Hello everyone. It has been quite a time since our last article as we are quite busy and hectic with our workload.
However, that should not be an excuse for us to escape from our social obligation of educating and providing the public with good and concise legal advice, hence this article on defamation is posted as we are of the view that the topic is a topic of general interest as we received lot of question in relation to the law governing defamation.
To ease the reference of the reader, I would like to illustrate two situations and throughout this article we would explain to you the substance of law of defamation.
A company appointed a company secretary which supposed to manage the affair of the company such as the the conveyance of annual general meeting and the compliance of the company to the requirement of the Companies Act 1965.
The company secretary failed to do so and the company was fined by the Suruhanjaya Syarikat Malaysia. It causes big shame to the company and the company wishes to proceed with a defamation suit against the company secretary.
An article was posted on Lionel Messi's authentic facebook alleging that Christiano Ronaldo is having an affair with 3 high class prostitute and at the same time he was linked with an affair with his ex-girlfriend's boyfriend.
QUESTION: WHICH ACTION SUSTAINABLE IN LAW FOR DEFAMATION SUIT?
For situation A:
The company cannot bring an action for defamation suit even if the act of the company secretary have causes the company to suffer from embarrassment. The rationale is because there is no defamatory statement made by the company secretary towards the company.
For situation B:
Christiano Ronaldo can bring an action against Lionel Messi for defamation and it is simply because it fulfills all elements of defamation as the effect of such defamatory statement is to show that Christiano Ronaldo is of low moral and decency as well as having some gender confusion.
To establish defamation, all these three elements need to be proved and established.
Element of Defamation
- There must be a DEFAMATORY statement.
- The DEFAMATORY statement is referred to the victim.
- The DEFAMATORY statement is published.
It is word uttered which have the tendency to lower the reputation of the victim in the eyes of the society and that they society will shun and avoid the victim.
It simply means any word that was said or written which will have the effect of damaging and tarnishing the reputation of the victim and which will have the effect of isolating the victim from the society.
- Dato KA is a lawyer which is well known for charging exorbitant and unreasonable legal fees to his client.
- Tan Sri AM opened an Apple Store selling fake Apple product made from China.
Those two examples seems to be defamatory as it have the tendency of lowering their reputation in the eyes of the society. But please take note that the court have developed a test to determine whether such statement is defamatory or not and it is known as reasonable man's test.
Reasonable Man's Test
The test is simple. Would the society believe the statement to be true? If the society does believe that the statement is true, the statement is defamation. On the other hand, if the society don’t believe such statement, there will be no defamation as such statement does not have the effect of tarnishing the reputation of the victim.
Applying to the scenario above, let’s assume that Dato KA is a very senior lawyer, much more senior that the great Karpal Singh and society themselves recognized and acknowledged this fact and they are aware as to the legal fees that have to be spend if they wishes to appoint Dato KA as the solicitor, there will be no defamatory statement made as the society have already acknowledge the fact and as such, no damage was done to the reputation of Dato KA.
As to example No 2, let’s assume that the society believe the statement that Tan Sri AM sold fake Apple product to be true and because of that the sales of Apple product at Tan Sri AM's Apple Store decreased tremendously. Such a statement can be said to be defamatory as it had damages the reputation of Tan Sri AM and had causes him to suffer losses.
Defamatory Statement Must Be Made In Reference To The Victim And That It Must Be Published
For an action for defamation to succeed, the victim must show to the Court that the defamatory statement is referred to the victim. This is can be done if the article expressly mentioning the name of the victim or publishing the pictures of the victim alongside the defamatory statement..
However, people are smart nowadays and they did not mention the name or publish the picture of the victim alongside the defamatory statement. What they do is simply giving a hint or a clue of the identity by blurring or pixelating the picture of the victim and at the same time giving more information to enable the reader to guess correctly the identity of the victim.
Eventough the defamatory statement was never referred to the victim directly, the jurisprudence of the court showed that if the reader can guess correctly the identity of the victim, the Court will interpret it as referring to the victim himself.
Finally, the defamatory statement must be published. The term published in the context of law of defamation simply means it must be made know to a third party.
Mr. A wrote a letter alleging that Mr. Z absconding money from his client. Mr. Z knows the existence of this letter but the letter was never send to anyone and is well kept in Mr. A safekeeping.
In this situation, there will be no publication as the defamatory statement was never disseminated and published to a 3rd party hence there is no defamation.
Let’s twist the situation around. This time, Mr. A send the letter to all of Mr. Z’s client as well as Mr. Z’s bosses. The defamatory statement have been published as it has been made known to a 3rd party. In this situation, there is a defamation done to Mr. Z.
The Recent Development in Law of Defamation: The Aftermath of Facebook & Twitter
It is interesting to note that there has been a revolution in the law of defamation after the birth of Facebook and Twitter as well as some other blogging site.
The growth of Facebook and Twitter make the dissemination of defamatory statement to be much easier and as such, the effect will be much more damaging as oppose to the conventional mode of spreading defamatory statement.
The Malaysian Court nowadays have interpreted that Internet is no vacuum and cannot escape from the claw of Malaysian Law. The Malaysian Court have decided that regardless what medium is choosen to spread the defamatory statement, be it on Facebook or Twitter, the Court will looks at the merit of the case and determine whether there is a fulfillment of all the element of defamation or not.
In addition to that the Multimedia and Communication Commission of Malaysia have set up a body to monitor the dissemination of defamatory article on the Internet and they are well equipped with the latest technology to detect the culprit who is responsible for the defamatory statement.
As such, when you posted something defamatory on your Facebook or Twitter, there is a tendency for such post to be liable for defamation. Hence, we advised the reader to be very carefull with what you post and commented on the Internet.
For a victim of defamation to succeed in their defamation suit, there must ensure that all three elements of defamation to exist. It is important for a victim of defamation to consult with their lawyer as soon as possible.
The delay of initiating a legal suit may form an impression to the court that the effect of the defamatory statement is not serious and it does not have the ability to tarnish and damage the reputation of the victim.
There are lots of other thing that need to be explained in relation to the law of defamation such as the damages, defence for defamation and injunction for defamation. However, we need to keep it short so that the reader will not get bored with our words. Nevertheless, we open the floor for any question in relation to law of defamation.