Discuss on whether an action for defamation can be successful by the relevant parties and

the available defences. Substantiate your answer with the relevant provisions under the
Defamation Act 1957 and decided cases.

Introduction
Defamation is the most common area of law embraced by the people all around the
world to fight against slander that was targeted on their reputation. Few examples of
defamation can be seen when an electricity company wrongfully disconnects electricity supply
several times in a row despite objections from the house owner as people could mistakenly
understand it as the owner is not able to pay the electric bill (Kamalanathan Ponnumbalan v
Tenaga Nasional Bhd)1 and an allegation that a businessman is bankrupt is without a doubt falls
under defamatory acts (Soh Chun Seong v CTOS-EMR Sdn Bhd)2.
Above scenario is also one example of defamation cases. The term "defamation" is not
defined in the Malaysia Defamation Act 19573. Instead, the term "defamation" is defined by
Malaysian case law and English common law. Defamation can be defined in accordance with
Mohamed Azwan Ali v Sistem Televisyen M’sia 4 as, "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. Words spoken in jest and understood by those
who hear them to be so are not defamatory as the words should not affect the plaintiff's
reputation". Other than that, the case of Kho Poh Teck v Digi Telecommunications 5 has also
given a brief example of defamation, "A mistake in the publication of a person's
creditworthiness, its cause of action lies in defamation and not negligence". It shall be noted
that the common law of England as of 7 April 1956 in relation to defamation is applicable in
Malaysia under section 3 of the Civil Law Act 1956:

3. (1) Save so far as other provision has been made or may hereafter be made by any written
law in force in Malaysia, the Court shall- (a) in Peninsular Malaysia or any part thereof,
apply the common law of England and the rules of equity as administered in England on
the 7 April 1956;
 There are two types of defamation under common law which are Libel and Slander.
Libel is in a permanent form such as written words in articles, newspapers and websites while
slander is in temporary defamation such as spoken words. As for our scenario, the defamation
is in the form of libel as the words are published in newspapers. In order to succeed in the claim
of defamation, three elements need to be fulfilled; defamatory words, the words refer to the
plaintiff and is published to a third party.

Issues
1. Whether Mrs Moony and Rainbow Publication can be held liable for defamation against
Pak Labu?
2. Whether Mrs Moony and Rainbow Publication can be held liable for defamation against
Maria?

Main Issue 1: Whether Mrs Moony and Rainbow Publication can be held liable for
defamation against Pak Labu?

Sub-Issue 1: Whether the words published in the article are words of defamatory?

In order to establish this element, there must be a fulfilment to the test of “Would the
words tend to lower the plaintiff in the estimation of right-thinking members of society
generally?”. As the answer to that question or test has been laid down, we have to identify the
category or the type of the defamation. In our case, the statements in the newsletter fall under
by way of innuendo which carries indirect or subtle meaning. Moreover, by way of innuendo
has also been divided into two which are true or legal innuendo and false innuendo. Again, the
statements made in the newsletter can be known as false innuendo that is easier to be
recognized as the hidden meaning is obvious, the reader does not require special knowledge
and also the plaintiff does not need additional evidence to prove its existence.

The rule for false innuendo has been lied down in the case of Syed Husin Ali v Sharikat
Penchetakan Utusan Melayu Bhd6 where it was held that the defendant’s words “dishonest,
disloyal to the Government, a subversive element, an irresponsible politician, an ungrateful
person, a supporter of President Sukarno and an instigator of unrest in the country.” were
capable of false innuendos. The relevant case to this scenario is the Chua Jui Meng v Hoo Kok
Wing & Anor7 where the plaintiff is a Deputy Minister of International Trade and Industry. The
defendant alleged at a press conference that the plaintiff had received RM200,000 from a
director of a company to grant various licences to the director. The court held that the words in
its literal meaning were understood to mean that plaintiff was dishonest and corrupt which
ruined plaintiff’s reputation as a Deputy Minister of International Trade and Industry.

