Defences to Defamation: Development of Law 2014 – 2026

Abstract

This article provides a comprehensive analysis of the evolution of defamation law in Malaysia between 2014 and 2026, with a specific focus on the development and application of key defences available to defendants in defamation suits. These include justification, fair comment, absolute privilege, and qualified privilege. Drawing upon landmark Federal Court decisions, the article highlights the nuanced interpretation of these defences and their interplay with constitutional rights such as freedom of expression. The discussion critically examines how Malaysian courts have adapted traditional common law principles to contemporary challenges, including media freedom, public interest, and political speech. The article concludes with recommendations to enhance legal clarity and encourage responsible communication, such as public legal education, stronger editorial guidelines, alternative dispute resolution, and potential statutory reforms. In doing so, it aims to contribute to a more balanced and robust framework for managing reputational harm in the digital age.

Keywords

Defamation law, Malaysia, justification, fair comment, absolute privilege, qualified privilege, media law, freedom of expression, reputation, legal reform, Federal Court, Defamation Act 1957

Introduction

The law in Malaysia protects many areas of a person’s life, and one of the most important is personal reputation. Everyone has a right to have their reputation protected. If a statement is made about a person that badly affects how others see them, it is known in law as defamation, and a claim may be made against the maker of the statement. The Defamation Act 1957 does not define the word “defamation”. Halsbury’s Laws of Malaysia defines defamation as statements which tend to lower a person’s reputation in the eyes of right-thinking members of society, to cause a person to be shunned or exposed to hatred, contempt or ridicule, or to cast an imputation on him which is injurious to his office, profession or trade. By virtue of section 3 of the Civil Law Act 1956, the common law of England as at 7 April 1956 applies in Malaysia in relation to defamation.

In Wong Yoke Kong & Ors v Azmi M Anshar & Ors,¹ Heliliah Yusof J referred to Carter-Ruck on Libel and Slander (5th edition), which states that the essential requirements for an action in defamation are that the matter complained of must be defamatory, that it must refer to the plaintiff, and that it must have been published to a third person. Only if the plaintiff proves these requirements must the defendant defend himself in a defamation suit.

The Federal Court in Abu Hassan bin Hasbullah v Zukeri bin Ibrahim² held that the trial judge had erred in not determining whether the three essential ingredients of defamation had been fulfilled before deciding on the defences pleaded by the defendant. Hence, if the plaintiff fails to prove these three ingredients on a balance of probabilities, there is no case that the defendant needs to answer.

If the plaintiff succeeds in proving the elements of defamation, the burden of proof shifts to the defendant to prove his defences. The defences available are governed by the common law and the Defamation Act 1957. Firstly, justification: the defendant must prove that the allegations made are true or substantially true, on a balance of probabilities, that is, that the allegations are more likely than not to be true. Secondly, fair comment: the defendant must establish that the words complained of are comment, though they may consist of or include inferences of fact, that the comment is on a matter of public interest, and that the comment is based on facts truly stated. Thirdly, absolute privilege: this defence holds merit if the impugned statement is published in connection with judicial proceedings. Lastly, qualified privilege: this form of qualified privilege extends to all publishers of material in the public interest. To succeed, the defendant is required to satisfy the public interest test and the responsible journalism test. Therefore, if the defendant does not have a valid defence, the claim will succeed. It is important for us to know our right to defend a defamation suit.

Defences to Defamation

Justification

The defence of justification, or truth, simply means that the published statements or allegations are true, and it is an absolute defence if successfully proven. Once the defamatory statement is proven to be true, the law will not protect the plaintiff.³ The defendant’s state of mind at the time of publication is irrelevant. If the truth of a defamatory statement can be proven, it will serve as a complete defence, regardless of whether the statement was made with malice or bad faith. The publisher may still succeed if the words are “found to be true and accurate for the greater part of it”, even if the publication is not entirely accurate.⁴

To plead the defence of justification successfully, the burden of proof lies on the defendant to prove his allegations.⁵ The defendant is required to prove that the published statements or allegations are true. In Abdul Rahman Talib v Seenivasagam & Anor [1965],⁶ Hepworth J held that, to establish a plea of justification, the defendant must prove that the defamatory statements or allegations are true. It is not enough merely to prove that the defendant believed the statements or allegations to be true and published them as his belief only.

Section 8 of the Defamation Act 1957 provides that a defendant can raise a defence of justification in a defamation suit. If the words contain several distinct allegations, the defendant is not required to prove the truth of all of them. An application of this section can be seen in Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor.⁷

In this case, the defamation suit was brought by the plaintiffs, Mohamad Salleh bin Ismail (the first plaintiff) and his family, against the first defendant (D1), Zuraida Kamaruddin, who was a Member of Parliament. D1 held a press conference in which she made statements alleging a conflict of interest involving the first plaintiff’s wife, Shahrizat Abdul Jalil, who was a former Member of Parliament for the same constituency. The controversy centred on the purchase of eight condominium units in the KL Eco City project by the first plaintiff’s family, which allegedly involved the misuse of a soft loan from the National Feedlot Corporation (NFC). The plaintiffs claimed that these statements were defamatory, damaging their reputation by implying that they had misused public funds and abused their power.

