DEFAMATION

Media Law

Tony Medyati
Charumaty
Kaladharan
Duchess Ucanda
Rebekah Dawn
Ritchie

Dania Al-Attar
Saleh Basalama
Niki Alipoor Yeganeh

HISTORY OF DEFAMATION
The law of defamation dates back to the Roman Empire.
The offence of Libellis famosis was sometimes punishable by death.
While the penalties and costs attached to defamation today are not as
serious, they can still have a notorious chilling effect, with prison
sentences or massive compensation awards still an occupational hazard
for journalists in many countries.

WHAT'S THE DEFINITION OF DEFAMATION?

Law is a law which aims to protect people against

false statements of fact which cause damage to their
reputation. This definition contains four elements.

WHAT IS A GOOD DEFAMATION LAW?

One which lays the groundwork for striking a proper balance between the
protection of individuals reputation and freedom of expression

IN ORDER TO BE DEFAMATORY, A STATEMENT

MUST:

be false

be of a factual nature

cause damage; and

this damage must be to the reputation of the person concerned, which in turn means
that the statement in question must have been read, heard or seen by others.

DISTINGUISHING DEFAMATION FROM OTHER

CONCEPTS:

Many countries have other types of laws which may be confused with, but should be
distinguished from, defamation laws, even if that term is understood broadly. These
include hate speech, blasphemy and privacy laws.

HATE SPEECH LAWS

There are two important differences with defamation laws:
first, hate speech laws are intended to protect the safety and
social equality of vulnerable groups, rather than their reputation
second, hate speech laws protect groups of people, identified
by certain shared characteristics, rather than individuals or legal
persons (such as businesses or nonprofit organizations).

BLASPHEMY LAWS
The difference with defamation laws is again that blasphemy laws do not specifically
protect individuals or even the reputation of the religion. Rather, they protect the
sensitivities of adherents to the religion.

PRIVACY LAWS
In contrast to defamation laws, privacy laws can be used to prevent the dissemination of
truthful facts, such as genuine photos taken surreptitiously in a private home.

DEFAMATION ACT 2013

Draft bill published in 2011

Achieved Royal Assent on 25 April 2013

Aims to reform law of defamation to ensure a fair balance between the right to freedom of
expression & protection of reputation

KEY POINTS FOR MEDIA PRACTITIONERS

1. The Serious Harm Test

Someone bringing a libel action now has to prove the statement caused, or was likely to
cause serious harm to their reputation new serious harm threshold

Help understand when claims should be brought & discourage wasteful use of court time.

2. With Regard To Business

Businesses can now only sue if a statement caused, or was likely to cause, serious financial
loss

3. The Public Interest

Protection for those publishing material on matters where they reasonably believe that it is in
the public interest

4. More Privilege

Privileged material which is protected from defamation actions is now extended to cover:

peer-reviewed statements in scientific and academic journals

reports of scientific and academic conferences and related documents

articles based on information provided by public companies and at press conferences

reports of proceedings of government from anywhere in the world, international conferences and
international court proceedings.

5. Single Publication Rule

The one-year time limit for starting web libel actions now starts when an article is first
published online.

6. Website Operators

Introduction of a new process aimed at helping potential victims of defamation online, by

resolving the dispute directly with the person who has posted the statement

Website operators no longer have to pre-moderate reader comments.

Journalists, scientists and academics

have faced unfair legal threats for fairly
criticising a company, person or product
in the past.
As a result of these new laws, anyone
expressing views and engaging in public
debate can do so in the knowledge that
the law offers them stronger protection
against unjust and unfair threats of legal
action.
These laws coming into force represent
the end of a long and hard-fought battle
to ensure a fair balance is struck between
the right to freedom of expression and
people's ability to protect their
reputation.

Quote from Justice Minister,

Shailesh Vara

STANDARDS OF PROOF

Standard Before Trial

Some legal standards arent used by jurors at a trial, but by judges who must make
determinations at pretrial hearings.

Substantial Evidence

Substantial evidence means "more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."

Preponderance of the Evidence

Preponderance of the evidence is required in a civil case and is contrasted with "beyond a
reasonable doubt," which is the more severe test of evidence required to convict in a criminal
trial.

Clear and Convincing Evidence

Clear and convincing proof means that the evidence presented by a party during the trial is
more highly probable to be true than not and the jury or judge has a firm belief or conviction in
it.

Beyond a Reasonable Doubt

The main reason that the high proof standard of reasonable doubt is used in criminal trials is
that such proceedings can result in the deprivation of a defendant's liberty or even in his or
her death.

