by Eugene Khoo Yean Shern (18 October 2021)
What is it?
Defamation is a kind of tort which involves the act of harming a person’s reputation by making and publishing false malicious statements against such person to third parties. In short, the tort of defamation is committed when a tortfeasor publishes to a third person words or matters containing untrue imputation against the reputation of a person. [See: Gatley on Libel and Slander, 9th edition].
Generally, the tort of defamation is categorized into two categories i.e. Libel and Slander. “Libel” is where the publication of the impugned statements is made in permanent and physical form whereas “Slander” is where the publication of the impugned statement is made in transitory form, conveyed by spoken words or gestures.
In the modern days, the current trend involving the tort of defamation is online defamation. The tort is committed when a tortfeasor had purportedly published false statements which bear defamatory imputations against a person (victim) to other persons (third parties) through a wide array of social networking sites and/or social media platforms such as Facebook, Twitter, Instagram, YouTube, TikTok, etc.
How to establish a claim in the tort of defamation?
The law in respect of the tort of defamation is trite. An injured party can seek legal remedies from the court by commencing a legal action against a tortfeasor premised on such cause action. Nevertheless, once a legal action has been initiated, the injured party (“Plaintiff”) is required to establish the following elements under the law in order to maintain his / her claim against the tortfeasor (“Defendant”) and satisfy the court that:
(a) the words (impugned statement) are defamatory;
(b) the impugned statement refers to the Plaintiff; and
(c) the impugned statement is published to third party.
Once the court is satisfied that those three elements above have been successfully established by the Plaintiff on balance of probabilities, the burden of proof then shifts to the Defendant to satisfy the court on the possible defence being relied upon by the Defendant. In considering whether the impugned statement is defamatory, the Court of Appeal in KELUARGA COMMUNICATION v. NORMALA SAMSUDDIN [2006] 2 MLJ 700 where Zulkefli Ahmad Makinuddin JCA (later PCA) in delivering his judgment held that it is necessary to consider the statement as a whole. His Lordship had also cited Gatley on Libel & Slander, 10th Ed. pg108 – 110 and held that
“It is necessary to take into consideration, not only the actual words used, but the context of the words.It follows from the fact that the context and circumstances of the publication must be taken into account, that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting.“
The Singapore Court of Appeal in JEYARATNAM JOSHUA BENJAMIN v. LEE KUAN YEW [1992] 2 LSR 301, held that the Defendant’s intention or what he actually meant in his statement is irrelevant. What is relevant is what an ordinary man may have understood from the words in the statement.
Under the law, there is a statutory provision on the presumption of fact as provided under Section 114A of the Evidence Act 1950 where inter alia, it states that any person whose name / photograph / pseudonym appears on any publication depicting himself as the owner, or any person who in any manner facilitates to publish or republish the publication is presumed to have published, until and unless proven otherwise. In short, the injured party (“Plaintiff”) does not need to prove that the defamatory words are false, but instead he/she only needs to prove that there was a publication of the impugned statement [See: Court of Appeal’s decision in ABU HASSAN BIN HASBULLAH v. ZUKERI BIN IBRAHIM [2017] MLJU 1676].
In a fairly recent case, the Federal Court in PEGUAM NEGARA MALAYSIA v. MKINI DOTCOM SDN BHD & ANOR [2021] 3 CLJ 630 ruled that the presumption of fact provided under Section 114A of the Evidence Act 1950 will assist in identifying and in proving the identity of an anonymous person involved in the publication through the Internet and such presumption is rebuttable and the rebuttal raised must be on a balance of probabilities. In this case, the Appellant (Peguam Negara Malaysia) has proven the presumption of fact under the aforesaid Section 114A that the 1st Respondent (Mkini Dotcom Sdn Bhd) was the publisher of the impugned defamatory statements because the 1st Respondent has provided a platform online for its subscribers to post the impugned comments to generate discussions despite the fact that the 1st Respondent has full control of what can or cannot be published on its online platform. Such action by the 1st Respondent tantamount to the facilitation of publication of the impugned comments. The irresistible inference is that at least one of them in the 1st Respondent had notice and knowledge of these impugned comments. Therefore, the court finds that the 1st Respondent cannot rely on mere denial to avail itself of the defence of ignorance by denying knowledge of the existence of those postings.
Publication means making a defamatory matter known to some person other than of whom it is written or spoken. In order to constitute publication, the impugned statement must have been published to a third party, and not to the injured party (“Plaintiff”) only. It has to be communicated to a third party in such manner as to be capable of conveying the defamatory imputation about the plaintiff [See: Gatley on Libel and Slander, 9th edition]. In fact, republication of an impugned defamatory statement also constitutes to a tort of defamation being committed. Once the defamatory remarks are reproduced or republished, those responsible for such republication of the defamation are equally liable in defamation. [See: Court of Appeal’s decision in RAJA SYAHRIR BIN ABU BAKAR & ANOR v. MANJEET SINGH DHILLON AND OTHER APPEALS [2020] 3 MLJ 482].
Furthermore, it is trite law that the mere publication of the defamatory statements implies malice on the part of the tortfeasor and the law presumes that the defamatory words are published falsely and maliciously and the injured party (“Plaintiff”) is not required to prove it. [See: “Defamation Principle and Procedure in Singapore and Malaysia” by Doris Chia, LexisNexis, 2016]
What are the possible defences available in the tort of defamation?
