Law of Torts - Defences For Defamation

1.The general rule is that when a libel or slander statement is proven to be true in substance and in fact, the law will not protect the Plaintiff.
2. The burden is on the Defendant to proof it is true in substance and in fact.
3. The intention of D is immaterial. Even if the D had intended to cause damage to P, D is not liable.
S. Fakianathan v Dr. Jenmi Ibrahim
4. Section 8 of Defamation Act In case of libel and slander, where there is more than one allegations, a defence of justification shall not fail by reason of D cannot proof all the allegation is to be true. Abd. Rahman v Seenivasagam

It is a defence that the statement is a fair comment on a matter of public interest.
There are 4 requirements to this defence
(1) The matter commented on must be of public interest.
i.e commenting on acts/activites of MP or of influential people.
(2) It must be an expression of opinion and not an assertion of facts Dakhvi v Labouchere
(3) The comment must be fair
(i)lt must be true facts at the time it was made and cannot invent untrue facts except statements made by a person upon previlege occasion i.e. witnesses in court case, or parliamentary proceeding.(court reporter can rely upon this defence)
(ii)Section 8 of Defamation Act failure to proof all allegation is immaterial. Fairness means D at the time it was made was honest man expressing his opinion. The test is Objective test.
(4) The comment must not be malicious
Malicious means evil motive. Malicious comment means there is no fair comment.

There are two types of Privilege i.e. absolute and qualified privilege.Improtant points is occasion of statements.
(1) Absolute Privilege
A person defamed on an occasion of absolute privilege has no legal redress. Following situation where defence of absolute privilege arise:
i) statements in Parliament
(ii)reports papers, votes ordered to be published by both Houses
(iii)Judicial proceedings
(iv) communication made by an officer of a state to another in the course of his duty
(v) fair and accurate newspaper and broadcasting report of judicial proceedings.
(2) Qualified Privilege
A defamatory statement Made with honest without malice although it is untrue statement..If P can proof there is malice on the part of D, he can claim damage.

Occassions of qualified Privilege:
(i) fair and accurate reports of parliamentary proceeding
(ii) fair and accurate reports of judicial proceeding
(iii) certain fair and accurate report published in newspaper or broadcasting from a station in Malaysia.
(iv) statement made from A to B about C in which
- A is under a legal moral or social duty to communicate to B and B has corresponding interest inreceiving it (medical report)
- when A has an interest to protected and B is under a corresponding legal, moral and social duty to protect that interest.(infor police about neigb pushing drugs)
(v) Where A and B have common interest in the statement.(head of reports)
(vi) statements in protection of oneself or one's property
(vii) statements made to the proper authorities in order to procure redress of public grievances.

It is not a defence but a mitigating factor to reduce damages.
Apology in mitigating of damages is provided under Section 10 Defamation Act. Defendant may raise in court that he has made or offered an apology to the P before the commencement of theaction or if the action was commenced before there was an opportunity of making or offering such apology, as soon afterwards as he had the opportunity of doing so. Datuk Patinggi Abd Rahman Ya'kub v Abang Mohammad
Vincent Tan v Dato Hj Hassan (only conditional apology).It must full an unconditional because the purpose of apology is to remove sijpg attack on P)

D pays money to court offering P the said sum as compensation for the wrong is to reduce cost. If P accept, the action discontinue but if P insist, the normal procedure till judgement.If D succeed, money will be return to D But if P succeed then :
(i)if the sum awarded is greater the D muts pay the balance and cost.
(ii)lf sum is equal or less than D is liable for cost only.

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