Wong Chong Wah
Partner - Wong & Wong
Defamation, Privacy and Data Protection
The Defamation Act 1957 has virtually remained unchanged for the last six decades despite the fact that defamation law in England had been revised and updated from time to time, most recently with the introduction of the English Defamation Act 2013.
The Defamation Act 1957 only applies to civil claims whilst the Malaysian law on criminal defamation is governed by the Penal Code, particularly, section 499. The penalty for publication of a criminal libel is imprisonment for a term not exceeding two years and/or a fine.
The procedure for bringing or defending a suit in defamation is catered for by Ord 78 of the Rules of Court 2012. The limitation period to bring an action in defamation is six years and the cause of action accrues on the date of publication of the defamatory statement and not on the date the plaintiff first had knowledge of the defamatory statement.
Defamation is committed when the defendant publishes to a third person words or matters containing untrue imputation against the reputation of the plaintiff. At common law there are two types of defamation, that of libel and slander. If the publication is made in a permanent form or is broadcast or is part of a theatrical performance, it is libel. If it is in transitory form or is conveyed by spoken words or gestures, it is slander.
In Malaysian law on defamation, the burden of proof lies on the plaintiff to establish on the balance of probabilities that:
(a) the alleged statement must bear defamatory meaning
(b) the statement must refer to or reflect upon the plaintiff’s reputation
(c) there must be publication of the alleged defamatory statement and it is publication as soon as it is published to a third person
A defamatory statement is a statement which tends to lower a person in the estimation of right- thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to his office, profession, calling, trade or business.
There are two methods of interpreting the words in an allegedly defamatory statement: by their natural and ordinary meaning or by innuendo. The test involved is a two-stage process. First, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable person would be likely to understand that in a defamatory way.
The common defences that may be raised to a defamation action are defences of justification, fair comment, absolute privilege, qualified privileged and Reynold’s privilege.
The burden of proof is on the defendant to show that the defamatory imputations are true or substantially true.
The elements of this defence are:
(a) The words complained about must be comment
(b) The comment must be based on true facts
(c) The comment or opinion expressed must be fair
(d) The comment must be on a matter of public interest
The defence of absolute privilege can be raised in situations where defamatory words are published in:
(a) Judicial proceedings
(b) Parliamentary proceedings
(c) Police Reports (First Information Reports under Section 107 of the Criminal Procedure Code)
(d) Statements given to police under Section 112 Criminal Procedure Code
As for qualified privilege, the categories of occasion which the law treats as privileged are extremely varied but the principal instances are:
(a) statements made between parties who share a common or mutual interest in the subject matter of the communication
(b) statements made in the discharge of a moral, social or legal duty
(c) statements made in the protection of one’s own self interest
(d) fair and accurate reports of certain proceedings
The defence of Reynold’s privilege was adopted by the Federal Court of Malaysia following the important English House of Lords’ case of Reynolds v Times Newspapers Ltd. The House of Lords’ decision marked a decisive departure from the traditional pro-reputation orientation of defamation law in England and was quickly recognized as a ‘media-friendly development’. The Reynold’s privilege provides much more extensive protection for publications to the world at large where the subject matter is of sufficient public interest. In Malaysia, the defence of Reynold’s privilege is not limited to journalistic publications and is available to anyone who is accorded with the privilege. To succeed in raising this defence, the defendant would have to satisfy the following two elements:
(a) that the defamatory words were uttered on a matter of public interest and the public had a corresponding interest in receiving the same
(b) that the defendant had acted reasonably in publishing the defamatory words (more conveniently known as the “responsible journalism test”)
A number of factors to be taken into account in determining the issue of responsible journalism, which are not exhaustive, are as follows:
(a) the seriousness of the allegation
(b) the nature of the information, and the extent to which the subject matter is a matter of public concern
(c) the source of the information
(d) the steps taken to verify the information
(e) the status of the information
(f) the urgency of the matter
(g) whether comment was sought from the plaintiff
(h) whether the article contained the gist of the plaintiff ’s side of the story
(i) the tone of the article
(j) the circumstances of the publication, including the timing
The defences of qualified privilege, Reynolds’ privilege and fair comment will fail if it is proven that the defamatory words were published with malice. The burden is on the plaintiff to prove that the defendant had published the words maliciously. In law an act is malicious if done intentionally without just cause or excuse. So long as a person believes in the truth of what he says and is not reckless, ‘malice’ cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair.
