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DEFAMATION (CHAPTER 192)

CHAPTER 192

DEFAMATION

S 40/49

REVISED EDITION 2000

(30th December 2000)

REVISED EDITION 2000

CHAPTER 192

DEFAMATION

ARRANGEMENT OF SECTIONS

Section

1. Citation and application.

2. Interpretation.

3. Broadcast statements.

4. Words imputing unchastity or adultery.

5. Slander affecting official, professional or businessreputation.

6. Slander of title etc.

7. Unintentional defamation.

8. Justification.

9. Fair comment.

10. Apology in mitigation of damages.

11. Reports of judicial proceedings.

12. Qualified privilege of newspapers.

13. Application of Act to broadcasting.

14. Limitation of privilege at elections.

15. Agreements for indemnity.

16. Evidence of other damages recovered by plaintiff.

17. Consolidation of actions for libel.

18. Separate assessment of damages in certain cases in actions forlibel.

19. Severance of defences.

20. Consolidation of actions for slander etc.

21. Savings.

22. Proof of convictions.

SCHEDULE — NEWSPAPER STATEMENTS HAVING PRIVILEGE

_______________________

DEFAMATION ACT

An Act relating to libel and slander and for matters connected therewith

Commencement: 17 August 1999

Citation and application.

1. (1) This Act may be cited as the Defamation Act.

(2) This Act applies to any statement made on or after the date ofcommencement of this Act.

Interpretation.

2. In this Act, unless the context otherwise requires —

“broadcasting by means of telecommunication” meanspublication for general reception by means of a telecommunication;

“newspaper” means any paper containing public news orobservations thereon or consisting wholly or mainly of advertisements which is printed for sale and is published in Brunei Darussalam, either periodicallyor in parts or numbers at intervals not exceeding 36 days;

“telecommunication” means any system for the transmission,emission or reception of signs, signals, writings, images and sounds of allkinds by means of radiowaves, wire, cable or other electromagnetic systems;

“words” includes pictures, visual images, gestures and other methods of signifying meaning.

Broadcast statements.

3. For the purpose of the law of libel and slander, the broadcastingof words by means of telecommunication shall be treated as publication in apermanent form.

Words imputing unchastity or adultery.

4. Words spoken and published which impute unchastity or adultery toany person shall not require special damage to render them actionable.

Slander affecting official, professional or business reputation.

5. In an action for slander in respect of words calculated todisparage the plaintiff in any office, profession, calling, trade or businessheld or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage whether or not the words are spokenof the plaintiff in the way of his office, profession, calling, trade orbusiness.

Slander of title etc.

6. (1) In any action for slander of title, slander of goodsor other malicious falsehood, it shall not be necessary to allege or prove special damage —

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing orother permanent form; or

(b) if the said words are calculated to cause pecuniary damage tothe plaintiff in respect of any office, profession, calling, trade of businessheld or carried on by him at the time of the publication.

(2) Section 3 applies for the purposes of this section as it applies forthe purposes of the law of libel and slander.

Unintentional defamation.

7. (1) A person who has published words alleged to be defamatory ofanother person may, if he claims that the words were published by himinnocently in relation to that other person, make an offer of amends under thissection; and in any such case —

(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);

(b) if the offer is not accepted by the party aggrieved, then,except as otherwise provided by this section, it shall be a defence, in anyproceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained ofwere published by the defendant innocently in relation to the plaintiff andthat the offer was made as soon as practicable after the defendant receivednotice that they were or might be defamatory of the plaintiff, and has not beenwithdrawn.

(2) An offer of amends under this section must be expressed to be made forthe purposes of this section, and must be accompanied by an affidavitspecifying the facts relied upon by the person making it to show that the wordsin question were published by him innocently in relation to the party aggrieved;and for the purposes of a defence under subsection (1) (b) no evidence,other than evidence of facts specified in the affidavit, shall beadmissible on behalf of that person to prove that the words were sopublished.

(3) An offer of amends under this section shall be understood to meanan offer —

(a) in any case, to publish or join in the publication of a suitablecorrection of the words complained of, and a sufficient apology to the partyaggrieved in respect of those words;

(b) where copies of a document or record containing the saidwords have been distributed by or with the knowledge of the person making theoffer, to take such steps as are reasonably practicable on his part fornotifying persons to whom copies have been so distributed that the words arealleged to be defamatory of the party aggrieved.

