20 January 2012

Saman Fitnah @ Defamation : Contoh Situasi 1

Ini adalah contoh situasi dalam kes saman fitnah yang telah saya postingkan 2 hari lepas .Jika ada yang kurang faham sama-sama kita bincangkan ya. Jika ada salah dan silap tolong perbetulkan ya :)


Situasi 1
Bidi, a footballer in the “Raya Football Club” was suspected of match fixing. The state football association launched an investigation and decided to suspend Bidi pending an outcome of the investigation. The news was leaked to the press and an article appeared in the Sinaran New Report, which stated that Bidi had been suspended from his team for fixing the match between Raya Football Club and Utama Football Club where Raya Football Club lost 2-0.
This article caused an uproar among supporters of the Raya Football Club who demanded that Bidi be thrown out of the team. A few of supporters also went to Bidi’s house and shouted abusive words at him and his family.
Bidi is very upset about the whole thing and wishes to take legal action against the Sinaran News Report.
Jadi bolehkah saman fitnah dilakukan?

IDENTIFY LEGAL ISSUE
Whether Bidi can take legal action against the Sinaran News Report under defamation?

STATE THE LAW
An action of defamation is governed by common law principles and the Defamation Act 1957. This law aims to protect a person’s good name and reputation.
Defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.

There are two types of defamation in Malaysia namely libel and slander.
Libel is when such words are expressed in a permanent form which is usually visible to the eye, like in a book, e-mail or picture. Whereas slander is when such words are expressed in a temporary form, usually when spoken or made by body movements.

I believe the above case falls under libel because the defamatory words are expressed in the permanent form namely it is published in the newspaper.

Libel is defamation in a permanent form and is visible to the eye such as in written form, pictures, e-mail , books or newspapers. According to section 3 of the Act, broadcasting of words by means of radio communication shall be treated as publication in a permanent form and constitutes libel.

It should be noted that libel is actionable per se namely a plaintiff need not prove any damage.

For the plaintiff to succeed in defamation suit, he must prove;
  • That the statement was defamatory
  • That the statement referred to the plaintiff
  • The statement must be published.
For the first element, the defamatory statement must have a tendency to discredits the plaintiff by lowering his reputation in the estimation of right thinking members of society. The court will look to the tendency of response by a reasonable man to the words. If it is proven that as a consequences of defendant’s words, people actually do avoid or shun the plaintiff, the further test applied by the court would be whether they are reasonably justified in understanding the words in a defamatory way.

The word or statement may be defamatory in 3 ways:-
  • Natural and ordinary meanings,
  • Innuendo,
  • Juxtaposition
In this case, the statement published by the newspaper falls under Natural and ordinary meanings. Here, it means that the words complained of are in their natural and ordinary meaning capable of being held to be defamatory.
In the case of Institute of Commercial Management United Kingdom v News Straits Times Press (Malaysia) Bhd, a newspaper published an article entitled “British Diploma Mills steep up sales racket”. The court held that such statement was defamatory because in their natural meaning, it is understood to mean that the plaintiff was a bogus educational institution and carrying out unlawful activities in Malaysia and any ordinary reasonable person who reads the article would certainly link the plaintiff with one of those organizations which operates diploma mills. 

The second element that needs to be established by the plaintiff is that the statements or words refer to the plaintiff.

The plaintiff must prove that the defamatory statement refer to him.

In the case of Hulton & Co v. Jones, defendant wrote a fiction concerning Artemis Jones in Peckham. There was in fact a real Artemis Jones, a lawyer in that particular town. His friends thought the story was about him. The court held defamation was established.

The final element which must be established is the statement must be published. Publication means dissemination of the defamatory statement to a third party, other than the plaintiff.

Under this element, to establish publication, few factors need to be considered, namely
  • The language used in understood by the third party
  • The plaintiff must be able to specify what exactly was said or written by defendant
  • The plaintiff must be able to prove the identities of persons to whom the defamatory words are published
If the words are repeated or copied, a new defamation arises.

In the case of of Theaker v. Richardson, defendant wrote a defamatory letter to the plaintiff, a married woman and a fellow member of the local urban district council and her husband has read the letter which was sealed in a manila envelope. The court held that the publication existed. 

APPLICATION
Bidi, a footballer in the “Raya Football Club” was suspected of match fixing. The state football association launched an investigation and decided to suspend Bidi pending an outcome of the investigation. The news was leaked to the press and an article appeared in the Sinaran New Report, which stated that Bidi had been suspended from his team for fixing the match between Raya Football Club and Utama Football Club where Raya Football Club tost 2-0. 

This article caused an uproar among supporters of the Raya Football Club who demanded that Bidi be thrown out of the team. A few of supporters also went to Bidi’s house and shouted abusive words at him and his family.

From the above facts we can see that all the elements under defamations are fulfilled. By publishing a statement in the newspaper which stated that Bidi had been suspended from his team for fixing the match between Raya Football Club and Utama Football Club where Raya Football Club tost 2-0., it shows that the statement was defamatory. The second element is also fulfilled as clearly the name of the plaintiff was mentioned in the article and as the statement is published in the Sinaran New Report, certainly the third element that the statement must be published is fulfilled.

However, it should be noted that from the fact of the case, the defendant may raise a defense of justification. This defense can be raised if defendant can prove that the statement is true. This is so even though defendant is proved to have published the statement with malicious or improper motive. This is provided under section 8 of Defamation Act 1957. In addition, this defense will not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff reputation. From the fact of the case, clearly the state football association launched an investigation and decided to suspend Bidi pending an outcome of the investigation. Thus, the article published by the defendant is true.

CONCLUSION
As a conclusion, it is submitted that Bidi may sue defendant under defamation but whether he succeed in his claim or not will depends on whether defendant can prove the published statement is true or not.

Jadi? Semua dah fahamkan tidak semudah itu untuk kita terus saman-menyaman. Berbaik-baik lebih baik..bak kata peguam yang menjadi tetamu jemputan di WHI :) 

Tapi kalau tak faham jugak tak taulah sebab aku jawab ni tahap diploma je ehe




4 comments:

  1. belajar masa part two. subjek tort II. huhu

    ReplyDelete
  2. ehe tul2..sj je post kt sini..isu mudah je :p ehe

    ReplyDelete
  3. Salam,

    sy nak tny pendapat awak pasal kes ni.. blh xsy classify under defamation...
    Ana went to a hypermarket in Kuala Lumpur. She wanted to buy a new pair of shoes. While
    searching for a pair of shoes, a salesgirl approached her to offer her help. Before Ana could say a word,
    the salesgirl said in loud voice, “Wait! Don’t mess up the shoes!” when Ana tried to reach for a box of
    shoes inside the shoe rack. A few nearby customers stared at Ana when they heard the salesgirl cry. Ana
    felt embarrassed. In her defense, she said, “I didn’t mess up the shoes. It wasn’t me!” but the salesgirl just
    ignored. In her disbelief of the salesgirl attitude, Ana told her that she was going to make a report to the
    management. The salesgirl felt that Ana’s statement was a slap on her face. An argument then broke
    between them. A security guard came and arrested Ana for causing a nuisance

    ReplyDelete
  4. ariani aris: mcm soklan asigment jer ni..hehe
    sy rasa boleh masuk dlm defmation ni.nuisance mcm kurang sikit bukti...

    ReplyDelete