This is part of the Defamation series. You can read the first entry here: Defamation – The Beginning of a Series. This introductory series is not legal advice. Please seek the counsel of a licenced legal practitioner in your jurisdiction.
At least in Malaysia and other Commonwealth realms, defamation has three basic elements. For you to successfully claim damages under defamation, the facts and circumstances must satisfy these three to put forward a prima facie case.
The three elements are:
- Defamatory words;
- Words refer to the claimant/plaintiff; and
- The words or statement was published.
In this entry, I will use “you” as opposed to a third party pronoun. It’s all for the purpose of copywriting – not accusatory of you.
Elements of Defamation in the United States
In the US, the elements are slightly different. A claimant needs to satisfy four elements:-
- A false statement purporting to be fact;
- Publication or communication of that statement to a third person;
- Fault amounting to at least negligence; and
- Damages, or some harm caused to the person or entity who is the subject of the statement.
(Source: Cornell Law School’s Legal Information Institute)
Each US State will have their own laws on defamation. That means the courts’ interpretation could differ from one state to another.
Overview of the Three Defamation Elements
Don’t worry – you won’t be getting the deep-dive a la law school. What you will read in the coming paragraphs are what these elements are. I will go further into each of them in the future.
1. Defamatory Words
“Words which injure the reputation of any one, which made people think worse of him, are defamatory.”LexisNexis Malaysia
What happens when someone calls you “an ungrateful prostitute” in a crowded food court? Or when your colleague sends out a WhatsApp message to another colleague claiming the only reason you’re where you are today is that you “manage to steal credit but cannot do the job”?
One way of seeing this is when the words expose you to “hatred, ridicule and contempt” (per Lord Atkin in Sim v Stretch  2 All ER 1237). Alternatively, the words could potentially lower you in the esteem of right-thinking members of society. Or simply, people around you look down upon you because of that.
Sim v Stretch was applied in the Singaporean case JB Jeyaretnam v Goh Chok Tong  1 MLJ 334. JB Jeyaretnam case was applied by Richard Malanjum J (as he was then) in the Malaysian case of Tun Datuk Patinggi Haji Abdul-Rahman Ya’ Kub v Bre Sdn Bhd & Ors  1 MLJ 393.
The learned judge in the latter case also referred to Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor  2 MLJ 56:
Thus, the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.Mohamed Azmi J
Let’s summarise what you’ve read so far:
- Defamatory words are words or ideas communicated by someone to others. Based on those words, they treat you poorly.
This is not the end of the discussion. Not all seemingly innocent words are innocent. It is true conversely. Not all “bad words” are defamatory. I will discuss cover these further in a later entry.
2. Words Refer to the Claimant/Plaintiff
You can’t take action on defamatory words without referring to anyone – especially if that anyone isn’t you.
Now we turn to an Australian case: David Syme & Co v Canavan (1918) 25 CLR 234.
The jury at the trial found the words in an Age report to be defamatory. A sergeant claimed, “The Returned Soldiers’ No-Conscription League was only about one hundred strong, and these individuals had been sent back to Australia as undesirables.” The plaintiff wasn’t named. Thus, the High Court allowed the appeal; the plaintiff’s claim for defamation failed.
The test formulated by Isaacs J was:
The test is whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of word-picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstance the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.Isaacs J
Permit me to briefly digress: the Malaysian common law follows the principles familiar in other jurisdictions. Decisions of a higher court bind the lower courts. At the same time, where there is (1) no interpretation or case (legalese: lacuna), (2) the circumstances of the case are similar (legalese: pari materia), and (3) the application fits the local context, Malaysian courts may refer to the decisions in other common law jurisdictions. These latter cases are persuasive, but not binding.
Kamalanatham Ratnam J applied this test in Abdul Khalid @ Khalid Jafri Bin Bakar Shah v Party Islam Se Malaysia & Ors  1 MLJ 160. The learned judge concluded, “I have no hesitation in holding that the libel has indeed designated the plaintiff in such a way that those who know him would have understood that he was the person referred to.”
By now, you can also infer that reference doesn’t always mean “named”. The defendants used the name “Caled Jeffry”. It was a “feigned name”. Yet, the court found them liable.
Besides names, one can use attributes, characteristics, or descriptions to refer to another. At the end of the day, it is enough as long as those around you can deduce that these references point to you.
3. Words/Statement was Published
Although “published” is a misnomer, it’s definitely a legal term. I personally prefer the term “communicated” or “disseminating”.
A person talking ill and saying false things about you isn’t really defaming you when he screams the statements in the voids of space.
Similarly, no one can accuse you of “defamation” for writing on a paper and immediately burning it. Provided that no one else saw what you wrote.
But what if you’re not alone?
Let’s say you are in a room with another person. Yes, just the two of you without anyone listening in. Suddenly the person says, “I know you took the bribe from <Hypothetical Company>. You are a crook and a criminal!” Yet, never in your life have you either given or receive bribes! You don’t know this <Hypothetical Company>. Clearly, this is false, refers to you, and was spoken aloud.
Surely you can sue for defamation, right?
No, you can’t.
Recall Lord Atkin’s definition earlier. Can right-thinking members of society think any less of you based on statements they have never heard before in their life? Can a statement damage your reputation if no one knows what that statement is?
No one can be made liable for a libel published only to himself: any more than a man is liable for writing a defamatory letter and keeping it in his desk, showing it to no one.Lord Denning MR in Riddick v Thames Board Mills Ltd [1974 R. No. 122]  Q.B. 881
Let’s say you work in a 2-tier organisation. All in all, there are five persons. One is the proprietor, i.e. your boss. You both sit down for a job performance evaluation. He comes up with a report based on a score of 1 out of 10 marks. Pretty damning, don’t you think? There are only two copies of the report: one for you and one for your P&C file. Can you sue for defamation? Sure, if your employer released the report to another party.
What is “publication”?
“The making known the defamatory matter after it has been written to some person other than the person of whom it is written.”Lord Esher in Pullman v Walter Hill & Co  1 QB 524
In my introductory post, I mentioned there are two types of defamation: libel and slander. One is permanent and another is transient.
Printed or written materials, paintings, photos, sculptures, caricatures, live streams, recordings as well as effigies are some permanent examples. Gossip over tea and shouting in public are examples of transient forms. If a third party is privy to the communication, that’s “publication”.
Recapping the Three Elements of Defamation
Let’s recap the post. When it comes to defamation, there are three elements you, the claimant, must prove.
- The words or statement against you are defamatory;
- The words or statement refer to you; and
- Others – besides you and the maker of the statement – heard or saw the statement.
Generally, the position in Malaysia is similar to other Commonwealth nations. Our lawyers and courts do refer to – although not bound by – those decisions. As technology facilitates communication, the world becomes more connected. WhatsApp communication, for instance, was once a non-issue. Now, one could land in legal hot water by sending the wrong communication. What happens when participants in the group are across the globe? Which law applies? Some might argue on the grounds of where the server is located. Some would say where the sender is based in. Others may say where the third-party recipients are.
In the next entry, you’ll read more about “defamatory words”. It’s the first element – and somewhat a cornerstone of an action for defamation.