The trial judge ruled in favour of the defendant, Zuraida Kamaruddin, holding that the statements made during the press conference were not defamatory when considered in the context of addressing matters of public concern and accountability, rather than directly targeting the first plaintiff, Mohamad Salleh, and his family. Additionally, the trial judge found that even if the statements were defamatory, the defence of justification applied, as the court found substantial truth regarding the conflict of interest and the use of NFC funds, while the plaintiffs failed to prove malice or falsity. The Court of Appeal upheld the trial judge’s decision, agreeing that the statements were not defamatory and that the defence of justification was valid. The court emphasised a holistic approach to interpreting the press conference, determining that the overall context mitigated the alleged defamatory impact.

The defence of justification requires the defendant to prove that the statements made were substantially true. First, the court found substantial truth in the claims about the conflict of interest involving Shahrizat Abdul Jalil’s participation in the KL Eco City project and the subsequent purchase of units by Mohamad Salleh’s family. Secondly, Zuraida provided bank documents suggesting that a deposit from the NFC soft loan had been used as leverage for loans to purchase the condominium units. Although Mohamad Salleh denied using these funds, he failed to provide convincing evidence or documentation to refute Zuraida’s claims. Additionally, Zuraida’s statements were framed as a call for accountability and transparency regarding the displacement of residents and the financial dealings in the development project. This context supported the defence of justification, as her comments were based on issues of public interest. Ultimately, the plaintiffs’ failure to prove malice or falsehood in Zuraida’s statements further solidified the defence of justification.

In conclusion, the court held that Zuraida Kamaruddin’s statements were not defamatory when viewed holistically and that the defence of justification was successfully established. The plaintiffs’ appeal was dismissed, and they were ordered to pay costs. This case illustrates the importance of context and the necessity for plaintiffs to disprove substantial truth and malice in defamation claims.

Moreover, in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee,⁸ the plaintiff, SYABAS, sued the defendant, Tony Pua, over statements that SYABAS was facing financial difficulties and should return the management rights of the water supply to the Selangor state government. The defendant’s statements included allegations that SYABAS refused to cooperate with the state government, was insisting on a 37% tariff hike, and had initiated legal proceedings to implement the hike. The plaintiff contended that these statements were defamatory, asserting that they implied incompetence and financial instability.

The Court of Appeal upheld the defendant’s plea of justification, which contended that the statements were substantially true. The defendant pleaded the Lucas-Box meaning, which allows a defendant to justify the defamatory statements by proving his own reasonable interpretation of the words. The court agreed with the defendant’s assertion that there were reasonable grounds to suggest that SYABAS was indeed facing financial difficulties. The evidence given by SYABAS’s own chief executive officer during cross-examination confirmed these financial struggles, including lawsuits for non-payment, loans from the Federal Government, and an ongoing reliance on a proposed tariff hike without alternative plans.

For the defence of justification to succeed, the defendant must prove that the statements are substantially true. In this case, the High Court and the Court of Appeal found that the defendant had clearly pleaded the Lucas-Box meaning, effectively communicating the meaning he attributed to the impugned words and providing sufficient particulars to support it. The defendant did not merely plead justification in a general sense but specifically aligned it with the Lucas-Box approach, asserting his own reasonable meanings of the impugned words.

The court found that the defendant’s plea of justification was valid. The evidence from SYABAS’s CEO confirmed the financial difficulties faced by the plaintiff, which supported the defendant’s statements. Therefore, the defendant successfully proved the truth, or substantial truth, of his meanings of the impugned words. The Court of Appeal noted that this evidence allowed the defence under section 8 of the Defamation Act 1957 to succeed.

In conclusion, the court dismissed the appeal, upholding the defence of justification. The defendant’s statements were deemed substantially true based on the evidence of SYABAS’s financial difficulties. The plea of “reasonable grounds for suggesting” was validated as a legitimate form of justification under the Lucas-Box approach, in line with the precedent that the defendant must clearly state the meaning he seeks to justify.

These cases highlight that the defence of justification is robust when substantial truth is established and the context of public interest is considered. The courts emphasise that proving the substantial truth of key allegations is sufficient, particularly when the statements concern issues of significant public interest. This approach aligns with section 8 of the Defamation Act 1957 and ensures that public discourse on critical matters is protected, provided it is grounded in substantial truth.

Fair Comment

Generally, the principle of fair comment is stated in section 9 of the Defamation Act 1957. This section offers a “fair comment” defence in defamation suits where statements contain both factual allegations and opinions. The defence succeeds even if some facts are proven untrue, provided the expressed opinion is demonstrably fair on the proven facts. In JB Jeyaretnam v Goh Chok Tong,⁹ it was held that, to establish the defence of fair comment, four elements must be fulfilled: the words complained of are comment, though they may consist of or include inferences of fact; the comment is on a matter of public interest; the comment is based on facts; and the comment is one which a fair-minded person can honestly make on the facts proved.

