Defamation Info Sheet : Initiating Civil Action and Defending As A Litigant
Updated: Jan 22, 2021
Q1: Someone said not so nice things about me and I am so angry, what do I do?
Under defamation law, good name and reputation are considered valuable: if a person says not so nice things (defamatory words) about the other person which resulted in the recipient of said banter to be aggrieved to the point that it causes loss of business/employment/societal standing leading to ostracization which may lead to mental health issues such as anxiety, depression etc, the person who said the not so nice things can be sued for monetary and other reliefs/remedies.
That’s basically the point of suing anyone in Court under Defamation Act 1957:
1. Establishing that you are a person of good name and reputation.
2. Establishing that your name and reputation has quantifiable value.
3. There was damage caused by the defamatory words that lead to:
a. Loss of job/business
i. You either got fired/loss of job opportunities;
ii. If you are a business owner you can compare with previous years’ sales track record and point out the difference before and after the defamatory words were said.
iii. If you are a politician the value of good name and reputation is essential in getting re-elected so this is the reason you see high profile cases between, initiated by, and defended by this demographic group.
b. Broken/Irreparable family and social relationships
c. Physical illness/mental illness
i. This one you need credible medical report by relevant experts.
Q2 : Forms of Saying Not So Nice Things
Defamatory words are called Libel, if it’s in permanent written form (traditional print and online articles, newspapers WhatsApp Messages, FB etc), or slander, if it’s verbal form.
- A woman being called a slut or adulterous (not for men tho, how odd isn’t it?)
- Slanderous words relating to official, professional or business reputation;
- Slanderous words relating to title or goods; and
- Slanderous words relating to a criminal offence punishable by imprisonment or corporal punishment.
Q3 : So…Should I Sue That Person Who Said Not So Nice Things About Me?
Lawyer’s favourite answer is it depends.
My free of charge (FOC) advice is :
a. If the defamatory words were just some random generally harmless banter online via social media or some aunties WhatsApp Group or some chit chat across the fence in the kampung just ignore and leave it be. It’s an absolute waste of time and money if you pursue this as a litigant. Fees are normally in the 5 figures and above and it’s not worth it.
b. If however it does cause you serious problems in real life as I mentioned previously, my next FOC advice is if it is criminal in nature and is reported either via a news report, broadcast news, etc, lodge a police report. Announce to the world you lodged a police report.
c. If it is only available on social media, email, or electronic form of communication please lodge a report with Multimedia and Communications Commission (MCMC) at https://aduan.skmm.gov.my/ because even if you lodge a police report they will tell you do submit a report online at MCMC.
d. Please note that our armed forces aka the police has better things to do like murder, kidnapping and human trafficking to deal with rather than waste time with people’s petty arguments, so it has to be absolutely serious.
Q4 : The Authorities Were Not Helpful Azira, What Do I Do Now?
If you’re reading until here it means you still want to sue or pursue some sort of remedy.
You’ve lost business leads/opportunities, your neighbours hate you, you’re not getting investment from an important venture capitalist due to allegations of corruption, definitely major impact on your life personally and financially.
You’ve decided to engage the services of a lawyer, after speaking to 3 different law firms before making your decision (yes, shop around to find one you feel comfortable working for you at your budget).
There are several ways a lawyer may advise but in general:
1. Are you sure the person you are deciding to sue a person of means to pay whatever damages and remedies that you are making a demand against him for? General enquiries on the person’s personal asset net worth and general annual income should be considered prior to proceeding. This one lawyers won’t do, we’re not private investigators find out first before coming to us.
2. Letter of Demand (LOD) is usually the start of any civil action, testing the waters on how the person you are aggrieved against, asking for an apology as a remedy. You are now the Plaintiff.
a. The Defendant may then, feeling intimidated, might just issue the apology due to the costs incurred or effort involved in defending against such a civil court action, much to disappointment of both sides’ lawyers, or decide to fight.
b. If the Defendant decide to fight or is unresponsive to your LOD, depending on how much damage you think your good name and reputation is worth you can and should proceed with the court process.
c. When a Writ is served with Statement of Claim with an Affidavit, Defendant’s lawyers would have to file a Notice of Appearance, with file a Statement of Defence, it gets into Case Management stage, then a Reply, then a few more Case Management appearances where both parties file Submissions which to draft require hours of research depending on the nature of the grievances, attend more Case Management, schedule a Hearing, call Witnesses and Expert Witnesses, draft more documents, until Judge makes a decision, and if you Appeal to Court of Appeal more documents will get filed and so on.
d. Even with the above process, sometimes the amount of damages if any barely cover the cost of legal fees, and it may be in a form of a don’t kacau this fella anymore Order (an Injunction) or other reliefs as the Court deems fit.
