TOPIC 6 PROTECTION OF REPUTATION
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Discuss how a personÊs reputation is protected;
2. Discuss the dangers of publishing information which may injure the reputation of another; and
3. Apply protection of reputation within the limits of the available
defences.
INTRODUCTION
Defamation law protects a personÊs reputation from unjustifiable attacks. For the
journalist, publisher and broadcaster, the law of defamation presents one of the
greatest perils in their vocation. In Malaysia, the statute on defamation is the
Defamation Act 1957.
For the media, everyone participating in or responsible for the publication of an
article that injures the reputation of a person can be sued. Each communication or
repetition of a defamatory statement is considered a separate cause of action. If a
defamatory statement is considered published in a newspaper, the action can be
brought against the proprietor, editor, author, printer, distributor as well as
vendor. Articles, headlines, photographs, cartoons and other illustrations,
photograph captions, readerÊs letters, all advertisements are vulnerable to
defamation risks.
There are, however, two features of defamation law that protect the media:
(a) False statements are not necessarily defamatory. The law of defamation is
activated only when a false statement actually damages a reputation. It
must lower the victim in the eyes of a right-thinking man.
(b) Truth is an absolute defence no matter how unfair or unnecessary its
revelation is.
The law also reflects certain media disadvantages. The burden of proof is on the
media defendant. A published allegation may be true but the media defendant
carries the burden of proving its truth. Costs and damages for defamatory actions
are very high and unpredictable.
This topic looks at the law of defamation, its ambit of application and how the
media can use the available defences.
6.1 WHAT IS DEFAMATION?
The Defamation Act 1957 does not provide a definition for defamation. Refer to
Table 6.1 for definitions by various scholars.
Table 6.1: Various Definitions of Defamation
Scholars /// Definition
Winfield & Jolowicz (1998) ... Defamation is the publication of a statement which reflects on a
person's reputation and tends to lower him in the estimation of
right thinking members of society generally or tends to make
them be shunned or avoided.
Salmon & Hueston ... The tort of defamation consists in the publication of a false and
defamatory statement concerning another person without
lawful justification.
Dias & Markesinis (1989) ... A defamatory statement is one which injures the reputation of
another by exposing him to hatred, contempt, ridicule or which
tends to lower him in the estimation of right thinking members
of society.
Generally, a defamatory statement is one that, in the circumstances of the
publication, would be likely to make reasonable and respectable people think less
of the plaintiff. The test is often described as „lowering the plaintiff in the
estimation of right thinking members of the society‰ or „expose the plaintiff to
hatred, contempt or ridicule‰ or „cause him to be shunned or avoided‰. It is all a
question of respect and reputation.
For example:
An item on the 8.00pm news reports that Dato' X is involved in corruption
during his reign as the Chief Minister. Dato' X may have a cause of action
against the journalist and the television station his reputation will have been
lowered in the minds of members of society.
A pop magazine reports that Miss S, a pop singer, is too ill to perform at her
next live concert. This is not defamation to suggest that someone is ill.
6.2 TYPES OF DEFAMATION
There are two types of defamation:
(i) Libel; and
(ii) Slander.
Table 6.2 displays the differences between libel and slander.
Table 6.2: Differences between Libel and Slander
Libel << ......>>> Slander
A defamatory statement made in writing at least some permanent form.
Defamation made by word of mouth or by gestures.
Plaintiff may sue for libel despite no Slander must be proven by actual damage.
financial loss.
Section 3 of the Defamation Act 1957:
Provides:
"For the purposes of the law of libel and
slander the broadcasting of words by
means of radio communication shall be
treated as publication in a permanent form."
Defamation, by means of broadcasting is deemed as libel.
6.3 ELEMENTS OF DEFAMATION
There are three elements for defamation. All these three elements must exist
before an action for defamation may succeed:
(a) There must be a publication;
(b) The publication must contain words that are defamatory in nature; and
(c) The words must refer to the plaintiff.