The first element is that the words complained of must be comment rather than a statement of fact. In Meeran Lebbaik Maullim & Anor v J Mohamed Ismail Merican & The Straits Printing Works,¹⁰ it was established that the test for this element is whether an ordinary and reasonable man, upon hearing or reading the words, would regard them as a statement of fact or as comment.

The second element is that the comment must be based on true facts. However, it is not essential that all the facts are proven; it is sufficient if the facts which form the basis of the comment are proven. Herschell LC in Davis v Shepstone¹¹ stated that “A comment cannot be fair which is built upon facts which are not truly stated”.

The third element is that the comment must be fair and not malicious. Malice, as defined in Chong Siew Chiong v Chua Ching Geh & Anor,¹² is ill-will or spite, or some previous quarrel or bad relationship, or any indirect or improper motive in the mind of the defendant. This means that the comment must be made in good faith and without any ill intention to injure the person against whom the statement is made.

Lastly, the comment must concern a matter of public interest. Lord Denning in London Artists Ltd v Littler¹³ defined public interest as a matter that affects people at large, so that they may be legitimately interested in, or concerned about, what is going on or what may happen to them or others.

Recently, the Federal Court has delivered several remarkable judgments on the defence of fair comment. The first is Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor.¹⁴ The plaintiff and the first defendant were both former Chief Ministers of Sabah. In a speech published in the Daily Express, Tengku Razaleigh gave an account of a 1976 plane crash which killed everyone on board, including the new Chief Minister, Tun Fuad Stephens, and most of the state’s cabinet ministers. After the death of Tun Fuad, the plaintiff took over as Chief Minister until his party was defeated. Afterwards, the defendants referred to the speech and called for a reinvestigation of the incident. The defendant then issued press statements rebutting the accuracy of the statements made by Tengku Razaleigh. The plaintiff sued the defendants for defamation. He claimed that the articles published by the defendants calling for reinvestigation implied that the plaintiff had conspired to assassinate Tun Fuad in order to become Chief Minister of Sabah. The defendants argued that the call for reinvestigation was prompted by the new evidence in the speech and was not intended to defame the plaintiff. They relied on the defence of fair comment.

The Federal Court held that the defence of fair comment failed. A crucial element of the defence hinged on Tengku Razaleigh’s allegation that the plaintiff had asked him to disembark from the ill-fated aircraft shortly before take-off. The defendants had made no attempt to verify the accuracy of the statements. The court emphasised the defendant’s responsibility to verify new information before drawing negative inferences about the plaintiff. This lack of verification demonstrated a deliberate disregard for investigating the truthfulness of the foundation of the comment. Therefore, since the statement was not based on true facts, the defence of fair comment failed.

Moreover, in Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor,¹⁵ a company director sued a Member of Parliament for defamation over comments made at a press conference. The director claimed that the comments meant he had misused company funds to buy eight condominium units in the KL Eco City project for himself and his family. The respondent relied on the defences of justification, fair comment and qualified privilege. Even though the respondent succeeded in raising the defence of fair comment in the Court of Appeal, the Federal Court found it unnecessary to deal with fair comment, as the defence of justification had been established. The court held that the statement was justified, as RM71.4 million of public funds had been deposited into the appellant’s account at the same bank that granted the loan. Banks typically check financial health before giving loans, and this deposit likely made the company seem creditworthy. The appellant failed to explain how he afforded the condominiums. Based on this, the court held that the respondent’s comments were justified because it seemed likely that company funds were used to obtain the loan. The Federal Court emphasised that, once the defence of justification has been established, there is no necessity to decide the other defences.

Apart from that, in Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli,¹⁶ the second appellant was appointed by the Malaysian Government to implement a national cattle farming project to reduce dependence on imported meat. To launch the project, the government provided an RM250 million loan, some of which was deposited into a fixed deposit account. Some years after the project was launched, a report was tabled in Parliament highlighting a number of failures and weaknesses in the project. A press conference was then held by the respondent, who claimed that the appellants had misused funds by using them as collateral for a personal loan to buy office space with the first appellant’s son. The respondent demanded that the appellants guarantee that the project funds would not be affected if the loan could not be repaid.

In response, the appellants initiated legal action for defamation, seeking compensation for the damage caused to their reputations. They contended that the respondent’s statements carried three defamatory implications. Firstly, the statements suggested that the appellants had misappropriated public funds. This accusation directly targeted the government loan allocated for the project, implying a significant breach of trust and potential financial mismanagement. Secondly, the focus narrowed to the first appellant, the chairman and director of the second appellant. The respondent’s words allegedly conveyed that the first appellant had abused his position of power within the second appellant for personal gain. This painted the first appellant as someone who exploited his authority to divert the government loan towards the purchase of eight commercial office units, a clear act of self-interest at the expense of the project’s objectives. Finally, the claim extended to a more personal attack on the first appellant. The respondent’s statements allegedly suggested that the first appellant had improperly leveraged his marital connection to a former Member of Parliament to secure the acquisition of the eight commercial office units. This implication cast doubt on the second appellant’s business acumen and suggested that he relied on nepotism rather than merit to achieve success.

