tort presentation (defamatory).pptx

8/18/2019 tort presentation (defamatory).pptx

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Whether Professor Obiwanliable for defamation under

libel towards Luke?


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Definition of DEFAMATION

The tort of defamation arises when there is a publication which has a tendencyto lower the person’s reputation or to cause him to be shunned or avoidedby reasonable persons in society, thereby adversely a ecting his reputation.

Defnition o LIBEL

Defamation in a permanent form and is usually visible to the eye, such as items in writinwhich include e-mail, pictures, statues or effigies. Libel is actionable per sec, which meansthat a plaintiff need no prove any damage.

■ ELEMENTS OF DEFAMATIONi. The words are defamatoryii. The words refer to the plainti

iii. The words have been published


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The words are defamatory

This element is satisfied when the words have a tendency to lower the estimation of the plaintiff in theminds of right-thinking members of society generally, so that the plaintiff is e posed to hatred, avoided,shunned or ridiculed!

"atural and Ordinary meaning

The words complained of are defamatory in their natural and ordinary meaning if they impute that theplaintiff is dishonourable or of discreditable conduct or motive or lacks intergrity!

#n #nstitute of $ommercial %anagement &nited 'ingdom v "ew (traits Times Press )%alaysia* +hd,theplaintiff claimed damages against the defendant for libel in respect of words contained in an articlepublished by the defendant entitled +ritish diploma mills step up sales racket. meaning that theplaintiff was a bogus educational institution and was carrying out unlawful activities in %alaysia andother places! The court held that the words has strong tendency to lower the plaintiff in the estimationof the right-thinking members of society generally or the parents of potential students or potentialstudents themselves!

#n this scenario, the reference letter written by Professor Obiwan described Luke as rebellious and badtempered caused Luke to be look down by his potential employer!#t subse/uently resulted Luke failed toget the 0ob!

The first element is fulfilled!


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The words refer to the plaintiff

The defamatory statement must clearly indicate that the words referred tothe plaintiff himself! +elief, suspicion or speculation is insufficient! 1eferenceto the plaintiff is obviously established if the plaintiff s name is clearlystated, irrespective of whether the defendant has the intention to defamethe plaintiff or otherwise!

#n Hulton & Co v Jones, the court held that defamation was established asthose who knew him understood the word as referring to him although thatwas not intended to be so by the author or the publisher!

#n this case, the reference letter by Professor Obiwan was clearly refer toLuke as the letter was supposed to be a reference letter for Luke asre/uested by Luke! Professor Obiwan described Luke as rebellious and badtempered person directly in the reference letter!

The second element is fulfilled!


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The words have been published

Publication means the dissemination of the defamatory words or material to athird party, other than the plaintiff!

#n Dr Jenni Ibrahim v S Pakianathan, the plaintiff was a psychologist who wasworking on a voluntary basis at a 2elp $entre! The defendant who was theformer managing director of the $entre wrote two letters indicating that theplaintiff had committed breach of trust amounting to about 1%34,444! $opiesof one of these letters were sent to all the directors of the $entre, to thedirector of the Welfare (ervices of Perak and to the 1egistrar of (ocieties of

%alaysia! The $ourt held that sending copies of the said letter to the otherparties constituted publication!

#n this scenario, the reference letter written by Professor Obiwan was sent tothe potential employer of Luke! The potential employer become the thirdparty who read the letter, thus publication was constituted!

The third element is fulfilled!


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5efence

(ince the three elements of defamation has fulfilled, the defamation has established!Professor Obiwan is liable for defamation under libel towards Luke!

2owever, defence of 0ustification may be raised! &nder this defence,a defendant mayescape liability for his defamatory allegation if he can proved the truth of facts withinthe allegation!

#n ( Pakiananthan v 5r 6enni #brahim , the defendant alleged that the plaintiff hascommitted a criminal breach of trust 1% 34444! The court held that the burden restedon the defendant to prove 0ustification! The defendant was re/uired to prove the truth

of his allegation and it was not sufficient for him to state that he believed theallegation to be true!

#n this scenario, defendant has to proved that plaintiff is in fact a rebellious and badtempered person!The fact that plaintiff had argued with defendant about a politicalissue during the discussions in class is not sufficient to show that plaintiff is a rebelliousand bad tempered person!The description is too e cessive! Thus, the defence of0ustification cannot be raised!


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$onclusion

#n conlusion,the defence of 0ustification failed to raise by Professor Obiwan!Therefore, Professor Obiwan is liable for defamation under libel towardsLuke!