6.3.1 Publication
Publication simply means that the defamatory statement or material must be
made known to some person other than the person to whom it is written or
spoken. Plaintiff must establish that the material complained of has been
communicated to a third person i.e. to someone other than the plaintiff. If the
communication of the imputation is made directly to the person to whom it is
made and there is no third party present at that time, then there will be no
publication for the purposes of defamation.
Figure 6.1: The Art of Selling
Source: http://www.makingthenumbers.com/reprint2.html
For the purpose of this element (publication) to be complete (refer Figure 6.1), the
language used must be understood by the reader or the audience or the third
person mentioned above. For example, a newspaper published a defamatory
article in Mandarin but the newspaper was circulated in a remote Malay village
where no one understood the language. The element of publication is not
satisfied.
Every person who negligently takes part in or authorises the publication of the
defamatory material is liable. Therefore, the writer, editor, publisher, printer,
proprietor, distributor and vendor may be potentially liable. Similarly in a TV or
radio station those who hold the same position as any of those people
mentioned above, could be potentially liable. It is worth noted that in Australia, a
radio station has been held liable for the publication of defamatory material
spoken by a member of the public participating in a „talk-balk‰ session
(regardless whether the interviewer endorses the remark or not).
If a media organisation republishes a defamatory statement, it may be liable for
republication of the defamatory statement and in the case of a live broadcast
interview, liability is imposed on the media because it has simultaneously
published the statement of the person interviewed. The media may also expose
itself to liability for repeating the defamatory statement (hence republishing it)
not withstanding the fact that they might be protected by a defence in the
following situations:
(a) In a situation made by a member of the public and simply reported as a fact
without the media organisation approving or adopting;
(b) A statement is published by the media for the purpose of expressing doubt
to the correctness of the defamatory statement; or
(c) The public is informed by the media of the existence of a defamatory
„rumour‰ or publish the defamatory material via the „letters to the editor‰
column.
In Lee Kuan Yew v. Derek Gwyn Davies & Ors [1990] MLJ 390
The defendant publisher was held liable for defamatory imputations
contained in a statement of a third party which was quoted in an article
published in the Far Eastern Economic Review.
6.3.2 Words Must be Defamatory in Nature
There is no universal test to be applied to determine when statements or words
are defamatory in nature. Generally words are defamatory in nature, if:
(a) It tends to lower the plaintiff in his/her estimation of right thinking
members of society in general;
(b) It exposes him/her to hatred, contempt or ridicule; and
(c) It causes him/her to be shunned or avoided.
In deciding what the words mean for the purpose of defamation, the intention of
the writer or speaker is irrelevant. Whether a statement is defamatory involves
assessing the imputations conveyed by the statement on the reader. The test is
whether under the circumstances in which the statement was published, a
reasonable person to whom the publication was made, would be likely to
understand that the statement is defamatory. The test is its effect on the ordinary,
reasonable reader. This reasonable reader is sometimes referred to as the „control
group‰ or the „hypothetical referees‰. The control group does not necessarily
refer to a particular group nor should it refer to everyone. It is enough that it
refers to an appreciable section of the community. We can also say that this
control group is usually a group of law abiding citizens or average thinking men,
the ordinary reasonable citizen or that of right thinking members of society in
general.
What an ordinary reader thinks may change from time to time. For example, at
one time it is defamatory to call a person „a German‰ or „a gay‰. This might not
be defamatory anymore in certain countries.
In Hasnul bin Abdul Hadi v. Bulat [1978] 1 MLJ 75
The court held that to describe a person „Abu Jahal‰ is a libel.
Words may be defamatory in their natural and ordinary meaning. This refers to
the meaning of words at their face value, together with any inferences an
ordinary man would take in the light of his general knowledge, common sense
and experience. It does not include extrinsic facts passing beyond general
knowledge.
In Ng Cheng Kiat v. Overseas Union Bank [1984] 2 MLJ 140
The plaintiff has a current account with the defendant. The plaintiff claimed
that the defendant refused to clear two of his cheques which is contrary to his
obligation to do so. The plaintiff further claimed that the defendant
wrongfully and with bad faith wrote „Account Closed‰ on the cheques. The
defendant also informed certain people about the plaintiffÊs accounts position.
