LAW245 Defamation powerpoint notes for uitm students

LAW245 Defamation powerpoint notes for uitm students to use. i ha this for my study session and helped a lot

1. LAW245 DEFAMATION PREPARED BY: IKHWAN NAGUIB BIN JUSOH FACULTY OF LAW UITM SAMARAHAN II 9/10/2019 [email protected] 1

2. DEFAMATION Introduction Types of Defamation Elements Defences 9/10/2019 [email protected] 2

3. A tort of defamation- is a type of legal action brought against a person who is accused of making, usually false, claims about another person or organization which are considered potentially damaging to the reputation of the person or organization.  Introduction 9/10/2019 [email protected] 3

4. Defamation arises when there is publication which has a tendency to lower the person’s reputation or to cause him to be shunned or avoided by reasonable person in society, and thereby adversely affecting his reputation . The interest that is protected by this tort is a person’s good name and reputation. Mere feelings of hurt however, are insufficient for the award of damages under the tort of defamation. 9/10/2019 [email protected] 4

5. Words spoken in jest and understood by those who hear them to be so is not defamatory as the words should not affect the plaintiff’s reputation. The circumstances and context in which the words appear are important considerations. 9/10/2019 [email protected] 5

6. The law of defamation in Malaysia is primarily based on the English common law principles except insofar as it has been modified by the Malaysian Defamation Act 1957. The Malaysian Defamation Act 1957 is in pari materia with the English Defamation Act 1952. 9/10/2019 [email protected] 6

7. Example of Defamation 9/10/2019 [email protected] 7

8. TYPES OF DEFAMATION 9/10/2019 [email protected] 8

9. (1) Libel Defamation in a permanent form and is visible to the eye, such as in written form, pictures, statutes or effigies. Section 3 of Defamation Act 1957 states that broadcastings of words by means of radio communication shall be treated as publication in a permanent form and constitutes libel. Libel is actionable per se i.e. a plaintiff need not to prove any damage. 9/10/2019 [email protected] 9

10. Libel… This is because the law presumes that when a person’s reputation is assailed, some damage must result. A bank commits the tort of defamation if it wrongfully prints the words ‘Account Closed’ on a cheque that it is in fact bound to honour . Example of effigies  9/10/2019 [email protected] 10

11. SLANDER (2) Slander: Defamation in a temporary form i.e. spoken words or gesture. Slander is not actionable per se. The plaintiff needs to prove actual or special damage in order to succeed in his action. Actual damage refers to financial loss or any loss that may be measured in monetary terms. For example, loss of business or employment or the chance to attend a social function that may be measured in monetary terms. 9/10/2019 [email protected] 11

12. Slander… The actual loss must be proved. The damage must also be the natural and reasonably foreseeable result of the defendant’s words. The damage must further be a direct result of the defendant’s words. 9/10/2019 [email protected] 12

13. General Rule: A plaintiff must prove actual damage in an action for slander is a general proposition, subject to some exceptions. Exceptions to the requirement of actual damage in cases of slander as follows: Slander to women Slander to a person’s professional or business reputation Imputation of a crime Imputation of a contagious disease Slander to Title 9/10/2019 [email protected] 13

14. Slander… (a) Slander to women Section 4 provides that publication of words which impute unchastity or adultery to any woman or girl requires no proof of actual damage. Luk Kai Lam v Sim Ai Leng The respondent called the appellant a prostitute and alleged that she charge RM50 to entertain men at any one time. These allegations were made in the presence of a third party. Held: slander was established since the words impugned the appellant’s chastity and special damage need not be proved. 9/10/2019 [email protected] 14

15. Slander… (b ) Slander to a person’s professional or business reputation Section 5 provides that where words are calculated to disparage the plaintiff in any office, profession, calling, trade or business, at the time of publication, it shall not be necessary for the plaintiff to prove special damage. JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334 Court distinguished between an office of profit and an office of honour . For the slander to be actionable per se, the words must be calculated to disparage the plaintiff in his office of profit. An office of profit means that the plaintiff receives monetary remuneration from holding that office. If he hold an office of honour , the plaintiff is required to prove special damage unless he can prove that words indicating he received bribes, acted dishonestly, acted without integrity will result in him being dismissed from further holding that position 9/10/2019 [email protected] 15

