Defamation Law in Singapore

What Is Defamation – the Three Elements

I. Introduction

This article seeks to examine the elements in which a claimant would have to satisfy for a claim in defamation. The law of defamation is aimed at protecting an individual’s or company’s reputation or specifically, what others think of him/it. The Singapore High Court (“HC”) in Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 (“Golden Season”) aptly summarises the well-settled law on defamation. There are three key elements to establish the tort of defamation:

(a) a statement bearing a defamatory meaning; (b) publication to a third party; and (c) reference made to the plaintiff.

These elements would be addressed sequentially.

II. Element (a) – statement bears defamatory meaning

As held in Golden Season, a statement is considered defamatory if it: (a) lowers the plaintiff in the estimation of right-thinking members of society generally; (b) causes the plaintiff to be shunned or avoided; or (c) exposes the plaintiff to hatred, contempt or ridicule. At [37], the test to determine whether a statement is defamatory is “…generally determined based on the construction of the natural and ordinary meaning of the words used.” The key inquiry for this element is on what “natural and ordinary meaning” means. The law is trite in this regard.

The Singapore Court of Appeal (“CA”) in Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 (“Review Publishing”) is instructive on the determination of natural and ordinary. Preliminarily, the CA stated at [28] that natural and ordinary meaning does not refer to just the literal or strict meaning of the offending words, but “includes inferences or implications that the ordinary reasonable person may draw from those words in the light of his general knowledge, common sense and experience…”. Citing Lord Reid’s comments in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 with approval, the CA agreed that the meaning must be one an ordinary man can infer without special knowledge and that there are two elements in it:-

“Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.”

Additionally, the inferences and implications which the ordinary reasonable person draws from his own general knowledge, common sense or experience are permissible. The CA then specifically noted that these are not inferences or implications based on extrinsic evidence which is not admissible to construct the natural and ordinary meaning.

Further, it is also important to consider the characteristics of the ordinary reasonable person which is being used as the plumbline. The emphasised point is found at [31]: the “ordinary reasonable person is very much an average rational layperson, neither brilliant nor foolhardy, and not idiosyncratic in his behaviour or disposition.”

With the multitude of considerable aspects regarding this first element, the HC in Golden Season consolidated the following guiding principles which apply:

(a) the natural and ordinary meaning of a word is that which is conveyed to an ordinary reasonable person; (b) as the test is objective, the meaning which the defendant intended to convey is irrelevant; (c) the ordinary reasonable reader is not avid for scandal but can read between the lines and draw inferences; (d) where there are such a number of possible interpretations, some of which may be non-defamatory, such a reader will not seize on only the defamatory one; (e) the ordinary reasonable reader is treated as having read the publication as a whole in determining the meaning, thus “the bane and the antidote must be taken together”; and (f) the ordinary reasonable reader will take note of the circumstances and manner of the publication.”

III. Element (b) – publication

The second element is publication where the plaintiff must establish that the defamatory statement has been communicated to at least one other person who has received it. The HC in Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] 4 SLR 977 (“Qingdao”) is illustrative on this point. At [35], the court stated that publication has two components: (a) an act that makes the defamatory material available to a third party in a comprehensible form; and (b) the receipt of the information by a third party in such a way that it is understood.

Qingdao was a case relating to Internet defamation and hence tailored the general principles accordingly. Regardless, these principles are still helpful in understanding the element of publication. To satisfy the first component, the plaintiff must establish that the defendant had uploaded the statement on the Internet. By doing so, he has made the offending statement available to a third party. This first component alone is not sufficient to satisfy the element of publication because an upload or post does not definitively mean that anyone else apart from the author and the defamed person has seen it. Hence, the second component is instrumental in fulfilling the element.

The second component requires the plaintiff to establish that a third-party downloaded the material in Singapore. Citing Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 3rd Ed, 2010), the HC made clear that there is no presumption of law that any material appearing on the Internet has been published. At [41], the court summarises the principles:-

“To summarise, publication on the Internet can be proved either directly or indirectly. There is no presumption of law that material appearing on the Internet has been published, and it is therefore insufficient for a plaintiff to simply allege that the defamatory material was posted on the Internet and was accessible in Singapore. The second component of the element of publication has to be satisfied.”

IV. Element (c) – reference to plaintiff

Lastly, a third element must be satisfied for defamation to be found. We can turn again to Review Publishing for guidance on this element. For starters, the court set out that it is for the plaintiff to prove that the published defamatory words were published “of the plaintiff”. At [49]: the CA held that this test is an objective one, and concerns simply whether an ordinary reasonable person who “at the material time, was aware of the relevant circumstances or special facts (if any) would reasonably understand the plaintiff to be referred to by the offending words.” It is worth noting that the plaintiff need not be expressly referred to by name and it does not matter whether defendant intended to refer to the plaintiff.

An interesting issue that occurs under this element is whether a plaintiff can rely on self-identification in fulfilling this element. The court in Golden Season held that this cannot be the position at [49]:-

“Starting from first principles, it is clear that it must be the defendant’s publication that identified the plaintiff before liability will attach (assuming that defamatory meaning is already found), and not the act of the plaintiff. A plaintiff who goes around announcing that something published by the defendant actually refers to him cannot rely on that very same act in arguing that the defendant’s publication now refers to him.”

Therefore, it must be clear on the publication itself that references are made to the Plaintiff.

This article is prepared with the assistance of our intern, Ms. Tan Wei Lin.

For queries on defamation, you may contact our Head of the Defamation and Reputation Protection Practice, Mr. Wilbur Lim, at wilbur.lim@wmhlaw.com.sg or 6514 6351.

Disclaimer: The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.