Although every citizen in Malaysia is entitled with the fundamental liberties of freedom of speech guaranteed under Article 10 of the Federal Constitution, however, it does not empower the citizens to simply make derogatory or slanderous remarks against each other including corporate bodies.
Among the main defences which are commonly relied upon by a tortfeasor in a defamation suit are inter alia: the defence of justification, fair comment, etc.
In order for a tortfeasor to rely on the defence of justification, he / she ought to establish the truth of all the material statements in the words complained of [See: Court of Appeal’s decision in MOHAMED HAFIZ MOHAMED NORDIN v. ERIC PAULSEN AND ANOTHER APPEAL [2019] 1 MLJ 580]. The burden of proof lies upon the tortfeasor to prove that the impugned statement which was published to third parties is substantially true.
The tortfeasor may also rely on the defence of fair comment in a defamation proceeding, whereby he / she has to show that the impugned statement was a comment and not a statement of fact and such comment must be on a matter of public interest. The comment has to be fair and honestly held. Justice Hamid Sultan in delivering the Court of Appeal’s decision in MOHD RAFIZI BIN RAMLI v. DATO’ SRI DR MOHAMAD SALLEH BIN ISMAIL & ANOR [2019] 6 MLJ 587 held that in a defence of fair comment, if the primary facts were true, in the absence of malice or falsehood, the defence of fair comment should ordinarily succeed. Only when the primary facts were not true, other facts which the trial court had admirably deliberated on the elements of fair comment to succeed became relevant.
Furthermore, under Order 78 rule 3 of the Rules of Court 2012, the tortfeasor has to specifically plead that which of the words complained of he alleges are statements of fact and which are comments.
Apart from the aforesaid defences, there are also several other possible defences which could be relied upon by a tortfeasor in a defamation action. Hence, in the event that a defamation suit is initiated against a tortfeasor, he / she may not necessarily be automatically held liable for committing the tort of defamation. The reason is simply because in a defamation action, the onus is on the injured party (“Plaintiff”) to establish on balance of probabilities that the impugned statement published by the tortfeasor (“Defendant”) to third party had referred to the Plaintiff and that it had defamatory imputations towards the Plaintiff. Once the Plaintiff has successfully discharged such burden of proof, the onus then shifts to the Defendant to establish his / her defences.
What are the legal remedies?
In law, there is one notable legal maxim, “ubi jus, ibi remedium” which simply means that where there is a right, there is a remedy.
An injured party in a defamation action may seek several legal remedies against the tortfeasor from the court of law. In a claim against the tortfeasor (“Defendant”) in a defamation suit, the injured party (“Plaintiff”) may claim for compensation for the loss of reputation, loss of business in terms of general damages, aggravated damages, exemplary damages and even specific damages. Besides that, the Plaintiff may also seek injunctive relief from the court to stop, prevent or refrain the Defendant from continuing to publish defamatory statements or similar statements that bear defamatory imputations against the Plaintiff to third parties.
Federal Court in DATUK HARRIS MOHD SALLEH v. DATUK YONG TECK LEE [2017] 1 MLJ 133 ruled that in awarding damages to the successful litigant, each case has to be decided based on its own facts and circumstances. The court has to consider the seriousness of the libel, the extent of the publication, the Plaintiff’s reputation and the adverse effect of the defamatory statements on his dignity and reputation, and the conduct of the Defendant including absence of remorse for defaming the Plaintiff.
In determination of the quantum of damages in defamation cases, the court would have to take into consideration the gravity of the allegation, how broadly the statements had been circulated, the effect of the publication, the nature and extent of the Plaintiff’s reputation as well as the behaviour of the respective parties [See: DATO’ SERI ANWAR BIN IBRAHIM v. KHAIRY JAMALUDDIN [2017] 11 MLJ 673].
The court had also acknowledged that a victim of libel is entitled to an award of aggravated and exemplary damages when the plea of justification fails. The measure of damages must bear some relation to the actual standing and reputation of the Plaintiff in the community prior to the libel. The higher the reputation the greater the damages [See: Court of Appeal’s decision in MGG PILLAI v. TAN SRI DATO’ VINCENT TAN CHEE YIOUN & OTHER APPEALS [1995] 2 MLJ 493].
In addition to that, a Plaintiff in a defamation suit may also make an application for an interim injunction to be granted while pending the full and final disposal of the defamation suit. By doing so and if the interim injunction is granted by the court, the Defendant will then be refrained from publishing further defamatory statements against the Plaintiff while the defamation suit is proceeding. This way, the Plaintiff would not suffer further injustice and greater prejudice caused by the Defendant’s impugned defamatory statement whilst maintaining the status quo.
Conclusion
In these modern days, almost every individual possesses at least one smartphone device whereby information can be accessed and / or shared with the world at their fingertips through the internet.
As a consequence, the tort of defamation can be easily committed when a person publishes an impugned statement bearing defamatory imputations against another person to an unlimited number of viewers, readers, etc. on the internet, which may result in irreparable damage to such person’s reputation and subsequently causing injustice and serious prejudice to such person.
This article provides you with an insight on what could be an online defamation, what can you do if someone publishes defamatory statements against you, what legal remedy can you seek from such person and also what can you do when you are being sued by someone for defamation.
Note: This article does not constitute and should not be relied on or treated as legal advice on or with respect to any particular case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.