16. Following Jeyaretnam’s case; Chua Jui Meng v Hoo Kok Wing [2000] 6 CLJ 390 An allegation of dishonesty and corrupt practices (such as receiving money in return of favours ) against a Deputy Minister would therefore fall under s 5, either on the basis that the office is an office of profit, or on the basis that the defamatory words intimated that the Deputy minister had acted without integrity . 9/10/2019 [email protected] 16

17. Imputation of a Crime Slander is actionable per se if words indicate the plaintiff is involved in a crime which attracts corporal punishment that includes the death penalty, whipping and imprisonment . The idea is that the punishment ought to be of type where the plaintiff can be made to suffer physically. Imputation of an offence punishable by fine merely, is not sufficient (traffic offence). The rationale of this of this rule is that reasonable persons are likely to shun and avoid someone who is ‘a convicted person’ and whose punishment is ‘serious’. Slander… 9/10/2019 [email protected] 17

18. C Sivarathan v Abdullah bin Dato ’ HJ . Abdul Rahman the plaintiff was called a cheat, dishonest and liar. The court held since these crimes does not involved corporal punishments , he needs to prove special damage . Since this is not prove , the action failed. Slander… 9/10/2019 [email protected] 18

19. Slander… (d) I mputation of a Contagious D isease (e) Slander to Title A defamation statement which relates to imputation of contagious or infection disease is actionable per se. (such as venereal disease) Section 6 (1) (b) provides action for slander of title, goods or other malicious falsehood. The plaintiff need not prove special damage if the words were made calculated to cause pecuniary damage in respect of the trade, business, profession, office or calling. 9/10/2019 [email protected] 19

20. ELEMENTS OF DEFAMATION To prove defamation, the plaintiff must establish the elements of Defamation, namely :- ( i ) The words are defamatory; and (ii) The words refer to the plaintiff; and (iii) The words have been published 9/10/2019 [email protected] 20

21. (1) The words are defamatory The words have a tendency to lower the estimation of the plaintiff in the minds of right-thinking members of society generally, so that the plaintiff is exposed to hatred, avoided, shunned or ridiculed. The question for the court is whether the words are capable of conveying a defamatory meaning concerning the plaintiff. 9/10/2019 [email protected] 21

22. The words are defamatory… In other word, the court will look to the tendency of response by a reasonable man to the words. If the words are mere word of abuse, uttered in anger in the heat of the moment, the words will not be defamatory. 9/10/2019 [email protected] 22

23. The words are defamatory… Words may be defamatory in one of three ways:- (a) natural and ordinary meaning (b) innuendo (c) juxtaposition 9/10/2019 [email protected] 23

24. The words are defamatory… (a) Natural and ordinary meaning The words by themselves as understood by ordinary men of ordinary intelligence to have a tendency to make them shun or avoid the plaintiff. In Lewis v Daily Telegraph , a newspaper printed the news that a Fraud squad was investigating the plaintiff’s company. The court held the statement was not defamatory as it was not capable to have a meaning that the plaintiff carried out his business fraudulently. 9/10/2019 [email protected] 24

25. The words are defamatory… (b) Innuendo Defamatory imputation does not arise from the literal meanings of the words but by virtue of special facts or circumstances known by the recipient or reader of the words. In Tolley v Fry & Sons Ltd the plaintiff was an amateur golfer, and the defendant a chocolate manufacturer. The advertisement of the D’s chocolate’s in the newspaper showed a caricature of P playing golf with a bar chocolate sticking out of his pocket. P sued for libel. The words and picture were not defamatory but the innuendo was that P received payment for the advertisement and had prostituted his status as an amateur golfer. The House of Lords held D liable as those who know of P’s status may assume that P had consented and had been paid for the advertisement 9/10/2019 [email protected] 25

