The Basics Of Defamation Law In Malaysia

• Published date: 17 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Libel & Defamation
• Law Firm: MahWengKwai & Associates
• Author: Mr Raymond Mah and Eric Toh

The law presumes that a person is of good character, unless proven otherwise. If a statement about a person is defamatory and affects the reputation of that person in the eyes of the public that person may have a claim for defamation against the maker of that defamatory statement.

The governing legislation for defamation in Malaysia is the Defamation Act 1957 ("Defamation Act"). The Defamation Act only applies to civil claims. The Malaysian law on criminal defamation is governed by the Penal Code (particularly, section 499) and will not be the focus of this article.

This article will provide a brief overview of the meaning of defamation, the elements required to bring a defamation action defences, and the limitation period to bring a defamation claim in West Malaysia.

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What is Defamation?

The Defamation Act does not define the word "defamation". Instead, the definition of "defamation" is to be found in Malaysian case law and the English common law. By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April 1956 in relation to defamation is applicable in Malaysia.

At common law, there are two types of defamation:

1. Libel - defamation in permanent form e.g. written words in articles, newspapers, Facebook posts or Whatsapp messages;
2. Slander - defamation in temporary form e.g. spoken words.

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Statement Must Be Defamatory

For both libel and slander, a defamatory statement is required.

A defamatory statement is a statement that:

• Tends to lower a person in the estimation of right thinking members of society generally;
• Causes a person to be shunned or avoided or to expose him to hatred, contempt or ridicule; or
• Conveys an imputation on a person disparaging or injurious to his office, profession, calling, trade or business.

There are two methods of interpreting the words in an allegedly defamatory statement:

• By their natural and ordinary meaning; or
• By innuendo.

Natural and Ordinary Meaning

The natural and ordinary meaning of words may be ¹

• The literal meaning of the words;
• An implied or inferred or an indirect meaning;
• Any meaning based on general knowledge.

Innuendo

Innuendo is used to describe words which have special meaning only to persons who have knowledge of some special background or facts.

For example, the statement that "Kenny recently purchased a luxurious bungalow worth RM10 million" may not be defamatory under its natural and ordinary meaning. Without knowing more about Kenny, it can be taken to mean that Kenny is a wealthy man who recently made another property investment.

However, for those who know that Kenny is employed as a civil servant, the statement can be understood to mean that Kenny may be engaging in corrupt activities. This is because it is usually difficult for a civil servant to be able to afford such a lavish home.

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Libel and Slander

Libel

In an action for libel, the following elements need to be satisfied:

• There is a defamatory statement made or conveyed by written or printed words or in some other permanent form;
• The defamatory statement concerns the plaintiff; and
• The defamatory statement is published to a person other than the plaintiff

Example:

You are a member of your neighbourhood committee. You receive a message through Whatsapp accusing you of being a troublemaker and a dishonest person, and that Whatsapp group includes many of your neighbours.

Slander

For an action in slander, the following elements need to be satisfied:

• There is a defamatory statement made or conveyed by spoken words, sounds or in some other non-permanent form;
• The defamatory statement concerns the plaintiff;
• The defamatory statement is published to a person other than the plaintiff.

Example:

In an event attended by...