Introduction
With today’s social media culture, where opinions are expressed and shared freely, individuals and organisations face an increased risk of being sued for defamation. Understanding defamation defences is crucial to protect one’s reputation and defeat baseless claims. In Malaysia, defamation laws are in place to safeguard individuals and organisations against false and damaging statements, and knowing the available defences is of utmost importance.
In this four-part series, we explore available defences to defamation claims in Malaysia, focusing on justification (Part I), privilege (including absolute privilege, qualified privilege, and the notable Reynolds privilege) (Part II), fair comment (Part III) and less common defences (Part IV).
In Part I, we begin with the cornerstone of defamation defences: justification, where the truth of the statement operates as a complete defence. We examine what amounts to “substantial truth,” how courts assess the meaning of defamatory words, and why the success of this defence depends on careful pleading and clear proof. Whether you are an individual, a corporation, a journalist, an advocacy group, or a public figure, understanding how to assert the truth as a defence is critical to defeating defamation claims and protecting the right to speak freely.
Part I: The Defence Justification – Truth as the Ultimate Shield
Truth (or justification, as it is more usually known) provides a complete defence to an action for defamation. The burden is on the defendant to show that the defamatory imputations are substantially true. A defendant will have sufficiently proven the defence of justification if he can prove the truth or the substantial truth of his own meanings of the impugned words. This is provided in Section 8 of the Defamation Act 1957, which states that:
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.
The policy justifying the absolute nature of the defence was explained by Littledale J in M’Pherson v Daniels [1829] 10 B & C 263 at 272:
“The law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess.
It does not matter, therefore, that the sole aim or intention of the defendant in publishing the material was to cause injury to the claimant. If the words are true, the publication does not give rise to a claim for defamation.
Burden of Proving Truth
The defendant bears the burden of proof for justification. In a defamation action, once the words complained of are proven to be defamatory, the plaintiff is not bound to prove the falsity of these words because the law presumes it to be in his favour. The result is that it is for the defendant to prove that these words are true. This is known as the presumption of falsehood or falsity (International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86).
A defendant who is unable to prove the truth of all the material statements in the alleged libel may nevertheless succeed in the defence of justification if the defendant can show that the words not proven to be true or truthful do not materially injure the plaintiff’s reputation (Tuanku Nurzahirah v Clare Louise Brown & Ors [2023] 4 CLJ 252).
This would also mean that if the words published contain some inaccuracies, it will not automatically prevent the defence from succeeding, provided that the main gist of the libel is justified. In Sutherland v Stopes [1925] AC 47, Lord Shaw gave the following example of a case where the plea of justification would not fail merely because of the failure to prove the truth of every detail alleged:
“If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail”
Lucas-Box Justification
In defamation proceedings, a plaintiff is required to set out what the impugned words are alleged to mean and how they are understood to be defamatory. This includes pleading the natural and ordinary meaning of the words, or, where applicable, any innuendo meaning. The plaintiff must clearly identify the defamatory imputations they rely on.
To succeed in the plea of justification, the defendant must prove the statements are true in the meaning ascribed to them. Once the plaintiff’s pleaded meanings are set out, the defendant must decide how to respond. If the defendant accepts that the words have the meaning set out by the plaintiff, the defendant can seek to justify that meaning.
However, the defendant is not necessarily obliged to accept the meanings ascribed to the impugned words as set out by the plaintiff. Where the defendant alleges that the words have a meaning different from that contended for by the plaintiff, he must set out in his defence the meaning he seeks to prove to be essentially or substantially true. This is also known as the Lucas-Box Defence derived from the case of Lucas-Box v News Group Ltd [1986] 1 WLR 147.
In Lucas-Box v News Group Ltd [1986] 1 WLR 147, the defendant had published an article implying that the plaintiff was knowingly associated with terrorists. The plaintiff sued for defamation based on that imputation.
The defendants raised the defence of justification, not by directly addressing the plaintiff’s pleaded meaning, but by relying on alternative imputations they claimed could reasonably arise from the publication. The defendant, however, failed to plead these alternative meanings. The Court of Appeal held that a defendant who pleads justification must clearly plead the meaning or imputation they seek to justify. It is not enough to provide vague or ambiguous particulars. The purpose of pleadings is to define the issues, and the plaintiff is entitled to know what precise allegations are being defended as true.
