5 Things About the Defence of Justification

by | Apr 13, 2022 | Law

1. Provided for under Section 8 of the Defamation Act 1957

Section 8 of the Defamation Act 1957 (“DA 1957”) provides the following:

“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.”

 2. A complete defence to a defamation action

 In Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187, the Federal Court opined:

“As a matter of general rule, the defence of justification is a complete defence to a defamation action (see Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75 and Tun Datuk Patinggi Haji Abdul-Rahman Ya’akub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393).”[1]

 This legal proposition was affirmed by the Federal Court in Noor Azman bin Azemi v Zahida bt Mohamed Rafik [2019] 3 MLJ 141.[2]

 3. The burden lies on the defendant to establish the defence

 Tun Salleh Abbas FJ in International Times v Leong Ho Yuen [1980] 2 MLJ 86 remarked that:

“The appellants in the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them (Gatley on Libel and Slander 7th Edition paras. 351 and 354).”[3]

 This has been reiterated by the Supreme Court in S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173,[4] and the Federal Court in, amongst others, Noor Azman bin Azemi v Zahida bt Mohamed Rafik [2019] 3 MLJ 141[5] and Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187.[6]

 4. The Defendant must state clearly and explicitly the meanings which he/she seeks to justify

 The Federal Court in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 summarised the decision of the English Court of Appeal in Lucas-Box v Associated Newspapers Group Plc & Ors [1986] 1 All ER 177:

“In substance, the Lucas-Box plea of justification as decided by the English Court of Appeal is as follows:

(a) if a plaintiff, in its defamation pleadings, gives a natural and ordinary meaning to the impugned words, the defendant may then rely on stating in his defence what he alleged was the natural and ordinary meaning of the words complained of; and

(b) a defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify.”[7] (Emphasis ours)

In Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577, the Federal Court referred to Gatley on Libel and Slander (12th Ed) and similarly held that:

“Where a claimant complains that words are defamatory of him in their natural and ordinary meaning, the defendant is entitled to justify those words in any meaning which those words are capable of conveying to a reasonable man (see Gatley on Libel and Slander (12th Ed) para 27.8 citing Prager v Times Newspapers Ltd [1988] 1 WLR 77.”[8] (Emphasis ours)

5. The defamatory allegations made must be substantially true

In interpreting Section 8 of the DA 1957, the Federal Court in Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577 was of the view:

“… there only needs to be substantial justification of the whole libel and it is not necessary to prove the truth of every word of the libel.”[9] (Emphasis ours)

Azahar Mohamed FCJ, in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187, held:

 “A defendant will have sufficiently proven the defence of justification if he is able to prove the truth or the substantial truth of his own meanings of the impugned words (see Moore v News of the World Ltd and another [1972] 1 All ER 915 and Khalid Yusoff v Pertubuhan Berita Nasional Malaysia (Bernama) & Ors [2014] 8 CLJ 337, Cheah Cheng Hoc & Ors v Liew Yew Tiam & Ors [2000] 6 MLJ 204).”[10] (Emphasis ours)

(more…)