Defamation vs Freedom Of Speech In Malaysia

• Published date: 04 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Kevin Wu & Associates
• Author: Ms Nurin Husnina

Pursuant to Article 10(1)(a) of the supreme law of the land viz. the Federal Constitution, it is well enunciated that every citizen has the right to freedom of speech and expressions. Be that as it may, every general rule comes with exceptions and/or certain restrictions to avoid any rights from being abused. Article 10(2)(a) further states that the parliament may impose such restrictions as it deems necessary or expedient to provide against contempt of court, defamation, or incitement to any offence.

The above essentially and fundamentally means that the freedom of speech and expression are undeniably constitutional rights, which have its own limitation. It may be both timely and imperative to determine the parameters of defamation law taking into account its twin objectives of protecting reputation and maintaining freedom of speech.

What is defamation?

Defamation is an injury to someone's reputation when he is exposed to hatred, contempt or ridicule which tends to lower him in the esteem of right-thinking members of society or which tends to make them shun or avoid that person.¹ It is worth noting that the Defamation Act 1957 i.e., the statute which governs the defamation law is silent on what constitutes defamatory matter. As such, Malaysian Courts have followed closely development and decision established by the Courts of England & Wales.

What are the types of defamation?

With reference to the case of Dato' Seri S Samy Vellu v Penerbitan Sahabat (M) Sdn Bhd & Ors (No 2) [2005] 5 MLJ 539, it is well enunciated that there exist two types of defamation which are libel and slander. Libel consists of defamatory statement made in some permanent and visible form like writing, printing, pictures, or effigies. Slander on the other hand consists of spoken words, gestures or inarticulate but significant sounds.

It is often said that libel is addressed to the eye while slander is addressed to the ear.² It must therefore be borne in mind that libel is not only an actionable tort but also a criminal offence, whereas slander is a civil matter only. In all cases, libel is actionable per se, whereas in slander cases the burden of proof lies with the plaintiff.

Elements of Defamation

With reference to the case of Chong Swee Huat & Anor v Lim Shian Ghee T/A L & G Consultants & Education Services [2009] 4 CLJ 113, the Court of Appeal ruled that it is trite that in any action for libel, the Plaintiff must prove that the matter complained of: -

1. is defamatory;
2. has been...