Defamation Vs Freedom of Speech in Malaysia

Authored by Nurin Husnina



What is freedom of speech?


Pursuant to Article 10(1)(a) of the supreme law of the land viz. the Federal Constitution, it is well enunciated that every citizen has the right to freedom of speech and expressions. Be that as it may, every general rule comes with exceptions and/or certain restrictions to avoid any rights from being abused. Article 10(2)(a) further states that the parliament may impose such restrictions as it deems necessary or expedient to provide against contempt of court, defamation, or incitement to any offence.


The above essentially and fundamentally means that the freedom of speech and expression are undeniably constitutional rights, which have its own limitation. It may be both timely and imperative to determine the parameters of defamation law taking into account its twin objectives of protecting reputation and maintaining freedom of speech.


What is defamation?


Defamation is an injury to someone’s reputation when he is exposed to hatred, contempt or ridicule which tends to lower him in the esteem of right-thinking members of society or which tends to make them shun or avoid that person.[1] It is worth noting that the Defamation Act 1957 i.e., the statute which governs the defamation law is silent on what constitutes defamatory matter. As such, Malaysian Courts have followed closely development and decision established by the Courts of England & Wales.


What are the types of defamation?


With reference to the case of Dato’ Seri S Samy Vellu v Penerbitan Sahabat (M) Sdn Bhd & Ors (No 2) [2005] 5 MLJ 539, it is well enunciated that there exist two types of defamation which are libel and slander. Libel consists of defamatory statement made in some permanent and visible form like writing, printing, pictures, or effigies. Slander on the other hand consists of spoken words, gestures or inarticulate but significant sounds.


It is often said that libel is addressed to the eye while slander is addressed to the ear.[2] It must therefore be borne in mind that libel is not only an actionable tort but also a criminal offence, whereas slander is a civil matter only. In all cases, libel is actionable per se, whereas in slander cases the burden of proof lies with the plaintiff.


Elements of Defamation


With reference to the case of Chong Swee Huat & Anor v Lim Shian Ghee T/A L & G Consultants & Education Services [2009] 4 CLJ 113, the Court of Appeal ruled that it is trite that in any action for libel, the Plaintiff must prove that the matter complained of: -


i. is defamatory;

ii. has been published to a third person (publication); and,

iii. refers to the plaintiff.


The Court has further stated that the above-mentioned three essential ingredients must be proved by the Plaintiff, failing which his action is bound to fail.


Defences


In the event the Plaintiff is successful in proving the existence of the elements of defamation, the burden of proof then shifts to the Defendant to prove their defences. The defences available are governed by both common law and the Defamation Act 1957, as follows: -


i. Justification[3] – In relying on the defence of justification, the burden of proof is on the defendant to prove that the allegations made are true or are substantially true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true.[4]


ii. Fair comment [5]– In order to succeed in the defence fair comment, the Defendant must establish that the words complaint of are comments, though they may consist of or include inference of fact, the comments are on a matter of public interest and the comments are based on facts, truly stated.[6]


iii. Qualified privilege and/or media privilege – This form of qualified privilege extends to all publishers of materials in the public interest. In order to succeed, the Defendant is required to fulfil the public interest test and responsible journalism test.[7]


iv. Absolute privilege[8]This defence holds merit if the impugned statement published is in connection with judicial proceedings.[9]


Malice


Order 78 Rule 3(3) of the Rules of Court 2012 provides that if the defendant pleads that any of the words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matter from which the malice is to be inferred. Such a defence on the ground of fair comment will fail if the jury is satisfied that the libel was malicious.[10] Briefly, once the Defendant establish their defence(s), the burden of proof shifts to the Plaintiff to prove malice.


However, it is trite law that the defence of justification is a complete defence to a defamation action. As such, if the statement is true, no amount of malice, bad faith or belief in the falsity of the statement will make it actionable.[11]


Quantum of Damages


Generally, the assessment of damages is a judicial discretion which must be exercised with prudence. It is not to be exercised based on whims and fancies, but by reference, guidance and application of established judicial principles.[12] It is worth noting that the days of multi-million Ringgit awards for defamation has long gone and consigned to history with the decision of the Court of Appeal in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other appeals [1995] 2 MLJ 493; [1995] 2 CLJ 912.[13]


Following the above, below are the amount of damages awarded by the Court in respect of defamation claim: -



Conclusion


In conclusion, every citizen is entitled to enjoy their freedom of speech which is undeniably fundamental to the existence of democracy. However, citizens must exercise caution when expressing their thoughts and opinions in public because today’s technology has enabled people to voice out their thoughts and opinions more easily than ever before.

[1] Sim v Stretch [1936] 2 All ER 1237 [2] Mitchell v Australian Broadcasting Commission (1958) 60 WAIR 38 [3] Section 8 of the Defamation Act 1957 [4] Dato’ Seri Mohammad Nizar Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 3 CLJ 560 [5] Section 9 of the Defamation Act 1957 [6] Abu Hassan bin Hasbullah v Zukeri bin Ibrahim [2018] 6 MLJ 396 [7] Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 8 CLJ 477 [8] Section 11 of the Defamation Act 1957 [9] S Ashok Kandiah & Anor v Dato’ Yalumallai Muthusamy & Anor [2011] 1 CLJ 460 [10] Rajagopal v Rajan [1971] 1 LNS 117 [11] Zolkelfly Haron v Yahya Chik & Anor [2001] 6 CLJ 285 [12] Voo Nyuk Fah & Anor v. Lam Vat Kheong & Anor [2012] 5 CLJ 229 [13] Syed Nadri Syed Harun & Anor v Lim Guan Eng and other appeals [2019] 4 MLJ 259


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