Issues:
Whether Chef See Deh could take action against Chef Becok for defamation?
Principle of law: Defamation exists where there is publication that has tendency to lower the person’s reputation or to cause him to be shunned or avoided by reasonable person in society and thereby adversely affecting his reputation. The applicable law in Malaysia in governing this tort case is Defamation Act 1957. According to Lord Atkins in the case of Sim v Stretch, defamatory statement is one which injuries the reputation of another by exposing him to hatred, contempt or ridicule or which tends to lower him in the esteem of right-thinking members of society. There are two different type of defamation namely libel and slander. Libel is defamation in a permanent form. It is visible to the eye for example written form, pictures, statutes, effigies (figure of a person). Section 3 of Defamation Act 1957 states that broadcasting of words by means of radio communication shall be treated as publication in a permanent form and constitutes libel. This type of defamation is actionable per see. Plaintiff needs not to prove damage. Slander is defamation in temporary form for instance spoken words or gestures. It is not actionable per se. For example, plaintiff needs to proof actual or special damage to succeed in his action. Actual damage is actual financial loss or any loss that may be measured in monetary term for example loss in business, employment or chance to attend social function that may be measured in monetary term.

Defamation in this case is in a permanent form, which is libel. Thus no prove of special damage is necessary provided that all elements of defamation are established. In order to prove defamation, the plaintiff must establish the three elements of defamation which are the words are defamatory the word refers to the plaintiff and the words must be published. First elements is the words are defamatory which mean the words must tend to lower he estimation of the plaintiff in the minds of right thinking members of society so that the plaintiff is shunned, avoided and ridiculed. The court will consider the tendency of response by a reasonable man to the words. If it is proven as a fact that has a consequence of the defendant’s words people actually do avoid the plaintiff then the test is whether they are reasonable justified in understanding the words in a defamatory way. Words may be defamatory in three ways, which are natural and ordinary meaning the way of innuendo and by way of juxtaposition. In this situation, the words stated are defamatory by way of innuendo. Innuendo refers to indirect and unpleasant remark. In innuendo defamation does not arise from literal meanings of words but by special facts or circumstances known by recipient or reader of the words. Innuendo may be true or false. First is a false innuendo arises from a combination of statements or pictures the words speak for. Plaintiff is not allowed to explain the meaning or inferences that can be drawn from the words. The words must speak for themselves. In case of Syed Husin Ali v Syarikat Percetakan Utusan Melayu Bhd, a newspaper published the following statement about the plaintiff: “The Menteri Besar considers Syed Husin Ali as wanting to arouse the hatred of the Malaysian people against the government and the British, the university lecturer was spreading subversive ideas in order to poison the thoughts of the Malay”. The court held that thought inference or implication the words conveyed the meaning that the Plaintiff was dishonest, disloyal to the government a subversive element and ungrateful. The court awarded damages to the plaintiff for the defamatory statement. True or legal innuendo arises from special facts that are known to the recipient of the publication. This special knowledge will cause the words to be defamatory to the plaintiff. Words are defamatory to those who possess the special knowledge. In Tolley v Fry & Sons Ltd, plaintiff was an amateur golfer while defendant is a choc manufacturer. An advertisement in a newspaper, a caricature of the plaintiff playing golf with a bar of defendant’s chocolate, sticking out of his trouser pocket. A caddy was seen pointing to the plaintiff, indicating that the plaintiff’s performance was as good as the quality of the defendant’s chocolate. The advertisement was for the defendant’s choc. The words/picture were not defamatory on the face of it but the innuendo was that the plaintiff had received payment for the advertisement. Defendant liable as those who knew the plaintiff status may assume plaintiff consented and been paid for the advertisement. Second element is the words must refer to the plaintiff. The plaintiff must prove the defendant’s words refer to him. The test to be applied is objective test, which are the words it would be reasonable in the circumstances to lead persons acquainted with the plaintiff to believe that he was the person referred to? The plaintiff need not necessarily named may be described (word, picture & etc) so as to be organized. In Atip bin Ali v Josephine Nunis & Anor the defendant sued Datuk Rahim Thamby Chik for breach of promise to marry but did not pursued her claim after the writ had been filed. The newspaper found out about the writ and published the matter. The plaintiff and all UMNO members of Alai Melaka claimed that as a result of the publication the members of PAS and Wanita UMNO avoided them because they supported an adulterer. The court held that the word UMNO did not appear in the writ. If any part was defamed it was Datuk Rahim Thamby Chik himself and only he could have taken action but not the UMNO members. The third element is the words must be published. Publication means dissemination of the defamatory words or materials to a third party other than plaintiff. In Dr. Jenni Ibrahim v S Pakianatham, plaintiff a psychologist working on voluntary basis at Help Center in Kg Bercham, Perak. Defendant wrote two letters indicating that plaintiff had commited breach of trust, RM 70k. Copies of one of the letters were sent to all directors of Centre, Direcor of Welfare Services. In order to establish publication must consider the following factors. One of the factors is language used is understood by third party. Another factors is plaintiff must be able to specify what exactly was said or written by the defendant and the third is plaintiff must be able to prove identities of persons to whom the defamatory words are published and if the words are repeated or copied a new defamation arises.