1.Explain briefly the legal ingredients of defamation. Cite the relevant cases for each.

Defamation is injury to the reputation of a person. As per Black’s Law dictionary, defamation
means “The offence of injuring a person’s character, fame or reputation by false and malicious
statements.” If the statement made is written and is published, then it is “libel”. If the
defamatory statement is spoken, then it is “slander”. In order to establish cause of action of
defamation, plaintiff had to prove 3 elements to the court, which are:

I. Defendant’s statement bears a defamatory imputation;

II. The statement must refer to or reflect upon plaintiff’s reputation; and
III. The statement must have been published to a third party by defendant

What is defamatory imputation? According to Lordship Mohamed J in the case of Syed Husin
Ali v Syarikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 58 states

“ Any imputation which may tend to lower the plaintiff in the estimation of right-thinking
membes of society generally, “to cut him off from society’ or ‘ to expose him to hatred,
contempt or ridicule, is considered as defamatory to him”

Once the first element is established, plaintiff must proceed to establish the defamatory words
were published of and concerning him. On this point, the case of Institute Of Commercial
Management, United Kingdom v New Straits Times Press (Malaysia) Bhd [1993] 1 MLJ
408, the his lordship Lim Beng Choon J held;

“It is an essential element of the cause of action for defamation that the words
complained of should be published 'of the plaintiff'. The test which the plaintiff has to
furnish an answer to satisfy the court is whether the words would reasonably in the
circumstances lead persons acquainted with the plaintiff to believe that he was the
person referred to.”

The final element that the plaintiff must prove is that the words of which he complains have
been published to any 3rd party. In the case of S Pakianathan v Jenni Ibrahim [1998] 2 MLJ
173, the court held that :
 “The fundamental principle is that the matter must be communicated to a third party in
such manner as to be capable of conveying the defamatory imputation about the
plaintiff”

2. State the legal test of defamation in Malaysia. Cite relevant case

The legal test for defamation in Malaysia is based on reasonable man’s test. This is whether,
in the opinion of the reasonable person with normal intelligence development, the reputation
of the plaintiff has been injured as decided in the case of JB Jeyaretnam v Goh Chok Tong
(1985) 1 MLJ 334.

Similarly, in Keluarga Communication Sdn Bhd v. Normala Samsudin & Anor Appeal
[2006] 2 CLJ 46, the court held that;

At the outset we would state that the test to be applied when considering whether a
statement is defamatory of a plaintiff is well settled in that it is an objective one in which
it must be given a meaning a reasonable man would understand it and for that purpose,
that is, in considering whether the words complained of contained any defamatory
imputation, it is necessary to consider the whole article. Gatley on Libel & Slander,

10th end on this point at pp. 108 and 110 inter alia states as follows:

It is necessary to take into consideration, not only the actual words used, but the
context of the words. It follows from the fact that the context and circumstances of the
publication must be taken into account, that the plantiff cannot pick and choose parts
of the publication which, standing alone, would be defamatory. This or that sentence
may be considered defamatory, but there must be passages which take away the
sting.”

However sometimes reasonable men test is not necessarily representative of the majority
opinion in a given society. It follows that words may be defamatory by reference to the
perception of a substantial and respectable minority of the community.

For example in the case of Lau Chee Kuan v Chow Soong Seong (1955) MLJ 21 held that
If the ordinary reasonable person would not know that the published matter is defamatory but
the matter would tend to injure the person's reputation with a person or class of people who
have specialised knowledge, a claim for defamation is still possible. The test in such cases is
whether the person's reputation is injured in the eye of an ordinary reasonable person who
has that specialised knowledge.

3. Discuss briefly the facts and decision of Mohamad Salim Fateh v Nadeswaran (2012)

Facts the plaintiff is a businessman while the defendant is a journalist and columnist in a local
newspaper. The defendant had published online messages/tweets which the plaintiff alleged
were defamatory of him. The plaintiff claimed for general, special and exemplary damages for
the damage caused to him as a result of the publication. No defence was filed by the.
Defendant because his statement of defence was file out of time.