Therefore, as the words in the case above and also in the rule can be seen to have
tarnished the plaintiff’s reputation, it can be said that those words are defamatory. Same goes as
in our scenario where the statements of “often seen having conversations with himself” and
“disappeared into the Land of Jinn” can be seen to imply that Pak Labu or Encik Kelabu had
made a deal with the Jinn and suggesting that he was practising khurafat acts for his business.
This had impacted his dignity and reputation amongst the residents of the condominium due to
him being known as ‘Pak Labu’ and having a Muslim community further humiliated him as it
is a major sin to commit khurafat acts. As these statements' meanings were obvious for any
reasonable man, the words could be considered as false innuendo. Hence, it is fair to say that
the first element of defamation which is that the words must be defamatory is fulfilled.

Sub-Issue 2: Whether the short fictional story was specifically referring to Pak Labu?

The case of David Syme v Canavan8 has laid down a test to figure out the fulfilment of
this factor which is “Would the words reasonably lead persons that were acquainted with the
plaintiff to believe that he was the person referred to?”. It could also be established even if the
plaintiff was not specifically named, such as through the usage of word, picture or description
of physical features that could make other people believe that it was the plaintiff.

A close reference can be seen in the case of E. Hulton & Co. v Jones9, where there was
also a fiction written about an Artemis Jones in Peckham. Coincidentally, there was also a real
Artemis Jones, the plaintiff who was a lawyer in that town. His friends thought that the story
was about the plaintiff. The court then held that defamation was established as those who knew
him understood the words referring to him, although that was not the intention of the author and
the publisher. Therefore, we can see that intention is immaterial in proving this element as the
plaintiff had been specifically named in the fiction leading his friends to believe it was
regarding him.

Taking into consideration both of the test and also the relevant case, we can see that Pak
Labu’s name had been clearly mentioned and written in the short fictional story. Even though it
was not his real name, people who were close to him usually called him by the nickname of
‘Pak Labu’ which subsequently will make them believe that it was concerning him. We could
say that the readers had accepted the fact that it was concerning Pak Labu by the deficiency of
customers and also by the claim made by them that he was using jinn to make his business
more prosperous. Moreover, the defendant’s acknowledgement of a ‘Pak Labu’ in the
condominium and their true intention is insufficient during the process of proving such an
element. Thus, we can see that the fictional story was directly referring to Pak Labu due to his
name being there and so, the second element of defamation is fulfilled.

Whether the words are published to a third party?

There were several circumstances that describes the words as being published like in
the case of Matchplan (M) Sdn Bhd v William D Sinrich & Anor 10, which is “If the words are
not printed or heard or seen by third parties except for the plaintiff himself, publication does
not arise”. The important thing is the words must have reached a third party to be considered as
publication.

The relevant case that can be referred to is Dr Jenni Ibrahim v S Pakianathan 11, where
the plaintiff was a psychologist who was working on a voluntary basis at a Help Centre and the
defendant was the former managing director of the Centre. The defendant had written two
letters indicating that the plaintiff had committed breach of trust amounting to RM70,000.
Copies of the letters were sent to all directors of the Centre, to the Director of the Welfare
Services of Perak and to the Registrar of Societies of Malaysia. The court held that it was
constituted as publication. As the letter has been sent and read to the directors which is
considered as the third party, the words are then published. If the director had decided to keep
them to himself, publication would not arise and defamation would not be established.
 Applying both the rule and relevant case, we can see that the circulation of the Annual
Newsletter throughout the residents of the condominium constituted as publication. We can see
the beginning of a decrease in the number of Pak Labu’s customers after the newsletter spread
indicating that they have read and seen the fictional story. Thus, the short fictional story had
been published to the third parties which are the residents of the condominium and the third
element which is the words must be published is then fulfilled.

Sub-Conclusion
Mrs Moony and the Rainbow Publication can be held liable for defamation against Pak
Labu as all of the elements have been established.

