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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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