Does the Malaysian law of equity permit an apology as a remedy for defamation?

There has been a trend in the Malaysian courts for plaintiffs in defamation to seek an apology as a remedy complete in itself or in addition to damages and/or an injunction.1 Nevertheless, there is no provision in the Defamation Act 1957 making an apology a remedy to a claim in defamation either by itself or in combination with an award of damages and/or an injunction. An apology may be tendered as a defence to an unintentional defamation by an individual defendant or a newspaper under section 7 of the Defamation Act 1957. An apology may also be tendered under section 10 in mitigation of damages in defamation. Besides these statutory exceptions in section 7 and 10 of the Defamation Act, an apology is not available as a remedy for defamation in Malaysia.

Hence, a prima facie remedy of an apology would have to be authorised under the Malaysian law of equity. By virtue of section 3 of the Civil Law Act 1956, the common law of England relating to defamation is applicable to Malaysia except in so far as it has been modified by the provisions of the Defamation Act 1957. Though the numbering of the sections differs, many of the provisions of the Defamation Act 1957 are in pari materia with or follow closely the corresponding sections of the English Defamation Act 1952 or earlier English legislation on defamation.2 The law of defamation in Malaysia is, therefore, for all practical purposes the same as the law in England.

Hence, it is of interest to see whether the Malaysian law of equity cloaks the court with the jurisdiction to order a defendant in a defamation suit to tender an apology as a remedy. If so, associated questions would arise: would is such an apology be ordered in substitution of or in addition to damages? Would the apology be ordered by the court of its own volition or on the application of the plaintiff? And what course of action would be available to the court if the
defendant declines to comply with an apology order? Hence, this paper attempts to explore whether the Malaysian law of equity permits an apology as a remedy for defamation or not. The paper may also explore the question of whether the law of equity in Hong Kong permits or would permit the court to order defendant to tender an apology to a plaintiff who has proved his case in defamation.