Think twice before you whisper sweet slanderous nothings into someone’s ear
“Defamation” has been the buzz word of the day in Malaysian media, with recent reports indicating that Malaysian Prime Minister Datuk Seri Najib Razak is contemplating legal proceedings against the Wall Street Journal for articles published about him. This article sets out some important things you should know about defamation law in Malaysia.
What exactly is defamation?
In simple language, defamation occurs when there is a statement made that damages or injures the reputation of another person. Defamation can consist of either “slander” or “libel”:
- Slander occurs when the defamatory statement is made through a temporary form (eg: spoken words, or gestures)
- Libel occurs when the defamatory statement is made through a permanent form (eg: articles, newspaper reports, e-mails, video recordings)
What are the laws governing defamation in Malaysia?
In Malaysia, defamation can be both a civil and criminal offence. For civil cases, the relevant legislation is the Defamation Act 1957. Criminal defamation is covered by Chapter XXI (Sections 499 to 502) of the Penal Code.
How do you establish defamation?
From a legal perspective, 3 general criteria must be proven before defamation can be established:
- There must be a statement that is defamatory
- The statement must refer to or identify the claimant [person being defamed]
- The statement must be published to a third party other than the person being defamed
When is a statement considered defamatory?
It is impossible to provide an exhaustive list of what statements would be considered defamatory. Generally speaking, a statement is defamatory if it would lower the reputation of another person in the eyes of the public.
Certain statements may be clearly defamatory in their natural and ordinary meaning (eg: falsely informing others that a certain individual is a convicted criminal). However, some cases may not be so straight forward especially when there are innuendos involved.
What is an innuendo?
An innuendo is where ordinary words would have a special meaning to those with special knowledge. For example, the statement “Tim is a regular at Hotel X” may not appear to be defamatory in its natural and ordinary meaning. However, if Hotel X is actually a front for a brothel, then the statement about Tim could be defamatory to those who know the true story about Hotel X.
Another example: A newspaper report shows a picture of a couple, with the caption: “David Anderson and his girlfriend, Marie Clark, at the grand opening of XYZ’s flagship store”. To most people, this statement would not be defamatory in its ordinary and natural meaning since there is nothing wrong with having a girlfriend and/or attending a grand opening. However, it could be defamatory of David to those who know him personally and are aware that he is a married man, and his wife is not a woman named Marie Clark. The innuendo here is that David Anderson is unfaithful and was having an affair with the woman in the photograph.
When is a defamatory statement said to “refer to the claimant”?
The clearest case is when the statement refers to the person by name. Sometimes, a name may not be used but can still refer to a person. For example, the statement “The current CEO of Company ABC is in the habit of taking bribes” clearly refers to a specific individual that is identifiable, even though he is not named specifically.
Also worth mentioning is the fact that a group or class of people cannot be defamed. The statement “All lawyers are thieves”, while heart-breaking to those of us in this noble profession, does not amount to an actionable claim for defamation by any one lawyer.
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 to your face that you were a liar and a thief, that is not defamation because no one else heard it. However, if it was said in front of another person, or a group of people, then there could be a cause for defamation.
What are some of the defences to defamation?
These are the typical defences to defamation:
- Justification – This means the statements made were actually true. For example, if A was really a convicted criminal, a statement that A was convicted of a criminal offence, is not defamatory.
- Fair Comment – This is where the statement made is an honest expression of an opinion about a matter of public interest.
- Absolute Privilege – Where a situation or person is covered by absolute privilege, they cannot be sued for statements made even if they are defamatory. An example would be “a fair and accurate and contemporaneous report of proceedings” in court, as well as the “judgment, sentence or finding of such court”.
- 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 former employer to communicate information about the character of a former employee, to that individual’s future employer (if he is asked for a reference). That being said, the defence of qualified privilege can be defeated if the claimant can show that the maker of the statement was motivated by malice.
How much damages can you get if you are successful in a defamation action?
There is no fixed formula to calculate damages. Damages will be assessed by the court in accordance to various factors, such as the reputation of the claimant, whether the claimant is a public figure or personality, the seriousness or severity of the defamatory statement, whether malice was involved, and whether the defendant had apologised. One of the highest defamation awards in Malaysia was in 2000 where the Federal Court upheld the decision to award the sum of RM7 million as damages to businessman Tan Sri Vincent Tan, for defamatory articles published in a magazine.