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#ssue

Whether Luke is liable for defamationtowards Professor Obiwan under slander?


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(lander is defamation in a temporary ortransient form! Publication is usually made

through spoken words or gestures! 7slander is not actionable per se! Theplaintiff therefore needs to prove actualdamage in order to succeed in his action!


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There is e ception when the slander becomesactionable per se!

&nder (ection 8 of the act which is the slander in relation to a person s

professional or business reputation!(ection 8 of the act provides9

#n an action of slander in respect of words calculated to disparage the plaintiff inan office, profession, calling, trade or business held or carried on by him at thetime of the publication, it shall not be necessary for the plaintiff to prove actualdamage whether or not the words are spoken of the plaintiff in the way of hisoffice, profession, calling, trade or business!

#n the present case, Professor Obiwan did not have to prove any actual damagethat he suffered due to the defamatory words said by Luke towards him! This isbecause Luke s action, saying Professor Obiwan was a double-face and hypocritewas actually slander in relation to a person s profession as Professor Obiwanowned the title of Professor which mean someone who was highly respected bypublic because he was professional!


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The words are defamatoryThe words refer to the plaintiff The words have been published

: elements


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"atural and ordinary meaning

The words complained of are defamatory in their natural andordinary meaning if they impute that the plaintiff is dishonourable orof discreditable conduct or motive or lacks integrity! #n the case2asnul bin 7bdul 2adi v +ulat bin %ohamed ; 7nor, the court heldthat labeling a %uslim man as 7bu 6ahal is defamatory as itimputes that person as a big liar, untrustworthy and irresponsible! #n

the present case, Luke told Lea, the clerk at the general office thatProfessor Obiwan is double-face and a hypocrite ! +y saying thosewords is defamatory by the plain meaning of the words where itmeans that Professor Obiwan will back stabbed others! This for surewill lower reputation of Professor Obiwan and avoided by hiscolleague! 2ence, the first element of defamation was fulfilled!

The words are defamatory


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The plaintiff must prove that those word refer to him! #t is not necessarythat the public at large or the whole word should understand the words to

be referring to and defamatory to the plaintiff! #t is sufficient that thosewho know the plaintiff believe that he is the person referred to! #n the case2ulton v 6ones, a fiction was written concerning an 7rtemis 6ones inPeckham! There was in fact a real 7rtemis 6ones, the plaintiff, a lawyer atthe town! 2is friends thought that the story concerned the plaintiff! thecourt held that defamation was established as those who knew himunderstood the words referred to him!

#n the present case, words spoken by Luke was clearly referring to ProfessorObiwan after he knew the content of reference letter written by ProfessorObiwan which described him as someone rebellious and bad tempered !+esides, now everyone knew the matter and Professor Obiwan s personalassistant even conveyed this matter to him! 2ence, the second element ofdefamation was fulfilled!

The words refer to the plaintiff


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Publication means that dissemination of the defamatory words ormaterial to the third party, other than the plaintiff! #n the case Wan7bdul 1ashid v ( (ivasubramanian, the court held that there waspublication as the words were spoken in public! #n the present case,Luke actually had told Lea, the clerk in the general office that ProfessorObiwan was double face and hypocrite ! Thus, this had come to the

knowledge of the third party which was Lea! (ure Lea would look atProfessor Obiwan differently now and try to avoid him! 2ence, the thirdelement of defamation was fulfilled!

The words have been published


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The defence of 0ustification or truth, is an absolute defence! Once the

defamatory statement is proven to be true, the law will not protect theplaintiff! The state of mind of the defendant at time of publication isirrelevant! #n the case ( Pakianathan v 5r 6enni #brahim, the defendantalleged that the plaintiff had committed a criminal breach of trustamounting to 1%34444! the court held that the burden rested on thedefendant to prove 0ustification! The defendant was asked to prove thetruth of his allegation and it was not sufficient for him to state he believedthat the allegation to be true! #n the present case, Luke had to prove that

Professor Obiwan was double-face and bad tempered and he should not 0ustsimply said those words because Professor Obiwan had written somethingbad about him in the reference letter! +esides, it did not mean that whensomeone argued or did not have the same opinion as us during the discussionon certain topic, they would certainly said or write something bad about uslater! %oreover, what Professor Obiwan wrote in the letter was merely astatement!

5efence of 0ustification


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#n conlusion, the defence of 0ustification failed to raise byLuke! Therefore, Luke is liable for defamation under libeltowards Luke!

$onclusion

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tort presentation (defamatory).pptx