Litigation

Defamation

Rapid advances in information and communication technology have impacted daily life in Internet communication. The rise of digital platforms such as email, social media, chat groups, and blogs has made it easier to post information on the internet. However, this accessibility has also been misused by irresponsible individuals, leading to an increase in defamatory statements these days. While some people argue that they have the “right” to express anything online, this freedom is not absolute. Of course, the rise of social media has resulted in a corresponding increase in defamation cases. In Malaysia, there are many reported incidences of online defamation at the moment.

What constitutes a defamatory statement?

The law of civil defamation in Malaysia is governed by the Defamation Act 1957, whereas criminal defamation is governed by section 499 of the Penal Code. A statement is considered defamatory when the statement is untrue, tends to lower a person in the estimation of right-thinking members of society generally, and conveys an imputation on a person disparaging or injurious to his office, profession, calling, trade or business. However, honest opinions, truthful statements, or privileged communications (like court testimony) may not qualify as defamation. There are two types of defamation statements, which are libel and slander. Libel is written statements appearing in media such as newspapers, social media, emails or videos, and slander is spoken statements or gestures. Either one must be satisfied to fulfill the elements of defamation.

How to prove it?

To succeed in a defamation claim in Malaysia, the Plaintiff must prove three elements.

1. The statement is defamatory

The words must lower the Plaintiff’s reputation in the eyes of reasonable people, exposing them to hatred, ridicule, or contempt.

2. The statement refers to the Plaintiff

The statement must identify the claimant, either directly (by name, photo or clear description) or indirectly ( if reasonable people would understand it refers to the Plaintiff).

3. The statement was published to a third party

The defamatory words must have been communicated to someone other than the claimant (i.e., posted online, spoken publicly, or printed in media).

Defences to defamation

In a defamation lawsuit, a Defendant may avoid liability by establishing one of the following defences.

1. Absolute Privilege

It means that the statements are made in legally protected proceedings and cannot be sued for defamation. It applies to parliamentary proceedings, judicial proceedings, police reports (First Information Reports under Section 107 of the Criminal Procedure Code) and police statements or reports made to the police under Section 112 of the Criminal Procedure Act.

2. Qualified Privilege

It means that the statements are made in good faith and have a legal or moral duty, or the statements are made to further a legitimate common interest. However, it must be no malice and are made to the right audience. For example, an employee made a complaint to HR about his colleague. The employee is likely to be protected because he has an interest or duty to report the poor or unlawful conduct of his colleague.

3. Fair Comment

It means that the statement was an opinion (not a false fact) on a matter of public interest. For the defence of fair comment to succeed, the fair comment must be based on true facts or widely known information, and it must be a comment as opposed to a statement of fact. It must also be made without malice.

4. Justification

It means that the statement was substantially true and based on facts. For example, a journalist published a statement titled “ CEO of Company ABC pocketed RM1,000,000 from the company”. If the journalist shows evidence and proves it is true, the defence will succeed.

Conclusion

While freedom of speech is protected, Malaysian law imposes limits to prevent reputational harm. Whether in social media or talking face-to-face, it is important to understand the defamation laws so you can know your rights and help avoid defamation. If you believe someone has published harmful statements about you, you should speak to a lawyer, and he will assist you in defending your rights and getting the compensation that you deserve.