DEFAMATION ACT 1957 Short title. 1. This Act may be cited as the Defamation Act. Interpretation. 2.

In this Act, unless the context otherwise requires "broadcasting by means of telecommunication" means publication for general reception by means of a telecommunication; "newspaper" means any paper containing public news or observations thereon or consisting wholly or mainly of advertisements which is printed for sale and is published in Singapore either periodically or in parts or numbers at intervals not exceeding 36 days; "telecommunication" means any system for the transmission, emission or reception of signs, signals, writings, images and sounds of all kinds by means of radiowaves, wire, cable or other electro-magnetic systems; "words" includes pictures, visual images, gestures and other methods of signifying meaning. 3/80. Broadcast statements. 3. For the purpose of the law of libel and slander, the broadcasting of words by means of telecommunication shall be treated as publication in a permanent form. Slander of women. 4. Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable. Slander affecting official, professional or business reputation. 5. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be

necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business. Slander of title, etc. 6. (1) In any action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication. (2) Section 3 applies for the purposes of this section as it applies for the purposes of the law of libel and slander. Unintentional defamation. 7. (1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case (a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question 3/80. (but without prejudice to any cause of action against any other person jointly responsible for that publication); (b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant or were published by the defendant innocently in relation to the

plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn. (2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under subsection (1) (b) no evidence, other than evidence of facts specified in the affidavit, shall be 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, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved. (4) Where an offer of amends under this section is accepted by the party aggrieved (a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the High Court, whose decision shall be final; (b) the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a), shall include power to order the payment by the person making the offer to the party aggrieved of

costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question; and if no such proceedings as aforesaid are taken, the High Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings. (5) For the purposes of this section, words shall be treated as published by one person (referred to in this subsection as the publisher) innocently in relation to another person if and only if the following conditions are satisfied: (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. (6) Subsection (1) (b) shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice. Justification. 8. 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 plaintiffs reputation having regard to the truth of the remaining charges.

Fair comment. 9. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. Apology in mitigation of damages. 10. (1) In any action for defamation the defendant may (after notice in writing of his intention to do so duly given to the plaintiff at the time of filing his written statement of his case) give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action or, where the action was commenced before there was an opportunity of making or offering such apology, as soon afterwards as he had an opportunity of doing so. (2) In an action for libel contained in any newspaper, any defendant who has paid money into court under the provisions of any written law relating to civil procedure may state in mitigation of damages, in his written statement of his case, that such libel was inserted in such newspaper without actual malice and without gross negligence and that, before the commencement of the action or at the earliest opportunity afterwards, he inserted or offered to insert in such newspaper a full apology for the said libel, or, if the newspaper in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper to be selected by the plaintiff in such action. Reports of judicial proceedings. 11. (1) A fair and accurate and contemporaneous report of proceedings publicly heard before any court lawfully exercising judicial authority within Singapore

and of the judgment, sentence or finding of any such court shall be absolutely privileged, and any fair and bona fide comment thereon shall be protected, although such judgment, sentence or finding be subsequently reversed, quashed or varied, unless at the time of the publication of such report or comment the defendant who claims the protection afforded by this section knew or ought to have known of such reversal, quashing or variation. (2) Nothing in this section shall authorise the publication of any blasphemous, seditious or indecent matter or of any matter the publication of which is prohibited by law. Qualified privilege of newspapers. 12. (1) Subject to this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice. (2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule, this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances. (3) Nothing in this section shall be construed as protecting the publication of any blasphemous, seditious or indecent matter or of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit. (4) Nothing in this section shall be construed as limiting or abridging any privilege subsisting (otherwise than by virtue of the Defamation Ordinance 1960*) immediately before the commencement of this Act. * Repealed by L N 179/65.

