protected interest: Preserving one’s good name and reputation 3. The balance that needs to be achieved • Finding a balance between protecting one's reputation with freedom of speech or opinion • One can give an opinion on the condition that he does not affect a person's reputation 4. Freedom of speech Article 10 – Federal Constitution

2. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: MGG PILLAI V. TAN SRI VINCENT TAN CHEE YIOUN [1995] 2 MLJ 493 Lamin PCA : There are such things as human dignity, respectability and good character 5. Primary Law Defamation Act 1957 (Act 286) 6. Types of Defamation Libel is addressed to the eye while Slander is addressed to the ear a) Libel • a permanent statement/form Section 2 of Defamation Act- “words” includes pictures, visual images, gestures and other methods of signifying meaning. Section 3 of Defamation Act- For the purpose of the law of libel and slander the broadcasting of words by means of radio communication shall be treated as publication in a permanent form. • can be seen visually with eyes [ ie written statement, picture, photograph, dolls, emails etc.] CASE: YOUSSOUPOFF V. METRO-GPLDWYN-MAYER PICTURES LTD (1934) 50 TLR 581[film] Facts: A film falsely accused a Russian Princess was raped. Slesser LJ : Showing of defamatory matter embodied in a film with a soundtrack was libel. CASE: MONSON V. TUSSAUDS LTD. C.A. [1984] ALL ER 1051 [statue/dolls] The major tourist attraction Madame Tussauds was subject to a defamation trial in 1894 after a wax work of John Monson holding a gun was displayed in the museum, close to the “Chamber of Horrors”. Monson had been subject to a murder trial however was set free with the verdict of “not proven”. The case established the principle of “libel by innuendo” and confirmed that a wax statue was capable of being libel by suggesting Monson to be guilty of murder.

3. AMALIA SULAIMAN UKM LAW SCHOOL 2020 • Actionable per se [does not have to prove damages] CASE: M.G.G PILLAI V. TAN SRI DATO’ VINCENT TAN CHEE YIOUN & OTHER APPEALS [1995] 2 CLJ 912 Gopal Sri Ram JCA : Libel is a tort actionable per se, i.e., without proof of actual harm. In other words, damage is not an ingredient of the tort. The law presumes that when a man’s reputation is assailed, some damage must result. b) Slander • In a temporary form • Not permanent e.g. words spoken • Not actionable per se – must prove actual damages Exception to proof of damage in slander 1) Section 4- Slander of women [Words that accused a woman of adultery/immoral] Section 4 - Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable. CASE: LUK KAI LAM V. SIM AI LENG [1978] 1 MLJ 214 Allegations were made by the respondent in the presence of a third party that the appellant was a prostitute and charged RM50 to entertain men. The court held that slander was establishes as the words had impugned the appellant’s chastity. 2) Section 5- Slander affecting official, professional, or business reputation Requirements under s.5: • these words meant to insult or demean the plaintiff but not in personal capacity; • The words refer to the job, profession, occupation, employment or business of the plaintiff; • The position, profession, occupation, employment or business held or carried out by the plaintiff at the time the words were issued; and • Plaintiffs do not need to prove special damages.

4. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: JB JEYARETNAM V. GOH CHOK TONG (ex pm s’pore) [1985] 1 MLJ 334 {Singapore case} Facts: The plaintiff, the secretary-general of the Workers’ Party in Singapore, was invited as the only guest speaker on September 21, 1981 at the inauguration of the Singapore Democratic Party. The defendant, the Minister for Defence and second Minister for Health in the Singapore Government, was the first organizing secretary of the Peoples’ Action Party and was therefore most concerned at securing the return of the PAP’s candidate at the by-election. The defendant held a press conference at which representatives of the media were present. The plaintiff complained that these words were defamatory of him and he sued the defendant claiming damages and an injunction. The plaintiff also relied on section 5 of the Defamation Act, claiming that the words were calculated to disparage him in his office as leader of a political party and in aspiring to be a Member of Parliament. Held: For slander to be actionable per se, the words must be calculated to disparage the plaintiff in his office of profit. An office of profit means that the plaintiff receives monetary remuneration from holding that office. Plaintiff’s claim failed. 3) Section 6- Slander of title, etc. 6. (1) In any action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage— (a) if the words upon which the action is founded are calculated to cause (financial) pecuniary damage to the plaintiff and are published in writing or other permanent form; or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication. i. Examples of slanders against property that cause the plaintiff to suffer financial loss: A negotiated with B to sell his land for RM100,000. C made a statement saying that the land was acquired by A by deceiving his siblings. ii. Examples of slander against the plaintiff that cause financial loss: A, a fruit juice manufacturer. B makes it clear that factory output water A is not clean. As a result, sales of fruit A's water declined. iii. Malicious falsehood: - is malice applicable to slanders in relation to property, goods? CASE: BORNEO POST SDN BHD & ANOR V. SARAWAK PRESS SDN BHD [1999] 1 AMR 1030 Held: Defendants' intention need to be proved.

5. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: RATUS MESRA SDN BHD V. SHAIK OSMAN MAJID & ORS [1999] 3 MLJ 529 RK Nathan J : Elements that needs to be provem to claim under malicious falsehood: a. defendant had published the defamatory words; b. it was published with the intention of malice. ia diterbitkan c. special damages suffered by plaintiff as a result of defendant’s action. [have to proved] 4) A statement alleging that the plaintiff had an infectious disease at the time the statement was made. 5) The statement alleges that the plaintiff was involved in a criminal offense that could result in 'corporal' punishment such as riot, death or imprisonment. CASE: THIRUCHELVASEGARAM MANICKAVASEGAR V. MAHADEVI NADCHATIRAM [2000] 5 MLJ 465 Facts: Both plaintiff and defendant is an advoate and a solicitor. The plaintiff claim that the defendant had conspire with his siblings and plaintiff’s daughter and accused him of incest. James Foong J. :Since the slander herein involved the plaintiff in his profession and imputed him to a crime punishable with a term of imprisonment, there was no necessity for the plaintiff to tender proof of special damages. By virtue of ss 5 and 6 of the Defamation Act 1957 in a slander to the plaintiff of his profession, there shall be no necessity for the plaintiff to prove that he has suffered damages. Here, the plaintiff is and was an advocate and solicitor, and the slander inflicted by the defendant on him was calculated to disparage him in his profession (see p 489H–I). CASE: C SIVANATHAN V. ABDULLAH B. DATO’ HJ. ABD. RAHMAN [1984] 1 MLJ 62 D made a remark to P that said he was a cheater and a liar. The court held that since the "crimes" did not attract corporal punishment, the P claim was not actionable per se. His action failed as he could not prove special or actual damage. ELEMENTS OF DEFAMATION 1) The words that are defamatory of nature 2) The words is directed towards plaintiff 3) The words are published to a third party/public

6. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: WONG YOKE KONG & ORS V. AZMI M ANSHAR & ORS [2003] 6 CLJ 559 Heliliah Yusof J had referred to Carter-Ruck on Libel and slander : It is stated that in any action for defamation whether it be libel or slander, the plaintiff must prove that the matter complained of : (i) is defamatory (defamation); (ii) refers to the plaintiff (identification); and (iii) has been published to a third person (publication). 1. The words that are defamatory of nature publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. CASE: SIM V. STRETCH [1936] 2 ALL ER 1237 The plaintiff complained that the defendant had written in a telegram to accuse him of enticing away a servant. The House considered the process of deciding whether words were defamatory. Lord Atkin : A statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem. CASE: LEWIS V DAILY TELEGRAPH The Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of fraud. The defendants admitted that the articles were defamatory, but they maintained that the articles did not go so far as to include actual guilt of fraud, but something less. Lord Devlin : The test to be applied is whether the words in their ordinary sense defame the complainant : the fundamental Q – what is the meaning that the words convey to the ordinary man? CASE: ANSARI ABDULLAH V SHALMON SANAGAN [2016] 10 MLJ 39 Eventhough the defamation was conducted via facebook, the plaintiff has to prove all elements of defamation. CASE: LAU CHEE KUAN V. CHOW SOONG & ORS [1955] 21 MLJ 21 Murray-Ansley CJ telah merujuk buku Gatley on Libel and Slander:

