Defamation law in Malaysia is a hot topic with the popular usage of social media. This article explains what is defamation, available defences, and compensation.
What is Defamation Law in Malaysia?
Defamation law in Malaysia is primarily governed by the Defamation Act 1957 and supplemented by English common law. This legislation aims to protect persons’ reputations by providing both civil and criminal wrongs for defamation.
The law presumes that a person is of good character and entitled to have her reputation maintained. Thus, if others make a defamatory statement about that person which can affect the reputation of the person, that person may have a claim for defamation against the maker of the statement.
The Defamation Act covers civil defamation, while the criminal law, that is Penal Code covers criminal defamation. Defamation in Malaysia is divided into 2 types, that is libel and slander as below:
Libel
This is defamation through written or published statements such as those found in newspapers, books, or online social media. This is considered defamation in permanent form and can also include offensive pictures.
Slander
This is a defamatory statement through speech or gestures and is considered to be defamation in temporary form. It includes vulgar words which fulfil the conditions of defamation (as explained below)
As for criminal defamation and by virtue of Section 499 of the Penal Code, it is also an offence to defame others. Once there is a charge by the Public Prosecutor and the offence is proven, the penalty/punishment for criminal defamation is imprisonment for up to 2 years or a fine or both.
With the increasing usage of the internet and in reality, cyberbullying and harassment, especially sexual harassment and general harassment have increased. It can be difficult to balance the rights to freedom of speech and protecting the reputation of persons.
It is without doubt that to prevent any situations of online defamation cases, the maker must be cautious and control anger in writing any message.
Essential Elements to Prove Defamation
To bring an action and establish a defamation claim, the person being defamed, that is the plaintiff has to prove 3 requirements in civil proceedings which:
1st Requirement: The statement must be defamatory.
A defamatory statement is one where the effect is to:
(a) Lowers someone’s reputation, esteem, or character among right-thinking members of society or
(b) Expose the individual to hatred, contempt, or ridicule, or contempt.
The defamatory meanings of the words can be retrieved in 2 ways:
(a) In natural and ordinary meaning
It means by the natural and ordinary meaning of the words, can an ordinary person based on general knowledge know the words are defamatory?
As a case example, when A says B has committed adultery, it carries the meaning and imputation that B is a person of low morals and is not loyal to the other spouse.
(b) Innuendo
Innuendo is used to describe words that have special meaning only to persons who know some special background or facts.
For example, if someone says that person A is a regular customer of the B Restaurant, then the ordinary meaning of that statement is not defamatory.
But if you have specific knowledge that the restaurant described is often used for drug dealing and in that circumstances and context, then the statement could be defamatory against person A, because the innuendo infers that person A is, or maybe, a drug dealer.
Mere insults which are untrue statements can cause reputational harm, injury, and humiliation to the other party. And the laws presume the falsity of the defamatory statement unless the other party proves the truth.
2nd Requirement: Sufficient Reference to the Plaintiff
The defamatory statements must refer to the Plaintiff. Although it is not necessary to name that person, if a reasonable person with knowledge of some facts knows it refers to the plaintiff, then it will be sufficient.
3rd Requirement: There must be publications of the defamatory statement to the other person other than Plaintiff.
There must be communication of the defamatory words or remarks from the publisher/defamer, that is the defendant to persons other than the victim. Merely speaking to someone in private is not defamation, because nobody else heard or saw the statement although it is abusive behaviour and does not look good for the perpetrator.
Defences Against Defamation Claims
Under Malaysian law, the courts have established several common defences and exceptions against defamation claims which are:
Defence of Justification
To succeed in justification, the defendant has to prove the facts or statements are true or substantially true. For example, if A made the accusation that B committed adultery, A should prove the truth that B did have an extramarital affair and committed adultery.
Merely having the honest belief that the statement is true is not a defence if it turns out to be untrue.
Absolute Privilege
Absolute privilege protects certain types of statements no matter the intent behind them or their truthfulness. These include statements given in instances of:
(a) Judicial proceedings
(b) Parliamentary proceedings
(c) Making police reports (First information reports under Section 107 of the Criminal Procedure Code); and
(d) Statement given to police under Section 112 of the Criminal Procedure Code.
Qualified Privilege
The defences of qualified privilege are available only when the following conditions are satisfied:(a) The defamatory words were published by a person who has an interest or a duty whether it is legal, social, or moral, to the person(s) to whom they were published; and
(b) The person(s) to whom the words were published had a corresponding interest or duty to receive the statement.
In the letter, A made a few allegations of dishonest conduct of B. The Disciplinary Board also has to investigate the complaint. In this case, the defence of qualified privilege may succeed.
For example, A, a client engaged B, a lawyer to handle the sale and purchase of his property. B then misappropriated money received by him that should be paid to A. A then lodges a complaint against B by writing a letter to the lawful authority, that is the Advocates and Solicitors Disciplinary Board.
However, this defence of qualified privilege will fail if the defamatory words were published with malice (the meaning of malice will be explained below).
Fair Comment
Fair comment protects opinions on topics of public concern in defamation cases, provided that they are not made with malice. For the defence of fair comment to succeed, the following requirements will have to be proven:
(a) The defamatory words must be comments as opposed to statements of fact;
(b) The comments must be based on facts proved to be true;
(c) The comments must be fair; and
(d) The comments must be on a matter of public interest.
In other words, one should ask, ‘Would a fair-minded person have held the opinion that I hold, based on the proven facts, and is it in the public interest to express that opinion?’
