Online Defamation

1. Does leaving a one-star rating or a negative comment online about an unsatisfactory product or service constitute defamation? What are the conditions for filing a defamation lawsuit, and how can the claimant prove that the defendant had defamatory intent?

Yes, a negative comment could result in defamation if the usual elements of defamation could be made out on a balance of probabilities, and if the poster is unable to avail himself/herself to any defences under the law, such as justification and fair comment, etcetera. We elaborate on this below.

There are three elements required to establish defamation, on a balance of probabilities (Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2016) (“Gary Chan”) at para 12.010): (i) the defendant must have published the material to a third party; (ii) the material must refer to the plaintiff; and (iii) the material must be defamatory.

The burden of providing the above elements lies on the Plaintiff.

Publication of material To satisfy the requirements of “publication” under defamation, the Plaintiff must establish that the Defendant has, “by any act, conveyed or communicated the material to at least one other person who has received it” (Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] at [35]).

As such, the element of publication has two components (Wayne Crookes and West Coast Title Search Ltd v Jon Newton [2011] 3 SCR 269 at [55]): (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.

Further, in the context of a publication of material on the Internet in Singapore, there are two additional considerations which must be proven on a balance of probabilities (Qingdao at [3] to [4])): (a) The identity of the publisher; and (b) The offending material (in this case, the online rating or comment) must have been read and/or downloaded by third-party readers in Singapore.

Following up from the above, it is therefore insufficient for a Plaintiff to merely allege that defamatory material was “published” simply from the fact that it had been posted on the Internet and was accessible in Singapore: Qingdao at [41]. There is no presumption of law that material appearing on the Internet has been published: Zhu Yong Zhen v AIA Singapore Pte Ltd [2013] 2 SLR 478 at [44].

The material must also refer to the Plaintiff. The test for reference is an objective one: the material must lead a reasonable reader to the conclusion that the material is referring to the Plaintiff (Qingdao at [156]).

If there is no express reference to the Plaintiff by his/her actual name (i.e., the comment/rating only makes an indirect or implied reference to the Plaintiff), the question would therefore be on the extent of evidence required to connect the material published to the Plaintiff (Qingdao at [156]). To illustrate, if a statement is about a well-known individual, little to no proof would potentially be required to show the person being referenced. Conversely, where an individual is only identifiable through external factors that are not commonly known, it must be proven that the material was published to persons who possess such knowledge to identify said individual.

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 ridiculed; or (c) exposes the plaintiff to hatred, contempt or ridicule: Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte ltd and another [2015] 2 SLR 751.

The material must be defamatory in its natural and ordinary meaning. In other words, an ordinary reasonable person using his/her general knowledge and common sense, must find that the words conveyed were defamatory: Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2009] SGCA 46 at [27]

Further, the assessment is not confined to a literal or strict interpretation of the words. It also includes implications or any inferences that an ordinary reasonable person (i.e., your average rational layperson) might draw from those words in light of his general knowledge, common sense and experience: Review Publishing at [28].

Do note however, that any inferences should be drawn based on the construction and context of the words and material itself, and not from extrinsic evidence (which is inadmissible): Review Publishing at [27].

We would elaborate on the possible defences in our response to Question 5 below.

2. What are the differences between reviews based on real experience and reviews based on subjective opinions?

Reviews based on real experiences: e.g., “The food was terrible,” “The service was bad,” “The place was dirty.” Can these be considered defamation?

The simple answer would be that if the comments are true and based on real experience, the defence of justification could apply. Depending on how the remarks was phrased, fair comment could also apply. However, a close scrutiny would have to be applied on a case by case basis.

Reviews based on subjective opinions: e.g., “I don’t like the restaurant’s decoration,” “I think it’s not worth the price,” “I feel the service is poor.” Are these considered defamatory?

As stated above, the court would consider if these are framed as assertions of fact or more representative of personal opinion. If the Court is of the view that it is an opinion, the defence of fair comment might apply. However, we would also have to consider whether there was malice involved.