The main issue in this appeal was whether the respondent was entitled to rely upon the defence of fair comment to defeat the appellants’ claim. It was held that the defence succeeded, as it fulfilled all the elements of fair comment. The court assessed whether the respondent’s inferences, even if critical, were presented fairly, and undertook a multi-pronged approach. Firstly, the court established that Rafizi’s statements were not presented as facts, but as his opinions and inferences drawn from the underlying factual evidence provided in the attachments. Secondly, the court acknowledged the truth of these basic facts, including the bank accounts, deposits and loans. Although a specific loan for the property purchase was ultimately not used, the court considered the initial loan offer relevant when evaluating the fairness of Rafizi’s inferences. Thirdly, the court deemed Rafizi’s inferences about the deposit influencing the loan offer, the misuse of funds and the breach of mandate to be reasonable opinions based on the facts known at the time of the press conference. Furthermore, considering the context of the press conference, which followed the public report, and the absence of malice on Rafizi’s part, the court concluded that his inferences, though critical, were presented fairly in the circumstances. Finally, the court determined that the public’s concern about the project’s financial management, highlighted by the Auditor General’s report and media coverage, established the matter as one of public interest. Since all four elements of fair comment were satisfied, the court ruled in favour of Rafizi, protecting his statements as fair comment rather than defamation.

In conclusion, these recent Federal Court decisions highlight the evolving landscape of the fair comment defence in Malaysia. The Nurul Izzah cases illustrate that establishing justification can render fair comment and qualified privilege moot. Conversely, Mohd Rafizi bin Ramli demonstrates that, even without perfect factual accuracy, comments based on reasonable inferences can still qualify as fair. These judgments offer valuable guidance, ensuring that fair comment fosters robust public discourse without sacrificing a person’s reputation through unfounded accusations.

Absolute Privilege

Where a situation or person is covered by absolute privilege, no action can be brought for statements made, even if they are defamatory. Absolute privilege extends to statements made during parliamentary debates and proceedings, which cannot be questioned in any court of law. An example of this defence is “a fair and accurate and contemporaneous report of proceedings” in court, as well as the “judgment, sentence or finding of such court”. Any reports, papers, votes or other matters that Parliament orders or authorises to be published are also covered by absolute privilege.

By contrast, under section 12(1) of the Defamation Act¹⁷ the publication in a newspaper of any report or other matter mentioned in Part I of the Schedule to the Act is privileged unless the publication is proved to have been made with malice. Item 1(d) states that a fair and accurate report of court proceedings held in the Commonwealth but outside Malaysia is granted qualified privilege. In Joceline Tan Poh Choo v Muthusamy,¹⁸ the court discussed the scope of a fair and accurate report, although the difficulties lay in civil procedure rather than in proving the defence under this section. The court defined “contemporaneous” as meaning that the report is published soon after the proceedings, such as the day after, and extended this to a fortnight later if the publication in which the report appears is a fortnightly publication. In addition, the term “report of judicial proceedings” has been interpreted to include a notice of court action. In Wong Cham Mew v Hong Leong Finance Bhd,¹⁹ the court held that a notice of substituted service for an originating summons is a notice issued in court proceedings, granted by the senior assistant registrar while performing his or her judicial responsibilities.

Section 11(2) of the Act further provides that absolute privilege is lost if the publication is blasphemous, seditious, indecent or prohibited by law. Turning to parliamentary proceedings, in Times Publishing Bhd & Ors v S Sivadas,²⁰ the court held that absolute privilege for proceedings in Parliament covers written opinions by members of the public, made in response to issues raised to the public by a Parliamentary Committee. This privilege stands even if the statement is made maliciously. Hence, any defamatory statement made by a Member of Parliament during a debate in Parliament is not actionable, even if the comments are malicious. As discussed in Abdul Rahman Talib v Seenivasagam & Anor,²¹ this privilege does not extend to the repetition of the same remarks outside Parliament.

In Noor Azman bin Azemi v Zahida bt Mohamed Rafik,²² the respondent, Zahida bt Mohamed Rafik (“Zahida”), was an actress and the appellant, Noor Azman bin Azemi (“Azman”), was her personal driver. Zahida had asked Azman to deposit RM200,000 in cash and a cheque for RM120,000 into her bank account. She was thereafter unable to locate Azman and filed a police report alleging that he had fled with her money. After filing the police report and leaving the station, she was contacted by reporters who inquired about the reason for her visit. She told the reporters that a police report had been filed against Azman and described its contents. This was then taken up by Harian Metro, which published the contents of the police report. Azman then filed a defamation claim against Zahida.