For example, A, a reporter published a report in a newspaper about a particular company and it contained statements about the behaviour of a director of the company, B who is a prominent businessman in the company.
The report says all the board members felt upset and threatened by B’s action and it is made based on facts that B swore and shouted at various board members at the meeting. Since B is also a prominent businessman, it was in the public interest to report this.
Thus, the defence of fair comment may succeed in this case. However, it is prudent for anyone to exercise caution and investigate information given to ensure the truths of the facts before making any speech or comment on it as the saying goes ‘all defamatory statements are allegations (untrue statement) until it is proved otherwise’.
Reynolds Privilege
Reynolds privilege is based on responsible journalism and covers reporting on important topics of public concern. The defence of Reynold’s privilege was applied by the Federal Court of Malaysia following the English House of Lords’ case of Reynolds v Times Newspapers Ltd.
There are 2 criteria which have to be proved to raise the defence of Reynold’s Privilege which are:
(a) The defamatory words were made on a matter of public interest and the public had an interest in receiving the words;
(b) Once that was proved, the court must consider whether the defendant behaved reasonably in publishing the defamatory words (also known as the ‘responsible journalism test’, although Reynold’s Privilege defence is not limited to journalists).
Some factors that can considered in determining whether the defendant exercised ‘responsible journalism’ are as per the following:
(a) The seriousness of the allegations;
(b) The nature of the information, and the extent to which the subject matter is a matter of public interest/concern
(c) The source of the information and the steps taken to verify the information;
(d) Whether any comment was requested from the plaintiff;
(e) Whether the article contained the plaintiff’s version of the story.
Malice in Defamation
The defences of qualified privilege, Reynolds’ privilege, and fair comment will fail if it is proven that the defamatory words were published with malice. If Defendant raises and manages to prove any of these defences, then Plaintiff has the burden to prove that the defendant had published the words maliciously on these privileged occasions.
‘Malicious’ means something done intentionally without just cause or excuse. Examples of malice can include cases where the Defendant:
Did not believe what he said was true or the opinion expressed by him;
Indifferent to the truth of the content published, especially where there are ways for the defendant to investigate and verify the truth of the content.
Court Action and Procedure for Defamation
An action for defamation claim has to be initiated within a limitation period of 6 years from when the defamatory words were first published. In other words, if the plaintiff did not initiate the civil claims and sue the defendant within that time, then he is barred from initiating any legal action later on.
The civil case for defamation action can be initiated in Malaysian courts and throughout the proceedings, the plaintiff has the burden to provide evidence and prove there is defamation on a standard of balance of probability, ‘that is probable than not’.
In actions for defamation suits including slander cases, the plaintiff need not prove there are actual damages or losses suffered as the courts presume there are losses suffered when one’s reputation is damaged.
Once the plaintiff proves there is defamation, then he can usually claim 3 things from the defendant:
Financial compensation
Delete and not republish the harmful statements
Apologise to the plaintiff for the wrongful conduct
As for the compensation, the civil damages that Plaintiff can claim include exemplary damages, aggravated damages, general damages, and special damages.
In practice and based on previous judgments, the courts tend to make an assessment and give awards of lump-sum compensation for all types of defamation. Some of the matters that can affect the extent of compensation in defamation suits include:
The seriousness of the allegation
Size and extent of the circulation of the defamatory statements
The extent and nature of the claimant’s reputation
Acts and conduct of the defendant/defamer
Behaviour of the claimant/victims
After the judgment is given in favour of the plaintiff, the dissatisfied party can appeal against the judge’s decision to the higher courts such as the High Court and Court of Appeal.
If the defendant fails to comply with the judgment and is in contempt of court, then the plaintiff can enforce the judgment through methods such as judgment debtor summons in Malaysia and committal proceedings.
It is advisable to get help from defamation lawyers for advice and guidance in these matters.
Conclusion
In summary, defamation law in Malaysia can be easy to understand by following the guidance and rules above. If you need any quality legal advice and are looking for an experienced lawyer or a law firm in Kuala Lumpur, do contact us and our team will assist you.
Frequently Asked Questions
1. Is defamation illegal in Malaysia?
Yes, defamation is an offence under section 499 of the Penal Code. When a person is found liable for criminal intimidation, he can be punished with imprisonment of up to 2 years or a fine or both.
2. What is Section 499 of the Malaysian Penal Code?
Section 499 of the Malaysian Penal Code provides for the offence of defamation where a person found liable can be imprisoned for up to 2 years or fined or both.
3. What is an example of a defamation case in Malaysia?
An example of a defamation case in Malaysia is when someone publishes a defamatory statement of another on online social media.
4. What is section 3 of the Defamation Act Malaysia?
Under section 3 of the Defamation Act 1957, the broadcasting of words by radio communication is treated as publication in a permanent form, which is a form of libel.
5. Is defamation a crime in Malaysia?
Yes, defamation is an offence under section 499 of the Penal Code.
6. Can I sue someone for false accusations in Malaysia?
Yes, provided you can prove the requirements for defamation. You can first send a letter of demand to the other party demanding compensation and other actions. If it fails, then you can initiate legal action against the defamer.
7. How to handle defamation?
You can engage a lawyer to send a letter of demand to the other party to demand the defamer to delete the defamatory statement and apologise. If it fails, then you can commence legal action against him.
8. How to stop someone defaming you?
You can stop someone from defamation by getting a court order that directs the defamer to delete and not to republish the defamatory statement. If the defamer fails to comply with the order, then he will be liable for contempt of court.
