Defamation is a civil and criminal offence in Singapore, but the legal position is not always clear-cut.
The law of defamation has been made more complicated with the internet and social media platforms, which allow 24/7 publication from anyone with a device.
The world now has a voice, but the oxygen of publicity carries with it responsibility and, ultimately, legal implications.
The law of defamation
Section 499 of the Penal Code makes defamation a criminal offence. So, someone making a defamatory statement can be arrested and charged by the police; it’s not necessarily a private matter that only ends up in the civil courts.
What is the test for the criminal offence of defamation?
Comments may be defamatory, but for prosecuting a crime under Section 499, the perpetrator or the defamer must have known or had reason to believe that their words would harm the victim’s reputation.
Defamation in the civil courts
Defamation is also a civil matter and is a tort under the Defamation Act. The tort concerns a breach of a civil duty owed to another citizen. It differs from a crime because the breach is of a duty owed to society at large.
The tort of defamation distinguishes between the written and the spoken word. Written words may constitute libel, whereas spoken words are slander.
Both give rise to a right to commence a civil action against the perpetrator, and remedies may include compensation, or an injunction.
There are three other elements which must be present too.
(1) The statement must be defamatory
When is a statement defamatory? A statement is defamatory if it lowers the victim in the estimation of reasonable and right-minded people, leading that person to be avoided or exposed to mockery or contempt.
A statement does not have to be directly defamatory; there can be a strongly worded inference which leaves the reader or listener in no doubt about the intended meaning.
The intended purpose of the statement
The context in which the statement is made is crucial. For example, the alleged perpetrator might contest the comment was said as a joke or was meant to be humorous rather than rude and insulting.
It’s easier to understand the true intent behind a statement if it can be contextualised.
Some media platforms tend to be the home for slang, light-hearted or funny commentary, and even some strongly worded remarks as people let off steam on different subjects.
A comment on a forum like that, Twitter, for instance, would be viewed less seriously than if it were made on a different type of platform.
So, the intent of the alleged defamer is partly assessed by looking at the language and the context of their statement and, to some degree, the level of understanding of the readership.
However, where the court has found a remark to be non-defaming, it does not set a precedent. It means that any statement published online is not necessarily safe from a defamation action.
(2) The statement must refer to the victim making the claim
Words can identify a person, but so can an image of the victim. The test the court applies is whether that person is identifiable by words or images.
An accusatory remark against a company or organisation may contain a sufficient imputation of dishonesty or bad behaviour to constitute a reference to a specific individual.
In this respect, a defence of ‘mistaken identity’ is not enough to counter an accusation of defamation.
(3) The alleged defamatory statement must be published or communicated via some other means to the victim
The publication is part of defamation, but because the internet is a vast place, publication alone may not be enough to communicate the alleged defamatory statement to a broad enough audience. This is why it is essential to look at the context.
For online defamation, there must be evidence the statement has been communicated to an audience. It could be demonstrated with a viewing counter on a blog, or by the number of comments a remark has received on a platform such as Twitter.
The number of readers is not considered significant by the court when establishing whether defamation has occurred. However, the audience size is relevant when it comes to establishing the value of any damages.
In most cases, the wider the audience the statement has reached, the greater the damage.
Can a defence be mounted against a claim of defamation?
There are two defences to an action for defamation; one is justification, and the other is fair comment.
The defence of justification
The defence of justification is about truth, so if the person making the statement can prove that it is true, based on substance and fact, these must both be proven to defend a claim.
The defence of fair comment
The defence of fair comment has four different elements which must be proven. The statement must be:
- An expression of an opinion
- Based on substantiated true facts
- The opinion of a relatively unbiased person
- Related to a matter of public interest
Either of these defences can see off an action for defamation.
Remedies for a successful defamation action
Monetary damages can be awarded alongside or instead of an injunction. Monetary damages are there to soften the blow – it’s impossible to unsay the statement, but a whole pile of money can help!
The court will consider a few things when considering a monetary award, including the seriousness of the statement, its impact on the victim, and the extent to which it has been publicised.
There are two types – prohibitory and interlocutory.
Prohibitory injunctions are restraining, so they aim to prevent the publication of future defamatory statements. An interlocutory injunction forces the statement maker to issue a notice to retract it, something seen often in defamation cases involving newspapers.
Final thoughts on defamation in Singapore
If you think you have been defamed, the options are to report the matter to the police, providing there is evidence to prove the statement maker knew, intended, or had reason to believe the statement would harm your reputation.
The other option, or in tandem with a criminal case, is to start civil proceedings for the tort of defamation or consider a protection order under the Protection from Harassment Act.
Proving or defending a defamation claim is complex and usually requires experienced and specialist legal advice and representation. However, litigation is not the only route of recourse. Victims can opt for mediation, arbitration, or just negotiate a private settlement.
Establishing the best way forward usually requires guidance from an experienced legal professional.
Frequently asked questions
With the rise in emoticons and gifs online, does defamation extend beyond words?
As the world of communication continues to change, so does defamation. There are examples where an emoticon has been considered sufficiently serious to be defamatory.
In the English case of Lord McAlpine v Sally Bercow, there was a tweet containing the ‘innocent face’ emoticon. The court concluded “the reasonable reader would understand the words’ innocent face’ to be insincere and ironical”.
Emoticons have a tag or title worldwide so that they can be translated into words and meaning. However, defamation is contextual, so there could be plenty of other scenarios where this emoticon would not be considered defamatory.
What is an ‘offer of amends’?
An offer of amends is a mechanism by which a person who has made a defamatory statement can effectively close an action by the victim if the perpetrator can show the defamatory comment was made ‘innocently’.
The perpetrator will also have to make a public apology informing the recipients of the statement that the wording and meaning are defamatory. If the victim accepts the offer of amends, the legal action and any liability end there.
Can network service providers be liable for defamation?
Currently, Network Service Providers (NSPs) are not liable for making, publishing, or disseminating defamatory statements under Section 26 of the Electronic Transaction Act.
NSPs are treated as a portal or doorway and provide access; they hold no liability for the content of any statement made on their platform.
Is malicious falsehood the same as defamation?
Malicious falsehood is not the same as defamation, but it is still a tort under which the victim can bring an action in the civil courts.
Malicious falsehood is an alternative to a scenario where a statement is not defamatory. However, the victim has still suffered damage as a result, for instance, loss of income because a false statement has been made about the closure of a business.
What is the relevance of the Protection from Harassment Act?
The Protection from Harassment Act provides a defamed victim with a further line of redress. Under Section 15 of the Act, the victim can apply to the District Court for a protection order which bans the statement from being published in the future.