3. Go to Court, but seek guidance of Court Mediation.
a. This is when you and your lawyer discuss with the other party and his/her lawyer to negotiate for the desired outcome that both sides finds agreeable. Settlement can also be apology, payment of monies or some joint-statement to be issued to the media.
b. The Court mandated Mediated Settlement is enforceable and if any party violates the agreement the Court may be applied for Contempt of Court, which may lead to more monetary damages or worse, jail time.
c. Less documents, less costs, cost effective legal fees.
Q5 : I am the one sued for Slander/Libel Azira, What do I do?
1. Just issue an apology if based on the facts of the case you know you were wrong and your lawyer (or different ones) advise the same. It’s not worth the trouble.
2. Refer back to Court Mediation process, if the Plaintiff is amicable to that as a remedy/solution.
If still want to fight, you can rely on the following Defences:
a. Prove that something said is based on truth, evidential burden is high.
b. Here’s an audio recording that backs my statement that Borhan’s Company transferred RM 5 million into Dato’ Osman’s personal bank account around the same time period where he was Chairman of National Infrastructure Fund and he approved a project for Borhan’s Company valued at RM 100 million. Or a credible witness statement stating yes this was said.
2. Absolute privilege
a. This normally applies to public documents readily available such as Court Judgments, Hansard, Police Reports, and Statements under Section 112 of the Criminal Procedure Code, which is basically your testimony to police while under remand/being investigated.
b. It’s readily available, so it’s not defamatory when it’s searchable by general search engine and is factually accurate.
3. Qualified privilege
a. A person with an interest or a duty, legal, social, or moral, to publish the words to the persons it was published to; and the recipient of the words had an interest or duty to receive them.
b. Politician A was previously arrested for outrage of modesty of a woman but was never convicted, but when he was selected for a Parliamentary Select Committee for Women’s Rights Politician B raised the issue and said he’s not supposed to be appointed due to previous investigation. Politician B can raise the defence of Qualified Privilege as it is a moral, social and legal duty, and of public interest.
4. Reynold’s Privilege
a. This usually applies to newspapers, where the defendant has to prove public interest and that the readership has an interest in receiving the said printed words.
b. Court will then consider whether this is responsible journalism, although not limited to journalists, it can also in theory be claimed by general human rights publications.
c. A most recent example would be the Star’s excellent expose on the halal Meat Cartel scandal.
5. Fair Comment
a. This is basically commentary on factors proven as truth, fair, and is a matter of public interest.
b. Saying Dato’ Ahmad’s Company is a RM2 Company based on a news report about a document from Company’s Commission of Malaysia (SSM) is a fair comment, when it is printed on the document that the Company was at its incorporation worth RM2.
Personally I’ve always seen defamation litigation suits as a rich and famous field. No person of modest means like even the author would consider it a worthy investment of time, energy and money due to how costly and emotionally draining it can be for parties to the suit.
In a suit like this, sometimes it’s a matter of who has the most amount of resources in the form of time and legal fees to throw away just to win an argument that could’ve been resolved by appointing a Mediator first, then legal action as a last resort. It can also be used as a perfectly legal tool of intimidation and bullying if by a rich and powerful person against an underdog farmer who complained about impact of mining on his agricultural yield.
A good lawyer would recommend methods to resolve any disagreements in a most efficient and cost effective manner because of the unpredictability of the outcome of any civil suit due to the technicalities of each case. No lawyer can promise a confirm win case. We can only advocate on your behalf.
However, in the age of social media influencers where millions of revenue are at stake your brand, good name and reputation is something worth defending. If you’re just feeling slighted, I can recommend ASMR to help calm you down.
This is intended as general guidance not actual legal advice. Please contact me at firstname.lastname@example.org or fill up a form at www.aziraaziz.com for detailed legal services related to above, or anything at all related to law and policy.