Burden of proof

The burden of proof is on the plaintiff (the party bringing the lawsuit) to show by a
"preponderance of evidence" or "weight of evidence" that all the facts necessary to win a
judgment are probably true.

Closing Comments

In criminal cases, although the standard is of beyond reasonable doubt, it will never be
expected of the jury to be able to prove the facts of the case absolutely.

PROBLEMS OF DEFAMATION LAW

1. Cost
- depends on duration and complexity of case
- legal fees alone can cost thousands
- if defendant loses, there will be a massive pay-out
2. Unpredictability
- depends on facts of the case
- UK laws are quite pro-journalist
- no predicting what or when something can be defamatory

3. Complicated lawsuits
- proving whether something is defamatory is not easy
- criteria: subject matter must be defamatory, must refer to plaintiff, etc.
4. Duration
- defamation lawsuits can take a lot of time
- some cases can take years
- also unpredictable because parties can choose to settle outside court
5. Internet
- laws regarding internet is different due to how it is published
- e.g. in UK, laws use to allow number of times subject matter is viewed now
changed to number of times it is published

6. Effects on society
- defamatory laws can also have positive effects
- allows freedom of speech
- gives citizens freedom to obtain information

PRIVILEGES AND DEFENSES IN DEFAMATION

CASES
The major defenses to defamation are:

truth

absolute privilege

qualified privilege

Retraction of the allegedly defamatory statement.

Truth

if the statement was accurate, then by definition it wasnt

defamatory.

Absolute Privilege

Absolute privilege means that the person making the statement has the
absolute right to make that statement at that time, even if it is defamatory.

In general, absolute privilege exempts persons from liability for

potentially defamatory statements made:

during judicial proceedings

by high government officials

during political broadcasts or speeches, and

between spouses.

 Qualified Privilege
the person making the allegedly defamatory statement may have
had some right to make that statement.

Just some of the statements for which a qualified privilege

applies are

statements made in governmental reports of official proceedings

citizen testimony during legislative proceedings

statements made in self-defense or to warn others about a harm

or danger

published book or film reviews that constitute fair criticism.

Retraction
A retraction is a full and formal withdrawal of a prior statement.

The following options for defense are available to you:

the words were not referring to the plaintiff;

the words were true in substance and in fact (justification);

the words were fair comment;

the publication was privileged;

ELEMENTS OF A DEFAMATION LAWSUIT

NOTE: WHOSE PART?

THE STATEMENT

Needs to be spoken

Spoken words usually fade more quickly

Therefore Slander is considered less harmful than libel

PUBLICATION

a third party must have seen, heard or read

A third party is someone apart from the person making the

statement

a defamatory statement does not need to be printed in a

book

INJURY

injury to the subject of the statement

Meaning must have hurt the reputation of the subject of the

statement

FALSITY

They should be in fact false

A true statement, no matter how harmful is not considered as

defamation

statements of opinion are not considered false

UNPRIVILEGED

it must be unprivileged

Suing for defamation is not possible

If the statement is privileged

RECOMMENDATIONS ON HOW TO
REFORM THE LAW.
Possible reforms to protect defamers from the harshness
of the punishment for the defamers are:

Arrangements for compulsory sit-downs between the plaintiff

and the defendant where they can come to an amicable
resolution for example, the defendant can agree to issue a
public apology.

Establishment of law reform commissions to advocate for the

reform of the law of defamation. Currently, defendants are
faced with heavy compensations which are more of
punishments than compensations e.g. RM200, 000.

Establishment of organizations that protect journalists from

defamation suits or that can intercede in settlements
between the plaintiff and the accused journalist.

Introduction of new compensations imposed on the defendant

like withdrawal of defamatory statements from the media so
as to not burden the defendant with a heavy fine that could
potentially bankrupt them.

Clear definition between freedom of expression and

defamation. Journalists and bloggers are often attacked for
expressing themselves. The law needs to clearly define what
defamation is such that there is no confusion.

There needs to be a limit put on compensations made by

defendants such that theyre not exploited and are burdened
with heavy fines.

By doing the above and many others, the law of defamation can
achieve complete fairness and ease with how it operates in
Malaysia.

CONCLUSION - BEK

Defamation Law guards the balance between freedom of expression and the protection of
ones reputation.

Holds media practitioners accountable for the consequences of their words, at the same time
upholding public interest.

Media cannot be used as a tool to bully or single out individuals for undeserved shaming.

Ensures that what is published is fair, truthful and ethical, extending the reach of justice to
the written and spoken word.

Through case law and statutes, this helps create a basis for a global standard of media ethics
and clearly defines boundaries and establishes rights.