Defence of Unintentional Defamation

If Mrs Moony and the Rainbow Publication decided to avoid themselves from being
sued by Pak Labu, they can raise the defence of unintentional defamation. As mentioned
earlier, the short fictional story stated in the Annual Newsletter can be categorised as false
innuendo and if the Mrs Moony and the Rainbow Publication wishes to apply this defence, they
must fulfil certain requirements stated under Section 7(5) of the Defamation Act 1957:

(a) that the publisher did not intend to publish them of and concerning that other
person, and did not know of circumstances by virtue of which they might be understood to refer
to him; or
(b) that the words were not defamatory on the face of them, and the publisher did not
know of circumstances by virtue of which they might be understood to be defamatory of that
other person,

and in either case that the publisher exercised all reasonable care in relation to the
publication; and any reference in this subsection to the publisher shall be construed as
including a reference to any servant or agent of his who was concerned with the contents of the
publication.

Once the requirements have been established, an offer of amends shall be made which
has been thoroughly defined under Section 7(3) of the Defamation Act 1957:
 3. admissible on behalf of that person to prove that the words were so published. (3) An
offer of amends under this section shall be understood to mean an offer--

(a) in any case, to publish or join in the publication of a suitable correction of the
words complained of, and a sufficient apology to the party aggrieved in respect of those
words;
(b) where copies of a document or record containing the said words have been
distributed by or with the knowledge of the person making the offer

The relevant case that can be referred to is Keluarga Communication Sdn Bhd v
Normala Samsudin & Anor Appeal12 where Mingguan Wanita had printed “Mala tebus talak 3
juta” which fall under false innuendo or normal and ordinary meaning. The plaintiff had
contacted the defendant regarding the article in the second magazine and asked him to fix it and
apologised for the inaccurate statements he had written about her. The defendant published the
fourth magazine to explain the truth and to apologise. Therefore, we can see that the defendant
had made an offer of amends by correcting his statement and also apologising publicly for his
untrue words.
In our scenario, Mrs Moony and the Rainbow Publication could apply this defence in
order of answering and also fulfilling those three requirements. Firstly, Mrs Moony had no
intention whatsoever to publish the fictional story concerning Pak Labu due to the assumption
of the short fictional story to serve only as jest and entertainment to the residents. Other than
that, Mrs Moony had also not known of the circumstances in which the word might be regarded
by the readers as to refer to Pak Labu because she has no knowledge of the existence of a ‘Pak
Labu’ in the condominium as she often referred to him as ‘Pak Kelabu’. Lastly, we could safely
assume that Mrs Moony had exercised all reasonable care in relation to the publication as she
must have given careful thought to the name of the character to avoid situations like this from
happening. Hence, Mrs Moony could succeed in applying the defence of innocent defamation
against Pak Labu and she is obligated to make an offer of amend to Pak Labu by apologising to
him and also clearing up his name in relation to the fictional story by publishing a brief
statement or any other way to make sure that all the residents of the condominium that the story
was not based on Pak Labu.
Main Issue 2: Whether Mrs Moony and Rainbow Publication can be held liable for
defamation against Maria?

Sub-Issue 1: Whether the words published in the article are words of defamatory?

According to this rule, words are defamatory when they have the tendency to lower the
plaintiff's estimation in the minds of right thinking members of society. 13 Thus the requirement
is satisfied only when the words have a tendency to lower the estimation of the plaintiff. Aside
from that, the words must cause a reasonable person to look down on the plaintiff, expose him
to hatred, contempt, or ridicule14, and cause him to be shunned and avoided. 15In our scenario,
the words of defamatory are conveyed in its natural and ordinary meaning and by way of
juxtaposition.
Defamatory words are said to be in natural meaning when the words are understood by
ordinary men of ordinary intelligence and the plaintiff does not need to prove any special
knowledge on the definition of the words. Back to our scenario, the words used in the statement
is that the disease is incurable like AIDS, thus it has a simple and natural meaning since the
term AIDS is straightforward. In the matter of juxtaposition, it involves visual effect. As in the
scenario, by publishing a picture of a girl holding a man is an example of juxtaposition.