7/60. Application of Act to broadcasting. 13. (1) The provisions of this Act shall apply in relation to reports or matters broadcast by means of telecommunication as part of any programme or service provided by means of a broadcasting station within Singapore, and in relation to any broadcasting by means of telecommunication of any such report or matter, as they apply in relation to reports and matters published in a newspaper and to publication in a newspaper. 3/80. (2) Section 10 (2) shall have effect in relation to such broadcasting as if for the words to insert in such newspaper there were substituted the words to publish in the same manner and section 12 (2) shall have effect in relation to any such broadcasting, as if for the words in the newspaper in which there were substituted the words in the manner in which. (3) In this section, broadcasting station means any telecommunication station which is authorised by law, or in respect of which a licence is granted under any written law authorising the station, to provide broadcasting services for general reception. 3/80. Limitation of privilege at elections. 14. A defamatory statement published by or on behalf of a candidate in any election to the office of President or to Parliament or other elected or partially elected body shall not be deemed to be published on a privileged occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election. Act 11/91 wef 30.11.91 vide S 527/91 Agreements for indemnity. 15. An agreement for indemnifying any person against civil liability for libel in respect of the publication of any matter shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not

reasonably believe there is a good defence to any action brought upon it. Evidence of other damages recovered by plaintiff. 16. In any action for libel or slander, the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication. Consolidation of actions for libel. 17. (1) Upon an application by two or more defendants in actions in respect of the same or substantially the same libel brought by one and the same person, the court or a judge may make an order for the consolidation of such actions so that they shall be tried together. (2) After any such order has been made and before the trial of the said actions, the defendants in any new actions instituted in respect of the same or substantially the same libel shall also be entitled to be joined in a common action upon a joint application by such new defendants and the defendants in the actions already consolidated. (3) The court or a judge may, in the case of the same or substantially the same libel published simultaneously in a number of newspapers or copied shortly after publication, give notice to the plaintiff in any action or actions arising out of such libels that a period stated in such notice will be allowed for the discovery of any further publications of such libel in order that the whole of the actions arising out of such libel may be tried together, and after such period has expired no further action shall be instituted in respect of the publication of such libel except for the recovery of special damages. (4) In a consolidated action under this section, the whole amount of the damages

(if any) shall be assessed in one sum but a separate judgment shall be given in respect of each defendant in the same way as if the actions consolidated had been tried separately. (5) The amount of damages so assessed shall be apportioned amongst those of the defendants against whom judgment has been given, and if costs are given to the plaintiff the court may make such order as it thinks just apportioning the costs amongst such defendants. Separate assessment of damages in certain cases in actions for libel. 18. Whenever in an action for libel the plaintiff sues more than one defendant, whether jointly, severally, or in the alternative, and evidence is given of malice in one defendant or of any other matter of aggravation which would not be admissible in evidence against any other defendant if he were sued alone, such other defendant may apply to the court to have the damages against himself and his co-defendants separately assessed, and if such application be made the court shall assess the damages separately against each defendant and no defendant shall be liable nor shall execution issue against him for any further or other damages than those so assessed against him. Severance of defences. 19. Whenever in any action for libel the plaintiff sues more than one defendant, whether jointly, severally, or in the alternative, each defendant may file a separate statement of his case and appear at the trial by separate counsel or, if he thinks fit, apologise or pay money into court or make other amends, whatever may be the defences set up by his co-defendants, and the plaintiff may accept such apology, money, or other amends and settle or compromise the suit and discontinue the action as between himself and one or more defendants without reference to the other defendants:

Provided that the rights and interests of the other defendant or defendants shall not in any way be prejudiced thereby. Consolidation of actions for slander, etc. 20. Sections 17, 18 and 19 shall apply to actions for slander and to slander of title, slander of goods and other malicious falsehood as they apply to actions for libel and references in any such sections to the same or substantially the same libel shall be construed accordingly. Savings. 21. Nothing in this Act affects the provisions of the Penal Code or any other written law relating to criminal offences or applies to any prosecution for a criminal offence. Cap. 224. THE SCHEDULE Section 12. NEWSPAPER STATEMENTS HAVING QUALIFIED PRIVILEGE PART I STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR CONTRADICTION 1. A fair and accurate report of proceedings (a) in public of the legislature of any part of the Commonwealth outside Singapore; (b) in public of an international organisation of which Singapore or the Government is a member; (c) in public of an international conference to which the Government sends a representative; (d) before any court exercising jurisdiction throughout any part of the Commonwealth outside Singapore or a court martial held outside Singapore under any written law in force in Singapore ; and (e) in public of a body or person appointed to hold a public inquiry by the Government