More importantly, the case established that while a defendant is entitled to justify a meaning that they believe arises from the publication, even if it differs from the meaning pleaded by the plaintiff, the defendant must clearly identify and plead the alternative meaning they seek to prove as true.
What ultimately matters is the meaning that an ordinary, reasonable reader would attribute to the words, a question that lies within the court’s discretion and is not confined to the interpretations put forward by either party.
Chase Levels Justification
There are also instances where proving the truth creates disagreements regarding the level of seriousness of the imputation in question.
The courts have distinguished between three different levels of meaning as propounded in the case of Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 by classifying defamatory statements into three “Chase Levels” of imputation. The court explained that a single defamatory statement may bear different shades of meaning, each carrying a different legal burden of justification. These levels were summarised as follows:
- Chase Level 1: A direct allegation that the plaintiff has committed the serious act (e.g., “Mr. X accepted bribes from contractors in exchange for approving government projects.” This is a direct accusation that Mr. X did commit bribery. To justify this, the defendant must prove as a fact that Mr. X actually took bribes.)
- Chase Level 2: A statement suggesting that there are reasonable grounds to suspect that the plaintiff has committed the act (e.g., “Multiple payments were made to Mr. X’s personal account shortly before he approved several contracts, raising serious suspicion of bribery.” This suggests that there are reasonable grounds to suspect wrongdoing, but it stops short of saying he did it. To justify this, the defendant must prove that objectively reasonable suspicion existed based on conduct, circumstances, or credible information.)
- Chase Level 3: A statement suggesting that there are grounds for further investigation into whether the plaintiff committed the act (e.g., “The timing of payments linked to contractors warrants an investigation into whether Mr. X’s approvals were influenced by improper incentives.” This implies that the situation warrants investigation, without asserting guilt or suspicion. To justify this, the defendant must show that there were legitimate reasons to raise the issue, such as public interest or irregularities.
These levels are important because the higher the level, the greater the burden on the defendant to prove the imputation is true. For example, if a defendant tries to justify a Level 1 meaning, they must prove the plaintiff actually committed the act. But if the meaning is Level 2, it may suffice to show there were objectively reasonable grounds for suspicion. This classification has since been adopted in Malaysian courts, in the case of Khairul Azwan bin Harun v Mohd Rafizi bin Ramli [2017] 9 MLJ 905.
Half truths/partial justification
A defendant may sometimes be able to justify only part of a defamatory publication. In such cases, proving the truth of those parts may still serve a useful purpose: it can reduce the overall damages awarded, as it shows that some of what was published had a factual basis. (Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393).
However, partial justification is not a complete defence to the entire publication. The defence of justification will still fail in its entirety if the unproven parts of the statement are material and cause further injury to the plaintiff’s reputation. In other words, even if parts of the publication are true, the defendant remains liable for any serious defamatory meaning that remains unjustified.
Section 8 of the Defamation Act 1957 allows for the possibility that a defendant may still succeed in justification even if not every statement is proven true, but only if the unproven parts do not materially harm the plaintiff’s reputation.
This was made clear by the Court of Appeal in Liu Thian Leong & Ors v Jee Nyen Chong & Ors [2021] MLJU 1384 where the defendants had justified certain background facts, but failed to prove more serious and damaging allegations, including that the plaintiffs caused a death of a student and engaged in non-transparent conduct in the management of a public hall. These unproven imputations formed the core defamatory sting and rendered the defence of justification unsustainable.
This principle was reinforced by the Federal Court in Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong [2024] 4 MLJ 260. In that case, although the appellant had truthfully stated that the respondent had once been charged with fraud, she deliberately omitted the fact that he had been acquitted. The court held that this omission resulted in a false and misleading impression that the respondent was guilty. The court found that a statement, which is technically true but omits key facts, may become defamatory by conveying a false overall meaning and therefore cannot be justified.
The Federal Court clarified that justification requires the truth to be presented in full context. A half-truth, or selective presentation of facts, may still be false in substance, and such statements do not meet the threshold for justification under Section 8 of the Defamation Act 1957. The Appellant’s failure to include the acquittal and her suggestion that readers “Google it” was further found to be actuated by malice, disqualifying her from relying on other defences such as fair comment or qualified privilege.
Justification: Case Analysis
In Dato’ Sri Dr Mohamad Salleh Ismail & Anor v Nurul Izzah Anwar & Anor [2021] 4 CLJ 327, the Federal Court upheld the defence of justification in respect of statements made by the defendant a member of parliament and Vice President of PKR, during a press conference concerning the alleged misuse of public funds linked to the National Feedlot Corporation (“NFC”) project.
