Defamation.

For those of you who read the newspaper and realise that the issue of defamation was raised recently with regards to whether it can happen in blogs, in homepage, etc... well......... you might ponder over the points that is stated in the newspaper and question the same question , i.e. what amount to defamation. Hmm... well... If I am not mistaken, I did touched this issue in one of my previous blog. However, may be I should just give you a bit of information about defamation here.

What is defamatory?

In the case of Sim v Stretch (1936) 52 TLR 669, it states that "Defamation consists of the publication of material which reflects on a person's reputation so as to lower the plaintiff in the estimation of right thinking members of society generally, or which would tend to cause him to be shunned or avoided.

As such, vulgar abuse which is spoken in the heat of an argument, was intended and understood by the people who heard the words as mere insult, is not defamatory according to the case of Parkins v Scott (1862) 1 H & C 153. However, it will depends on the manner in which the words were spoken. In this instant, the defendant must prove that a reasonable man would not have understood his words as defamatory rather than abuse.

According to the case of Dunlow Rubber Co. Ltd v Dunlop [1921] 1 AC 367, a statement is defamatory if it exposes the plaintiff to ridicule or contempt, even in the absence of an imputation of misconduct.

Elements:

1. The defamatory statement must refer to the plaintiff althought it need not be express nor have any key or pointer in the statement to indivate it is directly refer to the plaintiff.

In Morgan v Odhams Press Ltd [1971] 1 WLR 1239, it states that special facts which are known only to certain readers which would identify the plaintiff satisfied the first element above.

In Hayward v Thompson [1982] QB 47, it states also that where a defamatory statement does not refer to the plaintiff, he is entitled to rely on a subsequent publication by the defendant identifying the plaintiff with the defamatory words.

In general therefore, a defendant is liable for work of fiction which is reasonably understood to refer to the plaintiff, even if the author did not know of his existence.

2. Publication

The defamatory matter must have been communicated to some person other than the plaintiff.

Where defamatory matter is contained in a book, a journal or a newspaper there will be a series of publications. In this instance, it includes Internet, Blogs, Homepages, Website, etc. etc.

Now, some of you might ask what is Libel and what is Slander. Let me give you a little definition of both of it.

Libel: A defamatory statement which is in a permanent form such as writing or pictures, or even a waswork figure (Monson v Tussauds Ltd [1894] 1 QB 671.

Slander: A defamatory statement which takes it form of spoken words, gestures or mimicry.

The different between them is between permanent and transient form.

For example:

Dictating a defamatory letter to a typist is probably slander but when the letter is published to a third party, it is libel.

Forrester v Tyrrell (1893) 9 TLR 257 states: someone who reads out a libellous letter to a third party commits libel and not slander.

Broadcasting for general reception by either radio or telvision is libel.

Films with accompanying sounds are libel, at least so fast as teh visual part is concerned. (Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581.

Another differences is that Libel is actionable per se, without proof of damage, whereas in slander the plaintiff must prove special damage, except in four types of cases as follow: -

(a) The imputation of a criminal offcen punishable by improsonment in the first instance, as opposed to the possibility fo imprisonment for the non-payment of fine, as in Ormiston v Great Western Railway co.[1917] 1 KB 598;

(b) The imputation of an existing contagious disease, including veneral disease, leprosy or plague;

(c) The imputation of unchastity or adultery to any women or girl; and

(d) An imputation as to the plaintiff's competence or fitness in any office, profession, calling, trade or business.

Special damages means the loss of some temporal or material advantage which is either pecuniary or capable of being measured in pecuniary terms.

As of other laws, there are defences that is available for the law of defamation.

1. Truth (or justification)

The defendant can prove that he is honestly and reasonably belief that the statement was true.

2. Privileges (which I do not wish to elaborate this point here, it's too lengthy) : Absolute privilege, Parliamentary proceedings, Judicial proceedings, Official communications, qualified privilege, etc.

3. Fair comment

The defence of fair comment protects honest expressions of opinion on matters of public interest. Just as what our Prime Minister stated, that according to our freedom of speech stated in Federal Consitituion, therefore, this defence is very much important. Althought we do exercise freedom of speech in our country, but the following much be carefully observed.

(a) It must be a comment on a matter of public interest;

(b) It must be a statement of opinion, not fact; and

(c) It must be 'fair', which in this context means honest.

What is public Interest? Public interest is whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.

What is 'fair' comment? According to Cohen v Daily telegraph Ld [1968] 1 WLR 916, to be fair, comment must be based upon true facts which are inexistence when the comment is made. Comment must be the defendant's genuine opinion and honest.

I hope the above information is good enough for you to understand and examine if you blog is of any defamatory to others. Well, .... if you still have question, you do know what to do. hahaha....

I only manage to give you a very brief information about the law of defamation. Of course there are lot of details which you might want to seek advice from a qualified person (Advocate & Solicitor) instead. Just bear in mind, the above information is just for your pleasure reading and understanding. Doesn't in any way, trying to solve any legal issue that you might be facing. If you do have a legal issue, it's time to look for a lawyer or Advocate & Solicitor if you are in Malaysia.

As a reminder also, that... think twice or even trice when you write something on your blog. hahaha....

- enjoy blogging-