What is Defamation?
In Singapore, defamation is a criminal offence (section 499 of the Penal Code). The police can take action and arrest the offender for defamation if sufficient evidence is found. For the prosecution of a defamation offence, it is necessary to prove that the defamer has the intention, knowledge or had reason to believe his or her words would harm the victim’s reputation.
The act of defamation can also give rise to a civil action under torts law and the Defamation Act. There are two (2) types of defamation under torts law. Firstly, libel – written words which are defaming and secondly, slander – spoken words which defame another person.
When can you commence legal action for defamation?
There are three (3) elements to determine whether a person is defamed by another.
The statement in question must be defamatory
It is a defamatory statement if it lowers the victim in the estimation of right-thinking members of society, causes the victim to be shunned or avoided by society, or exposes the victim to hatred, contempt or ridicule by society.
For example, if a person posted in a social networking site accusing you of being a murderer, such a post would be defamatory as it harms your reputation.
A defamatory statement can be a direct or indirect statement. An indirect statement is a statement which accuses someone impliedly. It is a statement that contains inferential meaning.
For example, in 1998, Senior Minister Goh Chok Tong successfully sued Mr Joshua Benjamin Jeyaretnam, when the latter made an indirect defamatory statement without directly accusing the former of wrongdoing.
The statement in question must refer to the victim
The statement made by the offender contains the victim’s name or the victim’s photograph. If there is no name or photograph provided, the court will determine whether there is an indirect statement made which suggests the victim is the wrongdoer.
Careless words or poor research by the offender is not a valid defence for defamation.
The statement in question must be published, or communicated to a third party
In order to regard a statement as defamatory, such a statement must be read by others. The number of persons who read the statement is immaterial to establish the offence of defamation. However, the court, in assessing the damages, will take into account the number of persons who read the statement. The larger the number of persons who read the statement, the greater the amount of damages.
Defences to Defamation
There are six (6) types of defamation as follows:
In a court trial for defamation, the defendant (offender) may defend himself by proving the statement he made is true in substance and in fact.
It is an expression of opinion according to true facts that are fair and relates to a matter of public interest. In order to succeed in this defence, the defendant must establish the matters below:
- the statement in question is in the nature of a comment (that is, an expression of opinion as opposed to facts);
- the statement in question is based on true facts (section 9 of the Defamation Act);
- the statement in question is fair, it must be an honest opinion of a fair-minded person although the maker of the statement may be prejudiced and exaggerated; and
- the statement in question relates to a matter of public interest.
The defendant will not succeed in this defence if he or she was motivated by malice, or intent to injure, or intent to arouse animosity or controversy etc.
There are two (2) types of privilege i.e. absolute and qualified privilege. Absolute privilege cannot be defeated by the plaintiff’s proof that the defendant’s statements were motivated by malice. However, the qualified privilege can be defeated by proof of malice.
Absolute privilege arises in situations as follows:
- Parliamentary proceedings – the Members of Parliament are conferred immunity from both civil and criminal actions in respect of defamatory statements made in the course of parliamentary proceedings (section 6 of the Parliament (Privileges, Immunities and Powers) Act). Likewise, the reports, papers and journals relating to the proceedings the publication of which is authorised by Parliament are immune from suit (section 7 of the Parliament (Privileges, Immunities and Powers) Act).
- Judicial proceedings – immunity is conferred on the judges, counsel, witnesses and parties regarding statements made during judicial proceedings, including proceedings conducted by tribunals and bodies recognised by law. The fair, accurate and contemporaneous reports of judicial proceedings which are publicly heard are also absolutely privileged (section 11 of the Defamation Act). This privilege covers any ‘fair and bona fide’ comments on such report.
- Executive matters – this generally covers communications made by ministers and civil servants concerning state affairs.
The defence of qualified privilege arises in the situation as follows:
- Where the defendant has an interest or duty to communicate information and the third party has the corresponding interest or duty to receive the information. For example, communications made by lawyers for the purposes of advancing clients’ interests and communications between employers and employees in relation to work matters are usually conferred qualified privilege.
- Where the defendant makes a statement with a view to protecting his or her self-interests (such as when he or she is responding to accusations).
- Where reports of parliamentary and judicial proceedings are fair and accurate, qualified privilege arises at common law (that is, outside the scope of the statutory provisions). Newspaper reports of parliamentary and judicial proceedings in the Commonwealth are also conferred qualified privilege (section 12 of the Defamation Act).
The intermediate person did not know the publication was defamatory. This defence is normally available to intermediaries such as retail vendors, libraries and delivery agents.
Offer of amends
The defendant proves that the statement was made innocently, he offers to make a public apology and informs recipients of publication of defamatory content. This defence allows a defendant to avoid a potential defamation action or to discontinue legal action against him (if the defamation action has begun). There are three (3) matters to be fulfilled by the defendant:
- Must first proves that he has innocently defamed another person and he had exercised all reasonable care in relation to the publication;
- Must offer to make a public apology; and
- Take practical steps to inform the persons who have been distributed with the copies of the publication that the contents are defamatory of the aggrieved party.
If an aggrieved party accepts such an offer and the defendant has fulfilled all conditions, the aggrieved party is barred from commencing legal action against the defendant (section 7 of the Defamation Act).
Assent by plaintiff
There is a clear and undisputable consent by the plaintiff to publish the defamatory statement. The consent must be given freely and voluntarily. The defendant is not required to prove that the plaintiff consented to the exact defamatory words. The publication should, however, fall within the scope of the consent given by the plaintiff.
Remedies for Defamation
The court will grant monetary damages to the aggrieved party/plaintiff who succeed in a defamation action. Such a remedy aims to restore the plaintiff’s damaged reputation and to ease the distress suffered by the plaintiff. The court, in assessing the amount of damages, takes into account the factors as follows:
- The gravity of the statement
- The effect of the statement
- The extent of the publication
There are two (2) types of injunctions:
- Prohibitory – stop the publishing of future defamatory statements.
- Interlocutory – force the maker of the statement to retract the defamatory statement.
Should you consult a lawyer if you are a victim of defamation?
If you are a victim of defamation, it is highly advisable that you consult a lawyer. Alternatively, you can first lodge a police report and provide sufficient evidence showing that the maker of the statement, intended, knew, or had reason to believe, that the statement would harm your reputation.
You can also commence a civil action for defamation against the maker of the statement. In certain circumstances, you may resolve your defamation dispute through mediation, arbitration, or a private settlement outside of court.