Introduction To Defamation And Qualified Privilege

Can we say anything and everything we want? While the constitution guarantees our right to free speech, we are ultimately still responsible for what we said.

In law, we can be liable for criminal or civil defamation for what we say in public. In this article, we will briefly share with you guys what defamation is.

What is defamation?

Defamation is an act intended to damage a person’s reputation. This can be done via:

1. Writings, which include emails, pictures, statutes (also known as ‘libel’); or
2. Publications, which include spoken words or gestures (also known as ‘slander ’). 

Can you justify it?

Yes. There are 4 defenses available provided that:

1. It is a true statement (justification).
2. It is an honest opinion (fair comment).
3. It is made as a result of making a fair, accurate, and contemporaneous report of certain publications, such as court proceedings, police reports, parliamentary proceedings, etc (absolute privilege). 
4. It is made by a person who has an interest or duty (whether it is legal, social, or moral) to make such a statement (qualified privilege).

What is considered a qualified privilege, and what is not

In order to determine what is and what is not considered a qualified privilege, we have to look at the statement in an objective manner.

In this regard, it is not sufficient that the person who made the statement honestly believes that he had a legitimate duty or interest to make the statement- it must be backed up with facts as well, such as the relationship between the maker of the statement and the recipient and whether the recipient has a corresponding interest in the statement that was made.

For example, in Anne Lim Keng See v The New Straits Times Press (M) Bhd & Anor, MBf Finance Bhd obtained a judgment in default against Anne Lim for a sum of money that was owed to MBf Finance.

However, Anne Lim settled the debt to MBf Finance by issuing a cheque directly to MBf Finance without the knowledge of MBf Finance. As no one was aware of the settlement, MBf Finance proceeded to obtain leave from the court to serve the bankruptcy notice to Anne Lim. The notice was posted in the Malay Mail and NST.

When Anne Lim saw it, she sued for defamation. She claimed that:

1. She has settled the debts;
2. The notice was put in to smear her name, as it could be inferred that she was suffering from financial problems, was unable to settle her debts, was facing bankruptcy, and was trying to avoid service of the bankruptcy notice (she alleges that she was a famous and successful businesswoman).

The court rejected Anne Lim’s claim. In coming to its decision, the court states that NST and Malay Mail were not aware of the settlement and were merely fulfilling their legal obligations and that the statement was merely to notify Anne Lim that bankruptcy proceedings have been commenced against her, nothing more, nothing less. 

Is It 100% foolproof?

No. It can still fail if the statement is made with malice i.e. the statement was uttered intentionally or recklessly without just cause or excuse, intended solely to smear the reputation and goodwill of another person. 

Who has to prove malice?

The person who instituted a defamation claim. 

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