In rejecting Zahida’s defence of absolute privilege, the High Court judge found that she had failed to give any reasonable excuse that necessitated the regurgitation of the police report, and that “pandering to the press” was not an acceptable reasonable excuse. However, the Court of Appeal reversed the High Court’s decision by allowing Zahida’s counterclaim and dismissing Azman’s claim. Hence, the present appeal. Following the decision of the Federal Court in Lee Yoke Yam v Chin Keat Seng,²³ it has been established that statements made in a police report are protected by absolute privilege for public policy reasons, regardless of whether the complainant acted maliciously. Therefore, an action in defamation will not lie against the maker of a police report. However, the question raised in the present case was whether the later publication of a police report (a privileged document) is itself protected by privilege. The Federal Court held that absolute privilege would not apply to the subsequent publication of the contents of the police report to the public, unless the contents were made during or in connection with judicial or quasi-judicial proceedings.

The case shows that a police report is itself protected by absolute privilege, but that a later publication of the report outside legal proceedings is not protected by this privilege.

Apart from that, in Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals,²⁴ the appellant, the President of the Chinwoo Athletic Association, Selangor and Kuala Lumpur, sent letters to the Registrar of Societies (ROS), the Anti-Corruption Agency (ACA), the Commercial Crime Division of the Kuala Lumpur Police (CCD), the Bar Council of Malaysia (BC) and the Disciplinary Board of the BC. These letters accused the respondent, the former President of Chinwoo, who is also an advocate and solicitor, of fraud, misuse of power and breach of trust, and urged the authorities to take appropriate action. The respondent claimed that the letters were defamatory and filed a libel suit against the appellant.

The High Court found that the letters were defamatory, that they were sent without the authorisation of Chinwoo, and that the defences of absolute and qualified privilege did not apply. The lack of authorisation was said to show that the appellant had acted mala fide. Consequently, the court held the appellant liable and awarded general, exemplary and aggravated damages to the respondent. The Court of Appeal upheld the High Court’s ruling, emphasising that the letters were unauthorised, that they were sent without proper authority and without a resolution of an Annual General Meeting (AGM), and that the allegations had not been proven true. The appellant was granted leave to appeal to the Federal Court and posed five issues, including whether the absolute privilege attaching to police reports should also apply to letters sent to the ROS, ACA and CCD; whether authority or mandate is necessary for absolute privilege; whether complaints to the ROS, ACA, CCD and BC are occasions of qualified privilege; and whether malice can be inferred from a failure to take legally unnecessary steps to defeat a qualified privilege defence.

The issue of whether malicious intent may disentitle a person from relying on the defence of absolute privilege was also raised. The Federal Court adopted Lincoln v Daniels,²⁵ which gives higher credence to “truth [being elicited] even at the risk that an injury inflicted maliciously may go unredressed”.

The apex court further held that, for absolute privilege to apply, authority or mandate to make the relevant statements is not a necessary consideration. Thus, the appellant could avail himself of the defence of absolute privilege even if he did not have the mandate to lodge the relevant complaints to the ROS, ACA and CCD.

The application of the defence of absolute privilege was also discussed in Dato Tan Chin Woh v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy.²⁶ The respondent filed a police report alleging that the appellant and a law firm had conspired to cheat him. He also complained to the Advocates and Solicitors Disciplinary Board (DB) about members of the law firm. The appellant claimed that this complaint contained derogatory remarks about him and demanded that the respondent withdraw the complaint, apologise and pay damages. When the respondent did not comply, the appellant sued. The High Court ruled in favour of the appellant, awarding RM230,000 in damages. The respondent appealed, and the Court of Appeal decided that both the police report and the DB complaint were protected by absolute privilege and were therefore not actionable. Thus, the Court of Appeal allowed the respondent’s appeal without costs. The appellant then appealed further, arguing that the Court of Appeal had wrongly applied the defence of absolute privilege, which was not raised at the High Court, and had failed to give him a fair hearing. The respondent maintained that the defence was valid and that the Court of Appeal had authority under section 69(4) of the Courts of Judicature Act 1964 (CJA) to consider any ground of appeal, even if not raised earlier.

On further appeal, it was held that the Court of Appeal, under section 69(4) of the CJA, may consider new points in the interests of justice but must not create new defences that were not raised in the lower courts. Here, the Court of Appeal wrongly substituted absolute privilege for qualified privilege, which was never argued at the High Court, and thereby overstepped its authority. Moreover, the Court of Appeal did not give the appellant a chance to respond to this new defence, in violation of the principles of natural justice. This failure to allow the appellant to argue his case led to a miscarriage of justice. Thus, the Court of Appeal erred in its decision, making it unnecessary to address the other issues raised by the appellant.

In conclusion, the application of absolute privilege in recent cases shows the importance of protecting statements made for the purposes of judicial proceedings. While an individual is immune from liability in defamation because of absolute privilege, it should be noted that the statement or report must be published for judicial purposes or during parliamentary debate. Any publication not aligned with these purposes will not be covered by absolute privilege.