(4) Where an offer of amends under this section is accepted by the partyaggrieved —

(a) any question as to the steps to be taken in fulfilment of theoffer as so accepted shall in default of agreement between the parties be referred to and determined by the High Court, the decision of which shall befinal;

(b) the power of the court to make orders as to costs inproceedings by the party aggrieved against the person making the offer inrespect of the publication in question, or in proceedings in respect of theoffer under paragraph (a) , shall include power to order the payment bythe person making the offer to the party aggrieved of costs on an indemnitybasis and any expenses reasonably incurred or to be incurred by that partyin consequence of the publication in question,

and if no such proceedings as aforesaid are taken, the High Court may, uponapplication made by the party aggrieved, make any such order for thepayment of such costs and expenses as aforesaid as could be made in suchproceedings.

(5) For the purposes of this section, words shall be treated aspublished by one person (referred to in this subsection as the publisher)innocently in relation to another person if and only if the followingconditions are satisfied —

(a) that the publisher did not intend to publish them of andconcerning that other person, and did not know of circumstances by virtue ofwhich they might be understood to refer to him; or

(b) that the words were not defamatory on the face of them, and thepublisher did not know of circumstances by virtue of which they might beunderstood to be defamatory of that other person,

and in either case that the publisher exercised all reasonable care inrelation to the publication; and any reference in this subsection to thepublisher shall be construed as including a reference to any servant or agent ofhis who was concerned with the contents of the publication.

(6) Subsection 1 (b) shall not apply in relation to the publicationby any person of words of which he is not the author unless he proves that thewords were written by the author without malice.

Justification.

8. In an action for libel or slander in respect of words containingtwo or more distinct charges against the plaintiff, a defence of justificationshall not fail by reason only that the truth of every charge is not proved ifthe words not proved to be true do not materially injure the plaintiff’sreputation having regard to the truth of the remaining charges.

Fair comment.

9. In an action for libel or slander in respect of words consistingpartly of allegations of fact and partly of expression of opinion, a defence offair comment shall not fail by reason only that the truth of every allegation offact is not proved if the expression of opinion is fair comment having regard tosuch of the facts alleged or referred to in the words complained of as areproved.

Apology in mitigation of damages.

10. (1) In any action for defamation the defendant may (after noticein writing of his intention to do so duly given to the plaintiff at the time offiling his written statement of his case) give in evidence, in mitigation ofdamages, that he made or offered an apology to the plaintiff for such defamationbefore the commencement of the action or, where the action was commenced beforethere was an opportunity of making or offering such apology, as soonafterwards as he had an opportunity of doing so.

(2) In an action for libel contained in any newspaper, any defendant who has paid money into court under the provisions of any written law relatingto civil procedure may state in mitigation of damages, in his written statementof his case, that such libel was inserted in such newspaper withoutactual malice and without gross negligence and that, before the commencement ofthe action or at the earliest opportunity afterwards, he inserted oroffered to insert in such newspaper a full apology for the said libel, or, if the newspaper in which the said libel appeared should be ordinarilypublished at intervals exceeding one week, had offered to publish the saidapology in any newspaper to be selected by the plaintiff in such action.

Reports of judicial proceedings.

11. (1) A fair and accurate and contemporaneous report of proceedings publicly heard before any court lawfully exercising judicial authority within Brunei Darussalam and of the judgment, sentence or finding of any such court shall be absolutely privileged, and any fair and bona fide comment thereon shall be protected, although such judgment, sentence or finding be subsequently reversed, quashed or varied, unless at the time of the publication of such report or comment the defendant who claims the protection afforded by this section knew or ought to have known of such reversal, quashing or variation.

(2) Nothing in this section shall authorise the publication of anyblasphemous, seditious and indecent matter or of any matter the publication ofwhich is prohibited by law.

Qualified privilege of newspapers.

12. (1) Subject to this section, the publication in anewspaper of any such report or other matters as is mentioned in the Schedule shall be privileged unless the publication is proved to be made withmalice.

