TORT OF DEFAMATION

ZULAMIRUL AIMAN BIN ZULKIFLI

CASE STUDY

Senah and Milah dream to be famous actresses. They took part in a reality program "Pilihpilih". Milah became the champion and Senah won the second place. Senah was not satisfied with the result and revealed to the press that Milah's victory was due to her close relationship with one of the judges. The next day the press published Senah's statement in its front page. Milah was upset as the allegations made by Senah were false.

Advise Milah on possible legal action against Senah.

Defamation can be defined in case Sim v Strech,  Lord Atkin stated that a statement whether oral, temporary or permanent which injure a person’s reputation by exposing  him to hatred, contempt and ridicule or which tends to lower him in the esteem of right thinking members of society. Defamation divided into libel and slander, libel refer as written, permanent or visible form while slander refer oral and temporary form. However , there are exception for slander are imputation of criminal offence punishable by imprisonment, imputation of unchastity or adultery to a women or a girl, imputation of certain contagious diseases and imputation calculated to disparage the plaintiff in any “office, profesion or trade” . In order to prove claim action as defamation, there are certain elements of defamation that should be fulfil are words complained of must be defamatory, words complained of must be refer to the plaintiff and there are publications to the party.

First element of defamation is words complained must be defamatory, in order to claim damges, the plaintiff must prove that the words complained of are defamatory. Words which are merely abusive, however crude and hurtful, cannot be considered as defamation. As in case Hasnul Abdul Hadi v Bulat Muhamed, the court held that by calling a person a liar, Abu Jahal is defamatory. The words of Abu Jahal are actionable per se and thus, the defendant was liable. As in case Dato’ Musa Hitam v S.H Alattas, the defendant says in an article in challenge “ Siapa Lawan Siapa ” that Dato’ Musa is responsible for killing 14 innocent Muslim in a incident in Memali . The defendant was liable as the words content defamatory words.

In case Senah v Milah, the defendant had  threw out word like Milah's victory was due to her close relationship with one of the judges . The word is defamatory because Senah’s words cause Minahreputations became down and bad. The words also make Milah suffered mental breakdown and  upset.

Second elements is words complained of referred to the plaintiff. In order to claim as defamations,  the plaintiff must prove that the words complained of are refer clearly to the plaintiff. It state of the defendant’s mind is not relevant. It also can be consired as defamation as if it refers to another person who has the same description, name, address and place. As in case Newstead v London Express Newspaper, local newspaper published a letter denouncing the alleged acruelty with which factory workers were treated. The verdict in favour of the owner of the factory was upheld because there were special circumtancess which enabled the court to identity the factory belonging to the palintiff. The plaintiff.  As in case Le Fanu v Malcomnson, in this caseit has been stated that the factory worker’s is been treated. However court held that the defendant was liable as the factory belongings to the plaintiff.

In case Senah v Milah, the defendant has referred her words to the plaintiff by mention plaintiff’s name in his statement to the press. The defendant’s words is clear and understanding most likely refer to the plaintiff .

Third element is there is publication to the third party. Publication means ‘ making known the matter of defamation to the other person ’. The communication between spouses about the third party is not considered as publication. However, a communication between the third party and the spouses is considered as publication.  As in case Theaker v Richardson,  a letter consists of defamatory words has been made in a letter and put in the letter box. Its envelope which is similar with the election materials. The plaintiff’s husband that open the letter and read it as he assumes that the letter is election material. So, the court held that the defendant is liable. As in case Anwar Ibrahim v Abddul Khalid Bakar Shah & Anor, the plaintiff was a Deputy Prime Minister, sometime in 1988. The defendant has wrote a book title “50 Dalil Mengapa Anwar Tidak Boleh Jadi PM? ” and distributes the book to all people who attend1988 UMNO General Assembly Meeting. The content of the book is not true about Anwar. That is why Anwar wanted to sue the defendant. The court held that the defendant was liable.

As in case Senah v Milah, the defendant had commit a defamatory words to the plaintiff by gives a statement to the press “Milah's victory was due to her close relationship with one of the judges. The next day the press published Senah's statement in its front page ”. The defamatory words by the defenfant had been publish by press to the public people and  defendant reputation’s go down.

In this cases,  the defendant  (Senah) had fulfill element of demafatory are words are defamatory words by said the plaintiff  (Milah) had close relationship with one of the judges due that she win on that competititon, words refer defamatory words to the plaintiff by mention plaintiff words to the press “Milah's victory was due to her close relationship with one of the judges ” and there was a publication because the defendant make that statement to the press and next day it came out on the front page.

In this cases , the plaintiff (Milah) had suffered a bad reputation due action of defendant so that it shall give right to plaintiff to claim this action as defamatory and plaintiff can take an action on the defendant.

There are defences that the defendant can made on the plaintiff under section 10 – Apology. The defendant can apologizes to the plaintiff and make sure that the word did not have any make or gross negligence.

To conclude, Milah can claim for defamation ( libel ) as all the three elements of the defamation has been fulfilled.