7. AMALIA SULAIMAN UKM LAW SCHOOL 2020 ‘Any written or printed words which tend to lower a person in the estimation of right-thinking men, or cause him to be shunned or avoided, or exposed him to hatred, contempt or ridicule, constitute a libel’. CASE: SYED HUSIN ALI V. PERCETAKAN UTUSAN MELAYU BHD & ANOR [1973] 2 MLJ 56 Mohamed Azmi J.: Thus the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true (emphasis added). Another test is : would the words tend to lower the plaintiff in the estimation of right thinking members of society generally? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty. CASE: BYRNE V. DEANNE [1937] 1 KB 818 After police raided a golf club and confiscated a gambling machine, there was a statement on the notice board saying 'but he who gave the game away may be Byrne in hell and rue the day'. The plaintiff brought a claim against the golf club by saying that the statement was defamatory Held: Although that statement tends to undermine him among club members but not in the right thinking member of society because the right-thinking community will support actions aimed at eradicating crime. CASE: WONG YOKE KONG & ORS V. AZMI M ANSHAR & ORS Issue: i. whether the words that are published were defamatory ii. Whether the words were defamatory to the plaintiffs Heliliah J: There are therefore two steps involved in deciding whether or not the alleged offensive sentence is defamatory or not. The first is to consider what meaning the words would convey to the ordinary person. Having established the meaning of the next stage is whether under the circumstances in which the words were published, the reasonable person would be likely to understand them in defamatory sense.

8. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Here the defendants have actually referred to the business of the law firm and not the political activity of Dato’ Nazri in the alleged offensive sentence. It may not be defamatory to say that the lawyer is less talented than another but it may be defamatory to impute that the business practice of a law firm is discreditable. There is a risk of injury to the business reputation. CASE: AYOB B. SAUD V. TS SAMBANTAHNMURTHI [1989] 1 MLJ 315 Comparisons made between China surveyor with the Malays does not amount to defamatory statement. CASE: UTUSAN MELAYU (MALAYSIA) BHD & ORS V. VTJANTING HANDICRAFT SDN BHD & ANOR [2005] 1 CLJ 71 Nik Hashim JCA : On the Q of malicious intent, the law looks at the tendency and consequences of the publication and if the defendant has published words which have in fact injured the plaintiff’s reputation, the defendant must be taken to have intended the consequences naturally resulting from his act. It is no defence to show that the defendant did not intent to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff. CASE: BRE SDN BHD & ORS V. TUN DATUK PATINGGI HJ. ABDUL RAHMAN [2005] 2 CLJ 645 Hashim Yusoff JCA : …the correct test is whether the words complained of were calculated to expose the plaintiff to hatred, ridicule or contempt in the mind of a reasonable man or would tend to lower the plaintiff in the estimation of right thinking members of society generally. 2. The words is directed towards plaintiff if the plaintiff made a clear statement, this element is easy to prove. This element is difficult to prove if the plaintiff is referred to in an inference only The test: CASE: DAVID SYME V. CANAVAN (1918) 25 CLR 234 Is it reasonable for those who know the plaintiff to believe that the plaintiff is the person intended in the statement?

9. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: Knupffer v London Express(1944) AC 116 Facts Knuppfer (K) was the head of the British branch of the Young Russia Party. The respondents published a newspaper article in 1941 which alleged association between Hitler and the Party. Whilst K was not named individually in the article, witnesses at trial intimated that they understood the article as referring to K. K was successful in his libel claim at trial. Issue The Court of Appeal held that the words could not be regarded as referring to K and allowed the newspaper’s appeal. K appealed to the House of Lords. On appeal, K submitted that when a defamatory statement is made of a class of persons, an individual suit can be raised by those members of the class capable of being defamed by the statement. K submitted that the article particularly reflected upon him as a prominent member of the group in Britain. Held The House of Lords noted that it is an essential element of defamation that the words complained of should be published “of the plaintiff.” Viscount Simon held that the article, having regard to its language, could not be regarded, as a question of law, as being capable of referring to K. The trial judge had erroneously relied upon a question of fact i.e. the fact that K was capable of being identified by reasonable people who knew him as a subject of the article. Similarly, Lord Atkin held that in libel cases the key question was whether the words were published “of the plaintiff” as an individual rather that whether they were spoken of a class. The appeal was therefore dismissed. Viscount Simond; It is an essential element of the cause in defamation the words complained of should be published of the P. Means - P must be identified as a defamatory person. Known by: name, description, any inference. It is irrelevant that D does not intend to refer to anyone but actually to fictional character

10. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: HULTON v JONES (1910) AC 20 D published a satirical article on a cheating Englishman named Artemis Jones who lived in Peckham. Without the author's knowledge, there is a lawyer named Artemis Jones who lives in North Wales. It was in the court's evidence that P's friends believed the article to refer to P. HOL: It did not matter that the defendant did not intend to defame him, all that matter was what a reasonable person would understand the words to mean. D had defame D even though he did not had the intention to do so. The court take into account the view of a reasonable man when reading the report, and when they read it was found that the words did referred to P. CASE: ABDUL KHALID V. PARTIISLAM SEMALAYSIA & ORS [2004] 4 CLJ 15 (penting) The Q is not whether anyone did identify the plaintiff but whether persons who were acquainted with the plaintiff could identify him from the words used. I am of the view that it is not necessary that the words should refer to the plaintiff by name provided that the words would be understood by reasonable people to refer to the plaintiff…It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person referred to. Statement made towards a group of people. e.g: all politicians are useless (generally) - the plaintiff must be able to prove that the statement actually referred to the plaintiff. 3. The words are published to a third party/public - broadcast to third parties in a fixed / indefinite form - when a statement is printed, those responsible will: i. author; ii. publisher; iii. seller; and iv. Internet service provider

11. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: GODFREY V. DEMON INTERNET [2000] 3 WLR 1020 An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in defamation after failing to remove a posting which it then continued to distribute after the libel had been notified to it. The claimant applied to strike out that part of the defence which denied that it was a publisher. Held: That part of the application succeeded. Morland J said: ‘In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants’ customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer’. Summary: Libel requires that the defamation statement be disclosed to a third party. If the defamatory material is sent to the person in question, then it is not broadcast for libel purposes CASE: HUTH V HUTH [1915] Facts The defendant, Captain Huth, sent an allegedly defamatory letter in an unclosed envelope through the post to his four children. The letter contained an implication that the children were illegitimate. The letter was taken out of the envelope and read by a butler in breach of his duties and out of curiosity. At trial, the claim was dismissed on the basis that there was no evidence of publication of the libellous information. Issue On appeal, counsel for the appellants contended that the defendant knew that the document was likely to be taken out of the envelope and read and he must therefore be responsible for it. The only obligation on the plaintiffs was to show that the words are susceptible to defamatory meaning. The respondent argued that there had never been a successful libel claim where the publication had been sent in an envelope. This should be contrasted with a postcard or telegram where there is a reasonable inference that the matter would be published. Held The Court of Appeal was of the view that it was not right to treat a letter in an “ungummed” envelope with a halfpenny stamp as though it were an open letter. Such a letter required some act by a person before they could be read and the Court could not presume that such letters would be opened in the ordinary course of business. Therefore, the defendant could not be taken to have known that the letter would have been taken out of the envelope and there was accordingly no evidence of publication of the libel in the case.

12. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Summary: Held: No broadcasting. Butler's opening of the letter was a breach of his duty. It's not broadcasting because D is considered to be unable to reasonably expect the "curious" pay person to open his wife's letter D. A letter addressed to a businessman opened by his secretary is sufficient publication EXCEPT the letter is clearly marked "Private" or "Personal". D must not have any intention that such defamatory material be communicated to any party. It is sufficient if such a person can be reasonably expected. INNUENDO Words may be defamatory not only in its natural and ordinary meaning. But they can also be defamatory by way of innuendo. • Implied words • Hidden meaning between the lines • Read between the lines • Subtle defamatory • Here P must rely on the special knowledge that P claims to be made by the people who read the broadcast of the statement which makes them understand the words / statements that are being published as defamatory. • If the P alleges that words contain a hidden or inner meaning (an innuendo) which render them defamatory of him, this is something which he must plead and prove in court. CASE: Tolley v Fry & Sons Ltd [1931] AC 333 Facts The defendants were owners a chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.

13. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favour of the claimant. The defendants appealed. The Court of Appeal was of the view that the case should never have gone to the jury. This time the claimant appealed. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. TYPES OF INNUENDOS 1) True/Legal By contrasts, true innuendo involves something more than reading between the lines. There is true innuendo wherever the claimant argues that facts or circumstances which are not apparent from the words themselves give those words a meaning they would not ordinarily have. CASE: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331[Defendant found guilty] Facts The claimant was known as the lawfully wedded wife of a famous race-horse owner and former General of the Mexican Army. The claimant and her husband lived separately but he often visited her at her workplace. The defendant newspaper published a photograph of the claimant’s husband with a woman labelled as Miss X, to whom – as alleged by the attached article – he was engaged.

14. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Issue The claimant argued that the publication caused damage to her in that it was intended to imply that her husband was living with her immorally. The defendants denied any such intention and even the possibility of their publication having such a meaning. The defendants refused to admit, even after seeing evidence thereof, that the claimant was married to the subject of the publication. The trial judge found that in the circumstances of this case, the publication could be seen as having a defamatory meaning. He directed the jury that what mattered was the perception of the reasonably minded person who knew the circumstances of the case. The jury found in favour of the claimant. Held The Court of Appeal held, affirming the lower court’s decision, that the publication in question was capable of constituting defamation. It found that the jury was right to find that the publication made the reasonably minded person believe that the claimant’s moral character was questionable. 2) False Where the words bear a meaning that is not their literal meaning but instead constitutes an inference or implication from the words themselves. The question is whether the reader will read between the lines. CASE: LEWIS V DAILY TELEGRAPH [defendant found not guilty] D reports that the squad investigating fraud has made inquiries regarding P's affairs. It is decided that the ordinary person will not make the inference that P is guilty solely of an inquiry. AN APOLOGY S.7 (1) - The innocent party may apologize to the other. S.7 (1) (a) - if accepted, no libel or slander action shall be taken by the other party. S.7 (1) (b) - if the other party does not accept it, it is a defense to the party making the statement that the statement was made innocent and the apology was promptly made and it has not been withdrawn. S. 10 - defendant may submit evidence that he has apologized before action was taken to reduce damages. See; MGG PILLAI V. TAN SRI VINCENT TAN

