FACULTY OF LAW
TORTS 2
QUESTION
Shila Farhana is a famous youtuber. Recently she uploaded a video of homebirth with
Doulas (a woman, typically without formal obstetric training, who is employed to provide
guidance and support to a pregnant woman during labour). Shila claimed that homebirth
and Doulas are better than doctors at the hospital.
Her video received many positive responses from women, especially pregnant women
who wish to have homebirth. Her video went viral and attracted the attention of an
Obstetrics and gynaecology specialist, Dr. Amanda Ali.
Dr. Amanda later wrote in her Facebook (FB) that Shila Farhana is a fake youtuber and
her headlines at the FB was:
“Imagine a fake youtuber advising on OnG and homebirth matters! She could damage
your health and lead to mothers deaths!”. Shila Farhana, you are committing a heinous
crime. You should be punished and sentenced to life imprisonment!
As a result of that, Shila received various responses. Some are agreeable with Dr.
Amanda, some sympathized with Shila. Shila was upset and had no idea what to do next.
The next day, a reporter from Berita Hairan wrote this issue and mentioned:
“Shila Farhana should be sent to life imprisonment for her viral video and life threatening
to pregnant women”.
As a consequence of this, Shila received threats from netizens and from the public as
well.
Later, Dr. Amanda was invited to give a talk of Homebirth and Doulas. She mentioned
Shila’s name and called her as a threat to pregnant women out there and her activities
should be stopped. She also said that Shila was a criminal and abetted with fake Doulas
to gain profits from their activities. She also accused Shila as a person who is a toxic to
the society and her other videos are all useless and harmful to all. Most people are
agreeable with Dr. Amanda and condemned Shila for her actions.
Shila discovered that all her social media have been blocked and received many threats
from the public.
Discuss.
(30 marks)
1.0 INTRODUCTION
2|Page
Protection of interest in the sense of a person’s good name and reputation is the fundamental
principle in the law of defamation. This law is based primarily on the English common law that
transited into the Malaysian Defamation Act 1957. Hence, the Malaysia Defamation Act 1957 is
in pari materia with the English Defamation Act 19521. The Defamation Act does not define the
word “defamation”. Instead, the definition of “defamation” is to be found in Malaysian case law
and the English common law. By virtue of Section 3 of the Civil Law Act 1956, the common law
of England as on 7 April 1956 in relation to defamation is applicable in Malaysia. The words of
Lord Atkin in Sim v Stretch (1936)2 echoes in parallel with the fundamental spirit of defamation;
“A statement untrue which injures 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 or which tends to make them shun or avoid that person.”
The pertinent consideration upon the application of defamatory conduct is the entire circumstances
and context in which the words appear. Furthermore, the words that are not affecting the other’s
reputation is not considered as defamatory3. As the reputation involves curtailing the other party’s
reputation, this tendency very much dependent on the facts and allegations in each case, and their
impact on the reasonable man.
In a nutshell, the tort of defamation arises upon any publication which lowers the other person’s
reputation or to cause him to be shunned or avoided by reasonable person in society, thereby
adversely affecting his reputation4. The difficulty of defining a reasonable person is acknowledged
by the scholar5 where in simple definition, the reasonable person is categorized as a law-abiding
person within the class or person to whom the statement is made6.
2.0 ISSUE
There are several issues that require ascertainment from Dr Amanda’s conduct to Shila revolving
around the aforementioned defamation. First, whether Dr Amanda’s statement in the Facebook is
defamatory in nature? Furthermore, upon delivering the talk of Homebirth and Doulas, the second
issue is whether Dr Amanda’s utterance is defamatory towards Shila?.
Berita Hairan on the hand has published an article towards Shila picking up the sensation news
regarding the conflict between Dr Amanda and Shila Farhana. Thus, the third issue with regards
to Berita Hairan is whether the published article is defamatory in nature towards Shila?
Finally, whether Dr Amanda and Berita Hairan have possible defends in the case the defamation
is established between the two parties and Shila?
