a)

The issue here is whether Mr Buzzy Body has a cause of action in defamation towards The Express
Newspaper and Mr Nose Best.

The law of defamation in Malaysia is governed by the Defamation Act 1957. It does not provide the
definition of defamation. Lord Atkin in Sim v Stretch a statement which tender to lower the plaintif
in the minds of right thinking members of society generally, and in particular to cause him to be
regarded with feelings of hatred, contempt, ridicule, fear and disesteem.

There are two types of defamation, namely libel and slander.

Libel is a statement or representation made in a permanent form such as picture, statues, sign,
writing, caricatures, etc. Section 3 of the Act provides that the broadcasting of words by means of
radio communication shall be treated as publication in a permanent and therefore constitute libel.
Libel is actionable per se need not to prove any damage because the law presumes that when a
person`s reputation is assailed, some damage must result.

In Yousoupoff v MGM, the court held that the plaintiff was entitled to damages because the
defamatory statement contained in the film made by the defendant is lible.

Slander is defamation in temporary form. Publication is usually made through spoken words or
gestures. It is not actionable per se which the plaintiff has to prove actual or special damage such as
financial loss. Damage must be reasonably foreseeable and it must be direct result of Defendant`s
words. However, there are certain exceptions to this general rules.

In order to prove defamation, the plaintiff must establish the elements of tort which are the words
are defamatory, the words refer to the plaintiff and that the words have been published.

Firstly, the words are defamatory. To be defamatory, the words must tend to lower the plaintiff`s
reputation in the estimation of right minded persons or must tend to cause him to be avoided. In
Syed Husin Ali v Sharikat Perchetakan Utusan Melayu Bhd, Mohamad Azmi J said that, to be
defamatory, an imputation need have no actual effect on a person`s reputation, the law looks only
to its tendency.

Defamatory word must be distinguish from mere abusive words where in the case of Penfold v
Wescote. In this case, the defendant called out why don't you come out you black guard, rascal,
scoundrel, pen-fold, you are a thief. The court held that only the word thief is defamatory because it
is an imputation of a crime meanwhile black guard, rascal and scoundrel were mere abusive words.

Words may be defamatory in two different ways. Firstly, in natural and ordinary meaning. It means
that the defamatory words can be understood by the ordinary intelligence people just using their
general knowledge and common sense to make them look down, shun or avoid the plaintiff.

In Hasnul b Abdul Hadi v Bulat b Mohamed, the defendant label the plaintiff as Abu Jahal. It was
held that it is defamatory as it imputes that person as a big liar, untrustworthy and irresponsible.

Secondly, innuendo where the statement becomes defamatory through inferences, special facts or
circumstances known by the reader as in Tolley v JS Fry.

The second element is the words must refer to plaintiff. The test for this is if reasonable people
would think that the language used by the defendant to be defamatory to the plaintiff, then the
defendant is liable even if the defendant did not intend to refer to the plaintiff.
In Hulton & Co v Jones, a fiction was written concerning an Artemis Jones in Peckham. There was in
fact a real Artemis Jones, the plaintiff, a lawyer in that town but his friends thought the story
concerned the plaintiff. The court held that defamation was established as those who knew him
understood the words as referring to him, although that was not intended to be so by the author
and publisher.

Thirdly, the words must be published. Publication means the words is communicated to a third
party other than the defamed. Words according to Section 2 of the Defamation Act include pictures,
visual images, gestures, and other methods signifying meaning. Other relevant factor to establish
publication are the language used by the defendant are understandable, the plaintiff can specify
what the words about and the words were referring to the plaintiff.

This can be seen in the case of Normala Shamsudin v Keluarga Communication Sdn Bhd, where the
defendant published an article concerning the plaintiff with the headline Mala tebus talak 3 Juta.
The court held that the word was defamatory because it indeed expose the plaintiff to hatred,
ridicule, disesteem and more.

