“Lawyering isn’t about fighting fair, and you’d better watch your false accusations, or I might just sue you for defamation.”
Kyle Durant (Suits: S01E07)
No legal drama is ever complete without a threat of defamation suit, don’t you think so?
What exactly is “defamation”?
Defamation is when one person communicates a false statement about a victim to someone else. This false statement could undermine the victim’s reputation or good name.
Malaysia follows the English position closely. Afterall, both the Malaysian statutes against defamation are inherited from the British:
- The Defamation Act 1957; and
- The Penal Code.
Because of this common legal heritage, Malaysian lawyers turn to cases from other common law countries like the United Kingdom, India, and Singapore to complement cases decided by the Malaysian judiciary after 1957.
Cornerstone Constituent and Types of Defamation
I intentionally used the term “communicates false statement”. Why?
The victim can be defamed by mere speech. The person making the claim could be a passionate chronic gossiper who enjoys collecting and spilling tea. It was purely oral and never written or recorded. This is slander – a type of defamation.
When the statement is permanent, it is libel – the other defamation type. Permanent can come in different forms: painting, picture, video, audio recording, murals, WhatsApp messages as well as emails.
Do the two types matter?
Libel is actionable per se. The victim does not need to prove that they suffered any loss. When you find a video, article, Facebook post, or Tweet, you can sue without the need to prove actual loss. The permanent nature gives rise to a civil wrong. The logic is: if you can find it, others can find it as well.
Slander, on the other hand, requires you to prove that you suffered actual damage. Meaning you had an actual financial loss or loss measurable by money. An example is losing a business or your job. Social loss – losing a friend or being excommunicated – do not qualify.
What happens after a defamatory act is committed? The victim can sue or file a police report turning it into a criminal case.
A Recap on Defamation
Let’s quickly recap:
- Defamation is when someone communicates something false about you to another person which negatively affects your reputation or good name.
- Defamation is both a crime and a civil wrong (tort).
- The defamatory statement could be fleeting/temporary (slander) or permanent (libel).
- While libel is actionable per se, you need to prove actual financial loss following a slander.
These are the general rules. Bear in mind that the exceptions – and even the general rule – could vary according to jurisdiction.
Consider South Korea. True statements negatively affecting a victim’s reputation may be defamatory. Under s. 307, South Korea’s Criminal Code, damaging a person’s reputation is a criminal offense. Unlike the Commonwealth countries, South Korea places emphasis on “reputation” as opposed to “false statement”.
Again, Malaysia follows the framework familiar to those who received their legal education in the United States, the United Kingdom, Singapore, India, and other Commonwealth countries.
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