Case Update: Ting Choon Meng v Attorney-General [2015] – Protection from Harassment Act

Ting Choon Meng v Attorney-General and another appeal [2015] SGHC 315

Significance: High Court holds that the Government is not a “person” who could obtain recourse under section 15 of the Protection from Harassment Act.

The Protection from Harassment Act (“PHA”) is not solely concerned with harassment but also with false statements of fact whether or not such statements amount to harassment: [14].

The Government’s right to pursue claims in legal proceedings in s 3 of the Government Proceedings Act (“GPA”) is made subject to the provisions of the GPA itself and “any written law”, which must include the PHA. Hence, if the exercise of interpreting s 15 of the Act yields the conclusion that the Government has no right to the remedy therein, s 3 of the GPA cannot override that interpretation. As for s 36 of the GPA, this stipulates that the GPA does not prejudice any right of the Government to take advantage of the provisions of any written law, including the PHA. By its terms, it presupposes the existence of a right enjoyed by the Government; s 36 of the GPA thus does not answer the anterior question of whether the Government even enjoys any right at all under s 15 of the Act: [24].

The appellants relied on Derbyshire County Council v Times Newspapers Ltd and others [1993] AC 534 (“Derbyshire”) for the proposition that the Government may not sue for defamation, the reason being that it was “of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”, and even the “threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech” (see Derbyshire at 547F–G): [26].

However, the court held that Derbyshire does not add anything to the analysis of whether the Government may invoke s 15 of the PHA. Even if Derbyshire is good law in Singapore, and even if Derbyshire suggests that the Government should have no recourse at all when false statements of fact are made against it, it is entirely within Parliament’s prerogative to repudiate Derbyshire by the enactment of contrary legislation: [28].

After reviewing the Parliamentary speeches on the PHA, the court drew two principles. The first is that the falsehoods which s 15 of the Act was designed to address may not amount to harassment. The second is that the Act was intended to create a “calibrated and graduated” “tiered response” to the problem of harassment and related anti-social behaviour, with the civil and criminal penalties prescribed in relation to ss 3 to 7 being reserved for the most serious cases, and the relief under s 15 being a “lower tier of remedy” which takes the form of “self-help”: [32].

The court opined that s 15 should be considered part of a holistic or harmonious whole that includes the other provisions of the Act even if s 15 does not strictly concern harassment. The purpose and object of s 15 should thus be assessed in the light of the purpose and object of the other provisions: [38].

In the court’s view, the purpose and object of ss 3 to 7 and 11 of the Act is to protect persons from the detrimental emotional or psychological impact of the words or deeds of other persons, as is evident from the references to “harassment, alarm or distress” in ss 3, 4 and 7 and the fear of violence in s 5 and the requirement that such deleterious emotional or psychological effects must have arisen before those provisions of the Act may be invoked. The Act thus recognises that the emotional or psychological impact occasioned by such conduct can be severely disruptive and traumatising or even devastating to a person’s well-being, and that is the reason it has created a tiered system of reliefs or remedies that together form a coherent response to this social problem. Section 15 is part of that system and so its purpose is to be construed in the light of that overall design of the Act: [39].

Therefore, even though s 15 of the Act makes no overt reference to the emotional or psychological impact of a false statement of fact, its place in the “tiered” scheme created by the Act means that the underlying if unexpressed rationale for providing protection against false statements is that these statements have a detrimental emotional or psychological impact on their intended subject even if they do not rise to the level of harassment: [40].

The scope of s 15 is not so wide as to encompass all false statements but is confined to false statements that are capable of affecting their intended subject emotionally or psychologically, which presupposes that the subject of the false statement is a human being, endowed with sentient consciousness and capacity to feel the impact of such falsehood: [41].

The court opined that it is possible to envisage situations in which a false statement has emotional and psychological impact on its subject but it would nonetheless not be “just and equitable” to grant a s 15 order. For instance, the maker and/or publisher of the statement may have given the subject of the statement a fair opportunity to respond to it, and a court might take the view that justice does not require the making of an order in all the circumstances of the matter; or the subject might himself be guilty of such mendacious conduct towards the maker and/or publisher that it would not be “just and equitable” to order that the false statement be clarified: [43].

Having held that only human beings may avail themselves of the remedy under s 15 of the Act, the court clarified that this does not necessarily preclude recourse to s 15 whenever false statements are directed against entities other than human beings. This is because allegations against corporate bodies “will often involve by necessary inference imputations against those who are responsible for its direction and control”. This means that an allegation ostensibly aimed at a corporate body might be, in substance, an allegation against the human beings who manage that corporate body. If that is so, it is open to those human beings to seek redress under s 15 of the Act, and nothing in my decision in these appeals should be taken to exclude that possibility: [44].

The court then opined as obiter dicta that in any event it would not have been just and equitable to make an order under s 15 of the PHA in favour of the Government. The court opiend that it was difficult to see how MINDEF’s interests more generally were compromised to any substantial extent by that particular false allegation that it had delayed legal proceedings as part of a “war of attrition”. As the allegation was disputed, MINDEF could and did put across its version of the facts online and in traditional media in a fairly extensive manner. In any event, the allegation was a relatively minor one in the sense that it concerned a rather narrow aspect of MINDEF’s conduct, ie, its alleged litigation strategy, and cannot be said to have gone anywhere near seriously impugning the core or essence of MINDEF’s identity or “character” or “personality”. Where this is so, the court did not think an order under s 15 should be made as a matter of course lest the court’s resources be unduly burdened by an over-abundance of applications under s 15 of the Act: [56].

Further, the court opined that another important reason why it would not be just and equitable to grant the Attorney-General a s 15 order is that The Online Citizen had already taken significant steps to point out to readers and viewers that the truth of Dr Ting’s comments was by no means beyond doubt. It is not disputed that although The Online Citizen did not concede that it had made any false statements, it not only published MINDEF’s Facebook statement in full but also provided a prominent link to MINDEF’s statement from the article containing Dr Ting’s video interview. Such efforts to present each party’s side of a story ought to be encouraged, and in the court’s view they would be discouraged if s 15 orders were made as a matter of course despite these efforts having been made: [57].

The court then suggested several considerations in determining whether a s 15 order should be granted. S 15 orders should not be very readily granted as long as a statement of fact has been demonstrated to be false. Where the statement casts serious aspersions on its subject in the sense that it pertains to an important part of his or her identity, character or personality, and that statement causes him or her substantial emotional or psychological impact, eg, a false allegation concerning a person’s sexual activities, it will doubtless be just and equitable to make the order. But an important countervailing consideration is that an application to court under s 15 should not be seen to be a measure of first resort where a false statement is made. The courts should be slower to grant a s 15 order the more of the following features are present: (i) the false statement of fact is of a relatively minor nature, (ii) the subject of the statement has suffered no emotional or psychological impact, (iii) the subject has the means to publish widely his or her own version of the truth, and (iv) the author and/or publisher of the statement has made genuine and substantial efforts to point out that the truth of the statement of fact in question is not undisputed: [58].

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