Does leaving a one-star rating without a comment, or using a negative emoji, constitute defamation?

We would typically take these one-star ratings in totality when considering a defamation claim. One pertinent question to consider is whether the same person had posted other comments on the same business.

3. How is compensation typically calculated?

The Defamation Pre-action Protocol would require a claimant to first issue a letter of claim to the respondent, barring special circumstances. It is common for cease-and-desist letter to include letter of apology, undertaking, and quantum of compensation sought. In a defamation suit, there are typically two main types of damages.

The first category of damages would be general damages, which would be based on prevailing case laws. We would look at past cases of similar facts to determine an appropriate quantum for damages.

Generally speaking, relevant factors in the quantification of general damages would include: (a) the nature and gravity of the defamation; (b) the conduct, position and standing of the Plaintiff and Defendant; (c) the mode and extent of publication; (d) the natural indignation of the court at the injury caused to the Plaintiff; (e) the conduct of the defendant from the time the defamatory statement is published to the very moment of the verdict; (f) the failure to apologise and retract the defamatory statement; and (g) the presence of malice (Lim Eng Hock Peter v Lin Jian Wei and anor [2010] SGCA 26 at [7]).

The second category of damages would be special damages, and this would be pursued if the defamatory remarks did result in quantifiable and real losses to the company.

In other words, special damages allows the Plaintiff to recover any economic loss, provided such loss is referable to the harm caused to the Plaintiff’s reputation due to the Defendant’s publication: ATU and others v ATY [2015] SGHC 184 at [69].

Further, to recover special damages, the plaintiff has to prove ‘actual temporal loss’; the loss of some ‘material’ or ‘temporal advantage’ which is ‘pecuniary’ or ‘capable of being estimated in money’: ATU at [69]. Simply put, the actual loss must be quantifiable in monetary terms. One example would be a drop in a restaurant’s revenue that is directly attributable to the publication of defamatory material that harmed the restaurant’s reputation.

A potential third category of damages could be aggravated damages.

As observed in Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 2 SLR(R) 971 (at [51]) and affirmed in Peter Lim (at [39]), aggravated damages may be awarded where the Defendant’s conduct before and during trial has aggravated the hurt to the Plaintiff’s feelings.

As observed in Arul Chandran v Chew Chin Aik Victor [2001] SGCA 3 at [57] and Lim Eng Hock Peter at [38], some examples of aggravating circumstances include but are not limited to, the reckless reliance on the defences to defamation, improper conduct during cross-examination, making unsubstantiated allegations during mitigation, the presence of malice and the deliberate and knowing use of the court process to defame the Plaintiff.

4. If someone receives a defamation cease-and-desist letter, does deleting or hiding the negative review immediately help to avoid a lawsuit?

Generally speaking, deleting or hiding the negative review after it has already been posted does not negate the possibility that it has already been published and viewed by readers in Singapore. Whether he/she is able to avoid a defamation lawsuit would therefore depend on whether the legal elements of defamation are satisfied and if so, whether he/she is able to avail himself or herself of any possible defences to defamation (as stated in Question 1 above).

In a situation where a party receives a cease-and-desist letter which demands for the party to remove or hide the negative review, it would be advisable for individuals who had received cease and desist letter to seek appropriate legal advice. The lawyer would review how the settlement terms are phrased and whether the terms allude to a full and final settlement of all issues once the review was taken down.

5. What are the consequences of a successful defamation lawsuit? How can consumers usually defend themselves against such claims in court?

Should a claimant succeed in a defamation claim, the Court would assess the damages payable by the respondent to the claimant. The court could also make an order for party-to-party costs to be paid to the winning party, which could cover part of the legal fees of the winning party.

For a Defendant to defend themselves against a claim for defamation, the Defendant must be able to successfully establish any one of the possible defences against defamation: (i) justification; (ii) fair comment; or (ii) qualified privilege. The burden lies on the Defendant to prove this.

