The Operation of Libel Law on the Media

...

Not only that, columnists and publishers in the country are tiptoeing around the limitations set by what seemed to be an archaic law definition under the Official Secrets Acts 1972, Sedition Act 1948 and Printing and Press Publication Act 1984. The Acts casts a long, dark shadow over the mainstream media, the result of which is an unspoken self-censorship among many journalists.

For an example, the 1948 Sedition Act and harsh criminal defamation laws are regularly used to impose restrictions on the press and other critics of the government. A litany of arrests under the Sedition Act began in 2015. In March 2015, three editors from the online news portal the Malaysian Insider were arrested under the Sedition Act, reportedly because a council of state governors and sultans, the Conference of Rulers, disputed one of their reports; the outlet was known for its reporting on the 1MDB scandal.

The press should provide the platform for a multiplicity of voices to be heard. The press should act as the public’s watchdog, activist and guardian as well as educator, entertainer and contemporary chronicler to the public at any level, prerogative of the authorities or at the privilege of a journalist. But with the never-ending of constraints and violations happening towards local press, it is safe to say that we are approaching a “tipping point” for press freedom.

Certainly, those acts that have been mentioned by Yang Berhormat does play its role quite rigidly if we listened carefully to Miss Najwa’s message about how crucial it is to allow for press freedom but bearing in mind there are consequences to take care of and this actually happened to one of our panelists, Miss Felicia. Has the media affected you badly?

Felicia – Has the media affected you badly?

Whether it is for good reasons or just pure evil, media definitely has affected me in ways that I was not the same person I was yesterday or long before that. It’s not just about how media affects me but how it affects other people’s perspective and response on me. When I found out someone had defamed me, my early reaction was I literally doubted if I read it correctly. I couldn’t help myself feeling utterly amazed and confused. As the accusation sinks in, I grew curious. I wanted to know where the accusation originated. Who would write such words against me? Why? I grew anxious and afraid. I was afraid for my life.

My reputation is an important factor in my career and it is being tarnished online with millions of people accessing it daily. I fear of being ridiculed, shamed, hated, scorned, belittled or held in contempt by others detesting the fact that my esteem of a reasonably prudent person is tarnish. No matter how the media tries to define itself of being a medium of social responsible vehicle of communication and free-speech, it doesn’t change the fact that it is counter-productive in the absent of self-regulation. The damage has been done. Even though the accusations were untrue, due to the attention and drama caused from it, media have turned me into a laughable joke and mockery of gossip for everyone. Typing things they know nothing about. Making speculations and harmed me more than truth and after all the chaos, media has affected my name enormously from a person of who does her job normally to someone.

Now it is proven that the media is indeed a very powerful tool for the public to express their minds to the extent of loathing a public figure regardless of myriads of punishment listed in those acts. I’m sure the viewers are keen to know Mrs Premela’s answers on what are the requirements for filing a libel suit?

Mrs Premela – What are the requirements for filing a libel suit?

In order to prove a defamatory statement on the basis that it is libelous, the plaintiff must establish the element of this tort, which are: (i) the words are defamatory, and (ii) the words refer to the plaintiff, and (iii) the words have been published. Looking at the first element, it would suffice to note that what is required on the part of the plaintiff is to establish that the statement/word that forms the subject matter of his complaint is defamatory. As a general rule, this requirement is satisfied if there is harm to reputation. Perhaps it is important to note that statements/words may be defamatory in one or three ways, in its natural and ordinary meaning, or by way of innuendo or by juxtaposition.

As to the second element, the plaintiff must show that the statements/words were published of and concerning him. In other words, the statements/words must refer to him. It will be no defense that the plaintiff is not referred to by name if he would be capable of being identified by the reasonable person. Again, the words/statements used maybe taken to refer to the plaintiff where he is mentioned by name, even if the defendant did not intend to refer to the plaintiff. Hence, reference to the plaintiff is obviously established if the plaintiffs name is clearly stated, irrespective of whether the defendant has the intention to defame the plaintiff or otherwise. An example of reference to the plaintiff by external or extrinsic facts can be found in Sandison v Malayan Times Ltd & Ors ((1964) MLJ 332), where an article was published in a newspaper claiming that a senior expatriate executive of a Rubber Industry Replanting Board had been dismissed for corruption. The court held that although the executive was not named, the date of dismissal was mentioned and indeed that was the date the plaintiff ceased holding that position. The article also reported on who succeeded the dismissed executive and the identity of the successor was well known, the defamatory words clearly indicated the plaintiff as the corrupt executive.

Regarding the last element, for libel to be actionable, that is for the plaintiff to be able to sue the defendant it must be communicated to a third party, i.e. some person other than the plaintiff. Therefore, if the printed materials are not seen by third parties, and only the plaintiff sees them, publication does not arise. However, it is also important to note that there are exceptions to the rule that publication to a third party constitutes publication of the law of defamation. Firstly, no publication is deemed to exist if the communication is made between spouses, as husband and wife are regarded as one entity. Secondly, mere distributors such as newspaper delivery men are also excluded from being the ‘third party’ for the purposes of establishing publication. Similarly, a typist or printer who hands back to the author the defamatory material to be proofread or corrected does not publish the libel to the author. The typist or printer is merely