defamation (part 2)

Types of defamation:
1.Libel
2.Slander

Libel- defamation in a permanent form & is usually visible to the eye, such as item in writing which includes e-mail, pictures,statues of effigies.
Section 3 of the Malaysian Defamation Act 1957 provides that the broadcasting of words by means of radio communication shall be treated as publication & permanent form & therefore constitutes a libel. Libel is actionable per se, ( P need not to prove any damage). A bank commits the tort of defamation if it wrongfully prints the words "Account close" on a cheque that it is in fact bound to honours (Ng Cheng Kiat v Overseas Union Bank).

Slander- defamation in a temporary or transient form. Publication is usually made through spoken words or gestures. Slander is not an actionable per se, the P need to prove actual or special damage in order to succeed his action.

Actual damages- refer to actual financial loss or any loss that may be measured in monetary terms. Example: the loss of business or employment or even a chance to attend a dinner may be calculated in monetary terms & therefore constitute actual damage. The actual lost must be proved.The damage must also be the natural & reasonably foreseeable result of the D's words. In action for slander, the P must prove the actual words used. In the case of Rainy v Bravo, the court held that " if the defamatory writing does not exist, & secondary evidence is offered of its contents,the words must be prove & not what the witness conceived to be the subtance or the effect of them,..."

Exception to the requirement of actual damage in cases of slander.
1. slander to women
In the case of Luk Kai Lam v Sim Ai Keng, the respondent called the appellant a prostitute & said that the appellant charged RM50 to entertain men at any one time. These allegations were made in presence of a third party. The court held that since the words impugned the appellant's chastity, special damage need not be proven. Slander was established.
Section 4 of the Malaysian Defamation Act provides that the publication of words which imputes unchastity or adultery to any woman or girl requires no proof of special damage for the action to succeed.

2. Slander in relation to a person's professional or business reputation.
Section 5 provides:
" In an action for slander in respect of words calculated to
disparage the plaintiff in any office, profession, calling, trade or
business held or carried on by him at the time of the publication,
it shall not be necessary to allege or prove special damage whether
or not the words are spoken of the plaintiff in the way of his office,
profession, calling, trade or business."
In the case of John Tan Chor-Yong v Lee Chay Tian, P who was a advocated & solicitor claimed that the D words to the P's friends & clients to the effect that he, the P, was owing him, the D, several months rent were defamatory as the words were calculate to disparage him in his office. Applying s. 5 of the Defamation Act in favour of the P, & so holding that the P's case was actionable per se without proof or special damage.(cases related: Worker's Party v Tay Boon Too,JB Jayaratnam v Goh Chock Tong).

3. Slander in relation to title, slander of goods & malicious falsehood
Section 6 :
(1) In any action for slander of title, slander of goods or other
malicious falsehood, it shall not be necessary to allege or prove
special damage—
(a) if the words upon which the action is founded are calculated
to cause pecuniary damage to the plaintiff and are published
in writing or other permanent form; or
(b) if the said words are calculated to cause pecuniary damage
to the plaintiff in respect of any office, profession, calling,
trade or business held or carried on by him at the time
of the publication
(2) Section 3 of this Act shall apply for the purposes of this
section as it applies for the purposes of the law of libel and
slander.
Example : If A writes a letter advising B not to order C's Kuey tiow for B's open
house function, as A believes C uses than fresh ingredients, C may have a claim against A under s.6 (1)(a) for slander of goods. If A on the other hand orally informs B of the same about C's Kuey teow, C has claim against A under s.6 (1)(b). In the case of Borneo Post Sdn Bhd v Sarawak Press Sdn Bhd, it was held that in action for slander of goods under s.6, the P must prove that the statement was published maliciously. The same requirement applies in action for slander of title-the alleged statement must disparaging the goods.

Malicious falsehood
-malice must be proved in a cause of action for malicious falsehood. In the case of Ratus Mesra Sdn Bhd v Shaik Osman Majid & Ors, the court held (following Clerk & Lindsell on Torts) in a claim for malicious falsehood, the P must proved :
(i)that the D has published about the P, words which are false &
(ii)that they were published maliciously, &
(iii)special damage has followed as the direct & natural result of the publication (must be proven except when s.6 applies)

Example: if A tells B that C is no longer operating his coffe-shop, the statement may well deprive C of his business & C in this instance may sue A for malicious falsehood without having to prove special damage provided C can proved that A was acting maliciously.
If A on the other hand tells B that C has left the country, & so B does not extend an invitation to C for the grand reception, B is holding for his daughter wedding, in order to succeed in a claim for malicious falsehood, C must proved special or actual damage.
The different from the torts of defamation from malicious falsehood is that defamation protects the claimant reputation while malicious falsehood protects the clamaint's interest in his property or trade.. In the case of Joyce v Sengupta, the court held that damages for anxiety & distress are not recoverble for malicious falsehood.

4.Imputation of contagious disease
- actionable per se
-the words must infer that the P suffers from such a disease at the time the publication is made, such venereal diseas.

5. Imputation of crime
Slander is actionable per se if the words that the P is involved in a crime. The crime must be one which attracts corporal punishment, which includes the death penalty, whipping or imprisonment. In the case of C Sivanathan v Abdullah bin Dato Hj. Abdul Rahman, the D called the P a cheat, dishonest & a liar. The court held that since the "crimes" did not attract corporal punishment, the P claim was not actionable per se. His action failed as he could not prove special or actual damage.