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CHAPTER THREE: GENERAL OVERVIEW OF DEFAMATION

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STRENGTHS AND WEAKNESSES

By

Fatimah Zahrah bt Ramli (2003345317) Nurliyana Bt. Rosalan (2003345516) Rozanna Bt. Abd. Hadi (2003345594)

Siti Baqiuratul Zahraa' Bt. Mohamed Rahim (2003345635)

Submitted in Partial Fulfilment of the Requirements for the degree of Bachelor in Legal Studies (Hons)

Universiti Teknologi MARA Faculty of Law

April 2006

The students confirm that the work submitted is their own and that appropriate credit has been given where reference has been made to the work of others.

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ii

ACKNOWLEDGEMENT

Alhamdulillah, we have finally completed our project paper which is to be submitted in partial fulfilment of bachelor legal studies. This research would not have been completed if it is not from the help of the following people. Firstly, we would like to thank Puan Fatimahtuzzahra' Dzulkifli, our supervisor, for her constant guidance and support in completing this research. We would not have been able to complete this task if it is without her encouragement and patience in reviewing our project paper.

We are also indebted to Puan Norha Abu Hanifah and Puan Nor Aisyah Chua Abdullah who have helped in selecting the topic is very much appreciated. Next, we would also like to extend our appreciation to the staffs of Tan Sri Ahmad Ibrahim University of Malaya law library and International Islamic University law library for their guidance in searching for books and other materials that are necessary for this research. Finally, not forgetting, we would like to thank our family and friends for their understanding and continuous support in completing this task.

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ABSTRACT

The tort of defamation is principally designed to protect interest in reputation from untrue statements. There are a number of important and extremely complex defences to defamation, and the complexity reflects the difficulty in satisfying the desire to balance the need for freedom of speech against the need to protect the reputation of the individual. The defences that are discussed in this research are the unintentional defamation, justification, fair comment and privilege. These defences will be considered in detail and careful note should be made in particular circumstances in which each may apply. A defence is said to be effective if the defendant can put a bar against any legal proceedings in defamation instituted by the plaintiff. Meanwhile, a defence is said to be ineffective if the plaintiff can successfully claim for remedies from the defendant. Hence, in corresponding with the objective of this research, these defences will be examined as to their strengths and weaknesses. This is to find out whether these defences are effective or not either in theory or in practice.

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iv

1.0 1.1 1.2 1.3 1.4 1.5

General Introduction Problem Statement Objectives

Significance of the Research Limitation of the Research Methodology

TABLE OF CONTENTS

Acknowledgement ii

Abstract iii Table of Contents iv

List of Cases vi List of Statutes ix

CHAPTER ONE: INTRODUCTION

1 2 2 3 3 4

CHAPTER TWO: LITERATURE REVIEW

2.0 Literature Review 5

CHAPTER THREE: GENERAL OVERVIEW OF DEFAMATION

3.0 Definition of Defamation 13 3.1 Types of Defamation 16 3.2 Elements of Defamation 18 3.3 Defences for Defamation 25

CHAPTER FOUR: THE STRENGTHS AND WEAKNESSES OF THE DEFENCES

4.0 Introduction 46 4.1 Unintentional Defamation 46

4.1.1 Strengths of Unintentional Defamation 46 4.1.2 Weaknesses of Unintentional Defamation 50

4.2 Justification 65 4.2.1 Strengths of the defence of Justification 66

4.2.2 Weaknesses of the defence of Justification 74

4.3 Fair Comment 81 4.3.1 Weaknesses of fair comment 81

4.4 Privilege 85 4.4.1 Strengths of privilege 86

4.4.1.1 Absolute privilege 86 4.4.1.2 Qualified privilege 95 4.4.2 Weaknesses of privilege 104

4.4.3 Malice 109

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CHAPTER FIVE: RECOMMENDATIONS AND CONCLUSION

5.0 Introduction 112 5.1 Recommendations 112

5.1.1 Unintentional defamation defence 112

5.1.2 Justification 116 5.1.3 Fair comment 121 5.1.4 Privilege 124 5.2 Conclusion 125

Bibliography 129

Rujukan

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