1
Norchaya Talib Law of Torts in Malaysia, Sweet & Maxwell Asia 2010.
Sim v Stretch [1936] 2 All ER 1237
3
Mohamed Azwan Ali v Sistem Televisyen Malaysia (2000) 7 CLJ 498.
4
Dato Musa bin Hitam v SH Alattas & 2 Ors [1991]1 CLJ 314
5
Norchaya Talib Law of Torts in Malaysia, Sweet & Maxwell Asia 2010.
6
Lau Chee Kuan v Chow Soong Seong [1955] MLJ 21
2
3|Page
Prior the establishment of the defamatory nature of the conduct of Dr Amanda and Berita Hairan,
firstly, the local standi of Shila must be established and whether Shila can sue both of the parties
and both of the parties in turn can be sued?
3.0 LAW AND APPLICATION
The right for individual such as Shila is enshrined under the Article 8 of Federal Constitution where
all persons are equal before the law and are entitled to equal protection of the law. Fundamentally,
all living persons in principle can bring action of defamation to court. A dead person on the other
hand cannot bring an action in defamation no matter how provocative the statement may be. The
responsible party especially the author of the defamatory words would be the party sued where if
the publication consists of a group or organization, all individual partied may be able to take action
against to.7 It can be concluded that Shila has the locus standi to resort in legal action towards 1)
Dr Amanda and 2) Berita Hairan.
3.1 LIBEL AND SLANDER
Defamation is construed from two entities; 1) libel and 2) slander where in Malaysia, both libel
and slander are both torts and crimes. Libel is defamation in permanent form that is visible to
naked eye such as emails, pictures, statues or effigies. Libel in contrast to slander is actionable per
se, that is not required to prove any damages. In libel, since the person’s reputation is tarnished,
some damages must be incurred8. Libel is considered as a crime under Section 499 of the Penal
Code and is punishable under Section 500.
Inferring to the case, Dr Amanda’s post in Facebook construed as libel since the word is permanent
in nature. In the case of DeSpark Auto (Penang) Sdn Bhd v Leong Yook Kong9, a retired teacher
was ordered to pay RM 100,000 over defamatory statement resulted from a Facebook’s post
defaming the plaintiff. Furthermore, the court ordered injunction restraining Leong from further
publishing, or causing to be published, any material in the nature of the three defamatory postings,
or of similar purport or effect, in any media or howsoever. Similarly, in the case of publication by
the Berita Hairan, the heading that permanent in nature may construed as libel upon the fulfillment
of the element of defamation. In the case of Lim Guan Eng v Berita Harian10, the court awarded
Lim Guan Eng RM 150,000 over publication of an article with heading “Guan Eng tarik balik
saman terhadap bekas Ketua Pemuda Umno Negeri” published on Aug 20, 2015.
Hence, both Dr Amalina’s post in Facebook and Berita Hairan publication might construed
as libel as the publication is permanent form that is visible to the naked eyes. The libel is considered
as defamation upon the fulfillment of the rest of the required elements.
7
Tjanting Handicaraft Sdn Bhd & Anor v Utusan Melayu (M) Bhd & Ors [2001] 2 MLJ 574.
MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & Other appeals [1995] 2 AMR 1776.
9
DeSpark Auto (Penang) Sdn Bhd v Leong Yook Kong [2011],
10
Lim Guan Eng v Berita Harian [2017]
8
4|Page
Slander conversely is defamation in a temporary or transient form, where it is made through spoken
words or gestures. In contrast to libel, slander is not actionable per se where plaintiff is required to
prove actual or special damages to triumph in the civil claim. There are several extra requirements
necessitated to successfully claim under the wing of slander namely;
1) Actual damage that defines as proved financial loss or any loss in monetary term
2) Plaintiff requires the actual words used where impression upon his mind or witnesses’
minds are void. The strict application of the second requirement is evident in the case
of Workers Party v Tay Boon Too11, where the court required in Hokkien precisely as
the language that was uttered in tandem with the translation in English language.