The defendant denied that the statement „Account Closed‰ is defamatory. The
court held that the statement is defamatory of the plaintiff.
In Luk Kai Lam v. Sim Ai Leng [1978] 1 MLJ 214
The statement, „Eh, apakah yang hendak dibanggakan tentang diri awak?
Siapakah yang tidak tahu bahawa awak menerima tetamu di bilik atas dengan
bayaran RM50 setiap kali. Pelacur‰ dan „Siapa yang tidak tahu bahawa dia
dan Sia tinggal bersama di rumah penjagaan selama setahun sebelum mereka
berkahwin‰ is defamatory in nature.
Often the words used by the defendant will appear innocent in themselves, but
have a hidden meaning which would be recognised in the light of other facts.
This hidden meaning is called innuendo. In this situation the plaintiff will have to
show that the words complained are not defamatory in themselves, but become
defamatory in the light of certain facts known to certain people.
In Tolly v. Fry [1931] All ER 131
The plaintiff, an amateur golfer, was depicted in an advertisement for the
defendants chocolates. He successfully showed that certain people familiar
with the golfers world would think that he had been paid for the advertisement
and that he has prostituted his amateur status.
6.3.3 The Words Must Refer to the Plaintiff (Identification)
The defamatory statement must refer to the plaintiff. It is not necessary to prove
that the defendant has the intention to defame the plaintiff. The plaintiff needs to
prove that the words published refer to the plaintiff. If the publication does not
specifically name the plaintiff, the plaintiff would need to demonstrate that
people interpreted it as referring to the plaintiff. Table 6.3 shows some examples.
Table 6.3: Examples of Defamatory Statements
A person has been named, but insufficient or inaccurate identifiers have been given <<.>> A newspaper reported a magisterial inquiry in which a
„Detective A‰ was said to be corrupted. It turned out to be a „Constable A‰ to whom the allegation referred. Two
„Detectives A‰ (the same name) sued successfully, after
demonstrating that acquaintances thought the article
referred to them.
No one has been named, but someone who meets the description of the
defamed person claims it refers to him/her and sues <<.>> In the case of Butler v. John Fairfax Ltd. (1994), the Sun-
Herald newspaper published an article titled ÂBackpack
Murders Police Quiz SocialiteÊ, which described a suspect
whom police were questioning in relation to the Belanglo
Forest backpacker serial murders. A 33 year old man sued
the newspaper, claiming friends and relatives had
identified him as the suspect on the basis of identifying
factors listed in the article.
No individual has been named, but the defamatory article refers to a small group of
people of whom the plaintiff is a member or a representative <<....>> In John Fairfax Group v. Farley (1993 ), an article in the
Australian Financial Review in 1992, defamatory references
were made to officials of the National and Victorian
Farmers FederationÊ and NFF and VFF officials and their
lawyers and consultants mates. Although they were not
named, six individuals sued, claiming that readers thought
the article referred to them. The courts have decided to
view such cases in terms of the size of the class being
defamed, the generality of the charge made and the
extravagance of the accusation, with each case considered
according to its own circumstances. The test is whether
ordinary, reasonable individuals would believe the
defamatory statements referred to the plaintiffs.
A fictitious character has been named. A real person meeting the fictitious person's
description sues, claiming it refers to him/her <<......>> In E. Hulton & Co. v. Jones [1910] AC 20, an individual sued successfully after showing people thought a fictitious character by the same name in a story was him.
6.4 MEDIA DEFENCES
Table 6.4 shows examples of media defences.
Table 6.4: Examples of Media Defences
Truth or Justification <>> Section 8 provides that 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 that the
truth of every charge is not proven if the words not proved to be
true do not materially injure the plaintiffÊs reputation having
regard to the truth of the remaining charges.
Fair Comment <<>> Section 9 provides that in an action for libel or slander in respect
of words consisting partly of allegations of fact and partly of
expression of opinions defence of fair comment shall not fail by
reason only 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.