Qualified Privilege

The defence of qualified privilege is provided for through both statute and the common law. Statutory privilege is provided in section 12 of the Defamation Act 1957. Section 12(1) states that, subject to the provisions of that section, “the publication in a newspaper of any such report or other matter as is mentioned in Part I of the Schedule to this Act shall be privileged unless the publication is proved to be made with malice”. Section 13(1) also provides that the provisions of the Act apply in relation to reports or matters broadcast by means of radio communication as part of any programme or service provided by a station within Malaysia. As a result, under section 12, newspapers and television networks may rely on the defence of statutory qualified privilege. If it is discovered that the author or publisher was malicious in publishing, they will forfeit this privilege.

The common law qualified privilege comes next. When a person is able to obtain a privilege from the common law but is unable to derive it from the Act, he may claim this defence. There are five known instances of qualified privilege under the common law, which are discussed below.

a) Statements made between parties who have a mutual interest in the subject matter of the communication. If someone makes a statement to a party who has a common interest in that statement, even if it is defamatory, he is protected by this privilege, and he must honestly believe in the facts published, as in Chop Kim Lee Seng v Yeo Kiat Jin.²⁷ Besides, the common interest must be reciprocal for the defence to succeed. In Aloysius Tan Ting Kai v Ng Hong Kheng & Ors,²⁸ a statement defamatory of the plaintiff in his profession was sent to the President of the Employees’ Union. The Union was in fact not involved with the activities of its senior executives such as the plaintiff, and the plaintiff was not a member of the Union. The court held that the President did not have an interest in receiving a copy of the letter, and the qualified privilege pleaded by the defendant failed. However, where the recipient of the defamatory statement is a trade union which has a contractual agreement with the employers on behalf of its employees, the communication between the union and the employers would be privileged on the ground of mutual interest. The principle is that there must be a reciprocal common interest for this defence to succeed.

b) Statements made to fulfil a legal, moral or social duty. A person who makes a defamatory statement in such a scenario is protected by this privilege. To satisfy this, the defendant must establish all three tests set out in Reynolds v Times Newspapers Ltd:²⁹

1. Duty test: Was the publisher under a legal, moral or social duty to those to whom the material was published, to publish the material?
2. Interest test: Did those to whom the material was published have an interest in receiving that material?
3. Circumstantial test: Were the nature, status and source of the material, and the circumstances of the publication, such that it ought, in the public interest, to be protected, in the absence of proof of express malice?

In Chung Chon Kui v Then Juk Chiew,³⁰ a letter of complaint written by villagers about the poor performance of their Kapitan, addressed to the District Officer, who as a government official oversees the Kapitan’s discharge of duties, was held to be covered by privilege as it satisfied the three-stage test. In Joel Salaysay v Medical Laboratory (Pte) Ltd & Anor,³¹ it was held that recklessness or malice on the part of the defendant will defeat the defence of qualified privilege.

c) Statements made to protect one’s own interest or property. In this instance, the defendant makes a defamatory statement to protect his or her own interest or reputation. In Lee Kuan Yew v JB Jeyaretnam,³² it was decided that, so long as the statement made is relevant to the allegations made by the other party, it is protected by privilege. In Osborn v Boulter,³³ a publican complained to the brewers who supplied him with beer that it was of poor quality. The brewers replied that they had heard rumours that the poor quality was due to the watering of the beer by the publican. They subsequently published this statement to a third party and, in an action by the publican, the court held the statement to be privileged.

d) Accurate and fair report of proceedings. Reports of parliamentary proceedings are protected by privilege if they are fair, as they involve public interest. If the report is unclear, or forms only part of the proceedings, and would harm a particular individual’s reputation, then, as per Abdul Rahman Talib v Seenivasagam & Anor,³⁴ it would not be protected by privilege.

e) Ancillary qualified privilege. Publication of defamatory material to other persons in the course of business is protected by “ancillary” qualified privilege. For instance, the dictation of defamatory words by a superior to office staff is protected by ancillary privilege, as in John Lee v Henry Wong.³⁵ Even a letter or fax read by a clerk from one legal firm to another is protected by this privilege, as seen in Mahadevi Nadchatiram v Thiruchelvasegaram Manickavasegar.³⁶

The recent cases that considered the defence of qualified privilege are discussed below. In Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd (“RAGM”),³⁷ RAGM is a company involved in operating a gold mine in Raub, Pahang. Mkini Dotcom Sdn Bhd (“Malaysiakini”) owns and operates the online news portal of the same name, which is familiar to the news-loving community. In 2012, Malaysiakini published three articles and two videos (the “impugned Articles and Videos”) which, in essence, alleged that RAGM had used cyanide in its gold mining operations, causing serious illness to nearby residents, the death of wildlife and vegetation in the surrounding area, and environmental pollution. Upon seeing the impugned Articles and Videos, RAGM commenced legal action against Malaysiakini and the three authors of the relevant articles for defamation and malicious falsehood.

