In our previous article published on 25.2.2025 titled “Saman malu atau saman fitnah?”, we have explained the elements needed to be established in proving a defamation suit. If you have been served with a defamation claim, what are your next steps as a Defendant?
Most importantly, a person who has been served with a Writ of Summons and a Statement of Claim must enter appearance within 14 days from the date of the service. Your next step would be preparing your defence.
What are the defences available to Defendant in a Defamation Suit? There are several defences to Defamation namely Justification, Fair Comment, Absolute Privilege, Qualified privilege, and Reportage. This article will discuss briefly of each of the Defence.
1. JUSTIFICATION
It is essential to note that the basis of Justification is truth. A 2025 case Mahdzir Md Isa v. Mohd Ridhuan Tee Abdullah [2025] MLRHU 1224 had quoted the recent Federal Court decision of Seema Elizabeth Isoy v. Tan Sri David Chiu Tat-Cheong [2024] 5 MLRA 68 which held that a statement that is substantially true can be untrue and defamatory if it omits the material facts.
2. FAIR COMMENT
This defence relates to a comment made on a public interest matter where it must be a reasonable opinion and not a direct factual assertion. In the event the opinion is based on facts, it must be proven facts. Express malice defeats defence of fair comment.
3. ABSOLUTE PRIVILEGE
Absolute privilege is a complete defence based on legislation and common law. If a statement is protected by Absolute Privilege, no legal action can succeed even if it is made with malice. The usual circumstances are statements made in Parliament proceedings or in Judicial proceedings.
4. QUALIFIED PRIVILEGE
This defence protects a statement that is made honestly and without malice where the maker is under a duty or interest to communicate and the listener has a mutual interest to listen to it. For example, in a situation where an employer is under the duty to give a review on the employee to a future new employer. Privilege in this context attaches to the occasion and not to the statement.
5. REPORTAGE
It relates to a journalism setting where the maker published a fair and neutral report of a public interest matter. The report shall be fair to both sides. However, the defence of Reportage would be lost by the embellishment made by the journalist adding his or her own comments to give truth to the story.
The above defences are merely to give ideas to readers on how one can protect himself or herself once defamation has been established. If you have any questions or require further information on this matter, please do not hesitate to contact us directly.
Thank you for reading!