Article 10 of the Federal Constitution provides some sort of guarantee to freedom of speech and expression to the people of Malaysia. Nevertheless, Article 10 cannot be used as a shield for anyone who wishes to make false allegations, condemn or circulate bad words about other people. A number of legislations have been passed to impose restrictions and limitations on the said freedom in order to protect the interest of among all; national security, public order or morality and to provide against defamation.
The law of Defamation in Malaysia is governed by the Defamation Act 1957 for civil claims and Section 499 punishable under Section 500 of the Penal Code for criminal defamation. Nevertheless, none of the governing legislations have provide the basic definition for defamation for a clearer and better understanding about the matter.
Definition of defamation can however be found in cases which have been decided by Malaysian Courts as well as in the English Common Law. In general, defamation has been defined as an act of making untrue statements about another person which has caused the said person’s reputation to be damaged.
There are two types of defamation; libel and slander.
- Libel refers to the defamatory statements made by a person in permanent form (written, recorded, drawing). This is the most common form of defamation committed by the people through various platforms of social media where they tend to write and post their beliefs for the whole world to read.
- Slander refers to defamatory statements made in temporary form. (spoken words, gestures).
How to Know If You Have Been Defamed?
Basically, there are three elements that need to be established before you can say that you have been defamed and succeed in a defamation claim. The elements are are as follows:-
- There must be a statement and that statement is defamatory;
- The statement must refer to you; and
- The statement must be published to a third party other than yourself.
- Defamatory Statement
How do you know if the statement made was defamatory or not? In general, any statement made to lower your reputation in the eyes of the public is qualified to be defamatory. Now, what can be categorized as defamatory statement is too wide as it can comprise of direct and clear statement or in the form of innuendo.
- Direct and Clear Defamatory Statement
Direct and clear defamatory statement refers to any spoken, recorded or written words that are untrue and injuring your reputation in its ordinary and natural meaning. For example, in 2019, the Kuala Lumpur High Court had held that the statement made by Syarhan Humaizi Abdul Halim against Seputeh MP, Teresa Kok as anti-Islam, racist and abuse her power as a minister as well as unethical and cannot be trusted was defamatory and it had given negative implications on her reputation as a politician.
In 2018, the Kuala Lumpur High Court had held that a review posted by Pak Loo Kee who was a former kitchen helper at Champ’s Restaurant in the latter Facebook account alleging that among all, the chopping boards used at the restaurant were the same ones used to cut meat and prepare fresh rojak and mango kerabu, the owner of the restaurant scolded the staff for serving customers with large prawns and the quality of food had dropped because the owner wanted to save costs, and that he had unhygienic personal practices were defamatory.
In both referred cases, the statements made were defamatory in its ordinary and natural meaning or simply put, those statements were directly defamatory.
- Innuendo
Innuendo refers to words that have special meaning to special group of people who have knowledge and understanding of the facts of the said words. Simply put, double meaning words, understood by certain group of people having knowledge of the purported meaning. For instance, the statement of; Boy was seen walking out from Hotel W with Girl this morning could suggest nothing for those who do not know Boy. For those who knew Boy and the fact that Boy is a married man, the said statement could be understood as Boy is having an affair and committing infidelity.
- Reference to You
Before you can sue someone for defamation, you need to ensure and be certain that the defamatory statements made were indeed referring to you. Other than direct reference made to you by mentioning your name such as in the case of Teresa Kok, it could also be in the form of indication. For example, an allegation of; Girl’s husband has been arrested for murder refers to a specific individual that is capable of identifying, even though he is not named specifically, unless Girl has more than one husband. In this situation, a sufficient reference has been made to Girl’s husband which can give rise to a defamation claim.
- Publication of the Defamatory Statement
In order for you to succeed in a defamation claim, the alleged defamatory statement must be published to third party. In other words, the said defamatory statements must have been disseminated or circulated to other people other than yourself. For instance, the defamatory statement made against Girl’s husband was disseminated through a whatsapp group consisting of their neighbours. A publication is said to have been established. However, if someone came to you and called you a murderer without the presence of anyone else, then it is not defamation.
Defences to Defamation
The law has provided some defences for the maker of defamatory statements to rely on. This shows that everyone is given equal opportunity to be heard and to have a fair trial. The following are the common defences that can be raised:-
- Justification – When the statements made were actually true. For example, if Girl’s boy had indeed been arrested for murder, then it is not defamatory.
- Fair Comment – When the statement made was an honest opinion about a matter of public interest. However, if the statement was made with malice, this defence shall not succeed.
- Absolute Privilege – The maker can raise this defence is the defamatory statements were published in Judicial Proceedings, Police reports, Parliamentary Proceedings, Judgment and other documents of the same nature. Even if the statements were made with bad intention or malice, this defence can still succeed.
- Qualified Privilege – When the maker of the defamatory statement has an interest or a legal, social, or moral duty, to make the statement and publish it to the person having corresponding interest or duty to receive it. For example, it may be qualified privilege for a subordinate to lodge a complaint to his superior pertaining to the ill behaviour or conduct of his manager as he has the duty to deliver the truth about his manager and his superior has the duty to receive the said complaint for the sake of protecting the company’s interest. However, this defence can be rebutted if the manager can prove that the complaint was made with malice.
Limitation Period
The limitation period to file an action for defamation in Court is 6 years commencing from the date the defamatory statements were published – Section 6 of the Limitation Act 1953.
Factors to Consider in Deciding the Quantum of Damages
- The reputation of the defamed person
- The position and standing of the defamed person, whether he or she is a public figure or personality.
- The gravity of the defamatory statement
- The extent of publication of the defamatory statement
- The presence of malice
- The absence of apology and retraction of the published defamatory statement