©The
Star (Used by permission)
by Bhag Singh
The concept of criminal defamation has evolved from communicated content which
would provoke a breach of the peace to what is regarded as serious libel.
IT WAS defamation suits more than a decade ago that led to the use of the words
“mega suits” and “mega awards”. These suits brought to the forefront a subject
that had been little touched upon.
Some 30 years ago, a lecturer against whom statements were made reflecting on
his academic competence and loyalty as a citizen, was awarded less than
RM10,000. Around the same time, a local politician who was called “Abu Jahal”
received a similar amount from each of the two defendants.
Across the Causeway in the south, bigger awards were made in favour of the prime
minister of the republic. However, this was attributed to his stature and
integrity as perceived in his country and elsewhere. But these began to pale in
comparison to unprecedented awards which ran into millions in our own country.
Things changed when the highest court in the country indicated disapproval of
the trend. However, many who had such awards made against them were left in dire
straits. They did not have the resources to take the matter further or felt
intimidated for different reasons.
These awards stimulated more litigation in defamation. Many who felt in the
slightest degree offended or upset with what was said, instituted suits in the
belief that an opportunity for riches was close at hand.
Civil wrongs
When a person succeeds in a civil claim, the result is a monetary award
accompanied by an injunction to restrain further publication or republication of
the content complained against.
Of course, the value of a victory, apart from a vindication of the person’s
reputation, is in the money to be received. However, if the defendant does not
have the ability to pay, the only option for the successful party would be to
make the defendant a bankrupt.
But such wrongdoing is not confined to civil wrongs alone. It can also
constitute an offence and a crime. In fact, it is a specific offence under the
Penal Code and is provided for in Sections 499 to 520.
A reader would like to know how defamation as an offence is different from
defamation as a civil wrong.
At this point it is useful to touch on defamation as a civil wrong and its
features and characteristics. It is a wrong which involves damage to a person’s
reputation by conveying imputations that lower him in the estimation of other
right–thinking people.
The wrong–doer could be excused for the consequences of the wrong done if what
was said and conveyed is true. An immunity is also provided by the defence of
absolute privilege, qualified privilege and fair comment. Apart from this, the
consequences could be minimised if publication was unintentional.
According to Section 499, “whoever, by words either spoken or intended to be
read or by signs, or by visible representations, makes or publishes any
imputation concerning any person, intending to harm, or knowing or having reason
to believe that such imputation will harm the reputation of such person, is
said, except on the cases hereinafter excepted, to defame that person.”
This Section is accompanied by four explanations with exceptions, some of which
are accompanied by further explanations. However, the general effect of all
these is to have a somewhat similar if not more serious consequence as
defamation in civil law.
Geoffrey Robertson and Andrew G.L. Nicol, the authors of Media Law – The Rights
of Journalist and Broadcasters, say that “the arcane offence of scandalum
magnatum was created by a statute of 1275 designed to protect ‘the great men of
the realm’ against discomfiture from stories which might arouse the people
against them. The purpose of criminal libel was to prevent loss of confidence in
Government. It was, essentially, a public order offence.”
An early view was that criminal proceedings should not be instituted unless the
words were clearly calculated to provoke a breach of the peace. It was also
thought that unless the matter concerned the public, by reason, say, of the
standing of the person defamed, criminal proceedings would be inappropriate.
However, according to a widely used text, Gatley on Libel and Slander, the
present view of the proper test is that “a criminal libel must be serious libel”
and not trivial. It need not involve public interest, nor need it be shown to be
likely to disturb the peace of the community or to provoke a breach of the
peace. Nor is it relevant whether civil remedies for libel should suffice for
the person libelled.
The difference
A basic feature of defamation as a criminal offence is reflected in the
consequences of being jailed or fined, or both. Otherwise several features or
differences can also be observed.
In a prosecution the State bears the costs for all that needs to be done to
establish the offence. In civil cases, it is the responsibility of the
plaintiff, the aggrieved person. The financial cost factor would be a
consideration of little consequence.
A significant difference is treatment of the defence of justification. In civil
proceedings, truth would be an absolute defence. However, in criminal
defamation, the defence requires that apart from what is published being true,
it must also be for the public good. Whether or not it is for the public good is
a question of fact.
In a civil claim, the action would come to an end on the death of the plaintiff
before a decision is handed down. Another feature is that prosecution may be
initiated by a relative of a deceased, unlike a civil case where this is not
generally permitted.
A civil claim would be subject to the statute of limitations. In Peninsular
Malaysia, the limitation period is six years, and in Sabah and Sarawak, one
year. However, where the proceedings are of a criminal nature, no such
limitation period would be relevant. The offence is also constituted without
communication to a third party.
Criminal defamation has been seriously criticised. Authors Geoffrey Robertson
and Andrew G.L. Nicol say that the law of criminal libel is a relic of the past
which has no place in modern jurisprudence.
The European Court, based on reference to Article 10 of European Convention,
describes criminal libel proceedings as a draconian interference with freedom of
expression. At the same time it acknowledges that its use can be justified in
certain circumstances. Article 10 of our Constitution is not very dissimilar
from Article 10 of the Convention.
In Gleaves v Insall [(1999) E.M.L.R. 779], the Divisional Court reiterated that
criminal libel was only to be resorted to in exceptional circumstances, where
the libel was so serious that the defendant should be punished by the State
itself.
Thus, it has been said that, “If a libel is extremely serious, to the extent
that a court is prepared to hold that it cannot be compensated by money and
deserves to be punished as a crime, its publisher may be made the target of a
prosecution.”
At the end of the day, those entrusted with the administration of justice,
whether in initiating prosecution or adjudicating the matter before it, should
exercise wisdom so that the law can achieve the desired objective.
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Bhag Singh: Criminal offence
14 Oct 2008 12:00 am