The High Court dismissed RAGM’s claim against all the defendants. It held that RAGM had succeeded in proving defamation, but that Malaysiakini and the three authors had succeeded in their defence of qualified privilege, that is, responsible journalism and reportage (the Reynolds privilege). Reportage is one form of the Reynolds privilege and is considered part of the qualified privilege defence. Hence, it was sufficient to plead qualified privilege to enable the defendants to prove reportage at trial. On the tort of malicious falsehood, it was held that RAGM had failed to prove malice on the part of the defendants. Dissatisfied with the decision, RAGM appealed.

The Court of Appeal affirmed the High Court’s decision dismissing the claim for malicious falsehood but reversed the decision dismissing the claim for defamation. RAGM was awarded general damages and costs, and an injunction was granted restraining Malaysiakini and the three authors from further publishing, circulating and distributing the impugned Articles and Videos. The Court held that the respondents had not acted fairly and responsibly. Hence, they could not rely on the defence of responsible journalism, as they failed to meet the relevant 10-point test propounded in Reynolds. Reportage, having its own distinctive features, has to be treated as a distinct and separate defence from responsible journalism or qualified privilege. The defences of reportage and responsible journalism were in effect mutually exclusive and incompatible with each other. As such, pleading one of the defences in the alternative would not work. By failing to plead reportage expressly, Malaysiakini and the three authors were precluded from relying on that defence. They appealed. The Federal Court, by a majority of 3-2, upheld the Court of Appeal’s decision and ruled in favour of RAGM.

In Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals,³⁸ discussed above in relation to absolute privilege, the President of the Chinwoo Athletic Association (the appellant) sent letters alleging fraud, misuse of power and breach of trust by the former President of Chinwoo (the respondent) to various authorities, including the ROS, ACA, CCD, BC and the Disciplinary Board of the BC. The respondent claimed that these letters were defamatory and sued the appellant for libel. The High Court and the Court of Appeal both held that the defences of absolute and qualified privilege were not available to the appellant, not only because he had sent the impugned letters without authority or mandate, or a resolution of an AGM, but also because he had not proved that the allegations were true.

The Federal Court held that the defences of absolute and qualified privilege were available to the appellant. The appellant’s communications to the ROS, ACA, CCD and BC were protected by absolute privilege because of their investigative roles. The appellant’s letter to the BC was also protected by qualified privilege, as it was made with an interest and a duty to report potential misconduct by the respondent, and no malice was proven.

In conclusion, the defence of qualified privilege in defamation law is provided through both statute and the common law. Statutory privilege, as detailed in the Defamation Act, protects newspapers and broadcasters from defamation claims unless malice is proven. Common law qualified privilege applies in specific circumstances: statements made between parties with a mutual interest, statements made to fulfil a legal, moral or social duty, statements made to protect one’s own interest, accurate and fair reports of proceedings, and ancillary qualified privilege. Recent cases, such as Mkini Dotcom Sdn Bhd v Raub Australian Gold Mining Sdn Bhd and Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin, highlight the nuanced application of these defences. The former demonstrated the limits of responsible journalism and the importance of pleading defences explicitly, while the latter affirmed the availability of absolute and qualified privilege where communications are made to appropriate authorities without malice.

Conclusion

In conclusion, recent Federal Court cases in Malaysia showcase a growing awareness of the complexities surrounding defamation defences. The courts are carefully balancing the fundamental right to a good reputation with the equally important principle of freedom of expression. This balancing act is evident in the emphasis placed on truthfulness in justification defences, good faith communication in qualified privilege situations, and limitations on absolute privilege. Understanding these evolving legal interpretations is crucial for navigating the ever-changing landscape of defamation law in Malaysia.

To address the challenges and opportunities presented by these trends, a multi-pronged approach is recommended. Public education campaigns promoting media literacy can significantly affect the dissemination of information. By equipping individuals with the skills to evaluate information sources critically, identify potential biases, and distinguish fact from opinion, the spread of misinformation and potentially defamatory content can be mitigated. This could involve collaboration between government agencies, educational institutions and media organisations to develop engaging workshops, educational programmes and online resources that cater to different age groups and learning styles.

Media organisations can also play a crucial role in fostering responsible journalism by implementing robust self-regulation mechanisms. Establishing clear editorial guidelines that require mandatory fact-checking procedures for all published content, including content on online platforms, is essential. Additionally, creating internal review boards composed of experienced journalists and legal professionals can provide an additional layer of scrutiny before potentially sensitive information is disseminated. This can help to ensure the accuracy of reporting and minimise the risk of publishing defamatory statements.

Furthermore, encouraging the use of alternative dispute resolution (ADR) mechanisms such as mediation or arbitration can offer a quicker, more cost-effective and less adversarial way to resolve defamation disputes. These processes involve a neutral third party facilitating communication and exploring potential solutions acceptable to both parties. This can be particularly beneficial where both parties are open to finding a solution outside the courtroom, potentially restoring reputations and fostering a sense of reconciliation. However, it is important to acknowledge that ADR may not be suitable for all defamation cases, particularly those involving complex legal issues or where public vindication is sought.