3) The damage must also have been foreseeable and not too remote by the virtue of Lynch
v Knight12
However, court had provided several exceptions to the requirement of actual damage in the cases
of slander namely 1) slander to women; 2) slander in relation to a person’s professional or business
reputation; 3) slander in relation to title, slander of goods and malicious falsehood; 4) imputation
of a contagious disease and 5) imputation of crime.
On the surface, Slander to women reflected to Section 4 of the Defamation Act where the
publication of words which imputes unchastity or adultery to any women requires no proof of
special damage for the action to succeed. See Luk Lai Kam v Sim Ai Leng13. Slander in relation
to a person’s profession is provided by Section 5 of the Defamation Act, where disparaging the
plaintiff in any office, profession trade or carried on by him at the time of the publication, it shall
not be necessary for the plaintiff to prove special damage whether or not the words are spoken of
the plaintiff in the way of his office or profession. The court in stance in this instance translated in
the case of JB Jeyarethnam v Goh Chok Tong14, where the words must be calculated to disparage
the plaintiff in his office of profit, meaning that the plaintiff received monetary remuneration from
holding that office. Slander in relation to title, slander of goods translated in the case of Borneo
Post Sdn Bhd & Anor v Sarawak Press Sdn Bhd15 wherein it was held that the plaintiff must be
able to ascertain that the statement was published maliciously. Malicious falsehood on the other
hand required the plaintiff to be able to prove 3 components namely 1) that the defendant has
published words that are false about the plaintiff; 2) they were published maliciously and 3) special
damage has followed as the direct and natural result of the publication. The fourth component
which is the imputation of contagious disease translated literally as it defines imputation of
contagious disease to a person such as HIV as well as COVID-19 is defamatory in nature. This
imputation is damaging in nature as it produces stigma and negative perception to any individual.
11
Workers Party v Tay Boon Too11 [1975]
Lynch v Knight [1861]
13
Lum Kai Lam v Sim Ai Leng [1978] 1 MLJ 214
14
JB Jeyarethnam v Goh Chok Tong [1985] 1 MLJ 334
15
Borneo Post Sdn Bhd & Anor v Sarawak Press Sdn Bhd [1991
12
5|Page
The final exception of the requirement of actual damage is the imputation of crime. The crime
must not be petty in nature and in corporal punishment such as death penalty, whipping and
imprisonment, wherein the plaintiff might suffer physically as per Workers’ Party v Tay Boon
Too16. Furthermore, offence punishable by fine is not sufficient under the exception. The rationale
is similar with the imputation of a contagious disease where the stigma resulted in the society
despising and shunning such person. Translated in the virtue of C. Sivanathan v Abdullah bin
Dato’ Haji Abdul Rahman17 where the words cheat, dishonest and liar did not attract corporal
punishment.
In the application of the given case, the first issue where Dr Amanda has written on Facebook
“Shila Farhana, you are committing a heinous crime”. Additionally, on the third issue, Dr
Amanda referred Shila as “Shila was a criminal and abetted with fake Doulas to gain profits
from their activities”. Meanwhile, Berita Hairan had reported the viral altercation between Dr
Amanda and Shila on the third issue as “Shila Farhana should be sent to life imprisonment for
her viral video and life threatening to pregnant women”. Holistically, all of the contexts of Dr
Amanda and Berita Hairan referred Shila under corporal punishment as a criminal and murderer
in a sense. Hence, these wording and utterance might construe as slander and libel upon the
fulfillment of the other elements of defamation where it falls under exception and actual damage
is not required to be proven in the court.
3.2 ELEMENT OF DEFAMATION
The establishment the elements of torts require three fundamental elements such as 1) the words
are defamatory; 2) the words refer to the plaintiff and 3) that the words have been published.
