The Basics of Defamation Law in Malaysia
“When the debate is lost, slander becomes the tool of the loser”
Socrates, 470–399 BC
In Malaysia, most torts are not governed in statutes. However, defamation is the exception to it, governed under the Defamation Act 1957. In the Act, the two main categories of defamation are libel and slander. Libel are derogatory statements made in permanent form, whilst slander are those not in permanent form. Defamation occurs when published derogatory statements have caused or are likely to cause harm to a person’s reputation. According to Ayob bin Saud v TS Sambanthamurthi, [i] three conjunctive elements have to be fulfilled to establish a claim for defamation. Firstly, the statements have to be capable of defamatory meaning; next, they have to refer to the plaintiff; and lastly, they have to be published.
Referring to the recent case between Khairy Jamaluddin and Datuk Seri Anwar Ibrahim, it was held by the Court of Appeal that Khairy was in fact liable for defaming Anwar by insinuating homosexual allegations.[ii] With this, the University of Malaya Law Society (UMLS) would like to shed some light into the issue of defamation.
In 2008, Datuk Seri Anwar Ibrahim filed a defamation suit against our current Health Minister, Khairy Jamaluddin for homosexual insinuation, who was then the UMNO Youth Deputy Chief.[iii] According to Anwar, the alleged the words implied he was involved in unnatural sexual activities that contravened Islamic beliefs, thus implying he was of immoral character. On the other hand, Khairy’s counsel argued that the testimony carry lesser defamatory meaning and does not have a sexual connotation, but rather a marriage of convenience between political parties.[iv] On the 29th September 2017, the High Court held that the degree of allegation made by Khairy was serious, and as the defamatory statement has been made in a public speech and republished widely throughout the nation, and as such, Khairy must be held liable.
On the 7th of February 2021, in an online hearing, a three-member Court of Appeal panel led by Justice Dato’ Lee Swee Seng affirmed the High Court's verdict and ruled that there was no appealable error that needed appellate intervention. The panel concurred with the High Court that the challenged statement was defamatory in grounds of analogy and figure of speech within the natural and ordinary sense, as mentioned in the trial judge's conclusion.[v]
The court further stated that the sting is not so much in the words themselves but it is in what ordinary men would infer from them. In law, the conclusion that may be drawn from the words used is also considered part of the natural and usual meaning of the terms used. The court also stated that the trial judge's decision to order the Appellant to pay the Respondent RM150,000 in damages was not blatantly excessive, and thus does not require the intervention of the Court of Appeal. As a result, the appeal was denied, and Anwar, the Respondent in this instance, was granted RM50,000 in costs.[vi]
Meanwhile, the Appellant's appeal to amend his statement of defence in the defamation suit brought by the Respondent was likewise denied by the appellate court. The court ruled that the High Court judge made no appealable error in dismissing the amendment since it was filed much too late in the day for an alteration of the sort to be made to amend the statement of defense. As a result of the dismissal of the appeal, the court also ordered Appellant to pay RM10,000.
Hence, the Court of Appeal has ordered the Health Minister to pay Datuk Seri Anwar Ibrahim RM60,000 in total costs as well as RM150,000 in damages.[vii]
To conclude, the law of defamation seeks to defend the reputation and honour of an individual. Reputation is a significant aspect of various decision-making processes in a society such as whom to vote for, whom to employ and whom to do business with.[viii] Thus, the law of defamation ensures the reputation of every individual shall not be deprecated by another person without any lawful reason.[ix] Therefore, one should always be careful and mindful before making any statements or allegations about another person. While you might have confidence in the truthfulness of the statements that you published, it might turn out to be defamatory against the other person.
Always think before you speak and always check before you share.
UM Law Society 21/22
[i] Ayob bin Saud v TS Sambanthamurthi  1 MLJ 315
[ii] Hafiz Yatim. (2022, February 7) Khairy loses appeal against Anwar for 'main belakang' remark in 2008. The Edge Markets. Retrieved April 11, 2022 from https://www.theedgemarkets.com/article/khairy-loses-appeal-against-anwar-main-belakang-remark-2008
[iii] Rahmat Khairulrijal. (2022, February 7). Khairy fails to set Anwar’s suit. New Strait Times. Retrieved April 12, 2022 from https://www.nst.com.my/news/crime-courts/2022/02/769287/khairy-fails-set-aside-anwar-suit
[iv] Hafiz Yatim. (2022, February 7). Khairy loses appeal against Anwar for 'main belakang' remark in 2008. The Edge Markets. Retrieved April 11, 2022 from https://www.theedgemarkets.com/article/khairy-loses-appeal-against-anwar-main-belakang-remark-2008
[v] Hafiz Yatim. (2022, February 7). Khairy loses appeal against Anwar for 'main belakang' remark in 2008. The Edge Markets. Retrieved April 11, 2022 from https://www.theedgemarkets.com/article/khairy-loses-appeal-against-anwar-main-belakang-remark-2008
[vi] Bernama. (2022, February 7). Appeals court dismisses Khairy’s bid to challenge Anwar’s defamation suit. MalaysiaNow. Retrieved April 11, 2022 from https://www.malaysianow.com/news/2022/02/07/appeals-court-dismisses-khairys-bid-to-challenge-anwars-defamation-suit/
[vii] Nurbaiti Hamdan. (2022, February 7). Court dismisses Khairy’s appeal against Anwar’s defamation suit. The Star. Retrieved April 11, 2022 from https://www.thestar.com.my/news/nation/2022/02/07/court-dismisses-khairys-appeal-against-anwars-defamation-suit
[viii] Reynolds v Times Newspapers Ltd and others  2 AC 127.
[ix] Datuk Seri Anwar bin Ibrahim v Utusan Melayu (M) Bhd & Anor  3 MLJ 534.