There are no laws or regulations which specifically protect consumers from being the subject of a defamation claim.

To successfully establish the defence of justification, the defendant need only prove the truth of the substance or gist of the offending words (Review Publishing at [134]). However, the burden of proving this lies on the Defendant.

To illustrate (in the context of an online review), if a review states that it spotted a cockroach in a restaurant, the statement may not be defamatory if the reviewer had indeed spotted a cockroach and has proof of this.

To successfully invoke the defence of fair comment, a defendant has to prove four elements (Review Publishing at [139]): (a) the words complained of are comments, though they may consist of or include inference[s] of facts; (b) the comment is on a matter of public interest; (c) the comment is based on facts; and (d) the comment is one which a fair-minded person can honestly make on the facts proved.

The fundamental rule is that fair comment only applies to “comments” and not imputations of facts: Review Publishing at [140]. The test to be applied is an objective one: whether an ordinary reasonable reader, having regard to the whole context of the published material, would understand the words as being a comment or a statement of fact.

Further, where it cannot be readily distinguished whether the published material is a comment or a statement of fact, the Defendant will not be protected by the defence of fair comment: Review Publishing at [140].

The defence of qualified privilege recognises that there are circumstances where the law allows an individual to make statements which may be ex facie defamatory without incurring legal liability when there is a need for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: Lim Eng Hock Peter v Lin Jian Wei and another [2009] 2 SLR(R) 1004 at [163].

As held in Peter Lim at [164], categories of statements which may enjoy qualified privilege include: - (a) statements made between parties who share a common or mutual interest in the subject matter of the communication; (b) statements made in the discharge of a legal, social or moral duty; (c) statements made in the protection of one’s own self-interest; and (d) fair and accurate reports of certain proceedings.

By way of example in the context of an online review, a food reviewer may possibly avail himself of the defence of qualified privilege for posting a review as to the bad hygiene of a restaurant, on the basis that the statement was made in good faith and for the legitimate interests of the general public.

It can be observed that the underlying premise of the defences of fair comment and qualified privilege is “good faith”. As such, the defence of qualified privilege and defence of fair comment may be defeated where the publication was actuated by malice.

Malice may be express or implied. The ways to prove malice are as follows (Lim Eng Hock Peter v Lin Jian Wei [2010] 4 SLR 331): - (a) the defendant’s knowledge of falsity, recklessness, or lack of belief in the defamatory statement; or (b) where the defendant has a genuine or honest belief in the truth of the defamatory statement, but his dominant motive is to injure the defendant or some other improper motive.

Further, the following distinction may be made between malice which defeats the defence of fair comment and malice which defeats the defence of qualified privilege (Basil Anthony at [60]):

The defence of fair comment does not apply if the Defendant did not honestly believe in the truth of the defamatory comment. The fact that the Defendant may have acted with ulterior motives is by itself “immaterial for the purposes of the defence of fair comment, though it can, depending on the facts, give rise to an inference” of a lack of honest belief in the truth of the comment that was made.

As for the defence of qualified privilege, “motive rather than honest of belief was the essential indicator of malice”. In other words, qualified privilege does not apply if the Defendant did not make the defamatory statement for the purposes of protecting a legitimate interest or in discharging the duty which gave rise to the privilege.

It should also be noted that an honest belief in an unfounded claim is not malice (as affirmed by the Court of Appeal in Low Tuck Kwong v Sukamto Sia [2013] SGCA 61 at [84]).

Please note that assessing defamation claims is a fact-centric exercise and the above is not intended in any form or manner to be construed as legal advice for your specific query. You are to seek legal advice in relation to your claims or defences.

For more enquiries relating to online defamation, please contact our Head of Defamation and Reputation Protection Practice, Mr. Wilbur Lim, at wilbur.lim@wmhlaw.com.sg