3.2.1 THE WORDS ARE DEFAMATORY
The general test on the first element is upon the words have a tendency to lower the estimation of
the plaintiff in the right minds of right-thinking members of society generally. As the right-thinking
members of society seems a little exclusive and difficult to interpret. The court approach seems to
be flexible on expanding to the perspective of the average thinking man or person of reasonable
intelligence, the law-abiding citizens and often simply as a reasonable man.
Words which may cause a reasonable man to look down upon the plaintiff would include words
which may expose him to be hatred, contempt or ridicule or those which would cause him to be
shunned or avoided regardless of the truth of the statement. Furthermore, the plaintiff must know
what has been said of him and cannot merely guess. Moreover, the intention of the publisher or
maker of the statement is irrelevant, where the words will be scrutinized and its effect on
reasonable and ordinary reader or recipient of the news. This reasonable man test is demonstrated
in the case of Lau Chee Kuan v Chow Soong Seong & Ors18 where the Murray Aynsley CJ
16
Workers’ Party v Tay Boon Too [1975]
C. Sivanathan v Abdullah bin Dato’ Haji Abdul Rahman [1984]
18
Lau Chee Kuan v Chow Soong Seong & Ors [1995]
17
6|Page
explained the meaning of reasonable man as the words produced a bad impression on the minds
of average, reasonable man. Likewise, the words must be distinguished between the words that
have a tendency to discredit the plaintiff’s reputation and the words uttered in anger and “in the
heat of moment”.
The words might be defamatory in 1) natural and ordinary meaning; 2) by innuendo and 3)
juxtaposition. The natural and ordinary meaning where the statement contains a literal meaning
and would convey to ordinary persons. Furthermore, the words imputed must be read as a whole.
In the case of Hasnul Abdul Hadi v Bulat Mohamed19: The court found the defendant liable for
calling the plaintiff ‘Abu Jahal’ as the statement was defamatory in its natural and ordinary
meaning.
Innuendo on the other hand means if the statement becomes defamatory through inferences, special
facts or circumstances known by the reader where words with a special, hidden or inner meaning
only known to certain people. In the case of Tolley v JS Fry: The court held the defendant liable
as those who knew the plaintiff’s status as an amateur golfer would reasonably assume by the way
of innuendo that the plaintiff had consented to and had been paid for the advertisement.
Juxtaposition in contrast involves the application through visual effects or editing such as effigy
or placing the plaintiff’s photograph in a pile of pictures such as wanted criminal which resulted
in a rise of imputation other than written or spoken words. Such example can be seen in the case
of Datuk Syed Kechik bin Syed Mohamed v Datuh Yeh Pao Tzu & Ors 20, where a horse being
ridden by Tun Datu Haji Mustapha with a dollar-notes jutting out the horse’s hip pockets. The
court held it was a clear libel.
Inferring to the three main aforementioned issues, firstly, Dr Amanda posts in her Facebook to
Shila Farhana; quoted “Imagine a fake youtuber advising on OnG and homebirth matters! She
could damage your health and lead to mothers’ deaths!”. Shila Farhana, you are committing a
heinous crime. You should be punished and sentenced to life imprisonment! The words posted
consisted of natural and ordinary in defamatory. Dissecting the components of the word, it is clear
to the ordinary user of the Facebook with the average thinking man or person of reasonable
intelligence, the law-abiding citizens or any reasonable man would understand the words “heinous
crime and punishment to life imprisonment”. These words alone are defamatory in nature. In
Monsoon v Tussauds21, where the plaintiff was accused of committing a crime in Scotland, where
the crime was not proven and the plaintiff was released. The defendant then erected a statue of the
plaintiff and placed the statue together with statues of other criminals. The court found the
defendant liable for defamation. Furthermore, in the whole context, these words suggestive of
Shila as a murderer. Inferring to the case of Masyitah Binti Md Hassan V Abdul Latiff Bin
Mohamed22, the words murderer is defamatory in nature.
