Article: Defamation, Libel, Slander, Malicious Falsehood

Introduction

What’s defamation, libel and slander? Defamation is the injury of another person’s reputation by exposing him to hatred, contempt or ridicule, or which tends to lower him in the esteem of right-thinking members of society. Libel and slander are forms of defamation. Libel is defamation in writing or image. Slander is spoken defamation. The key difference between the two is that special damages must be proven with regard to slander but not libel.

A person who has been defamed may bring an action or claim in the tort of defamation against the person defaming him. Related to this is the tort of malicious falsehood.

Defamation, Libel, Slander, Tort, Malicious Falsehood

Defamation on Ordinary and Natural Meaning

A defamatory statement is essentially one which injures the reputation of another by exposing him to hatred, contempt or ridicule, or which tends to lower him in the esteem of right-thinking members of society (per Parke B in Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 and per Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, Goh Chok Tong v Chee Soon Juan [2003] 3 SLR(R) 32, Macquarie Corporate Telecommunications Pte Ltd v Phoenix Communications Pte Ltd [2004] 1 SLR(R) 463). This causes him to be shunned or avoided (Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581). An action therefore lies for any “false, malicious, or personal imputation effected by such means and tending to alter the party’s situation in society for the worse” (Cargill v Carmichael (1883) 1 Ky 603) and for any imputation that disparages a person in his employment, profession or office: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [81].

The test of whether a statement is defamatory in its natural and ordinary meaning is based on the objective reasonable man test (as opposed to innuendo, where the question turns on whether there are any extrinsic facts which are known to the ordinary reader such that he would put a meaning on the words that goes beyond the natural and ordinary meaning of the words, and if so, what such meaning might be and whether the meaning is defamatory).

Whether the words in the communication are defamatory in their natural and ordinary meaning is a matter of construction to be interpreted objectively under the circumstances and in the context in which the communication is made. Three elements must be proved by the plaintiff. First, the statement must be defamatory; second, it must refer to the plaintiff; and third, it must be published and communicated to at least one person other than the plaintiff.

In Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR(R) 465 at [53] (see also Oei Hong Leong v Ban Song Long David [2005] 1 SLR(R) 277), the Court of Appeal summarised succinctly the principles applicable in determining the natural and ordinary meaning of allegedly defamatory words:

> The court decides what meaning the words would have conveyed to an ordinary, reasonable person using his general knowledge and common sense: Jeyaretnam Joshua Benjamin v Goh Chok Tong [1983–1984] SLR(R) 745 and Jeyaretnam Joshua Benjamin v Lee Kuan Yew [[1992] 1 SLR(R) 791].

> The test is an objective one: it is the natural and ordinary meaning as understood by an ordinary, reasonable person, not unduly suspicious or avid for scandal. The meaning intended by the maker of the defamatory statement is irrelevant.

> Similarly, the sense in which the words were actually understood by the party alleged to have been defamed is also irrelevant. Nor is extrinsic evidence admissible in construing the words. The meaning must be gathered from the words themselves and in the context of the entire passage in which they are set out. The court is not confined to the literal or strict meaning of the words, but takes into account what the ordinary, reasonable person may reasonably infer from the words. The ordinary, reasonable person reads between the lines.

Well-known facts given press coverage may well constitute part of the common or general knowledge of ordinary men and women which the court is required to take into account in deciding what the natural and ordinary meaning of the words are: Chiam See Tong v Ling How Doong [1996] 3 SLR(R) 942 (HC) at [46] to [48].

The publication must be considered as a whole, including the circumstances in which the words are used, the prominence given to any headings and the nature of the publication.

Defamation by Innuendo

Looking past the ordinary and natural meaning of the communication, the next issue to be decided is whether there is some other meaning in the statements which is not defamatory to the ordinary man, but which is defamatory to people with knowledge of the special meaning of the words or of extrinsic facts. This depends on factors known to the recipient of the statement “at the time of publication” and is something which the “claimant must plead and prove”: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [105].