Finally, a comprehensive review of the existing defamation laws in Malaysia, involving key stakeholders such as media professionals, legal experts and representatives of civil society organisations, could be a long-term consideration. This review should take into account the evolving media landscape, particularly the rise of social media and its impact on the dissemination of information. By considering best practices from other jurisdictions and striking a balanced approach that protects both freedom of expression and the right to reputation, a reformed defamation law framework can be established to better serve the needs of the country in the digital age.

By implementing these recommendations, Malaysia can create a more informed and responsible media environment where freedom of expression flourishes alongside a strong sense of accountability. This will ultimately lead to a more robust and balanced public discourse, while ensuring that individual reputations are adequately protected in the face of evolving communication technologies.

Reference(S):

Cases

• Abdul Rahman Talib v Seenivasagam & Anor [1965] 1 MLJ 142
• Abu Hassan bin Hasbullah v Zukeri bin Ibrahim [2018] 6 MLJ 396
• Aloysius Tan Ting Kai v Ng Hong Kheng & Ors [1982] 1 CLJ 122
• Chong Siew Chiong v Chua Ching Geh & Anor [1995] 1 MLJ 551
• Chop Kim Lee Seng v Yeo Kiat Jin [1959] 1 MLJ 67b
• Chung Chon Kui v Then Juk Chiew [2007] MLJU 0762
• Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals [2017] 5 MLJ 413
• Dato’ Mohamad Bustaman Abdullah v Malay Mail Sdn Bhd & Anor [2014] 9 MLJ 764
• Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 758
• Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2018] 3 MLJ 726
• Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577
• Dato Tan Chin Woh v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] 5 MLJ 590
• Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor [2017] 6 MLJ 133
• Davis v Shepstone (1886) 11 App Cas 187
• Institute of Commercial Management United Kingdom v New Straits Times Press (Malaysia) Bhd [1993] 1 MLJ 408
• JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334
• Joceline Tan Poh Choo v Muthusamy [2003] 2 AMR 195; [2003] 4 MLJ 494
• Joel Salaysay v Medical Laboratory (Pte) Ltd & Anor [1986] 2 MLJ 154
• John Lee v Henry Wong [1981] 1 MLJ 108
• Lee Kuan Yew v JB Jeyaretnam [1979] 1 MLJ 281
• Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145
• Lincoln v Daniels [1962] 1 QB 237
• London Artists Ltd v Littler [1969] 2 QB 375
• Mahadevi Nadchatiram v Thiruchelvasegaram Manickavasegar [2002] 4 CLJ
• Meeran Lebbaik Maullim & Anor v J Mohamed Ismail Merican & The Straits Printing Works [1926] 2 MC 85
• Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79
• Noor Azman bin Azemi v Zahida bt Mohamed Rafik [2019] 3 MLJ 141
• Osborn v Boulter [1930] 2 KB 226
• Reynolds v Times Newspapers Ltd [2002] 2 AC 127
• Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187
• Times Publishing Bhd & Ors v S Sivadas [1986] 1 MLJ 372
• Wong Cham Mew v Hong Leong Finance Bhd [1998] 2 MLJ 195
• Wong Yoke Kong & Ors v Azmi M Anshar & Ors [2003] 6 CLJ 559

Footnote(S):

¹ [2003] 6 CLJ 559

² [2018] 6 MLJ 396

³ [1993] 1 MLJ 408

⁴ [2014] 9 MLJ 764

⁵ [1926] 2 MC 85

⁶ [1965] 1 MLJ 142

⁷ [2018] 3 MLJ 726

⁸ [2015]6 MLJ 187

⁹ [1985] 1 MLJ 334

¹⁰ [1926] 2 MC 85

¹¹ (1886) 11 App Cas 187

¹² [1995] 1 MLJ 551

¹³ [1969] 2 QB 375

¹⁴ [2017] 6 MLJ 133

¹⁵ [2021] 2 MLJ 577

¹⁶ [2022] 3 MLJ 758

¹⁷ 1957

¹⁸ [2003] 2 AMR 195; [2003] 4 MLJ 494

¹⁹ [1998] 2 MLJ 195

²⁰ [1986] 1 MLJ 372

²¹ [1965] 1 MLJ 142

²² [2019] 3 MLJ 141

²³ [2013] 1 MLJ 145

²⁴ [2017] 5 MLJ 413

²⁵ [1962] 1 QB 237

²⁶ [2016] 5 MLJ 590

²⁷ [1959] 1 MLJ 67b

²⁸ [1982] 1 CLJ 122

²⁹ [2002] 2 AC 127

³⁰ [2007] MLJU 0762

³¹ [1986] 2 MLJ 154

³² [1979] 1 MLJ 281

³³ [1930] 2 K.B. 226

³⁴ [1966] 2 MLJ 66

³⁵ [1981] 1 MLJ 108

³⁶ [2002] 4 CLJ

³⁷ [2021] 5 MLJ 79

³⁸ [2017] 5 MLJ 413