#1 CONSENT & VOLENTI NON FIT INJURIA
Volenti non fit injuria is a Latin term which means injuries do not occur to a willing person. In these circumstances, the Defendant will not be guilty if it is proven that the Plaintiff gave his consent for a publication to be made, either explicitly or implicitly.
For example, Plaintiff was interviewed by the media and he knew it would be broadcast on TV. So the Plaintiff knows and is willing to any publication made.
The Defendant must prove that there is an element of willingness or consent from the Plaintiff for this defence to succeed.
#2 JUSTIFICATION : DEFENCES TO DEFAMATION
The defence of justification is a kind of absolute defence. This means that when a defamatory statement is proven true, the law will not protect the Plaintiff.
Any malice will not defeat the defence of justification if the defamatory statement is proven to be true.
The Defendant must prove and justify that the statements made are purely true.
For example, if the Defendant makes a statement that the Plaintiff has breached a contract with a company, and indeed it has been proven of the offence then, the defamation suit against the Defendant would be unsuccessful.
#3 FAIR COMMENT : DEFENCES TO DEFAMATION
This defence means that the Defendant must prove that the statement made is a fair, honest comment and that it was made for the public interest.
There are 4 elements that the Defendant needs to prove:
1. Words must be in the form of comments and not facts.
2. Comments should be based on the correct facts.
3. Comments should be fair and no element of malice.
4. Comments should be made on issues of public interest.
#4 PRIVILEGE : DEFENCES TO DEFAMATION
ABSOLUTE PRIVILEGE
This defence if successfully proved, the party who published the defamatory statement cannot be sued.
Example 1:
A lawyer is protected by absolute privilege over statements made during court proceedings. But statements must be those related to the matter then and made in good faith.
Example 2:
A member of parliament is also protected by this privilege regarding statements made during a parliamentary session that are not questionable in any court. This includes any reports, papers, votes or other matters that parliament allows or directs to publish.
Example 3:
Police reports, reports of court proceedings, court judgments and others.
This defence will fail if the publication is derogatory, seditious, indecent or prohibited by law.
QUALIFIED PRIVILEGE
This defence applies to publications in newspapers relating to any reports or other matters listed under the Defamation Act 1957.
It also applies to the parties responsible for receiving and issuing reports or findings made without malicious intent.
Among the examples:
– Service of summons by way of substituted service published in the newspaper.
– Report of the proceedings of the international conference.
– General meeting report.
– Letter of complaint to the authorities regarding professional misconduct.
There are many more scopes of things covered by the defence of qualified privilege.
SUED FOR DEFAMATION FOR POLICE REPORT
GES LWN OKH DAN LAIN-LAIN [2011] MLJU 1058
In this case, there are two documents at issue which are letter and police report that are said to be defamatory to an individual plaintiff named GES.
GES stated that the natural meaning of the letter and the police report showed he was guilty of disgraceful, deceptive conduct, an unfit, unprincipled and inappropriate person in the performance of his duties within the company.
The Defendants in this case have used the defence of absolute privilege for the police report and the qualified privilege for the letter.
The court allowed the defences applied to several Defendants in this case.
Police reports are indeed protected by the absolute privilege. As for the letter, the Court is of the view that the Defendants have a legal, social or moral duty to publish a letter to the liquidator.
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