Privilege <<..>> Qualified privilege of newspaper is provided in Section 12
Reports of Judicial Proceedings <<.>> Section 11 provides that a fair and accurate and contemporaneous
report of proceedings publicly heard before any court lawfully
exercising judicial authority 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. However, nothing in this section
shall authorise the publication of any blasphemous, seditious or
indecent matter or any matter the publication of which is
prohibited by law.
Innocent Disseminator or Unintentional Defamation <<.>> Section 7 provides that 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 if the offer is not accepted by the party aggrieved, it
shall be a defence.
Apology in mitigation of damages <<.>> Section provides that apology may be used for mitigation of
SELF-CHECK 6.1
1. What is the difference between libel and slander?
2. What are the elements of defamation?
3. How can you be protected against a defamation suit?
ACTIVITY 6.1
1. Read the cases Mohamed Azwan Ali and Normala Samsudin and
examine the reasons for the outcome of the two cases.
2. Discuss the implications of the publication from the case below.
(Extract of case taken from Mark Pearson, The JournalistÊs Guide To
Media Law, at p.105.)
Fayn v. Thompson Properties Pty Ltd (1992) 16 Gazette of Law and
Journalism 24 (FishÊs Arse Case)
Facts:
The fashion industry magazine Ragtrader published a report on the
plaintiff's company, which included this passage:
„Although there are a few surprises in business failures these days,
Morrie's mahulla raised eyebrows. He was known to have something
in common with a fishÊs rear end when it came to spending. He was
high priest of the low-priced dress and his sons seemed to be doing it
steady in T-shirts and the like.‰
? Defamation law is an important area of law to those involved in the
communications industry. The understanding of its elements and the
available defences help reduce the risk of being sued.
? Three elements of defamation are publication, nature of the words and
reference to the plaintiff.
? Defences available to the media are justification, fair comment, privilege,
innocent disseminator and apology.
Fair and Accurate Reporting
Justification
Fair Comment
Libel and Slander
Freedom of The Press
Privilege
Innocent Disseminator
Sub Judice Contempt
Intentional Contempt
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Discuss how a personÊs reputation is protected;
2. Discuss the dangers of publishing information which may injure the reputation of another; and
3. Apply protection of reputation within the limits of the available
defences.
INTRODUCTION
Defamation law protects a personÊs reputation from unjustifiable attacks. For the
journalist, publisher and broadcaster, the law of defamation presents one of the
greatest perils in their vocation. In Malaysia, the statute on defamation is the
Defamation Act 1957.
For the media, everyone participating in or responsible for the publication of an
article that injures the reputation of a person can be sued. Each communication or
repetition of a defamatory statement is considered a separate cause of action. If a
defamatory statement is considered published in a newspaper, the action can be
brought against the proprietor, editor, author, printer, distributor as well as
vendor. Articles, headlines, photographs, cartoons and other illustrations,
photograph captions, readerÊs letters, all advertisements are vulnerable to
defamation risks.
There are, however, two features of defamation law that protect the media:
(a) False statements are not necessarily defamatory. The law of defamation is
activated only when a false statement actually damages a reputation. It
must lower the victim in the eyes of a right-thinking man.
(b) Truth is an absolute defence no matter how unfair or unnecessary its
revelation is.
The law also reflects certain media disadvantages. The burden of proof is on the
media defendant. A published allegation may be true but the media defendant
carries the burden of proving its truth. Costs and damages for defamatory actions
are very high and unpredictable.
This topic looks at the law of defamation, its ambit of application and how the
media can use the available defences.
6.1 WHAT IS DEFAMATION?
The Defamation Act 1957 does not provide a definition for defamation. Refer to
Table 6.1 for definitions by various scholars.
Table 6.1: Various Definitions of Defamation
Scholars /// Definition
Winfield & Jolowicz (1998) ... Defamation is the publication of a statement which reflects on a
person's reputation and tends to lower him in the estimation of
right thinking members of society generally or tends to make
them be shunned or avoided.
Salmon & Hueston ... The tort of defamation consists in the publication of a false and
defamatory statement concerning another person without
lawful justification.