The defendant had alleged that the plaintiff and his family misused government funds allocated to NFCorp to purchase eight condominium units in KL Eco City for their personal use. The plaintiff contended that the statements implied he was untrustworthy, greedy, and had committed criminal misappropriation.
It was undisputed that RM71.4 million, part of the public funds for the NFC project, had been deposited into a fixed deposit account under the plaintiff’s name shortly before the same bank approved loan facilities for the property purchases. Although the plaintiff argued that the deposit had no bearing on the bank’s decision, the court rejected this, holding that the timing and source of the funds made it logical and evident that the deposit enhanced the plaintiff’s financial profile and was used as leverage to secure the loans.
When challenged, the plaintiff also failed to disclose his sources of income to finance the purchase of the eight condominium units. The Federal Court, therefore, held that it was plain on the evidence that the plaintiff had used the RM71.4 million deposit as leverage for obtaining loans from the bank, and as such, there had been a misuse of public funds for personal gain. Consequently, the defence of justification succeeded, and the defendant was not liable for defamation.
In contrast, in Abdul Azeez Abdul Rahim v Lim Guan Eng [2023] 9 CLJ 513, the defence of justification failed because the defendant was unable to prove the truth of several defamatory statements made during a press conference concerning the Penang Undersea Tunnel Project (“PUTP”). At the time, the defendant was the Chief Minister of Penang and had publicly criticised the plaintiff’s character and suitability as a politician and Chairman of Tabung Haji Malaysia, alleging that he had unlawfully received RM3 million through corrupt manipulation and unscrupulous involvement in the PUTP.
The allegation was based on a notice of demand issued by Zenith Construction Sdn Bhd, the PUTP’s main contractor, against one Jabarullah and the plaintiff, seeking the return of RM3 million allegedly paid to Jabarullah as the plaintiff’s proxy in exchange for “consultation services”. Following the NOD, Jabarullah was arrested and investigated by the MACC.
In his defence, the defendant relied on the Lucas-Box justification, asserting that the impugned statements carried only a lesser, more innocuous meaning, namely, that there were grounds to investigate the plaintiff (a Chase Level 3 imputation), rather than a direct accusation of guilt (Chase Level 1). He argued that he had merely questioned why the plaintiff was not investigated or arrested, suggesting selective prosecution by a politically influenced MACC.
However, the Court of Appeal rejected this argument, finding that the overall tone and content of the statements conveyed a Chase Level 1 imputation – that the plaintiff had committed the serious act of corruptly receiving RM3 million. While some statements used more cautious language (e.g., “alleged”), other remarks were unambiguous, including:
- “…yang terima 3 juta”(“… the one who received RM3 million”);
- “I finally discovered it is not State Government leaders taking millions of ringgits… it is our handsome looking Baling MP Azeez Rahim, Abdul Azeez Rahim…”
In the circumstances, the Court held that the defendant’s plea of justification failed.
Conclusion
The defence of justification is one of the most effective but also the most demanding defences. It operates as a complete defence, but only if the defamatory meaning, as determined by the court, is shown to be substantially true. A defendant must be ready to justify not only the words used, but also the meaning they carry, whether it amounts to an accusation, suspicion, or a call for investigation.
The cases discussed highlight how a well-supported defence can succeed, and how misjudging the meaning or failing to prove the central imputation can result in failure. In Mohamad Salleh v Nurul Izzah, the court found a clear factual basis for the allegations. In Abdul Azeez v Lim Guan Eng, the defendant’s attempt to recast the allegations as mere suspicion was rejected because the overall message conveyed guilt clearly.
Partial justification, while useful in mitigating damages, is not a complete defence. Under Section 8 of the Defamation Act 1957, the defence will fail if the unproven parts cause further harm to the plaintiff’s reputation.
Truth remains the strongest shield, but only when the facts are clearly pleaded and fully proven.
If you are facing a defamation claim or considering how best to defend your statements, it is crucial to have experienced legal counsel assess the specific facts and allegations involved. The success of a justification defence depends heavily on precise pleadings, clear legal strategy, and a deep understanding of the case’s nuances.
We regularly advise clients on defending against defamation claims and navigating the legal complexities involved. If you require guidance or representation, please reach out. Your reputation matters, and we are here to help you protect it with clarity, strategy, and confidence.
By Edwin Raj
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
