1 Defamation LAWS OF MALAYSIA REPRINT Act 286 DEFAMATION ACT 1957 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 DEFAMATION ACT 1957 First enacted ... ... ... ... ... ... 1957 (F.M. Ordinance No. 20 of 1957) Revised ... ... ... ... ... ... ... 1983 (Act 286 w.e.f. 18 August 1983) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 286 DEFAMATION ACT 1957 ARRANGEMENT OF SECTIONS Section 1. Short title 2. Interpretation 3. Broadcast statements 4. Slander of women 5. Slander affecting official, professional, or business reputation 6. Slander of title, etc. 7. Unintentional defamation 8. Justification 9. Fair comment 10. Apology in mitigation of damages 11. Reports of judicial proceedings 12. Qualified privilege of newspapers 13. Application of Act to broadcasting 14. Limitation of privilege at elections 15. Agreements for indemnity 16. Evidence of other damages recovered by plaintiff 17. Consolidation of actions for libel 18. Separate assessment of damages in certain cases in actions for libel 19. Severance of defences 20. Consolidation of actions for slander, etc. 21. Transitional provisions and saving 22. (Omitted) SCHEDULE 4 Laws of Malaysia ACT 286 5 Defamation LAWS OF MALAYSIA Act 286 DEFAMATION ACT 1957 An Act relating to the law of libel and slander and other malicious falsehoods. [Peninsular Malaysia--1 July 1957; Sabah and Sarawak--6 May 1965, L.N. 179/1965] Short title 1. This Act may be cited as the Defamation Act 1957. Interpretation 2. In this Act, unless the context otherwise requires-- " b r o a d c a s t i n g by means of radio communication" means publication for general reception by means of a radio communication w i t h i n the meaning of the *Telecommunications Act 1950 [ A c t 20 ], and includes the transmission simultaneously by telecommunication line in accordance with a licence granted in that behalf under the Telecommunications Act of words broadcast by means of radio communication; " n e w s p a p e r " means any paper containing public news or observations thereon or consisting wholly or mainly of advertisements which is printed for sale and is published in Malaysia either periodically or in parts or numbers at intervals not exceeding thirty-six days; "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern whether the admission to the meeting is general or restricted; *NOTE--The Telecommunications Act 1950 [Act 20] has since been repealed by the Communications and Multimedia Act 1998 [Act 588]­see section 273 of Act 588. 6 Laws of Malaysia ACT 286 "words" includes pictures, visual images, gestures and other methods of signifying meaning. Broadcast statements 3.  For the purpose of the law of libel and slander the broadcasting of words by means of radio communication shall be treated as publication in a permanent form. Slander of women 4.  Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable. Slander affecting official, professional, or business reputation 5.  In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business. Slander of title, etc. 6. (1) In any action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-- (a) 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; or (b) if the said words 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. (2) Section 3 of this Act shall apply for the purposes of this section as it applies for the purposes of the law of libel and slander. 7 Defamation Unintentional defamation 7. (1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case-- (a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication); (b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant or were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn. (2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph 7(1)(b) no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published. (3) An offer of amends under this section shall be understood to mean an offer-- (a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words; (b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are 8 Laws of Malaysia ACT 286 reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved. (4) Where an offer of amends under this section is accepted by the party aggrieved-- (a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the High Court, whose decision thereon shall be final; (b) the power of the Court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph 7(4)(a), shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question, and if no such proceedings as aforesaid are taken, the High Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings. (5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say-- (a) that the publisher did not intend to publish them of and c o n c e r n i n g that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or (b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person, and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication. 9 Defamation (6) Paragraph 7(1)(b) shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice. Justification 8.  In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. Fair comment 9.  In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. Apology in mitigation of damages 10. (1) In any action for defamation the defendant may (after notice in writing of his intention to do so duly given to the plaintiff at the time of filing his written statement of his case) give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of such action or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology. (2) In an action for libel contained in any newspaper any defendant who has paid money into court under the provisions of any written law relating to civil procedure may state in mitigation of damages, in his written statement of his case, that such libel was inserted in such newspaper without actual malice and without gross negligence and that, before the commencement of the action or at the earliest opportunity afterwards, he inserted or offered to insert in such newspaper a full apology for the said libel, or, if the newspaper 10 Laws of Malaysia ACT 286 in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper to be selected by the plaintiff in such action. Reports of judicial proceedings 1 1 . ( 1 ) A fair and accurate and contemporaneous report of proceedings publicly heard before any court lawfully exercising judicial authority within Malaysia and of the judgment, sentence or finding of any such court shall be absolutely privileged, and any fair and bona fide comment thereon shall be protected, although such judgment, sentence or finding be subsequently reversed, quashed or varied, unless at the time of the publication of such report or comment the defendant who claims the protection afforded by this section knew or ought to have known of such reversal, quashing or variation. (2) Nothing in this section shall authorize the publication of any blasphemous, seditious or indecent matter or any matter the publication of which is prohibited by law. Qualified privilege of newspapers 12. (1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in Part I of the Schedule to this Act shall be privileged unless the publication is proved to be made with malice. (2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances. (3) Nothing in this section shall be construed as protecting the publication of any blasphemous, seditious or indecent matter or of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit. 11 Defamation (4) Nothing in this section</