or legislature of any part of the Commonwealth outside Singapore. 2. A fair and accurate copy of or extract from any register kept in pursuance of any written law in force in Singapore which is open to inspection by the public or which members of the public are entitled to have searched or of any other document which is required by any such law to be open to inspection by the public or to which members of the public are entitled on payment of a fee to a copy. 3. A notice, advertisement or report issued or published by or on the authority of any court within Singapore or any judge or officer of such court or by any public officer or receiver or trustee acting in accordance with the requirements of any written law. PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 1. A fair and accurate report of the findings or decision of any association formed in Singapore for the purpose of (a) promoting or encouraging the exercise of or any interest in any art, science, religion or learning; or (b) promoting or safeguarding the interests of any trade, business, industry or profession or of persons carrying on the same or engaged therein or the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, where (c) the finding or decision relates to a person who is a member of or is subject by virtue of any contract to the control of the association; and (d) the association is empowered by its constitution to exercise control over or to adjudicate upon the matters to which the finding or decision relates. 2. A fair and accurate report of the proceedings at any public meeting held in Singapore, being a meeting bona fide and lawfully held for a lawful purpose and for the

furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted. 3. A fair and accurate report of the proceedings at any meeting or sitting in any part of Singapore of (a) any commission, tribunal, committee or person appointed for the purpose of any inquiry by or under any written law or by the President or by any public officer of the Government; or (b) any other tribunal, board, commission, committee or body whether incorporated or not constituted and exercising functions by or under any written law in or under any other lawful warrant or authority for public purposes, being a meeting or sitting to which admission is not denied to representatives of newspapers or other members of the public. 4. A fair and accurate report of the proceedings at a general meeting wherever held of any joint-stock company or corporation wherever registered whose business is in any way directly concerned with Singapore or of any company constituted, registered or incorporated under the provisions of any written law not being a private company within the meaning of the Companies Act. 5. A copy or a fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of the Government or by any public officer or authority.

WHAT IS DEFAMATION? Sources of Law - English Common Law - Defamation Act 1957 a statement (oral or written, temporary or permanent) which injures the reputation of another by exposing him in the esteem of right thinking members of society Lord Atkin (Sim V Stretch (1936) 2 ALL ER 1237 1240 Mark Ignatius Uttley @ Mark Ostyn v Wong Kam Hor & Anor (2002)- words tend to make a reasonable person think the worst of the plaintiff or would cause him to be shunned/ avoided a statement concerning any person which exposes him to hatred, ridicule or contempt or which cause him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade Frazer on Libel and Slander Dato Musa bin Hitam v SH Alatass & 2 Ors (1991)- defamation arises when there is a publication which has the tendency to lower the persons reputation or to cause him to be shunned or avoided by reasonable persons in society, and thereby adversely affecting his reputation.

Who can be defamed? Living persons: - Plaintiff is alive - Personal action- Atip bin Ali v Josephine Doris Nunis & Anor (1987) - Corporations- Electrical, Elctronic, Telecoms & Plumbing Unions v Times Newspaper Ltd (1980). Types of Defamation Defamation can be divided into two types, namely: 1. Libel (Sec 3 of the Defamation Act 1957) - in a permanent form and

visible to eyes In writing, email, pictures, statutes/ effigies - Actionable per se Slander - In a temporary or transient/shortlived form - Words spoken or gestures - Not actionable per se (needs to prove actual damage that can be measured in monetary terms) in order to succeed in his/her action) - Exceptions to the requirements of actual damage in case of slander. -

Exceptions to the requirements of actual damage in case of slander.

The exceptions in which slander becomes actionable per se are as follows: 1. Slander to women- Section 4 provides that the publication or words which imputes unchastity or adultery to any women or girl requires no proof of special damage for the action to succeed. Case: Luk Kai Lam v Sim Ai Leng- the respondent called the plaintiff prostitute and charged RM 50 to entertain any men. The court held that since the words attributed the appellants chastity, special damage need not to be proven. Slander established. 2. Slander in relation to a persons professional or business reputation- Sec 5 provides that words calculated to disparage/belittle plaintiff in any office, profession, calling/occupation, trade or business, whether the words are spoken or not need to prove any special damage (e.g: misconduct or unfitness). An allegation of dishonesty and corrupt practices against deputy Minister would fall under Sec 5 (Chua Jui Meng v Hoo Kok Wing (2000) & Case: John Tan Chor-Yong v Lee Chay Tian (1971), JB Jeyaratnam v Goh Chok Tong (1985) 3. Imputation of Crime- the words indicate that the plaintiff is involved in a crime (that attracts corporal/physical punishment). Case C Sivanathan v Abdullah bin Haji Abdul Rahman (1984)- the defendant called the

