The Singapore Constitution protects the right to free speech. However, this right can be restricted in certain circumstances to protect the good reputation of individuals and companies. Specific actions to ruin a person’s or company’s reputation are classified as defamation, and defamation laws protect individuals or companies against defamatory acts. We can describe defamation law as “balancing” the right to freedom of speech and a person’s right to defend their good reputation.
How does the law define defamation?
In Singapore, defamation can give rise to criminal or civil actions. It is a criminal offence under section 499 of the Penal Code. The Defamation Act regulates civil actions based on the tort of defamation.
Under the tort of defamation, we distinguish between written words (libel) and spoken words (slander). Libel includes broadcasting or publishing defamatory statements; it covers emails, messaging, blogs, the internet, or printed media. It can also include pictures or cartoons.
The main difference between a tort and a criminal act is that a tort is a breach of a civil duty towards a person. In contrast, a criminal act is a breach of duty to society in general.
Section 499 of the Penal Code defines defamation as follows:
“… words either spoken or intended to be read, or by signs, or by visible representations, … intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person….”
In simple terms, that means that it will be defamation if:
- The defamatory statement harmed the person’s reputation.
- The harmed person is identified.
- The information must be “published,” i.e., other people can hear or see the statements.
The Act provides for certain exceptions or defences, including:
- It is not defamation if the statement is true, and it is for the public good to publish the information.
- Good faith opinions based on true facts regarding the public conduct of public servants, or the conduct of any person touching any public questions.
- Publishing reports of court or parliamentary proceedings.
- Good faith opinions regarding the merits of a case decided by a court, or witness conduct.
- Good faith opinions on the merits of public performance, such as publishing a book, making a speech in public, or performing on stage.
Under the Defamation Act, a person can proceed with a civil defamation claim even if the person did not intend to defame. A civil action is available if the written or spoken statements harm someone’s reputation. Whether it will be successful depends on the circumstances of the case.
What must you prove to sue for defamation successfully?
- The statement must be false and defamatory.
A statement is defamatory if it harms your reputation or lowers your standing in the minds of society’s reasonable or right-thinking members. Similarly, a statement is defamatory if it causes the victim to be ridiculed, avoided, or shunned by society.
Defamatory statements can be direct or indirect, i.e., can be implied without being said directly.
Whether a statement is defamatory will depend on the circumstances of each case.
- The victim must be identified.
To succeed with a claim, the claimant must be identified by the words or pictures. Mistaken identity will not be a defence.
- The statement must be published or communicated to a third party.
Although it doesn’t matter how many people saw the statement for it to be defamation, the audience size can be important when the court determines damages.
Defences against a claim for defamation
Apart from specific exceptions and defences mentioned in the Penal Code, there are
generally accepted defences:
- The statement was justified because it is true.
To succeed with a justification defence, the “defender” must prove that the statement and the facts on which the statement is based are true in substance.
- It was a fair comment.
To succeed with a fair comment defence, it must be proved that the statement:
- Is an expression of opinion, i.e., it must be in the form of a comment or opinion, not a statement of fact.
- Is based on true facts.
- Is a matter of public interest.
- Is fair, i.e., it is the honest opinion of an unbiased person.
It should be noted that this defence is not available if the comment was motivated by malice.
There are two types of privilege defences. Absolute privilege and qualified privilege. Qualified privilege can be defeated if you can prove malicious intent.
Absolute privilege applies to judicial, executive, or parliamentary proceedings. For example, members of Parliament cannot be sued for making defamatory statements during Parliamentary proceedings.
During judicial proceedings, statements made by judges, counsel, witnesses, and other parties enjoy the same protection against prosecution. Absolute privilege also protects the contemporaneous, fair, and accurate public reporting of judicial matters.
Qualified privilege applies where:
- One party has a duty or interest to communicate specific information to a third party who has a corresponding interest or duty to receive it. This could apply, for example, to communications between employees about work issues.