15. AMALIA SULAIMAN UKM LAW SCHOOL 2020 DEFENCES Before the court considers the defense presented by the defendant, the court must decide whether or not defamation elements exist. Courts cannot continue to consider defense without deciding whether or not defamation exists. CASE: Abu Hassan bin Hasbullah v Zukeri bin Ibrahim [2018] 6 MLJ 396 In this case the trial court did not consider the existence of defamatory elements before considering the defense presented by the defendant. The Federal Court has upheld the trial judge's actions: In a defamation case, the learned judge has a duty to rule on the three essential ingredients of the tort of defamation before he proceeds to decide on the defences pleaded by the defendant in his defense. Firstly, the learned judge ought to determine if the impugned emails were capable of bearing the defamatory meaning as ascribed in para 9 of the SOC. Secondly the learned judge ought to examine if the impugned emails referred to the plaintiff. Lastly the learned judge ought to have resolved if the impugned emails were published to a third person. 1. Plaintiff's consent / consent • P has given her permission to broadcast either explicitly or implicitly. He cannot claim to have been falsely accused. • The defense can then be submitted by the defendant if the statement is released by plainitf. What the defendant has to prove is the truth of the plaintiff CASE: COOKSON V. HAREWOOD [1932] 2 KB 478 The statement states that the plaintiff was not allowed to ride a horse at his club. The plaintiff said this was an innuendo. CASE: CHAPMAN V LORD ELLESMERE P is a horse trainer. Licensed by the club under certain conditions. Among them: a license can be revoked by the club and a notice of it will be published in the Racing Calendar. P agree and sign the terms. Horses trained by P have been disqualified from racing due to doping issues and P has been warned. It is published in the Racing Calendar and in The Times.

16. AMALIA SULAIMAN UKM LAW SCHOOL 2020 P sued D for slander. Broadcast in 2 places: i-Racing Calendar ii- Times newspaper Held-P failed to broadcast on the calendar because it agreed. P succeeded in broadcasting in a newspaper- without authorization. 2. Justification / justification • the defendant must prove that what was said to the plaintiff is true. • when the defendant can prove that what is stated is true, the court will not take into account the elements of the malice when the defendant issues the statement. • Absolute defense. • The burden is above D to prove that the statement made is correct. CASE: DATO’ SERI ANWAR B IBRAHIM V DATO’ SERI DR MAHATHIR B MOHAMAD [1999] 4 MLJ 58 KAMALANATHAN RATNAM J: it follows therefore that what is true, cannot be defamatory. CASE: ANSARI ABDULLAH V SHALMON SANANGAN Defamation was committed on facebook. Defendants present reasonable inferences and reasonable comments. Held: A justification plea means that the published words and the imputation it conveys are true. The burden to prove the defense of justification lies upon the defendant as the law presumes that defamatory words are false… To establish a plea of justification, the defense must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only. If A says of B that A believes B committed murder A cannot justify by saying and proving that A did believe it. A can only justify by proving the fact of murder. Similarly, if the defendant has written that A said that B, the plaintiff, had been convicted of theft it will be no defence for the defendant to prove that A did tell him so, that he honestly believed what A said, and only repeated it. He must prove as a fact that

17. AMALIA SULAIMAN UKM LAW SCHOOL 2020 B was convicted of theft. If A repeats a rumour A cannot say that it is true by proving that the rumour in fact existed. A must prove that the subject-matter of the rumour is true. Defendant failed to defend his cause because the defendant relied solely on a statutory declaration made by a third party claiming the plaintiff had received the money. SUMMARY: Meaning: D must prove that comments and inferences are correct Common law: If there is some charge, D must prove that all the allegations are true. Section 8 of the Defamation Act: Where there are several allegations, D need not prove the truth of each of the allegations. Pursuant to section 8- The defense of justification shall not fail by reason only that the truth of every charge is not proved If there are several allegations, the defendant will not fail in defense just because he cannot prove all of these allegations: s.8 AF CASE: ABD. RAHMAN TALIB V. SEENIVASAGAM [1965] 1 MLJ 42 CASE: Irene Fernandez v UtusanMelayu (M) Sdn Bhd & Anor In a defamation action, the defence of justification is complete defense if it succeeds. And the question of malice or bad faith does not arise. But, in order to succeed in the defence of justification a defendant must establish the truth of all the material statements in the words complained of which may include defamatory comments made therein. And in order to justify such comment, it is necessary to show that the comments are correct imputations or conclusions to be drawn from the proved facts. However, the plea of justification does not fail by reason only that the truth of every charge is not provided if the words proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges (see s 8 of the Defamation Act 1957 and Abdul Rahman Talib v Seenivasagam & Anor [1966] 2 MLJ 66). It is also to be noted the partial justification may be useful in the mitigation of damages.

18. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: CHEAH CHENG HOC & ORS V LIEW YEW TIAM & ORS [2000] 5 CLJ 475 It is sufficient to prove the main charge or gist of the libel is true. This assumption will not succeed if D cannot prove the truth of the statement that D relies solely on “honest belief 3. Fair comment Affordable / intended comment to encourage public discussion (for full & free public discussion on matters of public interest.) This defense is based on 4 elements: • the words used must be comments, not statements of fact; • The key points in the comments must be in the public interest; • Comments must be based on factual facts: s.9 AF • Comments should be reasonable - fair, no elements of vengeance / malice CASE: MERIVALE V CARSON (1887) 20 QBD 275 A fair and bona fide comment on a matter of public interest is no libel. CASE: DIGBY V FINANCIAL NEWS [1909] 1 KB 239 Comments in order to be fair must be based on facts and if the defendants cannot show that his comments contain no misstatements of facts he cannot prove a defense of fair comments. CASE: MEERAN LEBBAIK MAULLIN & ANOR The words used against P “the P had robbed the public and were a heathen” were allegations of fact rather than opinions. Test whether statement is fact OR comment is; whether the ordinary and reasonable person when informed of the statement, will regard it as a mere statement of fact OR comment If D had stated that P had sold the Quran incorrectly and would have benefited greatly and thus 'robbed', then that statement would have been a comment.

19. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: ANSARI ABDULLAH V SHALMON SANANGAN In this case the defendant also made reasonable comments. Held: In Joshua Benjamin Jeyaretnam v Goh Chok Tong [1989] 3 MLJ 1, the Privy Council referred to four crucial elements in relation to the defense of fair comment. They are as follows: (a) the words complained of are comment, although they may consist or include inferences of fact; (b) the comment is on a matter of public interest; (c) the comment is based on facts; and (d) the comment is one which a fair-minded person can honestly make on the facts proved. Judge made a referance to Gatley on Libel and Slander (8th Ed). It reads as follows: Comment is a statement of opinion on facts. It is comment to say that a certain act which a man has done is disgraceful or dishonourable; it is an allegation of fact to say he did the act so criticized … while a comment is usually a statement of opinion as to merits or demerits of conduct, an inference of fact may also be a comment. There are, in the cases, no clear definitions of what is comment. If the statement appears to be one of opinion or conclusion, it is capable of being comment. Held: Assuming that the fact that the plaintiff took a bag filled with cash from Datuk Ayob Aman had been proven and the defendant had proceeded to make a statement that it was a dishonourable thing to do, it would amount to a comment. However, the defendant merely repeated the unfounded allegation that the plaintiff took a bag filled with cash. Therefore the defence of fair comment failed. CASE: LONDON ARTISTS LTD V. LITTLER [1969] 2 ALL ER 192 Lord Denning : there is no definition in the books as to what is a matter of public interest…Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make a fair comment.

20. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: Abu Hassan bin Hasbullah v Zukeri bin Ibrahim [2018] 6 MLJ 396 Plaintiff is a senior lecturer and Dean of the Faculty of Creative Technology and Heritage. Defendant is a trial lecturer at the same Faculty. Plaintiffs allege that defendant made 2 offensive emails and sent the email to academic staff and all Faculty administrators. In the email, the defendant stated that the plaintiff had made a mockery of her PhD thesis in terms of references and contents of the thesis as well as in relation to programs not approved by MQA. The plaintiff argued that the words in the email in question were defamatory to the plaintiff and were intended to disparage the plaintiff. The plaintiff further alleged that the publication of the email in question, which was likely to be distributed and read by the recipient, was sent in maliciously and had caused the plaintiff to feel very sad and embarrassed and his personal and office reputation were severely impaired. Accordingly, the plaintiff filed a defamation suit against the defendant. In responding, the defendant contends that the words alleged to be defamatory in the email in question were true and relied upon in defense of justification. He also claimed that the email in question was 'fair comment' in relation to public interest. So to use this meaning, the word / statement must be a comment rather than a fact. This defence will fail if the "malice" is proved. CASE: DAKHYL V LABOUCHERE • P describes himself as a specialist in the treatment of deaf, ear, nose and throat diseases. • D describe P as ‘a quack of the rankest species’ • Held: That is a comment and not a statement of fact. • D must also prove that the comments are fair in all circumstances. 4. Privilege i) absolute - provides an unlimited forum to communicate. - Absolute privilege is superior to the implications of the statement issued

21. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Absolute Privileges (Section 11): • Statement in the session of Parliament • Communication made by one civil servant to another on official duty • Statements by Judges, lawyers, jurors in the course of judicial proceedings • Communication between spouses • Report of Parliament proceedings published by order of Parliament The existence of malice does not prevent the defendant from relying on this defense. CASE: BHLB TRUSTEE BHD & ANOR V HSBC (M) TRUSTEEBHD & ORS [2006] 4 MLJ 48 The Supreme Court has given examples of absolute privileges such as Parliamentary Privilege, Judicial Privilege, Official Privilege, Statutory Privilege, Reports of Parliamentary Proceedings, Newspaper Reports of Judicial Proceedings and The Q of Public Policy. CASE: O'CONNOR V WALDRON [1935] AC 76 Absolute privilege was also extended to the tribunal's testimony, which was not a court but a court procedure. Ii) Qualified s.12 AF - the existence of malicious intent will deny the defendant this defense - newspaper reports - in-news reports - Accurate and accurate reports of judicial proceedings that are available to the public. 2 conditions need to be met; i) On the one hand there are legal, moral and social obligations to make such statements on ii) On the other hand, there is a corresponding interest in accepting the statement. Terms: 1) If the proceedings are not open to the public, this protection does not apply. Reason / justification; If people have the right to appear in court, they also have the right to know what happened in their absence.

22. AMALIA SULAIMAN UKM LAW SCHOOL 2020 2) Protection shall not apply if the broadcast / publication is prohibited by law or court order See: ONLINE V LONGSDEN EFFECT OF DEATH ON DEFAMATION ACTION S.8 (1) of the Civil Laws Act 1956 The cause of action for defamation ceases when the party to the action (plaintiff / defendant) dies. CASE: ARJILAN BIN MUHAMMAD & ORS V WITH MUSBAH JAMIL & ORS [2012] MLJU 682 The plaintiff is a deceased heir who is alleged to have been defamed in an article published in Daily News. The implications of the article indicate that the late Arshad was responsible for Embo Ali's death. Plaintiffs allege that Arshad was falsely accused. The plaintiffs are Arshad's grandchildren and great-grandchildren. Issue: Whether the Plaintiffs' claim is barred by section 8 (1) of the Civil Law Act 1956? Held: The common law position of the rights of deceased persons to sue for defamation is crystal clear and it is this. A deceased person cannot be defamed. Similarly, a deceased person cannot through his or her next of kin sue to restore his or her reputation. Further even if a suit for defamation was instituted by the deceased person when he was alive, that suit will end when the deceased passes away and his next of kin cannot continue with it for the benefit of the estate. In Malaysia, the common law is embodied in section 8(1) of the Civil Law Act 1956 which reads as follows:- • Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive • against, or, as the case may be, for the benefit of, his estate: • Provided that this subsection shall not apply to causes of action for defamation

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