plaintiff a cheat, dishonest, and a liar. The court held that action did not attract corporal punishment, the claim was not actionable per se. 4.Imputation of a contagious disease- a statement of a contagious disease or infectious disease is actionable per se 5. Slander in relation to title- Sec. 6 provides that in an action of title, slander of goods or other malicious falsehood, it shall not necessary to allege or prove special damage. E.g: A tells B that C no longer operating his coffee- shop. The statement may well deprive C of his bizz and C may sue A for Malicious falsehood without having proved special damage. ELEMENTS OF DEFAMATION 1. Words are defamatory 2. Words must refer to the plaintiff 3. The words are published to a third party Words have the tendency to lower the estimation of the plaintiff in the mind of right thinking members of society that cause him is avoided, shunned or ridiculed (Syed Husin Ali v Sharikat Percetakan Utusan Melayu Bhd & Anor (1973) The court only looks to the tendency of the response of the reasonable man to the words. Words must be understood and cannot merely guess. Words will be examined objectively, that is, its effect on a reasonable and ordinary reader (Lee Kuan Yew v JB Jeyaratnam (1979). Words are defamatory in THREE ways; - Natural & ordinary meaning - Innuendo - Juxtaposition 1. Natural & ordinary meaning- as understood by ordinary men of ordinary intelligence must have the tendency to make them look down, shun or avoid the plaintiff (Rajagopal v Rajan (1972). Case: Lewis v Daily Telegraph Ltd(1964), the

Words are defamatory

plaintiffs action failed as the court held that the statement was not capable of giving rise to the meaning that the plaintiff carried out his bizz fraudulently due to the Fraud Squad Investigation. 2. Innuendo- words sometimes do arise from the literal/factual meaning. It can come from the inferences/presumption or special facts or circumstances by the recipient or reader of the words. Innuendo can be divided into two types: False Innuendo (words derived from combination of statements and pictures) case: members of society that cause him is avoided, shunned or ridiculed (Syed Husin Ali v Sharikat Percetakan Utusan Melayu Bhd & Anor (1973) and Lee Kuan Yew v JB Jeyaratnam (1973); True or Legal innuendo (arises due to special facts which are known to the recipient of the publication) and special knowledge is needed. 3. Juxtaposition- involves a situation that employs visual effects an effigies or placing the plaintiffs photograph in a pile of pictures of wanted criminals. Case: Monsoon v Tussauds.

Words must refer to the plaintiff

Words must refer to the plaintiff The test to establish that words refer to the plaintiff was laid down in case of David Syme v Canavan (1918). Even if plaintiff is not specifically named in the words, he may be described so as to be recognised. It is sufficient that those who know the plaintiff believe that he is the person referred to( Abdul Khalid v Parti Islam Semalaya (2002). Case: Hulton & Co v Jones (1910), Newstead v London Express Newspaper Ltd (1939) There must be a publication of words to the third party Publication means the dissemination of the defamatory words/printed

The words are published to a third party

material or material to a third party, other the plaintiff. Case: Dr Jenni Ibrahim v S Pakianathan (1986)- the defendant wrote two letters indicating that the plaintiff had committed breach of trust of RM 70,000. Copies of the letter was sent to all directors of the HELP Centre, director of the welfare services, registrar of society. The court held that sending copies of the letter to other parties constituted publication. Any other similar cases: Wan Abdul Rashid v S Sivasubramaniam (1984) Pullman v W Hill & Co Ltd (1891)letter to businessman opened by his secretary is publication unless marked private or personal Wenman v Ash (1853)communication by a third party to one spouse is publication Considered NOT publication: Wenhak v Morgan (1888)communication between spouses about third party is not publication Sadgrove v Hole 1901 a statement not heard by recipient (deaf or not understood) is not publication Huth v Huth (1915)- communication between spouses, butler read its contents is not publication. Defendant need not have intention that the defamatory matter be communicated to any particular person. It is sufficient if publication could be reasonably anticipated (Theaker v Richardson, 1962) Repetition and republication of defamatory matter- original publisher is liable if he authorized/ or if republication is the natural and probable consequence of the original publication Culter V McPhail (1962) every repetition & republication constitute a fresh cause of action.