19
Hasnul Abdul Hadi v Bulat Mohamed [1978]
Datuk Syed Kechik bin Syed Mohamed v Datuh Yeh Pao Tzu & Ors [1977]
21
Monsoon v Tussauds [1894],
22
Masyitah Binti Md Hassan V Abdul Latiff Bin Mohamed [2018]
20
7|Page
Similarly, on the third issue, where Dr Amanda mentioned Shila in the Homebirth and Doulas
where she said “Shila was a criminal and abetted with fake Doulas to gain profits from their
activities” where the words criminal is a defamatory in nature as there is no proven criminal
offences conducted by Shila so far. As virtue of aforementioned Monsoon v Tussauds23, the
accusation of a person to criminal is defamatory in nature.
Finally, on the final reporting by Berita Hairan with the title of “Shila Farhana should be sent to
life imprisonment for her viral video and life threatening to pregnant women”. The title was
in the form of innuendo where an inference must be made by special facts or circumstances known
by the readers. The term “should be sent to life imprisonment and threatening life of pregnant
women” is a false innuendo where the words alone may be innocent in nature. However, the
newspaper is read to all layers of background. A person with basic legal background may inferred
Shila as a criminal with relation of murdering other pregnant women. Hence, in all three
circumstances, Dr Amanda and Berita Hairan fulfilled the first element of defamation, where the
words are defamatory.
3.2.2 THE WORDS REFER TO PLAINTIFF
The second element is the statement must be proven by Shila that the statement must be referred
to her. The test was established in the case of David Syme v Canavan24 Whether an ordinary reader
would reasonably come to the conclusion, based on the statement as a whole that it is referred to
the plaintiff. It is sufficient for the plaintiff to be addressed through initial letters and the
defendant’s knowledge of the plaintiff’s existence is irrelevant. In the case of Morgan v Odham
Press25, the court held that the defendant was liable despite never actually referred to by name as
a group of people are able to be identified by the plaintiff. Moreover, in the case Hulton & Co v
Jones26, the defendant was liable upon referred by Artemis Jones as a fictional character as those
who knew the plaintiff was able to refer to him. Finally, in Newstead v London Express Newspaper
where there are two people of the same name, the statement was true on the one of the plaintiffs,
the court is also held liable to the defendant. Thus, the pertinent issue resort back to the fact that
whether the defamatory statement is able to be immediately referred to the plaintiff satisfying the
mentioned test.
Inferring to the given case, on the first post where “Dr. Amanda later wrote in her Facebook
(FB) that Shila Farhana is a fake youtuber and her headlines at the FB” and upon providing
lecture on the Homebirth and Doulas where “She mentioned Shila’s name”. Similarly, in the
case of Berita Hairan where a reporter referred her as “Shila Farhana should be sent……….” In
all the three circumstances, the name of Shila Farhana was referred specifically to her. In addition,
upon applying the test, any ordinary readers of the newspaper and social media are able to easily
come to a conclusion that it was referred to her. Besides, as Shila Farhana is a famous Youtuber,
a person with that statue with considerable number of followers, it is easy to immediately refer to
23
Monsoon v Tussauds [1894]
David Syme v Canavan [1918]
25
Morgan v Odham Press [1971]
26
Hulton & Co v Jones [1910]
24
8|Page
her. Supported with aforementioned cases with the facts of the case and the number of followers
on her Youtube channel, any person who is exposed to the news in majority would be able to
identify her. Thus, the second element of defamation is satisfied in all three issues.
3.2.3 THE STATEMENT MUST BE PUBLISHED TO THIRD PARTY
The final element in defamation pertaining to the publication to a third party, where it has been
written or translated to other than the person of whom it is written. The court stands in the case
where the defamatory words are not made known to any other person, then the defamatory
statement cannot injure the plaintiff’s reputation. In the case of Theaker v Richardson27, the court
held where there is a publication that the defendant knew or ought to have foreseen that the
statement would come in attention to a third party. Furthermore, in Tan Chee Kong v Lee Ee Kiat28,
the defendant sent a letter with the plaintiff’s name inclusive the words of “Ex-Informer,
Kempetai”. Despite the sworn secrecy of the postal employee is irrelevant, where the words have
been published to the postal workers.