The issue as a result of failing to file a defence, the defendant was deemed to have admitted
plaintiff’s statement of claim. Thus, the only issue arising was the quantum of damages that
ought to be awarded to the plaintiff.

The court held awarded the plaintiff a sum of RM300,00 for general damages and another
RM200,000 for aggravated damages. The amount of damages and aggravated damages were
considered excessive because the court wish to send a strong messages to those who are in
the position to disseminate information widely that they must exercise a proper degree of care
and diligence not to injure others.
4,In relation to a discovery application before the civil action. Discuss the liability of a
web operator in the case of Kopitiam Asia Pacific Sdn Bhd v Modern Outlook Sdn. Bhd
(2018) MLJU 1450

In this case, plaintiff discovered a defamatory article relating to them circulating on websites
connected to defendants. Plaintiff intend to file an action of defamation against certain parties
responsible for posting the defamatory statements, However the actions cannot be
commenced as plaintiff did not possess particulars of the Intended parties.

There are 3 defendants in this case. In reference to the question, the only relevant party to be
discussed is the 3rd defendant for being the provider of the server where the Website where
the Defamatory Article was published. Therefore, the plaintiff sought to apply pre-action
discovery under Order 24 rule 7A (3) of Rules of Court 2012 which inter alia (1) against the 3rd
defendant to disclose information on the identities of the website owners and (2) for the
Website Owners identified to disclose the necessary particulars of the intended parties.

The issue in this case is whether the application of pre-discovery by plaintiff is necessary

In order for plaintiff to successfully applied for pre-action discovery, the Court states 4
elements necessary for an order pre-action discovery to be made :

I. State the material facts pertaining to the intended proceedings;

II. State whether the person against whom the order is sought is likely to be a
party in the subsequent proceedings in the court;
III. Specify or described the documents sought and show that the documents are
relevant to an issue arising or likely to arise out of the claim made or likely to
be made
IV. Identify the persons against whom the order is sought is likely to have or had
the documents in his possession, custody or power

The court held that Plaintiff had complied the above requirements and therefore the court has
granted the Order. Furthermore, the court states that with reference to the applicability of the
section 39 of Data Protection Act 2010, section 39 does empower the court of Malaysia to
make orders directing the 3rd defendant in possession of the data to disclose to plaintiff. This
means that web operator has the liability to disclose any information relating to the
wrongdoings of its users under Order 24 rule 7A(3) ROC 2012.

5.Explain how section 114A of the Evidence Act 1950 may apply to determine the issue
of publication for purposes of defamation. See: Thong King Chai v. Ho Khar Fun (2018)
1 LNS 374

The 3 statutory presumptions of fact under s. 114A of the Evidence Act are person; inter ilia

I. Whose name depicts himself as the owner, host, administrator, editor or sub-editor,
II. Registered as a subscriber of a network service; and
III. Has in his custody or control any computer which any publications originate,

is presumed to have published the contents of the publication unless the contrary is proved

Section 114A of the Evidence Act 1950 gives rise to a presumption that any internet posting,
whether by way of an original post or reposting, done by someone using a person’s name,
photograph or pseudonym as an author/reposter, is presumed to have been published by the
true owner of said name, photograph or pseudonym.

This presumption of fact also extends to subscribers of network services and any person who
has custody or control of a computer and/or website on which any publication originates, or is
presumed to have been published from. Therefore, this would mean that if a social media
posting is tracked to a particular IP address or computer registered under any individual or
entity, said individual or entity will be presumed to be the publisher of the statement in
question, unless they are able to prove otherwise.

Should an individual author/ reposter in question seek to rebut this presumption, they would
have to prove that the post was not published re-published by them

In the case of Thong King Chai v Ho Khar Fun, the defendant in question was presumed to
have published an email issued by an email address in his name under the presumption in
Section 114A, The defendant was also presumed to have published a Facebook post made
using his Facebook account. To rebut these presumptions of publication, the Defendant was
required to produce evidence to disapprove that he had in fact published the email and
Facebook posting,