DEFENCES

1. 2. 3. 4. 5. 6.

UNINTENTIONAL DEFAMATION CONSENT JUSTIFICATION FAIR COMMENT PRIVILEGE INNOCENT DISSEMINATION

UNINTENTIONAL DEFAMATION (UD)

A. Sec 7(5) a & b B. Sec 7 (1) a & b C. Sec 7 (2) D. Se 7 (3) Case: Lee Kuan Yew v Seow Khee Leng (1986) & Sandison v Malayan Times Lt & Ors (1964) Defendant unintentionally and innocently publishes defamatory material of another person, he may raise the defence of unintentional defamation provided for under Sec. 7 of Def. Act 1957. UD is appropriate in a situation where a reporter writes what is alleged to be defamatory article in a magazine, and the plaintiff sues both the reporter and the publisher of the magazine Section 7 (5) a & b- For the purposes of this section, words shall be treated as published by one person (referred to in this subsection as the publisher) innocently in relation to another person if and only if the following conditions are satisfied: (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 Sec 7 (1) a & b- (1) A person who has published words alleged to be

defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication); (b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove : - that the words complained of were published by the defendant or were published by the defendant innocently - the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, - and has not been withdrawn - Sec 7 (2)- An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit/ official declaration specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under subsection (1) (b) no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.

Sec 7 (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, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved. -

CONSENT/ASSENT

Plaintiff gives his/her consent for publication to be made. E.g: consent for being interviewed, knowing that the contents of the interview will be printed in a magazine. The defendant must prove such authorization or consent in order for this defence to succeed ( Normala Samsudin v Keluarga Communication Sdn Bhd (1999)- consent not proven. Case: Cookson v Harewood (1932)the plaintiff claimed that the innuendo was that he was corrupt and indulged in fraudulent practices. The Court held that the plaintiff could not claim from the defendant a the statement was true and that permission was obtained to published that statement. Section 8 of Def. Act 1957- defendant must prove the truth of all the material statements in the defamatory statement. The defence of justification or truth. Once the statement is proven to be true, the law will not protect the plaintiff (Institute of Commercial

Mgmt United kingdom v New Straits Times Press (Malaysia) Bhd (1993) The burden of proof lies on the defendant to prove his allegations. Case: S Pakianathan v Dr Jenni Ibrahim- the defendant alleged that the plaintiff had committed a criminal breach of trust amounting to RM 70,000. The court held that the burden rested on the defendant to prove JUSTIFICATION and it was not sufficient to state that he believed the allegation to be true. Case; MPherson v Daniels (1829)where the defendant has succeeded in discharging the burden, the plaintiff cannot recover damages Case: E Hulton & Co. v Jones (1910)no defence merely by showing no intention to defame Where the defamatory statement was true, it is irrelevant if the defendant was motivated by malice.

FAIR COMMENT
1. 2. 3. 4. Sec 9 A comment which is honestly and fairly made may also absolve/free the defendant from liability. In order to establish this defence, the defendant must show that; The words must be in the form of comment and not a statement of fact; The comment must be based on true facts; The comment is fair and not malicious; and The comment concerns an issue of public interest.

JUSTIFICATION

The words must be in the form of comment and not a statement of fact; This defence does not apply if the words are statements of fact. Case: Meeran Lebbaik Maillin & Anor v J Mohamed Ismail Merican & The Straits Printing Works

(1926)- the defendant failed as the words that the plaintiff had robbed and was a Kafir were allegations of FACT and not of OPINION. Case: SB Palmer v Rajah & Ors (1949) and JB Jeyaretnam v Goh Chok Tong (1985).