Every repetition of a defamatory matter is a fresh publication and creates a fresh cause of action. If a
defamatory article is published in the newspaper, the writer, editor, publisher and owner of the
publishing company are all liable as in the case of Vincent Tan.

In applying to the present case, as the defamatory statement is in permanent form, thus it is libel.
For the first element of the words must be defamatory, it is established as the column, in their
natural and ordinary meaning, stating that Mr Buzzy Body recommended that all wives should allow
their husbands to engage in extramarital activities so as to attain a happy marriage. The letter by Mr
nose Best saying that Mr Buzzy Body is an adulterer, womaniser and disgrace to our neighbourhood
also defamatory in natural and ordinary meaning. This words which shows immoral act surely will
make Mr Buzzy Body became avoided. It clearly shows that a reasonable man or any right thinking
members of society would shun or avoid Mr Buzzy Body where subsequently he loss many jobs.

The second element is also established. In the column, it is clearly state Mr Buzzy Body`s name
although it was not a real person. By referring to the Hulton & Co v Jones, defamation could be
established although The Express Newspaper did not intend to refer to the real Mr Buzzy Body
because the reasonable man still will thought that the words concern on the real Mr Buzzy Body. As
to Mr Nose Best writing, it was directly referring to the real Mr Buzzy Body and not anyone else as
he was their neighbour.

The third element which is publication also established. By publishing the newspaper which carries
the defamatory column every Sunday under the name of Mr Buzzy Body, and by writing bad
statement adulterer, womanizer and a disgrace to our neighbour is consider as a publication
because it is communicated to the third party other than the person defamed.

In conclusion, Mr Buzzy Body has a cause of action in defamation towards The Express Newspaper
and Mr Nose Best and he may success in his claim.
b) Defences

Although Mr Buzzy Body has fulfilled all the elements, however there are few defences available to
the Express Newspaper and Mr Nose Best.

Firstly, as for The Express Newspaper, it may use the defence of unintentional defamation. Section 7
of this act stated 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. This can be proved when the
publisher can shows that he did not intend to publish them of and concerning the plaintiff, he did
not know the circumstances in which the words might be understood to be referring to the plaintiff
and he had exercised all reasonable care in relation to the publication. So, if the Express Newspaper
can fulfilled these, they may be escape liability.

Secondly, The Express Newspaper and Mr Nose Best may use apology where as soon as making such
defamatory words, they regretted their publication, explaining and apologized to the plaintiffs for
any false notion or confusion arising from the publication as stated in Normala Shamsuddin v
Keluarga Communication where the defendant just published the word maaf and the court held
that it is not sufficient. The apology must come with explanation. Thus, The Express Newspaper and
Mr Nose Best have to make an apology with explanation to Mr Buzzy Body as to escape liability.

Thirdly, Mr Nose Best may use the defence of justification. Once the defamatory statement is proven
to be true, the law will not protect the plaintiff. In the case S Pakianathan v Dr Jenni Ibrahim, the
defendant alleged that the plaintiff had committed a criminal breach of trust amounting to
RM70000. The court held that the burden rested on the defendant to prove justification. The
defendant was asked to prove the truth of his allegation and it was not sufficient for him to state he
believed that the allegation to be true. So, in the situation where if the allegations made by Mr Nose
Best were true, they have to prove that their statements were the truth as the burden of proof lies
on them. Thus, in order to escape liability of defamation, Mr Nose Best have to provide evidence and
facts, that their statements was actually the truth.

Lastly, the defence of fair comment can be used by Mr Nose Best. It is a defence to an action of
defamation that statement is a fair comment on a matter of public interest. It must be show that the
words must be in the form of comment, be based on true facts,not malicious and concerns on public
interest. Thus, to escape liability, Mr Nose Best have to prove all of these.

As conclusion, if Mr Nose Best and The Express Newspaper managed to prove any of the defences,
they may escape liability towards Mr Buzzy Body.