Defences- defamation
1) Volenti non fit injuria
Normala Samsudin v Keluarga Communication Sdn Bhd: Duty on D to prove such
authorisation or consent was obtained.
Cookson v Haewood: Permission obtained to publish a true statement of P not being
allowed to ride the horses at his club. Defences succeeded.
2) Justification/truth-absolute defence
Institute of Commercial Management United Kingdom v New Straits Times Press
(Malaysia) Bhd: Once the defamatory statement is proven to be true the law will not
protect P.
Workers’ Party v Tay Boon Too: D must justify his allegation by proving its precise truth
Abdul Rahman Talib v Seenivasagam: D must prove the truth of all his allegations which
are defamatory and materially injurious.
Abdul Rahman Talib v Seenivasagam & Anor: D is not required to prove the truth of all
allegations if several allegations are made
o 2 allegations: (1) received money and (2) received favours to his personal
advantage by virtue of being a government minister. D could prove (2) only.
o Defence succeeded.
3) Fair comment
Institute of Commercial Management United Kingdom v New Straits Times Press (Malaysia) Bhd:
Words must be in the form of comment
o Meeran Lebbaik Maullim & Anor v J Mohamed Ismail Marican & The Straits
Printing Works: Allegation that P had robbed the public and kafir – allegation of
fact.
o Lee Kuan Yew v Derek Gwyn Davies & Ors: Test: whether the words are fact or
comment is whether the ordinary and reasonable man, upon being told of the
words, would regard them as a statement of fact or as comment
o Noor Asiah Mahmood v Randhir Singh & Ors: If the facts and comments are so
mixed up that one cannot be distinguished from the other then this defence will
not be available to D.
The comment must be based on true facts
o Mohd Jali bin Haji Ngah v The New Strats Times Press: It is sufficient that the facts
which form the basis of the comment are proven.
The comment must be fair and is not malicious
o Chong Siew Chiang v Chua Ching Geh & Anor: Malice = ill will or spite or some
previous quarrel or bad relationship or any indirect or improper motive in the
mind of D at the time of publication. The comment must be an honest expression
of the writer made in good faith.
o JB Jeyaretnam v Goh Chok Tong: Even though the writer is prejudiced, it would
still constitute a fair comment if a reasonable man would also come to the same
conclusion as the maker of the comment.
o Chong Siew Chiang v Chua Ching Geh & Anor: If it can be proved that D did not
believe that what he published was true, or that he knew the statement to be
false; that is generally conclusive evidence of express malice.
Concerns issue of public interest
o Henry Wong Jan Fook v John Lee & Anor: The comment must be on an issue of
public interest.
o Cargill v Carmichael & Anor: administration of justice- comments on court
proceedings comments on the acts and activities of people who are influential
in a particular society
o Abdul Rahman Talib v Seenivasagam: conduct and acts of ministers
o Pustaka Delta Pelajaran Sdn Bhd v Berita Harian Sdn Bhd: Comments in a
newspaper with regard to the quality and contents of secondary school
textbooks.
o Perunding Alam Bina Sdn Bhd v Errol Oh & Ors: Comments in newspapers that
consultant architects in a project to build additional car-park floors of a hospital
did not comply with building plans
o Ratus Mesra Sdn Bhd v Shaik Osman Majid & Ors: Comments about an invitation
to the public to invest in ostrich farming
4) Privilege
Qualified privilege (statute and common law)
o Statements made between parties who have a mutual interest over the subject
matter of the communication.
o Chop Kim Lee Seng Kee v Yeo Kiat Jin: The maker must generally have a duty to
communicate or inform the recipient of the subject matter of the communication,
and he must honestly believe in the facts published
o John Lee & Anor v Henry Wong Jan Fook: The common interest must be reciprocal
for the defence to succeed.
o Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor: A publication made after the
interest has ceased to exist is therefore not accepted as being published under
privileged circumstances.
Statements made to fulfil a legal, moral or social duty
o John Lee & Anor v Henry Wong Jan Fook: Communication made by a person who
has a legal, social or moral duty to another person who has an interest to receive
the communication is also protected by privilege.
o Abdul Rahman Talib v Seenivasagam & Anor: D’s honest and bona fide belief that
this interest exists, or his belief that he has a duty to make the communication, is
insufficient.
o Stuart v Bell: Test: would a reasonable person, endowed with the standard level
of intellect and who upholds moral principles agree that the communication be
made?
Statements made to relevant authorities in order to settle public nuisance or disputes
o Blackshaw v Lord: must fulfil 2 requirements: there is a duty on the maker to
make that statement for the public benefit; and the person(s) to whom the
statement is made must have a reciprocal interest to receive or have knowledge
of the statement.
o Gould v Dobb & Co Ltd: P claimed remuneration for his wrongful dismissal and D
in response to the claim, made a defamatory statement of P to P’s lawyer. Held:
statement is privileged.
o Joel Salaysay v Medical Laboratory (Pte) Ltd & Anor: Recklessness or malice on
the part of D will defeat the defence of qualified privilege.
Statement made in order to protect one’s own interest or property
o Lee Kuan Yew v JB Jeyaretnam: A statement made by D in order to protect his
interest or his reputation may be covered by privilege, so long as the statement
is made bona fide and is relevant to the allegations made by the other party.
Accurate and fair report of proceedings
o Abdul Rahman Talib v Seenivasagam & Anor: If the report is unclear or forms only
a part of the parliamentary proceedings, which may cause harm to particular
individuals, then the privilege will be withdrawn.
Absolute privilege
Mahadevi Nadchatiram v Thiruchelvasegaram Manickavasegar: An advocate is protected by
absolute privilege if he makes a defamatory statement while in the course of legal proceedings.
Provided – the defamatory words are relevant to the matter at hand, and spoken in good faith
Article 63 Federal Constitution
o Abdul Rahman Talib v Seenivasagam & Anor: The privilege stands even if the statement
is made maliciously during the parliamentary debates and not the repetition of the same
remarks outside Parliament.