Dias & Markesinis (1989) ... A defamatory statement is one which injures the reputation of
another by exposing him to hatred, contempt, ridicule or which
tends to lower him in the estimation of right thinking members
of society.
Generally, a defamatory statement is one that, in the circumstances of the
publication, would be likely to make reasonable and respectable people think less
of the plaintiff. The test is often described as „lowering the plaintiff in the
estimation of right thinking members of the society‰ or „expose the plaintiff to
hatred, contempt or ridicule‰ or „cause him to be shunned or avoided‰. It is all a
question of respect and reputation.
For example:
An item on the 8.00pm news reports that Dato' X is involved in corruption
during his reign as the Chief Minister. Dato' X may have a cause of action
against the journalist and the television station his reputation will have been
lowered in the minds of members of society.
A pop magazine reports that Miss S, a pop singer, is too ill to perform at her
next live concert. This is not defamation to suggest that someone is ill.
6.2 TYPES OF DEFAMATION
There are two types of defamation:
(i) Libel; and
(ii) Slander.
Table 6.2 displays the differences between libel and slander.
Table 6.2: Differences between Libel and Slander
Libel << ......>>> Slander
A defamatory statement made in writing at least some permanent form.
Defamation made by word of mouth or by gestures.
Plaintiff may sue for libel despite no Slander must be proven by actual damage.
financial loss.
Section 3 of the Defamation Act 1957:
Provides:
"For the purposes of the law of libel and
slander the broadcasting of words by
means of radio communication shall be
treated as publication in a permanent form."
Defamation, by means of broadcasting is deemed as libel.
6.3 ELEMENTS OF DEFAMATION
There are three elements for defamation. All these three elements must exist
before an action for defamation may succeed:
(a) There must be a publication;
(b) The publication must contain words that are defamatory in nature; and
(c) The words must refer to the plaintiff.
6.3.1 Publication
Publication simply means that the defamatory statement or material must be
made known to some person other than the person to whom it is written or
spoken. Plaintiff must establish that the material complained of has been
communicated to a third person i.e. to someone other than the plaintiff. If the
communication of the imputation is made directly to the person to whom it is
made and there is no third party present at that time, then there will be no
publication for the purposes of defamation.
Figure 6.1: The Art of Selling
Source: http://www.makingthenumbers.com/reprint2.html
For the purpose of this element (publication) to be complete (refer Figure 6.1), the
language used must be understood by the reader or the audience or the third
person mentioned above. For example, a newspaper published a defamatory
article in Mandarin but the newspaper was circulated in a remote Malay village
where no one understood the language. The element of publication is not
satisfied.
Every person who negligently takes part in or authorises the publication of the
defamatory material is liable. Therefore, the writer, editor, publisher, printer,
proprietor, distributor and vendor may be potentially liable. Similarly in a TV or
radio station those who hold the same position as any of those people
mentioned above, could be potentially liable. It is worth noted that in Australia, a
radio station has been held liable for the publication of defamatory material
spoken by a member of the public participating in a „talk-balk‰ session
(regardless whether the interviewer endorses the remark or not).
If a media organisation republishes a defamatory statement, it may be liable for
republication of the defamatory statement and in the case of a live broadcast
interview, liability is imposed on the media because it has simultaneously
published the statement of the person interviewed. The media may also expose
itself to liability for repeating the defamatory statement (hence republishing it)
not withstanding the fact that they might be protected by a defence in the
following situations:
(a) In a situation made by a member of the public and simply reported as a fact
without the media organisation approving or adopting;
(b) A statement is published by the media for the purpose of expressing doubt
to the correctness of the defamatory statement; or
(c) The public is informed by the media of the existence of a defamatory
„rumour‰ or publish the defamatory material via the „letters to the editor‰
column.
In Lee Kuan Yew v. Derek Gwyn Davies & Ors [1990] MLJ 390
The defendant publisher was held liable for defamatory imputations
contained in a statement of a third party which was quoted in an article
published in the Far Eastern Economic Review.
