DEFAMATION LAW SUIT - A SIMPLE EXPLANATION
What is defamation? How will the Courts in Malaysia determine whether or not defamatory statements have been established against you? What are the important factors that you need to consider before taking court action against a person for defamation?
WHAT IS DEFAMATION?
1. The simplest way to understand defamation is that it is any wrongful accusation or statement made towards or against you by a person; and that wrongful accusation or statement had been communicated or published to a third party verbally or in writing by that person.
TYPES OF DEFAMATION
2. There are basically two types of defamation.
(a) Libel – when a wrongful statement was made in written form. For example, a wrongful statement made towards you by way of a post in facebook or twitter, whatsapp text messages, blog posts, letters, flyers, posters or newspaper articles.
(b) Slander – when a wrongful accusation was made verbally i.e. by word of mouth.
ELEMENTS OF DEFAMATION
3. When your lawyer uses the word “element”, it simply means that there are ingredients or conditions that you need to fulfill and satisfy in order to establish a good case. For a defamation case, the following three elements must be proved to establish a case.(a) You must show that the statement bears defamatory accusation;
(b) You must show that the statement refers to you;
(c) You must show that the statement must have been published to a third person (or more) by the accuser.
4. All the above ingredients must be proved. You might get your case dismissed if you fail to prove any one of them, let alone all of them. In other words, prove each one of them or you will lose your case.
DEFAMATORY STATEMENT
5. What is defamatory? A statement can be defamatory when it has the tendency to cause or excite negative opinions/perception of others towards you; and that the statement tends to lower you in the assessment of right-thinking members of the public in general.6. For instance, a statement accusing or associating you with criminal and dishonest activities, untruthfulness, ungratefulness or cruelty, can be defamatory since it can excite negative impression of the public towards you.
7. How do you show that a statement is defamatory? In a defamation law suit, the Court will usually use a two-stage test to determine whether or not a statement bears any defamatory meaning.
(a) Whether the statement has the capability of bearing defamatory meaning.
What does that mean? Simply put, the Court will examine whether the statement that you are complaining about can be understood as defamatory as in the context how the statement was made.
(b) Whether the statement was in fact defamatory.
What does that mean? It means that the Court will determine whether or not the statement was in fact defamatory based on the circumstances of the particular case.
8. If the statement was truthful, regardless how hurtful the statement was, you shall be deemed to have failed to satisfy the most important element for defamation.
STATEMENT REFERENCE
9. The defamatory statement must be proved to have referred to you. Reference can be made by mentioning of names or by way of innuendo; as in it can be understood that the statement was referring to you by way of suggestion.
10. Hence, you cannot take legal action on behalf of others. Hence you must be completely sure that the defamatory statement referred to you or can be understood, by the public, not by you, that it referred to you by innuendo.
11. What is innuendo? Innuendo is a remark that suggests something. In the context of this article, it's a remark that alludes to you by way of hints and suggestion.
12. If the defamatory statement did not refer to you or could not be understood, by way of hints and suggestion, to have been referring you, or if the accuser can prove that it was directed to someone else, then you will be deemed to have failed to satisfy the second element for defamation.
STATEMENT PUBLICATION
13. The defamatory statement must be proved that it had been published or communicated by the accuser to any third party (one person or more), other than you and the accuser. If the statement was not published to any third party, then your case will probably be dismissed.
AVAILABLE DEFENCES AGAINST DEFAMATION
14. What if you are being sued for defamation? What should you do? What are the defences available to you? Well, first and foremost, your lawyer will try and challenge each and everyone one of the 3 above-mentioned elements required to be proven to establish a defamation case.
15. Then, there are several defences and/or protections that you can use to defeat or shield yourself from a defamation case filed against you.
16. However, it can only work if you are able to satisfy the Court why any one of these defences are applicable to you.
(a) Justification
(b) Fair comments
(c) Qualified Privilege
(d) Absolute Privilege
(e) Consent
(f) Unintentional defamation
(g) Reynolds Privilege
(h) Reportage
17. You might need your lawyer to explain each and every one these defences and pick one that suits you the best.
DAMAGES AND COMPENSATION FOR DEFAMATION
18. First and foremost, you need to understand that court action is not a place for you to try and enrich yourself. The damages awarded to you, in the event that you are successful in your defamation case, is merely to compensate you for your losses.
19. Gone were the days where the Court would award millions to a successful Plaintiff.
20. Basically, there are no exact measure to asses damages in an action for defamation nor are there any mathematical formula to calculate the quantum of your losses. The Court, in determining the quantum to compensate you would usually consider these factors:
(a) Your conduct and behaviour in Court;
(b) Your position and standing in society;
(c) The nature of the defamation;
(d) The extent of publication or size of circulation of defamation;
(e) Absence of retraction or apology; and
(f) Conduct and behaviour of the Defendant
21. The value of damages might differ from case to case depending on the above factors. One of the highest compensation awarded to a Plaintiff recently is RM800,000.00 which was Datuk Seri Anwar Ibrahim's defamation law suit against a blogger.
WHAT DO YOU NEED TO DO TO PREPARE?
22. Before you go and see your lawyer, be sure to make printed copies of the defamatory statements. If it's slander, make sure to inform you lawyer the exact defamatory sentence used.
23. Bring along additional information of the accuser, for example, his full name and address. If it is slander, then you might also need to bring along good evidence to support the negative impact it had to your business or reputation.
If you have any further questions, do not hesitate to message me at 0129797494 or email me at norhafeezlaw@gmail.com.
Nor Hafeez adalah seorang peguamcara sivil yang beramal sebagai seorang peguam dan pemilik penuh sebuah firma guaman yang mempunyai pejabat kecil di pinggir Kuala Lumpur. Beliau mengendalikan pelbagai kes-kes sivil dan pelbagai masalah berkait dengan undang-undang sivil Malaysia seperti kes saman malu, langgar kontrak, hutang peribadi dan korporat, pencerobohan tanah, penceraian bukan islam, harta pusaka, pemecatan kerja, konsultan tuntutan CIPAA dan sebagainya. Di masa lapang, beliau berkongsi ilmu melalui penulisan blog dan sekali sekala menggunakan telefon untuk mengambil dan mengedit gambar secara amatur. Beliau juga adalah seorang glory hunter yang meminati Manchester City dan juga segelas Nescafe Ais diwaktu pagi.
