Topic 6 Protection of Reputation
1. Discuss how a person’s 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 person’s 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, reader’s 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
Defamation is the
publication of a statement which reflects on a (1998) 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 A defamatory
statement is one which injures the reputation of (1989) 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
Defamation
made by word
of mouth or
by or at least some permanent
form. 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. ‘
TOPIC 6 PROTECTION OF REPUTATION
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 plaintiff’s 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 Dia 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
A newspaper reported a
magisterial inquiry in
which a named, but insufficient
Detective A was said to be corrupted. It turned out to
be or inaccurate identifiers a
Constable A to
whom the allegation
referred. Two have been given
Detectives A (the
same name) sued
successfully, after
demonstrating that acquaintances thought the
article referred to them. No one has been named, In the
case of Butler v.
John Fairfax Ltd.
(1994), the Sun-
but someone who meets
Herald newspaper published an
article titled Backpack
the description of the
Murders Police Quiz
Socialite, which described
a suspect defamed person claims it whom police
were questioning in
relation to the
Belanglo refers to him/her and Forest backpacker serial murders. A 33 year
old man sued sues 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 In John Fairfax
Group v. Farley
(1993 ), an article
in the named, but the Australian Financial
Review in 1992, defamatory references
defamatory article refers
were made to officials of
the National and
Victorian to a small group
of Farmers Federation and NFF and VFF
officials and their people of whom
the lawyers and
consultants mates. Although
they were not
plaintiff is a member or a
named, six individuals sued, claiming that readers thought representative 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 In
E. Hulton &
Co. v. Jones [1910]
AC 20, an
individual been named. A
real sued successfully
after showing people thought a fictitious
person meeting the
character by the same name in a story was him. fictitious person’s description sues, claiming it refers to him/her
6.4 MEDIA
DEFENCES
Table 6.4 shows examples of media defences.
Table 6.4: Examples of Media Defences
Truth or
Section 8 provides that in an action for libel or slander in
respect Justification 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 plaintiff’s 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 Section
11 provides that a fair and accurate and contemporaneous Proceedings 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 Section 7
provides that a
person who has
published words Disseminator or alleged to be defamatory of another
person may, if he claims that
Unintentional the words
were published by
him innocently in
relation to that
Defamation 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 Section provides
that apology may
be used for
mitigation of mitigation of damages. damages
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 Journalist’s Guide To
Media Law, at p.105.) Fayn
v. Thompson Properties
Pty Ltd (1992)
16 Gazette of
Law and Journalism 24 (Fish’s 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 fish’s 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.
TOPIC 6 PROTECTION OF REPUTATION
Fair and Accurate
Reporting
Justification
Fair Comment
Libel and Slander
Freedom of The
Press
Privilege
Innocent
Disseminator
Sub Judice Contempt
Intentional Contempt