Chua Ching Geh & Anor (1992) & S Pakianathan v Dr Jenni Ibrahim (1988)) The comment concerns an issue of public interest. The comment must be on an issue of public interest, otherwise the defence is not available (Henry Wong Jan Fook v John Lee & Anor (1976). Comments concerning the acts and activities of people who are influential in a particular society, such as the conduct and acts of ministers are also regarded as matters of public interest (Abdul Rahman Talib v Seenivasagam & Anor (1965) Government and public admin issues, contents of the mass media, all forms of art and entertainment, utilization of public funds and religious issues would be regarded as matters of public interest. Eg; comments in a newspaper with regard to the quality and contents of secondary school textbooks, comments in newspaper that consultants architects in a project to build additional car-park floors of a hospital did not comply with building plans and etc

Eg: if A were to allege that X is a liar and a cheat and therefore a dishonest person, dishonest may well be the comment based on the allegation that he is a liar and a cheat. But all the three words, liar, cheat and dishonest may well amount to allegations of fact, and fair comment cannot be used to defence The comment must be based on true facts The defendant must prove that the TRUTH OF THE FACTS on which the comments is based. It is sufficient that the facts which form the basis of the comment are proven (Mohd Jali bin Haji Ngah v The new Straits Times Press & Anor (1998). Case: SB Palmer v AS Rajah & Ors (1949)- the defendant failed to prove his allegations that the plaintiff had walked out of a meeting in a dramatic style/fashion. The plaintiff had in fact walked out in an ordinary manner. Since the truth of this alleged fact was not proven, the defence of fair comment failed.

PRIVILEGE

The comment is fair and not malicious

A comment that is made maliciously in NOT a fair comment. In order to be fair, the comment must be an honest expression of the writer made in good faith. If it can be proved that the defendant did not believe that what he published was true, or that he knew the statement to be false, that is generally conclusive evidence of express malice (Chong Siew Chiang v

There are TWO types of PRIVILEGE: 1. QUALIFIED PRIVILEGE: the defence of qualified privilege is provided for both through Statute and Common Law. 2. ABSOLUTE PRIVILEGE: the publication of words is protected by absolute privilege, connected to the administrative system within a particular government, whether the statement is made by legislative bodies, the executive or the judiciary. E.g: an advocate is protected by absolute privilege if he makes a defamatory statement while in the course of legal proceedings.

STATUTE: STATUTORY Q.P Statutory q.p is provided for in Sec 12 of the Act. Subject to this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice Newspaper has been defined in Sec 2 as any paper containing public news or observation consisting wholly or mainly of advertisements, and which is printed for sale and is published in Malaysia periodically or in parts at interval not exceeding thirty six days. Therefore the only parties which are entitled to rely on the defence of statutory qualified privilege under Sec 12 are NEWSPAPERS and BROADCASTING STATIONS. Section 12(1)- protects reports of matters that are listed in Part I of the Schedule of the Act. - For reports of matters listed under this Part I, the privilege is LOST if the author and/publisher is FOUND TO BE MALICIOUS with regard to the publication. Sec 12(2) provides that a publication of any report or matter covered under Part II of the Schedule to the Act is also privileged. However, the privilege is lost if the author and/the publisher (a) has been requested by the plaintiff to publish either an explanation or contradiction to the original publication, and the defendant has not done so either through refusal or neglect; (b) has been requested by the plaintiff to publish either an explanation or contradiction, to the original publication, and the defendant has done so but the explanation or

contradiction is inadequate or unreasonable in circumstances; (c) is found to have acted maliciously

Common Law Qualified Privilege

If the defendant is neither a newspaper nor a broadcasting, it is not entitled to raise the defence to qualified privilege under sec 12. Publication made by other than by a newspaper or broadcasting, may still be privilege under Common Law principles. There are circumstances under which a person is allowed by law, to make defamatory remarks without his being liable for the tort of defamation.

Four Recognised circumstances of privileged occasions

1. Statements made between parties who have a mutual interest over the subject matter of the communication 2. Statements made to fulfil a legal, moral and social duty 3. Statements made to relevant authorities in order to settle public nuisance or disputes 4. Statement made in order to protect ones own interest or property

ABSOLUTE PRIVILEGE There are certain publication of words that are protected by absolute privilege. The circumstances are usually connected to the administrative system within a particular government, whether the statement is made by legislative bodies, the executive or the judiciary. E.g: an advocate is protected by absolute privilege if he makes a defamatory statement while in the course of legal proceedings.

INNOCENT DISSEMINATION

A person who participate in the publication of a defamatory article is subject to suit. If he is only a distributor or delivery boy, he is entitle of defence of innocent dissemination. Case: Vizetelly v Mudies Select Library Ltd (1900), it was held that the defence of innocent dissemination is available to a defendant who is not the author, printer or first or main publisher of the defamatory article.

REMEDIES

Damages Injunction