(2) In an action for libel in respect of the publication of any such reportor matter as is mentioned in Part II of the Schedule, this section shall not bea defence if it is proved that the defendant has been requested by the plaintiffto publish in the newspaper in which the original publication was made areasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate ornot reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting thepublication of any blasphemous, seditious or indecent matter or of any matterthe publication of which is prohibited by law, or of any matter which is not ofpublic concern and the publication of which is not for the public benefit.

(4) Nothing in this section shall be construed as limiting or abridging anyprivilege subsisting immediately before the commencement of this Act.

Application of Act to broadcasting.

13. (1) The provisions of this Act shall apply in relation to reports or matters broadcast by means of telecommunication as part of anyprogramme or service provided by means of a broadcasting station withinBrunei Darussalam, and in relation to any broadcasting by means oftelecommunication of any such report or matter, as they apply in relation toreports and matters published in a newspaper and to publication in anewspaper.

(2) Subsection (2) of section 10 of shall have effect in relation to such broadcasting as if for the words “to insert in such newspaper” there were substituted to words “to publish in the same manner” and subsection (2) of section 12 shall have effect in relation to any such broadcasting, as if for the words “in the newspaper in which” there were substituted the words “in the manner in which”.

(3) In this section, “broadcasting station” means anytelecommunication station which is authorised by law, or in respect of which alicence is granted under any written law authorising the station, to providebroadcasting services for general reception.

Limitation of privilege at elections.

14. A defamatory statement published by or on behalf of a candidate inany election to any elected or partially elected body shall not be deemed to bepublished on a privileged occasion on the ground that it is material to aquestion in issue in the election, whether or not the person by whom it ispublished is qualified to vote at the election.

Agreements for indemnity

15. An agreement for indemnifying any person against civil liabilityfor libel in respect of the publication of any matter shall not be unlawfulunless at the time of the publication that person knows that the matter isdefamatory, and does not reasonably believe there is a good defence to anyaction brought upon it.

Evidence of other damages recovered by plaintiff.

16. In any action for libel or slander, the defendant may giveevidence in mitigation of damages that the plaintiff has recovered damagesor has brought actions for damages, for libel or slander in respect of thepublication of words to the same effect as the words on which the action isfounded, or has received or agreed to receive compensation in respect ofany such publication.

Consolidation of actions for libel.

17. (1) Upon an application by two or more defendants in actions in respect of the same or substantially the same libel brought by oneand the same person, the court or a judge may make an order for theconsolidation of such actions so that they shall be tried together.

(2) After any such order has been made and before the trial of the saidactions, the defendants in any new actions instituted in respect of the sameor substantially the same libel shall also be entitled to be joined in a common action upon a joint application by such new defendants and the defendantsin the actions already consolidated.

(3) The court or a judge may, in the case of the same or substantially the same libel published simultaneously in a number of newspapers or copiedshortly after publication, give notice to the plaintiff in any action or actionsarising out of such libels that a period stated in such notice will be allowedfor the discovery of any further publications of such libel in order that thewhole of the actions arising out of such libel may be tried together, and after such period has expired no further action shall be instituted in respect of the publication of such libel except for the recovery of specialdamages.

(4) In a consolidated action under this section, the whole amount of thedamages (if any) shall be assessed in one sum but a separate judgment shall begiven in respect of each defendant in the same way as if the actionsconsolidated had been tried separately.

(5) The amount of damages so assessed shall be apportionedamongst those of the defendants against whom judgment has been given, and ifcosts are given to the plaintiff the court may make such order as it thinks justapportioning the costs amongst such defendants.

Separate assessment of damages in certain cases in actions forlibel.

18. Whenever in an action for libel the plaintiff sues more than one defendant, whether jointly, severally, or in the alternative, and evidence is given of malice in one defendant or of any other matter ofaggravation which would not be admissible in evidence against any otherdefendant if he were sued alone, such other defendant may apply to the court tohave the damages against himself and his co-defendants separately assessed,and if such application be made the court shall assess the damages separatelyagainst each defendant and no defendant shall be liable nor shallexecution issue against him for any further or other damages than those soassessed against him.

Severance of defences.

19. Whenever in any action for libel the plaintiff sues more thanone defendant, whether jointly, severally, or in the alternative, eachdefendant may file a separate statement of his case and appear at the trial byseparate counsel or, if he thinks fit, apologise or pay money into court or makeother amends, whatever may be the defences set up by his codefendants, and theplaintiff may accept such apology, money, or other amends and settle orcompromise the suit and discontinue the action as between himself and one ormore defendants without reference to the other defendants:

Provided that the rights and interests of the other defendant or defendantsshall not in any way be prejudiced thereby.