With regards to the first issue, Dr Amanda has published in her Facebook and must be intended to
be read to other third party, the setting of the post whether private or public that may invoke by Dr
Amanda is irrelevant in the stands that the publication is translated to others. Similarly, during the
talk, where “Most people are agreeable…” inferred that the other party is defined as it translated
to other person other than herself. On the third issue, where Berita Hairan being its nature of
newspaper publication is intended for others to read it. Hence, all three issues are satisfying the
third element as supported by aforementioned cases. As a general rule, if a document which
contains defamatory words is expected to be published to a third party and be read, publication is
established.
4.0 EXCEPTIONS
In the law of defamation, there are few exceptions that are provided in its establishment namely
the nature of language, the actual words used, the identity of person to whom the statement is
published, republication and place of publication.
On the second issue of Dr Amanda’s slander, where the reliance of facts during the talk solely
depends on the statement of Shila Farhana. The court’s stands in this matter are mixed where in
Hassan & Anor v Wan Ishak & Ors29, it was held that it was sufficient when the substance of
words alleged are proven, or at least the material and defamatory portion of the words. In contrast,
in Kim Kit Siang v Datuk Dr Ling Liong Silk30, it was held that it is insufficient to merely describe
the substance, purpose or effect of the words i.e. verbatim in nature. In a more recent case of Karpal
Singh a/l Ram Singh v DP Vijandran31, it was held that the plaintiff does not have to prove every
word that is pleaded but proof of words that are substantially the same as those pleaded is
27
Theaker v Richardson [1962]
Tan Chee Kong v Lee Ee Kiat [1949]
29
Hassan & Anor v Wan Ishak & Ors [1960]
30
Kim Kit Siang v Datuk Dr Ling Liong Silk [1990]
31
Karpal Singh a/l Ram Singh v DP Vijandran [1994]
28
9|Page
sufficient. This held is supported in the case of Ng Kim Ho v Chai Sze Shin32 where in deciding
whether the actual words must in actual fact be pleaded and proven, the purpose of the rule
requiring or dispensing with the rule, must be scrutinized. Proving and setting out the actual words
may be dispensed with if it does not cause injustice or prejudice to the case.
Inferring to the second issue, Shila Farhana must be able to prove the words that Dr Amanda
provided during the talk is substantially the same as those pleaded in the light of the
aforementioned case. Furthermore, Shila Farhana cannot rely on the impression or perception of
listeners or readers to whom the words were said or disclosed. This will pose a difficult position
for Shila Farhana to be able to actually prove that the words used by Dr Amanda is in substantially
the same as those she pleaded.
5.0 DEFENCE
Defamation law provides several defenses where the defendant could rely namely fair comment,
justification, unintentional defamation, privilege, innocent dissemination and consent. In the
provided case, Dr Amanda, in the nature of a physician may invoke the common law of qualified
privilege where the communication is made bona fide on a matter in which the party
communicating has an interest, or duty to do so and the recipient of the communication has a
corresponding interest or duty to be informed of such matter. This duty may be legal, moral, or
social in nature. The privilege is qualified because if the plaintiff can prove that at the time of the
publication, the defendant was malicious or he had exceeded the boundaries of the privilege, the
defense will not be available. Thus, it is vital that the statement is made honestly without any
improper motive. Therefore, Shila Farhana must be able to prove that Dr Amanda’s statement is
actual malice as in the case of Hoe Thean Sun & Anor v Lim Tee Keng33. Dr Amanda on the other
hand must be able to prove that the statement was made on a privileged occasion as in Rajagopal
v Rajan34. These four privileged occasions are 1) statements made between parties who have
mutual interest over the subject of the communication; 2) statements made to fulfil a legal, moral
or social duty; 3) statements made to relevant authorities in order to settle public nuisance or
disputes and 4) statement made in order to protect one’s own interest or property.