Reference can be made to the case of Institute of Commercial Management United

Kingdom v News Straits Times Press (Malaysia) Bhd ((1993) 1 MLJ 408) for a clearer
understanding of defamatory words in terms of natural meaning. The plaintiff claimed damages
against the defendant for libel in respect of words contained in an article published by the
defendant entitled ‘British diploma mills step up sales racket’. A diploma mill is a company or
organisation that claims to be a higher education institution but provides illegitimate academic
degrees and diplomas for a fee. By using such terms, it causes to injure and disparage the
plaintiff in its trade as an educational establishment and examining body; and in fact the
plaintiff has been injured in its credit and reputation as such. The court held that the word
‘diploma mills’ had a strong tendency to lower the plaintiff in the estimation of right-thinking
members of society generally or the parents of potential students or the potential students
themselves. Thus, since the words have a tendency to lower the reputation, the words are
defamatory.
 As for the case of juxtaposition, we can refer to the case Monsoon v Tussauds [1894] 1
QB 171. The plaintiff was accused of committing murder and was released because it was not
proven. The defendant then made a wax model of the plaintiff and put the statue with other
criminals in the ‘Chamber of Horrors’. It was held that the defendant was liable for defamation.

In our scenario, it was well understood that the publisher wanted to warn the residents
about a contagious disease; however, the publisher claimed that the disease is similar to AIDS.
Thus, based on the preceding decisions, we believe that the statement that the disease is
incurable, similar to AIDS, has harmed the plaintiff's reputation. It is well known that AIDS is
transmitted through unprotected sexual contact and drug injection; thus, by associating the
disease with AIDS, people will make many negative assumptions about the plaintiff while also
lowering the plaintiff's reputation. Furthermore, the image of a girl holding a man implies that
the plaintiff is amoral, freely associating with men, and that this is why she contracted a disease
similar to AIDS. We believe that it is not necessary for the publisher to include the word AIDS
and the picture that may result in speculation; if the publisher wants to say that the disease is
incurable and contagious, it is sufficient to say that the disease is incurable and contagious only
without include the word AIDS and the picture. Thus, we believe the elements of defamatory
words are satisfied because the words AIDS and the picture have lowered the plaintiff's
reputation, and in fact, her friends are avoiding her.

Sub-Issue 2: Whether the article published is referring to Maria?

As for the second element, in order for the plaintiff to succeed in her claim, the words
must be referred to her and is reasonable in the circumstances to lead persons acquainted with
the plaintiff to believe that she was the person referred to.16It is not necessary for the general
public to understand who the words refer to but is sufficient if those who know the plaintiff
believe he is the person mentioned. 17
There are several ways on how the words can be referred
to the plaintiff, and one of which by external or extrinsic facts. A person who has these external
facts about the plaintiff, along with the words, may be led to believe that the statements are
about her. This can be further illustrated in the case of Sandison v Malayan Times Ltd & Ors,
in an article, it was published that a senior expatriate executive of the Rubber industry
replanting board had been dismissed for corruption, the name was not mentioned however the
date of dismissal was mentioned and indeed that was the date the plaintiff ceased holding that
position.

Similarly to our scenario, the name was not published yet the details were; the article
mentioned student A who brought back contagious disease from oversea and in fact Maria just
returned from Alaska where she was studying and contracted a disease. Thus, combining the
information in the newspaper with Maria's actual situation is sufficient for the residents,
particularly Maria's neighbours and friends, to believe that Maria is the person referred to. In
short the second element of defamation which the words must refer to the plaintiff is fulfilled.

Sub-Issue 3: Whether the words were published to a third party?

The words must be communicated to a third party, a person other than the plaintiff 18is
the third element of defamation. The justification is that if the defamatory words are not made
known to anyone other than the plaintiff, they cannot harm the plaintiff's reputation. As a
result, if the printed materials are not seen by third parties and are only seen by the plaintiff,
publication does not occur.19Indeed in the scenario, the article is aimed to be spread to a third
party; the resident of the condominium and the third party does read the document. Therefore,
the publication is established.

Sub-Conclusion
Mrs Moony and Rainbow Publication can be held liable for defamation against Maria
as all three requirements required are fulfilled.

