Tort of Defamation – Libel

Tort of Defamation – Libel

Defamation is a civil law action that exists to protect people from the effects of false or inaccurate statements. Libel is a type of defamation that arises when untrue statements are published in a permanent form such as on newspaper, article, Facebook post and etc. In today’s interconnected world, information travels faster and farther than ever before. Social media has especially made it easier for news to spread, such that statements made in one location can have significant impact elsewhere, often within mere minutes or hours.
The tort of defamation is a civil law cause of action that lets someone sue to correct damage arising from defamatory statements. A statement may amount to defamation when it tends to lower a person’s reputation in the eyes of reasonable people. 

Types of defamation

Statements amounting to defamation may come in all shapes or forms. However, they fall within two broad categories: libel and slander.

Slander is defamation that is published in a temporary form. For instance, if A verbally tells B that they think C became rich by fraudulent means, the statement may amount to slander.

On the other hand, libel is defamation that is published in a permanent form. Assume A had sent a WhatsApp voice note to B or made a tweet claiming that C made his wealth from shady income. In such a case, the statement would be libelous because it is contained in a form that anyone else can return to view or listen.

Our focus here will be on libel.

How is libel proved?

Generally, libel is relatively easier to prove compared to slander because there is usually clear evidence that a statement was made.

There are three key elements that a plaintiff must establish to succeed in an action for libel. The plaintiff must prove that:

●        The statement was defamatory;
●        It referred to or concerned the plaintiff; and
●        It was published to a third party

The statement was defamatory

A defamatory statement is not just one that is untrue. Under the law, a defamatory statement may be one that:

●        Tends to lower the plaintiff’s reputation in the eyes of reasonable persons;
●        Causes the plaintiff to be shunned or exposed to contempt, hatred, or ridicule; or
●        Creates an imputation on a person that is damaging to his trade, profession, office, or business.

As a result, a statement may be held to be defamatory even when the person publishing those words believes them to be true. Defamation may also occur when the statement is somewhat true but has been presented in a light that is malicious or calculated to impair the plaintiff’s reputation.

Generally, when a court is considering whether the alleged words were libelous, it will interpret the words in their natural or ordinary meaning. Words interpreted in their natural and ordinary meaning will be assessed in terms of:

●        Their literal meaning
●        Any implied, inferred, or indirect meaning they carry
●        Any meaning they have based on general knowledge.

However, some defamatory statements may not be libelous because of their dictionary or ordinary meaning. Instead, their defamatory nature may stem from some special meaning they carry for people with knowledge of some specific facts or background information. Such statements are referred to as “innuendo” and the court will consider such words in light of their special meaning. 

The statement referred to the plaintiff

The statement need not mention the plaintiff by name. In fact, the defendant may not even have intended to refer to the plaintiff. It is enough that people who know the plaintiff would believe that the statement referred to him.

But this also means that no one can file an action for defamation on behalf of the plaintiff. Consequently, if you were injured by someone else’s libelous statement, only you can sue. 

The statement was published to a third party

A statement would not be actionable as libel if only the plaintiff received it. Rather, it must have been published to at least one other person. This means that if someone sends you a message on WhatsApp saying things you consider defamatory, you have no cause of action unless they tell someone else.

It should also be noted that there will be no cause of action if you published the untrue statements to a third party by yourself. You can only claim remedy when the defendant communicated the statement to other people and spread the libel by themselves. 

Defences the other party may assert

Due to the fact that the tort of libel may limit free speech, the law provides several defences that a defendant can claim to deflect liability. Some of the defences that the defendant can put forward include:

●        Justification: In this defence, the defendant is essentially saying that the defamatory words are completely or substantially true.
●        Fair comment: This defence asserts that the statement was a comment and not a statement of fact. Additionally, the defendant must show that the comment was fair and based on matters of public interest that have been proved as true facts.
●        Absolute privilege: A defendant will not be liable for defamatory statements published during judicial or legislative proceedings, in a police report, or any other statement given to the police under section 112 of the Malaysian Criminal Procedure Code.
●        Qualified privilege: Similarly, a defendant can deflect liability if they made the defamatory statement by reason of their legal, social, or moral duty.

While these defences exist to limit or extinguish the defendant’s liability, an experienced attorney can present a strategy to defeat them in court. One such strategy is showing that the statement was made with malice. However, this will not apply to absolute privilege which is a complete defence. 

Can you prevent the statement from being published?

A plaintiff who has notice that a defamatory statement will be published may be able to prevent such publication. For instance, if you are aware that a forthcoming edition of a magazine, newspaper, or television show will defame you, it may be possible to prevent the edition from reaching the public.

In such a case, you can apply for an injunction to stop the publication pending the conclusion of your libel lawsuit. However, it’s important to note that the court will not grant such an injunction in all cases.

In fact, courts are generally reluctant to grant these injunctions because they have the effect of limiting free speech. Likewise, the court will not grant an injunction in a lawsuit where the defendant has shown an intention to plead the defence of justification unless the plaintiff has shown that the defence cannot succeed.

What damages can you recover for libel?

The tort of libel is actionable per se. This means that, unlike an action for slander, you don’t have to prove that you suffered harm to recover compensation for libel. It is enough to show that libel has occurred.

Some of the compensation you may be able to recover includes:

●        An order of the court directing the defendant to remove the libelous publication;
●        An order of the court making the defendant publish an apology;
●        General monetary compensation for the libel;
●        Special monetary compensation for any specific financial or non-financial losses you suffered due to the libelous statement.

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