Can I Sue Someone For Defamation For Hurling Insult On Me?

Before you (the Plaintiff) decide to commence legal proceeding against someone (the Defendant) for defamation, please first consider the following:

What amounts to a ‘defamatory statement’ at law?

A statement made about the Plaintiff that is published to 3rd party and has the effect of:

1. tending to lower a person’s reputation or estimation of the Plaintiff in the eyes of ordinary and reasonable members of society generally; or

2. causing him to be shunned or avoided; or

3. exposing him to hatred, contempt or ridicule; or

4. conveying an imputation on him disparaging or injurious to his office, profession, calling, trade or business.

What must you as the Plaintiff prove in Court?

There are three elements that must be satisfied by the Plaintiff of a defamation suit in Court:

1. That the words complained of were capable to have/had the tendency of bearing a defamatory meaning;

2. That the words complained of are defamatory of and concerning the Plaintiff. The words complained of must refer to the Plaintiff; and

3. That the words complained of must have been published to a third party by the Defendant.

Can defamatory statements be made verbally or must it be in written form?

Yes, defamatory statements can be made verbally. A statement, either in the written form or in the oral or spoken form, would constitute in law, a defamatory statement if it has the effect of lowering the reputation or estimation of the Plaintiff in the eyes of ordinary and reasonable members of society.

Must the impugned defamatory statement be published to third party?

Yes. For there to be defamation, there must first be established the fact of publication to at least a third party in respect of the impugned defamatory statement. A communication confined to two parties, namely the speaker and the listener, can never amount to a defamation of the listener’s reputation as there is no publication of the same to a third party. In the absence of a third party, no reputation can be in jeopardy of being tarnished. So, publication of the defamatory statement is an essential element to be established in the tort of defamation.

How would the Court assess if a statement is indeed defamatory?

In determining whether the words complained of are defamatory at law, the court would look at:

1. the natural and ordinary meaning of the words complained of; or

2. the innuendo meaning (i.e. any meaning alleged to be conveyed to some person by reason of that person’s knowledge of fact extraneous to the words complained of).

In doing so, the court will apply an objective test, i.e. to consider what meaning the words would have conveyed to an ordinary, reasonable person using his general knowledge and common sense, whether a reasonable person might understand them in a defamatory sense (i.e. to lower a person’s reputation or estimation of the Plaintiff in the eyes of ordinary and reasonable members of society generally)

(Fitters Diversified Sdn Bhd & Ors v Mohd Roslan Mahayudin & Ors [2022] MLJU 290).

The words complained of if in writing, would be considered in the context of the whole article and not simply on isolated passages.

(Lee Kuan Yew v. Derek Gwyn Davies & Ors [1990] 1 CLJ 583)

What are the possible defences that may be raised by the Defendant of a defamation suit?

Depending on the subject matter of the defamation suit, some of the legal defences that may be raised by the Defendant, among others are as follows:

1. Defence of Justification The defence of Justification is that the impugned statement is the truth in substance and effect. In other words, the Defendant is required to prove the same to be true in substance or not materially different from the truth. This defence once successfully proven by the Defendant would provide a complete and full defence against any liability for defamation, although as a matter of fact and of law, the impugned statement was indeed defamatory.
   

2. Defence of Qualified Privilege The defence of Qualified Privilege is where the Defendant as the person communicating the impugned statement usually has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. The Defendant is only required to prove that the impugned statement was made pursuant to an interest or of a duty, legal, social, or moral and that the recipient of the statement had a corresponding duty to receive it. The rationale for the defence of qualified privilege is not so much what was published was necessarily the truth, but rather, was driven by what needed to be informed, which the public would need to know.
   

3. Defence of Fair Comment The defence of Fair Comment is that the statement in question was based on the speaker’s or writer’s honest and impartial observation or opinion about a matter or subject of public concern or interest. The comment must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for the Defendant to prove that the underlying facts are true. The Defendant is not required to prove the truth of every fact provided the comment was fair in relation to those facts which are proved. However, fair in this context, does not mean reasonable, but rather, it signifies the absence of malice. The views expressed can be exaggerated, obstinate or prejudiced, provided they are honestly held. If the Plaintiff can show that the publication was made maliciously, the defence of fair comment will not succeed.
   

This article is only intended to provide general information to our Firm's clients and it should not be regarded as professional legal advice. Should you require any professional legal advice, you are advised to consult us.