Defence of Justification
The defence applicable to the defendant is justification. This defence can be used when
the words published are true and this mechanism acts as a full defence, which one it is proven
the law will not protect the plaintiff. When multiple allegations are made, the defendant is not
required to prove the truth of all of them, this is aligned with Sect 8 of the Defamation Act
1957;
“In an action for libel or slander in respect of words containing two or more distinct
charges against the plaintiff, a defence of justification shall not fail by reason only that the
truth of every charge is not proved if the words not proved to be true do not materially injure
the plaintiff's reputation having regard to the truth of the remaining charges”
Reference of multiple allegations can be made to the case of Abdul Rahman Talib v
Seenivasagam [1965] 2 MLJ 66, in which the defendant claimed that the plaintiff, a
government minister, had received money and favours in exchange for his influence as a
minister. Defendant could prove the truth about receiving favours but not about receiving
monetary favours. The defence was successful as the unproven allegation did not harm the
plaintiff's reputation in light of the truth of the other allegation.

In our scenario, there are several allegations made towards Maria which are that the
disease is contagious, incurable like AIDS and by publishing a picture of a girl holding a man
next to the statement implied that the plaintiff is a person with no moral values. The allegation
of contagious disease is true however the second and third allegation cannot be proven. Unlike
the case of Abdul Rahman Talib v Seenivasagam, the unproven second and third allegations in
our scenario are not in the same context. Thus, the unproved allegations in fact injured the
plaintiff’s chastity as a woman. Section 4 of the Defamation Act 1957 stated that ‘words
spoken and published which impute unchastity or adultery to any woman or girl shall not
require special damage to render them actionable.’ The case of Luk Kai Lam v Sim Ai Leng
[1978] 1 MLJ 214, FC elaborated on the case of imputation of a woman's unchastity. The
respondent described appellant as a prostitute who charged RM50 per session. These
accusations are made in front of a third party. It was decided that slander had been established,
and that there was no need to prove special damage in this case.

Thus, in applying the rules of Sect 8 of The Defamation Act 1957 and Abdul Rahman
Talib v Seenivasagam, the defendant could raise the defence of justification since one of the
several allegations made towards the plaintiff are true. However it shall be noted that the
important aspect of the rules is that ‘the unproven allegation did not harm the plaintiff's
reputation in light of the truth of the other allegation’. In our case, the unproved allegations
harmed the plaintiff’s reputation as a woman and based on Sect 4 of The Defamation Act 1957
and the case of Luk Kai Lam v Sim Ai Leng [1978] 1 MLJ 214, FC if the words spoken or
published impute the chastity of a woman, slander is established and be held liable. Therefore,
the defendant could not succeed in raising their defence of justification.
Defence of Qualified Privilege

Next the defendant could also raise the defence of qualified privilege in which the
statement is made to fulfil legal moral or social duty. This defence can be used by newspaper
publications or broadcasting stations as the court recognized that the media has a duty to inform
the society on matters of public interest. However if there is an element of malice, defence will
fail. It is important that the statement is made honestly and without any improper motive. In
order to rebut this privilege, the plaintiff must prove that the article is written with the element
of malice. In the case of Pustaka Delta Pelajaran Sdn Bhd v Berita Harian, it was held that the
alleged defamatory articles was protected because the issue pertaining to KBSM and school
textbooks are matter of public interest and the defendant had a duty to inform the public at
large. In our scenario, as a condominium newsletter, they had a duty to inform the resident
regarding the situation pertaining to the contagious disease brought by student A. Nevertheless,
it was also mentioned in the scenario that Maria suspected Mrs Moony purposefully published
this article because of Maria's poor relationship with her daughter, Clarin. Therefore, the
element of malice is present, as stated earlier, if the element of malice is present, hence the
defendant could not succeed in raising this defence. Assuming that Maria is able to prove that
Mrs Moony intentionally published the article as a result of malice, then the defendants are not
able to raise defence of qualified privilege.

General Conclusion

In both cases of Pak Labu and Maria, Mrs Moony and the Rainbow publication are held
liable for defamation since three elements of defamation; defamatory words, refer to the
plaintiff and publication are established. As for Pak Labu, the defendants could succeed in
applying the defence of innocence and they are obligated to make an offer of amendment to
Pak Labu by apologising to him and also clearing up his name in relation to the fictional story.
As for Maria, the defendants could raise defence of justification and qualified privilege,
however they are not able to succeed in both defences since the requirement of defence is not
fulfilled as the article had imputed the chastity of Maria as a woman and had the element of
malice.