Generally, the primary remedy of the common law for the tort of defamation is damages. The common damages sought by a plaintiff in a defamation action would be general damages, exemplary damages and aggravated damages. It is trite law that in an action for defamation the plaintiff need not allege that actual damage has resulted from the words complained of. The law presumes that some damage would flow in the ordinary course of things from the mere invasion of his absolute right to reputation, and he is entitled to such general damages as the court may properly award.
In Malaysia, the courts generally decline to set a precedent on the damages to be awarded on  the grounds that each libel case has its own particular and peculiar facts. The law has not fixed any exact measure for assessment of damages in an action for defamation; there is no mathematical formula by which the quantum can be determined; nor is there any requirement that the damages be assessed with mathematical certainty.
There are cases in this country where claims and awards in defamation cases running into several million ringgits and no doubt that trend was set by the Court of Appeal in a 1995 decision in the case of MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun. Until the arrival of Vincent Tan in 1995, the highest award ever given by the court in this country was RM 100,000. Nevertheless, in 2001, the Court of Appeal in Liew Yew Tiam had second thoughts and the learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai has sought to distinguish MGG Pillar’s case in stating that ‘It is a decision that has been much misunderstood and the trend should be checked’ and “this is to ensure that an action for defamation is not used as an engine of oppression”.
In whichever cases, the following factors, which are not exhaustive, are usually taken into consideration by the Malaysian courts in the assessment of the damages to be awarded in a defamation claim:
(a) the gravity of the allegation
(b) the size and influence of the circulation
(c) the extent and nature of the claimant’s reputation
(d) the behaviour of the defendant
(e) the behaviour of the claimant
Unlike other jurisdictions where the fundamental right to privacy is specifically laid out and provided for in its constitution, the Malaysian Federal Constitution does not specifically stipulate that a person has a right to privacy. The notion of privacy was nevertheless accepted by the Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor.
To-date, there is no statute enacted law that specifically provides for the protection of a person’s privacy, save for the Personal Data Protection Act 2010, which deals specifically with personal data rather than privacy itself (this will be discussed more in below).
Section 509 of the Penal Code does make it a criminal offence to intrude upon the privacy of a person but this provision strictly relates to actions which insult the modesty of a person. The penalty for this offence is imprisonment for a term not exceeding five years and/or a fine.
Notwithstanding the absence of the statutory legislation, there have been occasions where the courts did find that a person’s privacy had been intruded. Nevertheless, all these cases that recognised the tort of invasion of privacy are limited to matters of private morality and modesty involving in particular women, or where there is a pre-existing relationship between the victim and the perpetrator that gave rise to breach of confidence. Overall, the Malaysian courts are generally unwilling to formulate a general principle of invasion of privacy as the effect of the recognition of the privacy rights in Malaysia will be far reaching and affect many aspects.
Though the Malaysian law is still not ready to recognise the tort of invasion of privacy as an actionable tort, there has been progress made to protect a person’s right to privacy due to the rapid development of technological advances and in the area of Information and Communication Technology. One of the efforts made is the enactment of a new piece of legislation, the Personal Data Protection Act 2010 . The Personal Data Protection Act 2010 came into force in Malaysia on 15 November 2013 with the objective of regulating the processing of personal data in commercial transactions.
“Personal data” is defined by the Act as information collected, processed or recorded in connection to a commercial transaction which is capable of identifying the data subject. This broad definition will typically cover information like names, addresses, contact details, identification card numbers, passport numbers, and email addresses. Personal data also includes any sensitive personal data and expression of opinion about the data subject such as the physical or mental health or condition of that data subject, his political opinions and religious beliefs, and criminal convictions among others.
The Personal Data Protection Act 2010 requires the data user to comply with seven (7) Personal Data Protection Principles in processing a data subject’s personal data. The maximum fines for the various offences under the Personal Data Protection Act 2010 range from RM10,000 to RM500,000 per offence. On conviction, offenders may also be liable to imprisonment.
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The material in this Guide is for general information only and does not constitute legal advice.
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