- A person makes a statement to protect their own interests, for example, responding to accusations.
- Newspapers report on parliamentary or judicial matters accurately and fairly.
What happens if the statement was made innocently?
Suppose the statement was not intended to harm or was made innocently. In that case, the defendant could avoid a lawsuit for defamation by offering a public apology. Section 7 of the Defamation Act provides that the person who made the defamatory remark can make an “offer of amends”.
To succeed with an offer of amends, the defendant must prove:
- The statement was made innocently, and the statement maker exercised reasonable care before publishing the statement.
- The defendant must take reasonable steps to inform the recipients of the statement that the content is defamatory.
The defendant must issue a public apology.
An offer of amends can avoid an action for defamation being instituted, or if it is already in the process, it can be discontinued.
Damages for defamation
The purpose of defamation laws is not only to protect someone’s reputation. It is also to compensate for any damages caused by the defamation.
The court can award monetary damages against the maker of the defamatory statements. The purpose of damages is to grant some relief for the distress caused and to restore the person’s damaged reputation.
The court may award general damages and aggravated damages.
The court will take several factors into account when deciding on the amount of damages, including:
- The nature and seriousness of the statements.
The more serious the allegations, the higher the damages.
- The effect of the statements on the person’s reputation.
The claimant’s standing in public is a relevant factor when determining damages. Similarly, the statement maker’s standing can also be a relevant factor. The personal view of an average citizen, for example, might cause less damage than the views of a highly regarded public broadcaster.
- The extent of the publication, i.e., the size of the audience.
The wider the publication, the more the damage. The context could also play a role. A blog post, for example, may be less credible or influential than a well-respected newspaper article.
When deciding whether to award aggravated damages, the court will consider the conduct of the statement maker. The court will consider the following:
- An apology or lack of apology.
- Were the defamatory comments repeated?
- Malicious or reckless conduct.
Although not very common, the court may also award exemplary damages to punish the statement maker.
Other available remedies
Victims of defamation may approach the court seeking an injunction. There are two types of injunctions.
- Prohibitory injunctions – forcing the statement maker or publisher to stop publishing any future defamatory statements.
- Interlocutory injunctions – compelling the statement maker to retract the statements.
Defamation and the internet
The highly publicised case of Prime Minister Lee Hsien Loong v Leong Sze Hian  SGHC 66 illustrates how the courts applied civil defamation laws in online defamation matters. Simply “sharing” a post can amount to defamation.
In this case, the blogger posted a link on Facebook to an article that contained allegations of corruption against Mr Lee. The judge found that sharing the article is construed as publishing the article. The post was publicly available, and it contained untrue statements that harmed Mr Lee’s reputation. The court specifically commented on the blogger’s reckless disregard for whether the article was accurate or not. The court awarded general and aggravated damages.
It can be argued that this is nothing new. It is well-established law that sharing someone else’s content is the same as “publication”. Therefore, sharing on social media platforms is equally considered as publication. In fact, each “sharing” or re-posting can potentially be seen as a new act of defamation.
Notably, section 26 of the Electronic Transactions Act protects network service providers against defamation claims. They are regarded as merely providing access to information and are not liable for defamation for the making, publishing, or dissemination of defamatory statements.
In Singapore, victims of defamation have a choice between instituting civil proceedings under the Defamation Act or reporting their case to the police for criminal prosecution.
If you find yourself in a situation where your reputation is harmed, you should seek legal advice as soon as possible. An experienced lawyer can advise you on the steps to take, your options to protect and restore your reputation, and your legal remedies.
If you are accused of defamation, an experienced lawyer can help you defend your case successfully or reduce the amount of damages you might have to pay. Section 10 and 16 of the Defamation Act provide ways to reduce the amount of damages.
An experienced lawyer can help you achieve the best possible outcome for your case, whether you are a claimant or a defendant in a defamation lawsuit.