On the first and third issues, Dr Amanda’ post on Facebook and the talk in Homebirth and Doulas
might resort to statement made to fulfil a legal, moral or social duty. In order to establish the
defence under the common law of qualified privilege, a three-stage test must be established under
the virtue of Reynolds v Times Newspaper Ltd35.
The first test is whether the publisher is under a legal, moral or social duty to those whom the
material was published, to publish the material known generally as “the duty test”. In this case,
the nature of Dr Amanda as a physician where for the public health’s concerns, it is a duty for a
32
Ng Kim Ho v Chai Sze Shin [2005]
Hoe Thean Sun & Anor v Lim Tee Keng [1993]
34
Rajagopal v Rajan [1972]
35
Reynolds v Times Newspaper Ltd [1963]
33
10 | P a g e
physician to inform the public at large the harm of homebirth by Doula without proper medical
training and education, which could possibly harm to 2 lives at one instance (mother and baby).
Similarly, in Mushroodin Merican Noordin v Shaik Eusoff 36 where police report of probability of
crime is held by privileged occasion. This is further supported by the case of Pustaka Delta
Pelajaran Sdn Bhd v Berita Harian Sdn Bhd37 as it was found that the publication of defamatory
article pertaining to school textbook is protected by the act. The claim supported with a study by
Snowden et al38 where there is an excess of 0.9 more fetal (antepartum + intrapartum), 1.2 more
perinatal (fetal + neonatal), and 0.8 more neonatal (death occurring by 28 days) deaths per 1,000
in the population. The study is supported by Chinkhumba et al39 in which there is significantly
increased risk of maternal mortality for facility-based compared to home deliveries (OR 2.29, 95%
CI: 1.58-3.31).
The second or the “interest test” where those to whom the material was published have the
interest. The test is justified on the third issue where Dr Amanda’s talk on the Homebirth and
Doula presented without a doubt had an interest justifiable with the audience’s presence during the
talk. However, on the first issue of Dr Amanda’s Facebook post is intended for the public at large,
hence, the interest test was not fulfilled and does not meet the defense of the fulfillment of legal,
moral or social duty.
The final test is the nature, status and source of the material and the circumstance, in the public
interest be protected, in the absence of proof of express malice or “circumstantial test”. In this
context, the rampant practice of homebirth in Malaysia is in worrying rate40, a public figure and
statue such as Dr Amanda needs to protect the life of public at large. Additonally, without a specific
law pertaining to homebirth, it was left to physicians such as Dr Amanda to educate the public at
large. It is Dr Amanda’s duty to inform the public regarding the report of these unscrupulous
activities such in the case of Mohd Jalil bin Haji Ngah v The New Strait Times Press (M) Bhd &
Anor41.
Thus, it can be concluded that the statement made by Dr Amanda on the third issue during the
Homebirth and Doulas fulfilled the three tests of statements made to fulfil a legal, moral or social
duty, whereas the statement on the Facebook failed as it does not fulfill the requirement of interest
test where the publication is made to the public at large.
The final defence is on the second issue from Berita Hairan where the newspaper published an
article “Shila Farhana should be sent to life imprisonment for her viral video and life
36
Mushroodin Merican Noordin v Shaik Eusoff [1876]
Pustaka Delta Pelajaran Sdn Bhd v Berita Harian Sdn Bhd [1998]
38
Snowden J. M., Tilden E. L., Snyder J., Quigley B., Caughey A. B., & Cheng Y. W. (2015). Planned out-of-hospital
birth and birth outcomes. The New England Journal of Medicine, 373(27), 2642–2653.
