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.
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.
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.
Star (Used by permission)