Defamation is a legal concept recognised under the Defamation Act 1957 which aims to protect an individual’s reputation. This right is balanced against freedom of speech, allowing individuals to seek legal redress when defamatory content is published. It is trite that a statement can be considered defamatory if it has a tendency to lower, or adversely affect, a person's reputation; exposes a person to hatred, contempt or ridicule; causes him to be shunned or avoided or injures his reputation in the conduct of his trade or business or professional activity.
Once the elements of defamation have been proven against the purported defamer, several legal defences may be wielded to escape liability. This alert discusses the elements to establish the defences of justification, fair comment and qualified privilege.
Justification
The defence of justification stands as a complete immunity from defamation claims if the impugned statements can be proven to be true, both in substance and fact, irrespective of any malicious intent or bad faith. This is premised by the logic that what is true cannot be defamatory. In this regard, the Court of Appeal in Tan Sri Dr Muhammad Shafee Abdullah v Tommy Thomas & Ors [2018] 12 MLJ 98 held that “one has to live with whatever deeds, be it good or bad or honourable or dishonourable, which one has committed in life. You are what you are so to speak”.
To invoke this defence, the purported defamer has to prove the following:
(a) That the defamatory imputation in the motion is true,
(b) That there is justification for the imputation complained of, and
(c) That the statements in the motion are true.
For this defence to be successful, it is important to note that a defendant cannot rely on his honest believe that the statements were true. Instead, the defendant must establish, justify and/or prove the truth of each alleged defamatory fact as well as demonstrate the accuracy of the basic facts and the inferences drawn from them.
Section 8 of the Defamation Act 1957 states:
“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.”
Section 8 above does not unequivocally provide that partial justification is sufficient. On that note, the Court of Appeal in Liu Thian Leong & Ors v Jee Nyen Chong (sued in his personal capacity and as an office-bearer of the Jawatan Kuasa Dewan Siburan (Siburan Hall Committee) under the provision of s 9(c) of the Societies Act 1966) & Ors [2022] 1 MLJ 420 highlighted that when unproved charges are more serious in nature than the proven charges, the defence of justification will fail.
Fair Comment
The defence of fair comment only applies to comment and not to defamatory statements of fact. To rely on the defence of fair comment, a defendant must establish the following elements:
(a) The impugned statement must take the form of comment and not a statement of fact, although they may consist of or include inferences of fact,
(b) The impugned statement must be based on true facts,
(c) The impugned statement is fair and not malicious, one which a fair-minded person can honestly make based on proven facts, and
(d) The impugned statement concerns an issue or matter of public interest.
(see Henry Wong Jan Fook v John Lee & Anor [1976] 1 MLJ 231)
In this regard, the element of malice essential to support the action is the intention to injure the plaintiff. Such intention will be inferred on proof that the words were calculated to produce actual damage and that the defendant knew that they were false when the defendant published them, or the defendant was reckless as to whether they were false or not (see Shapiro v La Morta [1923] All ER Rep 378).
The defence of fair comment allows for public discourse by enabling individuals to express opinions on matters of public interest. This defence applies as long as the viewpoints are honestly held, based on true facts and presented without malice. Opinions can be exaggerated, obstinate or prejudiced, as long as they are expressed fairly and honestly.
Qualified Privilege
In the leading case of Adam v Ward [1917] AC 309, the defence of qualified privilege was defined as “a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential”.
Qualified privilege functions as a defence that provides legal protection to communicators under circumstances recognised as privileged, provided it is done honestly and without malice despite the statement being prima facie defamatory and untrue. It must be noted that the privilege attaches to the occasion and not the statement.
Two key elements must be shown before one can succeed in relying on the defence of qualified privilege:
(a) The first is there is a legal, moral or social duty to make the statement on the one part, and
(b) There is a corresponding interest to receive it on the other part.
(see Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals [2017] 5 MLJ 413)
Under the law, once qualified privilege is established, the burden is shifted to the plaintiff to show actual or express malice on the part of the defendant in making the impugned publication, which if proven, defeats the defence of qualified privileged.
In Raub Australia Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720 the Federal Court further clarified the meaning of malice in the following terms:
“Malice’ has been judicially interpreted by the courts as being reckless, unreasonable, prejudice or unfair belief in the truth of the statement. ‘Malice’ may be established by showing that the defendant did not believe in the truth of what he uttered.”
The Supreme Court in S. Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173, discussed the issue of malice in the following manner:
“The protection afforded by the law to a publication made on an occasion of qualified privilege is not an absolute protection but depends on the honesty of purpose of the person who makes the publication. If he is malicious, that is, if he uses the occasion for some other purpose than that for which the law gives protection, he will not be able to rely on the privilege.”
As such, an action of deliberately publishing a half-truth statement that presents a false impression of a person which affects the person’s reputation and further expects the reader of the impugned statement to do a further search on the information is conduct actuated with malice. If the whole truth was revealed, it presents a completely different complexion of the published statement when read by readers.
Conclusion
In conclusion, the defences of justification, fair comment and qualified privilege each offer distinct avenues for defendants to protect themselves against defamation claims. These defences illustrate the careful balancing act between protecting one’s reputations and upholding freedom of speech. By delineating the conditions under which these defences apply, the legal framework aims to ensure that parties can seek redress for genuine harm to their reputations while preventing the stifling of legitimate commentary and communication.
1 July 2024