39
Chinkhumba, J., De Allegri, M., Muula, A.S. et al. Maternal and perinatal mortality by place of delivery in subSaharan Africa: a meta-analysis of population-based cohort studies. BMC Public Health 14, 1014 (2014).
https://doi.org/10.1186/1471-2458-14-1014
40
Ahmad Tajuddin, N.A.N., Suhaimi, J., Ramdzan, S.N. et al. Why women chose unassisted home birth in Malaysia:
a qualitative study. BMC Pregnancy Childbirth 20, 309 (2020). https://doi.org/10.1186/s12884-020-02987-9
41
Mohd Jalil bin Haji Nhag v The New Strait Times Press (M) Bhd & Anor [1998].
37
11 | P a g e
threatening to pregnant women”. In this instance, the Berita Hairan was a mere distributor in
which on this circumstance, Berita Hairan may invoke the defense of innocent dissemination due
to the fact that the publication translated directly to the post of original author of Dr Amanda a day
prior. In virtue of Vizetelly v Mudie’s Select Library Ltd42, the defence of innocent dissemination
is available to a defendant who is not the author, printer or first or main publisher of the defamatory
article. However, upon the successful invocation of this defence, three requirements are needed to
be fulfilled, firstly Berita Hairan was innocent of any knowledge that the publication in question
contained a libel. As a physician, Dr Amanda is a person with status and knowledge and hence,
the reliance of the statement by the subject matter expert such as Dr Amanda is justifiable
especially to the topic pertaining to health. Secondly, there was nothing under which it came to
him that ought to have Berita Hairan contained a libel. Being the nature of reporter, Berita Hairan
must be posting news almost immediately and in this instance, the news was posted the next day.
Thus, there are no circumstances that Berita Hairan in the knowledge of the news contained
defamatory in nature. Finally, the final requirement is the news was spread not by any negligence
on Berita Hairan’s part and unawareness of the element of libel. Berita Hairan’s news was almost
similar wording in nature with Dr Amanda’s statement “She could damage your health and lead
to mothers deaths!”. Shila Farhana, you are committing a heinous crime. You should be
punished and sentenced to life imprisonment”. Therefore, it can be concluded that Berita Hairan
was a mere distributor of the Facebook post by Dr Amanda and the defence of innocent
dissemination may successfully be invoked by Berita Hairan.
42
Vizetelly v Mudie’s Select Library Ltd[1900]
12 | P a g e
6.0 CONCLUSION
It can be concluded that all three issues being the first, whether Dr Amanda’s statement in the
Facebook, second issue is whether Dr Amanda’s utterance during the Homebirth and Doula and
finally, the third which is Berita Hairan’s report fulfilled all three elements of defamation such as
the words are defamatory, referred to Shila Farhana and were published.
The second issue on Dr Amanda’s statement falls under the exception where Shila Farhana must
be able to prove the words that Dr Amanda provided during the talk is the substantially the same
as those pleaded and cannot rely on the impression or perception of listeners or readers to whom
the words were said or disclosed. This may pose difficulty in establishing the fact by Shila Farhana.
Finally, a successful defence may be invoked by Dr Amanda on the second issue during the
Homebirth and Doula presentation in the light of fulfillment of moral or social duty and all its tests
which are “the duty test” “interest test” and “circumstantial test. However, on the first issue
with regards to the statement on the Facebook, it could not be able to fulfil the requirement of
“interest test” where the publication is made to the public at large.
Berita Hairan on the other hand may successfully raise the defence of innocent dissemination as it
serves as a mere distributor of the news provided by Dr Amanda and after the fulfillment of all
three requirements.
In a nutshell, Shila Farhana may conclusively seek for damages and injunction over the defamatory
statement made by Dr Amanda in Facebook on the first issue translated with extraordinary
similarity reflected in the case of Masyitah Binti Md Hassan V Abdul Latiff Bin Mohamed43.
However, on the second issue uttered during the Homebirth and Doula may pose difficulty in
proving the substantial utterance is the same of those pleaded under the exception. Moreover, a
good defence of fulfillment of moral or social duty may be invoked by Dr Amanda and on the
second issue with Berita Hairan’s innocence of dissemination.
43
Masyitah Binti Md Hassan V Abdul Latiff Bin Mohamed [2018]
13 | P a g e