|
Criticising or defaming?
10/01/2006 The Star Articles of
Law by BHAG SINGH
MALAYSIANS, like people in many other parts of the world, are becoming more
aware of their rights and concerned with what goes on in the country that
affects them directly or indirectly.
This awareness is broad ranging. Malaysians are now speaking out about the
things that they do not approve of or consider detrimental to the country.
When this happens, people who are referred to will feel offended and
threaten to sue the person who makes statements which are critical about the
manner in which organisations are run.
One of the tools that has been used is the law of defamation. Huge awards
not long ago had a chilling effect on those who wanted to speak out about a
genuine grievance.
This has prompted a reader to ask whether a person who makes critical
statements about another person or organisation can be sued
At the outset, let me say that there is no law to prohibit criticism, but
criticism that damages a person’s reputation comes within the scope of
defamation law.
However, there appears to be misconception as to what is defamatory. Very
often when a statement is made which is factually incorrect there is a
tendency to react as if it is, by the mere fact, defamatory. However, a
factually-incorrect statement may not constitute defamation.
In order to be defamatory the words used must convey a derogatory message in
relation to the person referred to. This is on the basis of being lowered in
the estimation of others, being ridiculed or viewed with contempt or hatred
or otherwise being shunned or avoided by others.
Even then the statement must produce such effect not in the eyes of the
person complaining but by the standards of an ordinary, reasonable man. In
I.W. Holdsworth, Limited vs Associated Newspaper, Limited Lord Justice Scott
said: “The typical reader for the court to have in mind is the reasonable
man of normal intelligence possessed of such a degree of knowledge of the
current circumstances of the industry as it may be proper to infer in the
circumstances of the case. To the ordinary member of the public the words
may convey a meaning different from that understood by a person in the
industry, and the one meaning may be more or less defamatory or innocuous
than the other, according to the circumstances in evidence.”
In many cases the statements may not convey a derogatory message, but may
irk the person referred to. But in law it is not defamatory.
As said by Diplock L.J. in Astaire vs Campling And Another: “A statement
does not give rise to a cause of action against its publisher merely because
it causes damage to the plaintiff.
The statement must be false and it must also be defamatory of the plaintiff:
that is to say, the statement must itself contain, whether expressly or by
implication, a statement of fact or expression of opinion which would lower
the plaintiff in the estimation of a reasonable reader who had knowledge of
such other facts, not contained in the statement, as the reader might
reasonably be expected to possess.”
Of course it is ethically wrong to such statements. However, there may be
cases where what has been published does defame. Here the person aggrieved
can sue. But this does not mean he will always succeed.
A person could defend himself if he can prove that what has been conveyed is
true. This is the defence of justification. It must however be realised that
protection is only available if the message conveyed can be proved to be
true. Merely proving that the words are literally true may not be enough.
Where the statements are made to the general public but the message conveyed
cannot be proved to be true, a person sued can still defend himself on the
basis of fair comment.
To rely on this, the underlying facts must be true and the matter must be of
public interest. If the requirements are met the person making the comment
is protected even though the aggrieved person does not agree with the
comment or even if there are others who do not so agree.
Thus, it will be seen that the law protects criticism, provided the
statements are made on the basis of facts which have been properly verified
on an appropriate level given the circumstances prevailing and the context
of the matter.
So there is ample room for criticism to be made but this must be premised on
facts. Allegations made recklessly without caring whether these are true or
not would be evidence of malice and result in no protection.
Finally, apart from the available traditional defences, there are also rare
instances where the person may enjoy immunity. |