6.3.2 Words Must be Defamatory in Nature
There is no universal test to be applied to determine when statements or words
are defamatory in nature. Generally words are defamatory in nature, if:
(a) It tends to lower the plaintiff in his/her estimation of right thinking
members of society in general;
(b) It exposes him/her to hatred, contempt or ridicule; and
(c) It causes him/her to be shunned or avoided.
In deciding what the words mean for the purpose of defamation, the intention of
the writer or speaker is irrelevant. Whether a statement is defamatory involves
assessing the imputations conveyed by the statement on the reader. The test is
whether under the circumstances in which the statement was published, a
reasonable person to whom the publication was made, would be likely to
understand that the statement is defamatory. The test is its effect on the ordinary,
reasonable reader. This reasonable reader is sometimes referred to as the „control
group‰ or the „hypothetical referees‰. The control group does not necessarily
refer to a particular group nor should it refer to everyone. It is enough that it
refers to an appreciable section of the community. We can also say that this
control group is usually a group of law abiding citizens or average thinking men,
the ordinary reasonable citizen or that of right thinking members of society in
general.
What an ordinary reader thinks may change from time to time. For example, at
one time it is defamatory to call a person „a German‰ or „a gay‰. This might not
be defamatory anymore in certain countries.
In Hasnul bin Abdul Hadi v. Bulat [1978] 1 MLJ 75
The court held that to describe a person „Abu Jahal‰ is a libel.
Words may be defamatory in their natural and ordinary meaning. This refers to
the meaning of words at their face value, together with any inferences an
ordinary man would take in the light of his general knowledge, common sense
and experience. It does not include extrinsic facts passing beyond general
knowledge.
In Ng Cheng Kiat v. Overseas Union Bank [1984] 2 MLJ 140
The plaintiff has a current account with the defendant. The plaintiff claimed
that the defendant refused to clear two of his cheques which is contrary to his
obligation to do so. The plaintiff further claimed that the defendant
wrongfully and with bad faith wrote „Account Closed‰ on the cheques. The
defendant also informed certain people about the plaintiffÊs accounts position.
The defendant denied that the statement „Account Closed‰ is defamatory. The
court held that the statement is defamatory of the plaintiff.
In Luk Kai Lam v. Sim Ai Leng [1978] 1 MLJ 214
The statement, „Eh, apakah yang hendak dibanggakan tentang diri awak?
Siapakah yang tidak tahu bahawa awak menerima tetamu di bilik atas dengan
bayaran RM50 setiap kali. Pelacur‰ dan „Siapa yang tidak tahu bahawa dia
dan Sia tinggal bersama di rumah penjagaan selama setahun sebelum mereka
berkahwin‰ is defamatory in nature.
Often the words used by the defendant will appear innocent in themselves, but
have a hidden meaning which would be recognised in the light of other facts.
This hidden meaning is called innuendo. In this situation the plaintiff will have to
show that the words complained are not defamatory in themselves, but become
defamatory in the light of certain facts known to certain people.
In Tolly v. Fry [1931] All ER 131
The plaintiff, an amateur golfer, was depicted in an advertisement for the
defendants chocolates. He successfully showed that certain people familiar
with the golfers world would think that he had been paid for the advertisement
and that he has prostituted his amateur status.
6.3.3 The Words Must Refer to the Plaintiff (Identification)
The defamatory statement must refer to the plaintiff. It is not necessary to prove
that the defendant has the intention to defame the plaintiff. The plaintiff needs to
prove that the words published refer to the plaintiff. If the publication does not
specifically name the plaintiff, the plaintiff would need to demonstrate that
people interpreted it as referring to the plaintiff. Table 6.3 shows some examples.
Table 6.3: Examples of Defamatory Statements
A person has been named, but insufficient or inaccurate identifiers have been given <<.>> A newspaper reported a magisterial inquiry in which a
„Detective A‰ was said to be corrupted. It turned out to be a „Constable A‰ to whom the allegation referred. Two
„Detectives A‰ (the same name) sued successfully, after
demonstrating that acquaintances thought the article
referred to them.