Consolidation of actions for slander etc.

20. Sections 17, 18 and 19 shall apply to actions for slanderand to slander of title, slander of goods and other malicious falsehood as theyapply to actions for libel and references in any such sections to thesame or substantially the same libel shall be construed accordingly.

Savings.

21. Nothing in this Act affects the provisions of any other lawrelating to criminal offences or which applies to any prosecution for a criminaloffence.

Proof of convictions.

22. (1) In an action for libel or slander in which the questionwhether a person did or did not commit a criminal offence is relevant to anissue arising in the action, proof that, at the time when the issue falls to bedetermined, that person stands convicted of that offence, shall be conclusive evidence that he committed that offence; and his convictionthereof shall be admissible in evidence accordingly.

(2) The contents of any document which is admissible as evidence of theconviction shall, without prejudice to the reception of any otheradmissible evidence, to identify the facts on which the conviction was based, beadmissible in evidence to identify those facts.

(3) Where the contents of a document are admissible by virtue of subsection (2), a copy of that document, purporting to be certified by the court concerned shall be taken to be a true copy of that document, unless the contrary is shown.

SCHEDULE

Section 12

NEWSPAPER STATEMENTS HAVING QUALIFIED PRIVILEGE

PART I

STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR CONTRADICTION

1. A fair and accurate report of proceedings —

(a) in public of the legislature of any part of the Commonwealthoutside Brunei Darussalam;

(b) in public of an international organisation of which the Government is a member;

(c) in public, of an international conference to which the Government sends a representative;

(d) before any court exercising jurisdiction throughout any part ofthe Commonwealth outside Brunei Darussalam or a court martial held outsideBrunei Darussalam under any law in force in Brunei Darussalam or under anyAct of the United Kingdom; and

(e) in public of a body or person appointed to hold a publicinquiry by the Government of any part of the Commonwealth outside BruneiDarussalam.

2. A fair and accurate copy of or extract from any register keptin pursuance of any written law in force in Brunei Darussalam which is open toinspection by the public or which members of the public are entitled to havesearched or of any other document which is required by any such law to be opento inspection by the public or to which members of the public are entitledon payment of a fee to a copy.

3. A notice, advertisement or report issued or published by or on the authority of any court within Brunei Darussalam or any judge or officer of such court or by any public officer or receiver or trustee acting in accordance with the requirements of any written law.

PART II

STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION

1. A fair and accurate report of the findings or decision of any association formed in Brunei Darussalam for the purpose of —

(a) promoting or encouraging the exercise of or any interest in anyart, science, religion or learning; or

(b) promoting or safeguarding the interests of any trade, business, industry or profession or of persons carrying on the same or engaged therein or the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, where —

(c) the finding or decision relates to a person who is a member of oris subject by virtue of any contract to the control of the association;and

(d) the association is empowered by its constitution to exercisecontrol over or to adjudicate upon the matters to which the finding or decisionrelates.

2. A fair and accurate report of the proceeding at any publicmeeting held in Brunei Darussalam, being a meeting bona fide and lawfullyheld for a lawful purpose and for the furtherance or discussion of any matter ofpublic concern, whether the admission to the meeting is general orrestricted.

3. A fair and accurate report of the proceedings at any meeting orsitting in any part of Brunei Darussalam of —

(a) any commission, tribunal, committee or person appointed forthe purpose of any inquiry by or under any law; or

(b) any other tribunal, board, commission, committee, or body whether incorporated or not constituted and exercising functions by or under any written law in or under any other lawful warrant or authority for public purposes,

being a meeting or sitting to which admission is not denied torepresentatives of newspapers or other members of the public.

4. A fair and accurate report of the proceedings at a general meeting wherever held of any joint-stock company or corporation whereverregistered whose business is in any way directly concerned with BruneiDarussalam, or of any company constituted, registered or incorporated under theprovisions of any written law not being a private company within the meaningof the Companies Act (Chapter 39).

5. A copy or a fair and accurate report or summary of any notice orother matter issued for the information of the public by or on behalf of the Government or by any public officer or authority.