BASIC ELEMENTS IN DEFAMATORY ACTION

1.   A statement is defamatory ‘if it tends to lower him in the estimation of right thinking members of society generally or if it exposes him to public hatred, contempt or ridicule or if it causes him to be shunned or avoided’ - [see Halsbury Laws of Malaysia, Vol. 2, [2004] Reissue pg 400.

2.   In deciding whether those passages were defamatory, a judge has first to rule on two related questions of law: whether, upon the evidence, the words complained of are reasonably capable of referring to the plaintiff and whether they are reasonably capable of bearing a defamatory meaning in the minds of reasonable persons in the circumstances of the particular case. [see Halsbury Laws of Malaysia, Vol. 2, [2004] Reissue pg 540.

 3.   In Kian Lup Construction v Hong Kong Malaysia Bhd [2002] 7 CLJ    32, it was held:-

“In other words, the plaintiff must prove (3) elements of the tort of defamation, which are:

a)   the plaintiff must show that the statement bears defamatory imputations;

b)   the statement must refer to or reflect upon the plaintiff’s reputation; and

c)   the statement must have been published to a third person by the defendant.

(Please refer also : Ayob bin Saud v. TS Sambanthamurthi [1989] 1 CLJ Rep 321;

4.    In Chok Foo Choo v. The China Press Berhad [1999] 1 CLJ 461 , the Appeal Court has decided that in page 466:

“It cannot, I think, be doubted that the first task of a court, in an action for defamation, is to determine whether the words complained of are capable of being a defamatory meaning. And it is beyond argument that this is in essence a question of law that turns upon the construction of the words published. As Lord Morris put it in Jones v. Skelton [1963] 3 All ER 952 at p. 958:

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be part of the ordinary and natural meaning of words (see Lewis v. Daily Telegraph Ltd [1963] 2 All ER 151]).The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any strict legal rules of construction, would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

In my judgment, the test which is to be applied lies in the question: do the words published in their natural and ordinary meaning impute to the plaintiff any dishonorable or discreditable conduct or motives or a lack of integrity on his part? If the question invites and affirmatives response, then the words complained or are defamatory. (See, J.B. Jeyaratnam v. Goh Chok Tong [1985] 3 MLJ 334.)”

5.        In Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v. Bre Sdn Bhd [1995] 1 LNS 304;   Richard Malanjum J (as he then was) held that in page 4:-

“The approach in the construction of the words complained of is to consider the meaning such words would convey to ordinary reasonable using their knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reasonably draw (see Jones v Skelton [1963] 3 All ER 952; Kemsley v foot [1952] 1 All ER 501; Rajagopal v Rajan [1972] 1 MLJ 45). It is irrelevant what the publisher intended the words complained of to mean (see Capital & Counties Bank v Henty (1882) 7 App Cas 741; Grubb v Bristol United Press Ltd [1963] 1 QB 309; AJA peter v OG Nio & Ors [1980] 1 MLJ 226). It is also irrelevant what the readers understood the words complained of to mean for the purpose of deciding their ordinary and natural meaning. (See JB Jeyaratnam v Goh Chok Tong [1985] 1 MLJ 334). There is also no necessity for a plaintiff to prove falsity of the words complained of once they are found to be defamatory of him (see Abdul Rahman Talib v Seenivasagam & Anor [1965] MLJ 142).

As to whether the words complained of in this case were capable of being, and were, in fact, defamatory of the plaintiff, the test to be considered is whether the words complained of were calculated to expose him to exposed him to hatred, ridicule or contempt in the mind of a reasonable man or would tend to lower the plaintiff in the estimation of right-thinking members of society generally (see JB Jeyaretnam). Mohamed Azmi J (as he then was) in Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56 at p 58 said:

Thus, the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? The typically type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.

Words could still be defamatory even if they did not really lower a plaintiff in the estimation of those to whom they were published. The law looks only to its tendency (see JB Jeyaratnam v Goh Chok Tong; Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Bhd & Anor).