26. The words are defamatory… Syed Husin Bin Ali V. Sharikat Percetakan Utusan Melayu Sdn Bhd The newspapers published a statement accusing Syed Husin Ali as wanting to arouse the hatred of the Malaysian people against the government and the British and University lecturer was spreading the subversive ideas in order to poison the thoughts of the Malay.   The issue whether these words are defamatory of the plaintiff and it was held that throughout the inference or implication, the words conveyed the meaning of that the plaintiff was dishonest disloyal to the government and subversive element and ungrateful. Pt. was awarded with damages for the defamatory statements. CASE 9/10/2019 [email protected] 26

27. The words are defamatory… (c) Juxtaposition This involves the employment of visual effects such as effigy or placing the Pltf’s photograph in a pile of wanted criminals. In Monsoon V Tussauds , the P was accused of committing a crime in Scotland, but it was never proved and he was released. The D erected a statue of the P and placed it with other criminals. The P sued the D. the court held the liable for defamation. D’s intention is irrelevant. 9/10/2019 [email protected] 27

28. (2) It must refer to the plaintiff i.e identify him The plaintiff must prove the defendant’s words are referring to him. The test is whether the words are such in reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person refer to. Only the person defamed can bring an action in defamation. A person’s reputation dies with him, so a next-of-kin cannot institute proceedings on behalf of the deceased. 9/10/2019 [email protected] 28

29. Refer to the plaintif … In Hulton & Co v Jones , the defendant wrote a fiction concerning Artemis Jones in Peckham. There was in fact a real Artemis Jones, a lawyer on that town. His friend thought the story was about him. The court held defamation was established. In Atip Bin Ali V. Josephine Doris Nunis & Anor the defendant sued Datuk Rahim Thamby Chik for breach of a promise to marry. The defendant then did not pursue her claim after filling the writ. The plaintiff, Secretary of UMNO, Alai Melaka, claimed that other parties and Wanita UMNO avoided them for supporting an adulterer. The court held UMNO was not defamed but Datuk Rahim Thamby Chik and only he can take up a defamation suit against the defendant. 9/10/2019 [email protected] 29

30. (3) It must be published Communicated at least one person other than the plaintiff. In practice the statement is always in the from of words but it can take any form which conveys meaning, for example a picture, cartoon or a statue.  Publication means dissemination of the defamatory words or materials to a third party, other than then plaintiff. 9/10/2019 [email protected] 30

31. It must be published… Dr. Jenni Ibrahim V. S. Pakianathan The plaintiff was a psychologist working on voluntary basis at a Help Centre in Kg.Bercham , Perak. The defendant wrote 2 letters indicating that the plaintiff has committed breach of trust amounting to RM70,000. Copies of these letters were sent to directors of the centre, the Director of Welfare Services of Perak and the Registrar of Society. Court held sending copies of the said letter to other parties constituted publication. Words spoken in public can amount to publication. CASE 9/10/2019 [email protected] 31

32. It must be published… In Theaker v Richardson , the defendant wrote a defamatory letter to the plaintiff a married woman and fellow member of the local urban district council. Her husband read the letter which was sealed in a manila envelope similar to the kind used for distributing election addresses. The Court of Appeal held that publication existed. Since the defendant delivered the letter to the plaintiff’s address it would likely to be opened and read by the husband. CASE 9/10/2019 [email protected] 32

33. It must be published… To establish publication of the words the following factors needs to be considered : The language used is understood by the 3 rd party The plaintiff must be able to specify what exactly was said or written by the defendant. The plaintiff must be able to prove the identities of persons to whom the defamatory words are published. If the words are repeated or copied, a new defamation arises. Generally, the first person who produces the defamatory material is liable for subsequent publication 9/10/2019 [email protected] 33

34. ~THANK YOU~ 9/10/2019 [email protected] 34