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Defamation and false
statements
15/08/2006 The Star By BHAG SINGH
The word defamation is common enough. With so many actions filed in recent
years and the mega awards later awarded and subsequently not really approved
of, the word has acquired a widespread exposure. As a result there is a
tendency to equate certain acts and statements or consequences with
defamation, even when they are not. Thus, merely hurt feelings in the
absence of the other essential elements of defamation do not constitute a
wrong in the sense of defamation or as “giving rise to a cause of action”.
There are instances where statements in a document are factually incorrect.
In the absence of defamatory imputations, this does not give rise to a cause
of action in defamation. The falsity of a statement or word is a necessary
element and step in establishing whether a word or statement is defamatory
but there is a further need to establish that there are also defamatory
imputations conveyed.
Defamatory imputations mean that what has been said contains a message which
lowers the person in the estimation of others or exposes him to hatred,
contempt or ridicule. It would be relevant to note that, in order to
constitute defamation, there must be communication of the objectionable
content to a third party. And the conclusion that the words convey a
defamatory message has to be determined in the context of the ordinary
reasonable man without any special knowledge or skill.
Defamation cases are on the basis of a civil claim brought by the person who
considers himself to be aggrieved over what has been said or published about
him and who now wants to clear his name.
When such a person institutes an action and succeeds in the action that has
been filed, what he gets is compensation in the form of damages. There would
be other orders made as well, such as an injunction to restrain the
offending party from repeating what the court has decided is defamation.
Costs, of course, follow the event.
However, there can be situations where a statement is false but does not
convey defamatory imputations. In such a case the statement may admittedly
be false but would not be defamatory. Does it mean that action cannot be
taken? Well, action can be taken in specific situations but not on the basis
of defamation.
In the case of malicious falsehoods, a cause of action exists if the
statement is false and if the words upon which the action is founded, are
calculated to cause pecuniary damage to the plaintiff, and are published in
writing or other permanent form. Action can also be taken against the use of
such words if they are calculated to cause pecuniary damage to the plaintiff
in respect of any office, profession, calling, trade or business held or
carried on by him at the time of the publication.
Unlike defamation, where it is the tendency of the word to affect the
standing of a person, the focus is on the words “calculated to cause
pecuniary damage”.
False statements are also the basis of action in the context of various
statutory provisions that make it an offence to say or publish what is not
true and which causes or has the potential to cause harm.
In such instances it would constitute an offence merely because what was
published turned out to be false, irrespective of whether any damage or harm
was actually caused. Thus Section 28 of the Internal Security Act 1960
provides that: “Any person who, by word of mouth or in writing or in any
newspaper, periodical, book, circular or other printed publication or by any
other means spreads false reports or makes false statements likely to cause
public alarm, shall be guilty of an offence.”
An offence will not be committed merely if what is published is false but
because it is likely to cause public alarm. And this has to be viewed in the
light of the Act whose preamble provides that it is an Act to provide for
the internal security of Malaysia, preventive detention, the prevention of
subversion, the suppression of organised violence against persons, amongst
others.
A different approach to falsity is taken in the Printing Presses And
Publication Act 1984. It is an act to regulate the use of printing presses
and publishing and distribution of publications.
Section 8A of the Act places restraint on those involved in publication of
reports and reads: “Where in any publication there is maliciously published
any false news, the printer, publisher, editor and the writer thereof shall
be guilty of an offence and shall, on conviction, be liable to imprisonment
for a term not exceeding three years or to a fine not exceeding twenty
thousand ringgit or to both.”
It does not place an absolute duty unless the report is published
maliciously. If the writer could show that prior to publication, the writer
took reasonable measures to verify the truth of the news then no offence
would have been committed.
Then there is the Communications and Multimedia Act 1998 which makes it an
offence to provide content that is false. Section 211(1) states:
“No content applications service provider, or other person using a content
application service, shall provide content which is indecent, obscene,
false, menacing or offensive in character with intent to annoy, abuse,
threaten or harass any person.”
It will be seen that falsity can lead to action being taken. However, such
action is more in the context of statutory or other offences. This is not to
say that falsity does not affect contractual arrangements, but that requires
separate discussion. |