No one has been named, but someone who meets the description of the
defamed person claims it refers to him/her and sues <<.>> In the case of Butler v. John Fairfax Ltd. (1994), the Sun-
Herald newspaper published an article titled ÂBackpack
Murders Police Quiz SocialiteÊ, which described a suspect
whom police were questioning in relation to the Belanglo
Forest backpacker serial murders. A 33 year old man sued
the newspaper, claiming friends and relatives had
identified him as the suspect on the basis of identifying
factors listed in the article.
No individual has been named, but the defamatory article refers to a small group of
people of whom the plaintiff is a member or a representative <<....>> In John Fairfax Group v. Farley (1993 ), an article in the
Australian Financial Review in 1992, defamatory references
were made to officials of the National and Victorian
Farmers FederationÊ and NFF and VFF officials and their
lawyers and consultants mates. Although they were not
named, six individuals sued, claiming that readers thought
the article referred to them. The courts have decided to
view such cases in terms of the size of the class being
defamed, the generality of the charge made and the
extravagance of the accusation, with each case considered
according to its own circumstances. The test is whether
ordinary, reasonable individuals would believe the
defamatory statements referred to the plaintiffs.
A fictitious character has been named. A real person meeting the fictitious person's
description sues, claiming it refers to him/her <<......>> In E. Hulton & Co. v. Jones [1910] AC 20, an individual sued successfully after showing people thought a fictitious character by the same name in a story was him.
6.4 MEDIA DEFENCES
Table 6.4 shows examples of media defences.
Table 6.4: Examples of Media Defences
Truth or Justification <>> Section 8 provides that 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 that the
truth of every charge is not proven if the words not proved to be
true do not materially injure the plaintiffÊs reputation having
regard to the truth of the remaining charges.
Fair Comment <<>> Section 9 provides that in an action for libel or slander in respect
of words consisting partly of allegations of fact and partly of
expression of opinions defence of fair comment shall not fail by
reason only 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.
Privilege <<..>> Qualified privilege of newspaper is provided in Section 12
Reports of Judicial Proceedings <<.>> Section 11 provides that a fair and accurate and contemporaneous
report of proceedings publicly heard before any court lawfully
exercising judicial authority 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. However, nothing in this section
shall authorise the publication of any blasphemous, seditious or
indecent matter or any matter the publication of which is
prohibited by law.
Innocent Disseminator or Unintentional Defamation <<.>> Section 7 provides that 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 if the offer is not accepted by the party aggrieved, it
shall be a defence.
Apology in mitigation of damages <<.>> Section provides that apology may be used for mitigation of
SELF-CHECK 6.1
1. What is the difference between libel and slander?
2. What are the elements of defamation?
3. How can you be protected against a defamation suit?
ACTIVITY 6.1
1. Read the cases Mohamed Azwan Ali and Normala Samsudin and
examine the reasons for the outcome of the two cases.
2. Discuss the implications of the publication from the case below.
(Extract of case taken from Mark Pearson, The JournalistÊs Guide To
Media Law, at p.105.)
Fayn v. Thompson Properties Pty Ltd (1992) 16 Gazette of Law and
Journalism 24 (FishÊs Arse Case)
Facts:
The fashion industry magazine Ragtrader published a report on the
plaintiff's company, which included this passage:
„Although there are a few surprises in business failures these days,
Morrie's mahulla raised eyebrows. He was known to have something
in common with a fishÊs rear end when it came to spending. He was
high priest of the low-priced dress and his sons seemed to be doing it
steady in T-shirts and the like.‰
? Defamation law is an important area of law to those involved in the
communications industry. The understanding of its elements and the
available defences help reduce the risk of being sued.
? Three elements of defamation are publication, nature of the words and
reference to the plaintiff.
? Defences available to the media are justification, fair comment, privilege,
innocent disseminator and apology.
Fair and Accurate Reporting
Justification
Fair Comment
Libel and Slander
Freedom of The Press
Privilege
Innocent Disseminator
Sub Judice Contempt
Intentional Contempt
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