TORTS FLOWCHARTS

1. DEFENCES FOR
DEFAMATION
JUSTIFICATION (TRUTH)
1.The general rule is that
when a libel or slander
statement is proven to be
true in substance and in
fact, the law will not protect
the Plaintiff.
2. The burden is on the
Defendant to proof it is true
in substance and in fact.
3. The intention of D is
immaterial. Even if the D
had intended to cause
damage to P, D is not liable.
S. Pakianathan v Dr.
Jenmi Ibrahim
4. s. 8 Defamation Act
In case of libel and slander,
where there is more than
one allegations, a defence
of justification shall not fail
by reason of D cannot proof
all the allegation is to be
true.
Abd. Rahman v
Seenivasagam
FAIR COMMENT
It is a defence that the
statement is a fair comment on
a matter of public interest.
There are 4 requirements to this
defence
(1) The matter commented on
must be of public interest.
i.e commenting on
acts/activites of MP or of
influential people.
(2) It must be an expression
of opinion and not an
assertion of facts
Dakhyl v Labouchere
(3) The comment must be fair
(i)It must be true facts at the
time it was made and
cannot invent untrue facts
except statements made by a
person upon previlege occasion
i.e. witnesses in court case, or
parliamentary proceeding.(court
reporter can rely upon this
defence)
(ii)S. 8 DA failure to proof all
allegation is immaterial .
Fairness means D at the time it
was made was honest man
expressing his opinion. The test
is Objective test.
(4) The comment must not be
malicious
Malicious means evil
motive.Malicious comment
means there is no fair comment.
PRIVILEGE
There are two types of Privilege i.e. absolute
and qualified privilege.Improtant points is
occasion of statements.
(1) Absolute Privilege
A person defamed on an occasion of absolute
privilege has no legal redress. Following
situation where defence of absolute privilege
arise:
i) statements in Parliament
(ii)rports papers, votes ordered to be
published by both Houses
(iii)Judicial proceedings
(iv) communication made by an officer of a
state to another in the course of his duty
(v) fair and accurate newspaper and
broadcasting report of judicial proceedings.
(2) Qualified Privilege
A defamatory statement
Made with honest without malice although it is
untrue statement..If P can proof there is
malice on the part of D, he can claim damage.
Occassions of qualified Privilege:
(i) fair and accurate reports of parliamentary
proceeding
(ii) fair and accurate reports of judicial
proceeding
(iii) certain fair and accurate report published
in newspaper or broadcasting from a station in
Malaysia.
(iv) statement made from A to B about C in
which
• . A is under a legal moral or social duty to
communicate to B and B has
corresponding interest inreceiving it
(medical report)
• . when A has an interest to protected and
B is under a corresponding legal, moral
and social duty to protect that interest.
(infor police about neigb pushing drugs)
(v) Where A and B have common interest in
the statement.(head of dept.exchange reports)
(vi) statements in protection of oneself or
one`s property
(vii) statements made to the proper authorities
in order to procure redress of public
grievances.
APOLOGY
It is not a defence but a
mitigating factor to reduce
damages.
Apology in mitigating of
damages is provided u/s 10
DA.Defendant may raise in
court that he has made or
offered an apology to the P
before the commencement of
theaction or if the action was
commenced before there was
an opportunity of making or
offering such apology, as
soon afterwards as he had the
opportunity of doing so.
Datuk Patinggi Abd Rahman
Ya`kub v Abang Mohammad
Vincent Tan v Dato Hj
Hassan(only conditional
apology).It must full an
unconditional because the
purpose of apology is to
remove sting attack on P)
PAYING INTO COURT
D pays money to court
offering P the said sum as
compensation for the wrong
done.It isto reduce cost.
If P accept, the action
discontinue but if P insist, the
normal procedure till
judgement.
I D succeed, money will be
return to D
But if P succeed then :
(i)if the sum awarded is
greater the D muts pay the
balance and cost.
(ii)If sum is equal or less than
D is liable for cost only.