ESSAY ON DEFAMATION

O : According to Lord Atkin in Sim V Stretch said that, ”statement (oral , temporary or permanent) which injuries the reputation of another by exposing him to hatred , contempt and ridicule or which tends to lower him in the esteem of right thinking member of society” Defamation is divided into Libel (written , permanent or visible form) and Slander (oral and temporary ). Libel is actionable per se whereby action can be taken without having to prove any damage. Slander on the other hand is not actionable per se where damage must be proven before action can be taken except imputation of a criminal offences punishable by imprisonment , adultery to a women , imputation of certain contagious disease and imputation calculated to disparage the plaintiff in any “ office , profession or trade”

I : Issues arising out of the fact are whether the words complained of were defamatory ,whether the words referred to the plaintiff, Nona Bedah , whether there is publication to the third party and whether Wan Jelite has any defense towards the case? Each element shall discuss in turn.

P : On the issue of whether the words complained of were defamatory , it was held in Hasnul Abdul Hadi V Bulat Muhamed (1978), ‘ the court held that by calling a person a liar , Abu Jahal , is defamatory. The words of Abu Jahal are actionable and thus the defendant was liable.’ In case of Luk Kai Lam V Sim Ai Leng (1978) , the court held that the words ‘prostitute’ called by defendant and statement that plaintiff had been sleeping with Sia in the nursing home for over a year before they got married is a defamatory.

A : On the fact in the cases , it can be seen that the words complained of must be defamatory as the defendant , Wan Jelita has stated in the Kampung Pisang’s bulletin that words of ‘conservative’ and usage of ‘black magic’ by Nona Bedah to retain her position is considered as defamatory words.

C : It is submitted that based on the ratio in the case of Hasnul Abdul Hadi V Bulat Muhamed and case of Luk Kai Lam V Sim Ai Leng , Wan Jelita had publish a defamatory words towards plaintiff through Kampung Pisang’s bulletin as plaintiff was a conservative leader and had been use black magic to retain her position as a president in Single Mother Association.

P : The second element of defamation is whether words complained of must refer to the plaintiff and it must clearly to plaintiff and not to other person ,real or imaginary. The state or purpose of defendant’s mind is not important. The defendant can held liable where his statement is true of one person but in fact the defamatory of another person of the same name or the same description. The court held that in Newstead V London Express Management ,a news item published had been a defamatory to another Camberwell man about a bigamy. The plaintiff’s contention that the words published could be understood to refer to him was upheld although there are two Camberwell man that resided also in same area.

A :On the fact in this case, the statement of Wan Jelita ‘we need no longer a leader who is conservative’ in the bulletin is referred to Nona Bedah because Nona Bedah had been as a president or leader for four years consecutively in Kampung Pisang.

C : It is submitted that based on case of Newstead V London Express Management , statement of Wan Jelita in the bulletin is understood by all villangers that statement is refers to Nona Bedah. This can damage the reputation of Nona Bedah as the president of SMA The defamation towards Nona Bedah is under Libel,so she can use the article in the bulletin as a prove to the courts.

P : The third element of defamation is whether it is publish to the third party. Publication means ‘making known of defamatory matter after it has been written to some person other than the person of whom it is written’. It is not a publication if it is communication between spouses about the third party. A statement not heard if it is made to a deaf, or a language that not understand or it is obviously referable to the plaintiff is not considered as having published. However, the communication by a third party to one spouse is a publication. It was held that in Theaker V Richardson, the defendant had placed the defamatory letter in the Theaker’s husband letterbox in Manila. The jury found that the defendant liable because it is reasonable that the letter would be opened and read by the plaintiff husband

A : On the fact of the case, Wan Jelita wrote an article in the Kampung Pisang ‘s bulletin stating that “ we no longer need a leader who is conservative and do not use black magic to retain in position. Wan Jelita is liable to defamation because she had published the article to public and it is reasonable that every villagers can read the post.

C : It is submitted that based on the ratio in case of Theaker V Richardson , Wan Jelita had published a defamatory statement through the Kampung Pisang bulletin which can acess by all members of Single Mother Association. In my point of view , Nona Bedah should prove that the post is really exist by printing it out or taking picture.

O : Defences are the method or the way for the defendant ,the people that made the defamatory to the plaintiff, whose had accused in the case and should prove if the defamation is true or not. Besides that , defences also used to protect defendant from legal action taken by plaintiff.

I : The defend arising in several method in the case of fact whether , the Wan Jelita that responsible as a defendant can justification the defamatory to the Nona Bedah , whether fair comment made by Wan Jelita for the Kampung Pisang , whether the defendant’s words is only a privilege about Nona Bedah , whether Wan Jelita can make apology to Nona Bedah and lastly whether Wan Jelita have to offer the amends to Nona Bedah. Under Section 10 , the apology made a defendant may plead the publication of opology was made without malice , the apology was published at the earliest opportunity and that compensation has been paid into court.

A : On the fact of this case , the plaintiff ,Nona Bedah is the president of SMA of Kampung Pisang being upset when the bulletin wrote a defamation about her, that ‘we need no longer a leader who is conservative. We need a new leader who do not need any black magic ‘.The words conservative and black magic show the defamatory because it is refers to Nona Bedah who is holding the position for four years back.

C : The best and safe way in this case,the defendant should make apology to Nona Bedah that stated under Section 10. In my opnion , Nona Bedah totally want Wan Jelita to clear up her name due to defamation made by defendant. The apology is the compensation towards Nona Bedah injuries.


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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.