Defamation & Slander

In Malaysia, civil defamation is governed by the Defamation Act of 1957. Section 499 of the Penal Code governs criminal defamation. In this article, we will discuss civil defamation. Malaysian defamation legislation is supplemented by English common law and Malaysian case law.

The law recognises that each person is entitled to have their reputation protected. If someone makes a statement that negatively affects a person’s good reputation in the public’s eyes, the person can claim against the statement’s maker. Whether the claim will succeed or not depends on the defendant having a valid defence against such a claim.

What is defamation?

There is no definition for the word “defamation” in the Act. Over the years, Malaysian case law and English common law have defined what constitutes defamation. Today, it is accepted that a statement is defamatory if it:

• lowers a person’s reputation in the minds of right-thinking members of society;
• causes a person to be exposed to contempt, hatred or ridicule; or
• belittles a person’s profession, calling, trade or business.

There are two types of defamation:

1. Written statements, called libel, include statements in written media, such as newspapers, posts on social media, plus emails and videos. They are also referred to as defamation in permanent form.
2. Spoken statements or gestures, called slander, or defamation in a temporary form.

When is a statement defamatory?

It is not possible to provide a list of defamatory statements. To decide whether a statement is defamatory, the court will look at the context and the meaning of the statement.

Some statements are defamatory in their natural and ordinary meaning; others are not so straightforward. In these cases, you need to consider the innuendo to decide if the statement is defamatory.

• Natural and ordinary meaning includes the literal meaning of the words, the implied or indirect meaning, or any meaning based on general knowledge.
• Innuendo refers to situations where ordinary words have special meaning to people with specific knowledge, i.e., in the context of that person; these words have special meaning. For example, Pete says, “John is a regular at the Hemp and Seed restaurant”. In its ordinary meaning, it won’t be defamatory. However, if you know that the Hemp and Seed restaurant is where many drug deals are concluded, the statement could be defamatory. The innuendo is that John might be a drug dealer.

To succeed with a defamation claim, the claimant must prove that:

• the statement is defamatory (ordinary meaning or innuendo);
• it refers to the identity of the claimant;
• the statement was published (written or spoken) to a third party.

When does a statement refer to the claimant?

Deciding whether a statement refers to the claimant is easy when the claimant is named, but it could also qualify if the person is easily identifiable. For example, “The headmaster of ABC school discriminates against children from certain backgrounds.” There is usually only one headmaster, so it will be easy to identify the person. The reasonable person who knows the headmaster would understand that the statement refers to that person.

When is a statement published?

A statement directed to a person in private is not defamation. It is not “published” because no-one else heard or saw the statement. The statement must reach a third person to be “published.”

When can you claim for damages?

Generally, before a claimant can succeed with a civil claim for damages, the claimant must prove actual damages or financial loss. This is not always required under Malaysian defamation law.

The Malaysian Defamation Act specifically provides that certain types of slander (verbal statements) can be actioned without proof of special damages. These slanderous statements include:

• slander of women (suggesting adultery or unchastity);
• slander affecting official, professional or business reputations;
• slander of title or goods; and
• slander which suggests a criminal offence punishable by imprisonment or corporal punishment.

If you succeed with your defamation claim, you are entitled to financial compensation. The amount will depend on the court’s discretion and will be based on your reputation, the seriousness of the statements, the actual loss suffered, if there was malice, and so on.

Are there any defences against a defamation claim?

Yes, some defences can be raised against a defamation claim. The three most common defences include:

1. Justification
2. Fair comment
3. Privilege

When is a statement justified?

If the statement is true, it is justified to make the statement.

Note that an honest belief that the statement is true is not a defence if the defamatory statement is not true. Repeating a strong, but false rumour is not justified if it is not true.

For example, you tell someone that Pete is having an extramarital affair. You honestly believe that he is having an affair since all the book club ladies said so. In truth, Pete is not having an affair; he visits his sick cousin every day.

The statement harms Pete’s reputation if it identifies him, and you “published” it by telling another person. Your conduct constitutes defamation.

Is the fact that you believed it to be true a defence? Were you justified in making the statement?

No, the statement is not true. The fact that you thought it was true is irrelevant. If you cannot prove that Pete is having an affair, you have no defence.

When is a statement a fair comment?

If you want to succeed with a defence of fair comment, you need to establish that the statement is an honest expression of your opinion about something in the public interest.

To succeed, you need to establish that:

• it was a comment/opinion and not a statement of fact;
• your comment was based on facts;
• it must be fair; and
• it must be about a matter of public interest.

In short, you can ask, “Would a fair-minded person honestly have that opinion based on the proven facts?” And is it in the public interest to express that opinion?

Let’s look at an example.

A journalist, Andy, published a report in the local newspaper about a named company. The report contained some statements about the behaviour of one of the shareholders, a prominent businessman, that caused the chairman to leave the meeting. The shareholder upset the chairman and made other attendants uncomfortable. He ignored the chairman’s request to address the issues later. The report implied that the shareholder was rude, unprofessional and aggressive. The shareholder decides to sue Andy. 

Andy should succeed with a defence of fair comment if he can prove that the report was fair comment.

His opinion was based on proven facts that the shareholder slammed on the table, used swear words and threatened the chairman. It was fair and in the public interest since the shareholder is a prominent businessman in the town.

What is privilege?

The defence of privilege can be divided into absolute or qualified privilege.

Absolute privilege refers to a situation or a person covered by absolute privilege. In contrast, qualified privilege refers to a situation where the statement’s maker has a moral or legal duty to make the statement, or where the statement is made to further a legitimate common interest.

Absolute privilege can be raised when a defamatory statement was made as part of:

• judicial proceedings;
• parliamentary proceedings, for example, a member of parliament calls another member dishonest during a parliamentary session; and
• police reports or statements made to the police under section 112 of the Criminal Procedure Act.

The above are all examples where the situation provides privilege.

An example of where qualified privilege will be available as a defence is:

Accountant A writes a letter to the Accountants Disciplinary Board alleging that Accountant B engages in “creative accounting” to evade paying tax. B sues A for defamation.

Accountant A should be able to rely on qualified privilege as a defence if A can prove that:

A has an interest or duty to report the allegations of unprofessional conduct of B to the disciplinary board for their attention and investigation.

The board has a legitimate interest and duty to receive and investigate the claim.

What if the statements were published with malice?

If it is proven that the statements were published with malicious intent, the defendant cannot rely on fair comment or qualified privilege.

If Accountant A in the example above knew that the allegations were not true but decided to “report” B anyway since he doesn’t like B, A could not rely on qualified privilege as a defence.

Similarly, the parent who said the headmaster of ABC school is discriminating against certain pupils cannot rely on fair comment, if the parent did not believe it was accurate, or was indifferent whether it is true or not. He decided to make that statement because the headmaster did not put his child on the honours roll.

Both cases involve malice, and the defendant cannot rely on a defence.

Do you need legal advice?

If you feel that someone published statements that harm your reputation, you should speak to a lawyer with experience in Malaysian defamation law. A skilled lawyer can help you to protect your rights and claim the compensation that you deserve.

If you are faced with a defamation lawsuit, an experienced lawyer can advise you on the defences available to you. Speak to a lawyer as soon as possible to discuss your case.