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Types of defamation
There are two types of defamation that is
The Malaysian Defamation Act 1957 does not define defamation. The matter is governed by common law. The common law recognized two forms of defamation that is libel and slander. There are distinct differences of these two forms of defamation. The difference lies in the means or medium by which the defamatory material is communicated. It used to be a fundamental distinction that between a written or printed word which is concludes as libel and spoken words which are considered as slander.
But, nowadays the general view of libel is whether the ‘publication' is in a permanent form, in other forms it is a slander. Defamation in a permanent forms and is usually visible to the eye, such as items in writing, email, pictures, statutes or effigies. Section 3 of the Act stated that broadcasting of words by means of radio communication shall be treated as communication in a permanent form. Youssoupoff v Metro-Goldwyn- Mayer Pictures Ltd (1934) 50 TLR 581, wherethe defendants made a film which falsely imputed that the plaintiff had been raped or seduced by Rasputin. The defamatory matter was in pictorial (as opposed to soundtrack) part of the picture and was held as libel. The judge in the case, Slesser Lord Judge referred to a permanent matter capable of being seen by the eye.
Libel is actionable per se, which means the plaintiff will not have to prove any special damage which is calculable as a specific sum of money. This is law presumes that when a person's reputation is assailed, some damage must be resulted. For example, when a bank wrongfully prints the words “Account Closed” on a cheque that they bound to honour, they are liable under tort of defamation.
Slander is defamation in a temporary or transient form. Publication is made through spoken words or gestures. This type of defamation is not actionable per se. it means that the plaintiff must prove actual or special damage in order to succeed in his action. Slander is actionable only on proof of actual damage, except in the following circumstances.
Firstly, the imputation of criminal offence where the offence must be punishable with imprisonment but a specific offence need not be mention. For instance, the phrase of “I know enough to put you into gaol”, is held as slander.
Secondly, the imputation of a disease where the allegation must be that the claimant is currently suffering from a contagious or infectious disease. For instances, the venereal disease, leprosy are within this rule.
Thirdly, the imputation of unchastity or adultery to any woman or girl, for example the Slander of Woman Act 1891 section 1 states that “words spoken and published …. Which imputed unchastity or adultery to any women or girl shall not require special damage to render them actionable.
Lastly, the imputation of unfitness or incompetence. This exception relates to allegations of unfitness, incompetence or dishonesty in any profession, trade, calling or business held or carried on by the claimant.
The Defamation Act 1952 section 2,
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 alleged or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling or trade or business.
The effect of this section above is that is no longer necessary for the words of slander the claimant in the context of their office to provided that the words are likely to injure them.