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Protecting a woman’s reputation
01/04/2003 The Star Articles of Law with Bhag Singh

THE word “defamation” is fairly common and most people know what it means. To defame someone is to adversely affect that person’s reputation.  

Defamation occurs when one person publishes words about another affecting his or her reputation in the eyes of a third person. What is protected is the reputation and not so much the feelings or personal pride .  

A reader has heard that women are treated differently in so far as the law on defamation is concerned and wants to know how and why this is so. The answer requires an explanation of how the law has evolved.  

A person commits defamation when he publishes to a third person words or matter containing untrue imputation against the reputation of another. Generally speaking, if the offensive material is published in a permanent form then it is libel and if it is published in a non-permanent form, it is slander. 

The most important distinction between the two is that the law presumes that some damage will flow from the publication of a libel.  

In order for the publication of a slander to be actionable some special damage must be proved to flow from it unless it falls within certain specified categories. 

The reasons for the distinction between spoken and written words is capable of being the subject of an independent and separate discussion but suffice it to say that the distinction is well established.  

Therefore the rule is that slander is not actionable in the absence of special damage. In this connection Gatley, an authority on defamation, says special damage is some “actual temporal loss”, the loss of some “material” or “temporal advantage” which is “pecuniary” or “capable of being estimated in money”. 

Based on this, it would mean that unless such damage occurs there is no basis to successfully pursue a claim for slander. However there are four situations in which existence of such a loss and the need to prove it does not exist. These are: 

·Where the words impute a crime for which the plaintiff can be made to suffer physically by way of punishment.  

·Where the words impute to the plaintiff a contagious or infectious disease. 

·Where the words are calculated to disparage the plaintiff in any office, profession/ calling/ trade or business held or carried on by him at the time of publication. 

·Where the words impute adultery or unchastity to a woman or girl. 

It is by virtue of these exceptions that a slandered woman comes within the exception to the rule that special damages must be proved before action can be taken. However this exception is confined to imputations of a specific nature. This position is also statutorily provided for in the Malaysia Defamation Act 1957 Section 4 which provides that “Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable.” 

This provision is structured along similar lines as the English Slander of Women Act 1891 which has a somewhat similar provision. Before this Act in England, words imputing unchastity to a woman or girl were not actionable unless followed by provable damage and there was no effective remedy. 

An example of a case which occurred before the enactment of the Slander of Women Act 1891 is Speight vs Gosnay, involving an imputation upon the chastity of the plaintiff who was an unmarried woman.  

The plaintiff’s mother and the defendant’s wife were neighbours and they had the joint use of a yard and wash-house. In March, 1890, some quarrel arose between them about the use of the wash-house and the matter was taken to the magistrate.  

A little later, the defendant joined in the quarrel and uttered the slander to the plaintiff’s mother. The mother repeated the slander to the plaintiff and the plaintiff repeated it in turn to one Galloway to whom she was engaged to be married. 

The plaintiff alleged that Galloway had refused to marry her because of the slander. The court held the words uttered were not actionable without proof of special damage. The defendant uttered the slander in the presence of the plaintiff’s mother who repeated it to the plaintiff and the plaintiff repeated it to the young man to whom she was engaged and the young man broke off the engagement. Was that not attributable to repetition of the slander?  

A close examination of the facts of this case also shows that the decision was also influenced by the fact that the further communication of the slander was neither, intended nor necessary or warranted by the circumstances. But it is now academic in view of the statutory provisions that now exist.  

Therefore a different position exists in respect of women in relation to slander where imputations of a specific nature are conveyed. However such exceptions are not in relation to women alone though with regards to the specific imputations they are. 

On the other hand, if imputations relating to adultery or unchastity are made against men, then unless actual or special damage is proved there would be no remedy. In that sense, a special position with regards to women does exist and so far as slander is concerned as it would indicate a greater measure of protection for women. Of course, if such defamatory matter was published as a libel then the need to prove actual or special damage could not exist. The other provisions relating to defamation would continue to apply. 

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