Law of Torts - Defamation


The law of defamation is governed by Defamation Act 1957. No definition provided. Common law 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”.

Types of Defamation

A. Libel

1. Libel consists of a defamatory statement or representation in permanent from i.e. picture, statute, or any writing, print or sign exposed to view (usually libel is in writing or printing).

2. Section 3 of Defamation Act – Broadcasting radio communication is treated as publication in permanent form.

3. Libel is actionable per se, no need to proof of special damage.

4. It is tort as well as crime – Section 499 / 500 of Penal Code.

B. Slander

1. Slander consists of a defamatory statement/representation conveyed by spoken words or gesture.

2. Although Slander generally is not actionable per se, (the P must show proof of special damage). But there are certain cases where Slander is considered as actionable per se and no need to proof actual damage. They are:

(i) Section 4 of Defamation Act – words which imputes unchastely or adultery to any women. Please refer to Luk Kai Lam v Sim Ai Leng.

(ii) Section 5 of Defamation Act – words calculated to disparage a person’s in any office, profession, business.

a. C. Sivanathan v Abdullah b. Dato’ Haji Abdul Rahman

b. Wan Abd Rashid v S. Sivasubramaniam

(iii) Section 6(1)(b) of Defamation Act provides in an action for slander of title, slander of goods or other malicious falsehood, P does not have to proof special damages.

For example A tells B that C is no longer operating his coffee shop, the statement may well deprive C of his business and C now can sue A for slander without have to prove special damages.

Element of Defamation

Words must be defamatory

i. The words must have a tendency to lower the P’s reputation in the estimation of right minded persons of the society, so that P is avoided or shunned or ridiculed.

Please refer to the case of Syed Husin Ali v Syarikat Percetakan Utusan Melayu Berhad.

ii. Mere words of abuse uttered in anger in the heat of moment cannot constituted defamation.

Please refer to the case of C. Sivanathan v Abdullah

iii. Words may be defamatory in one of the following 3 ways:

1. Natural and ordinary meaning – The words by themselves, as understood by ordinary men of ordinary intelligence must have the tendency to make them avoid the P. Please refer to the case of:

a. Levis v Daily Telegraph Ltd

b. Datuk Harris Salleh v Abdul Jalil Ahmad

c. Ng Chen Kiat v Overseas Union Bank

2. Innuendo – When words themselves in its natural and ordinary meaning is not a defamatory, but may be defamatory when combined with some special facts known to readers of the publication is known as innuendo. Please refer to the case of Tolley v JS Fry & Sons.

i. True or legal innuendo – it arises when the P has to adduce additional evidence to establish the meaning which he alleges that the words should be given. Please refer to the case of:

a. Tolley v JS Fry & Sons

b. Levis v Daily Telegraph Ltd.

ii. False Innuendo – It arises where the P alleges that the words, in their ordinary and natural meaning, bear a particular meaning which is discernible without the need for additional evidence.

3. Juxtaposition – If D places words, pictures or objects, which by themselves are not defamatory, i.e. placing P’s photograph in a pile of wanted criminals. Please refer to the case of Monson v Tussauds Ltd.

* For both innuendo and Juxtaposition intention/knowledge of D is immaterial. Please refer to the case of Cassidy v Daily Mirror Newspapers.

See also textbooks. 
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