Each innuendo is a separate cause of action and the claimant must identify the persons with knowledge of the special facts to whom he alleges the words were published and prove their knowledge and publication to them. To establish this claim, the plaintiff bears the burden of proving first, that there are facts extrinsic to the words, where such facts give rise to a defamatory imputation; second, that those facts were known to one or more of the persons to whom the words were published; and third, that knowledge of those extrinsic facts could cause the words to convey the defamatory imputation on which the plaintiff relies, to a reasonable person possessing knowledge of those extrinsic facts: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [106].

Defence of Justification

The rationale behind such a defence is that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess”. The defendant must first, establish the truth of the precise charge that has been made and second, must also plead his justification with sufficient particularity to enable the claimant to know what case he has to meet: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [127].

Defence of Fair Comment

Another defence to defamation is fair comment. In short, the allegedly defamatory statement is an honestly-held opinion (and not fact) based on true facts and a matter of public interest. However, the defence of fair comment will  fail if the defendant’s statement was made in malice. An opinion may be said to be made maliciously if it is shown that the defendent did not genuinely hold the view he expressed.

Defence of Privilege

There are two kinds of privilege – (a) absolute privilege which is limited in scope but offers complete protection; and (b) qualified privilege which is wider in ambit but can be defeated if the plaintiff is able to prove malice on the part of the defendants: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [155].

Defence of Absolute Privilege

At common law, as noted in Evans on Defamation ([87] supra at p 149), occasions of absolute privilege arise in documents made during the occasions of first, judicial or quasi-judicial proceedings; second, parliamentary proceedings; and third, official state proceedings. However, Gatley on Libel and Slander (Sweet & Maxwell, 10th Ed, 2004) states that the categories of absolute privilege are not closed: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [156].

In S v Newham London Borough Council [1998] EMLR 583, the English Court of Appeal suggested that in the absence of previous authority, several factors should be considered in deciding if a communication would be protected by absolute privilege (Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [157]):

(a) The nature and importance of the interest the defendant seeks to protect;
(b) Whether the scale and risk of damage to that interest is sufficiently serious to create a pressing need to protect that interest;
(c) What is the breadth of the immunity that must be granted to provide protection for that interest;
(d) Would it be appropriate as a matter of principle to extend to this situation the immunity from suit which has been applied in other cases; and
(e) Is the risk to the public interest which the defendant seeks to protect so great that it should override the public interest that a person should have access to the courts to seek a remedy for a wrong he has suffered? (Essentially this is the balance between the competing public interests.)

Defence of Qualified Privilege

The focus of this defence is on the communication that contains the statement complained of that is privileged, not the entire occasion on which the statement was made. The rationale behind this defence is the law’s recognition that there are circumstances where the law allows an individual to make statements which may be defamatory without incurring legal liability when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: Oei Hong Leong v Ban Song Long David [2005] 3 SLR(R) 608.

The following types of statements or matters enjoy qualified privilege (Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [164]):

(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.

A possible fifth category of publication of matters of public interest by the media in the UK decision of Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

However, the defence of qualified privilege is said to be qualified as the defence can be defeated where it is shown that the defamatory statements were made with express malice or has exceeded the privilege the law has granted: Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 (CA) at [52]; Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [165].

On common or mutual interest qualified privilege, the common interest shared between both parties must be reciprocal where both the speaker and the recipient have an interest in the communication. Second, even if both interests are different, it does not need to be the same, as long as both interests exist at the time the communication is made. Third, the interest does not need to be substantial. Fourth, general interest in the information will not be sufficient to support common interest qualified privilege.

On duty-interest qualified privilege, this defence is available where the maker of the statement is under a legal, social or moral duty to make it and where the recipient of the statement has a corresponding interest or duty to receive it.

However, for qualified privilege, the protection is conferred only upon those portions of the statement which relate to the occasion. What about irrelevant portions? The issue of irrelevant defamatory matter is more appropriately addressed as one of the factors in considering if the defendant was actuated by express malice by making those statements: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [177]; Horrocks v Lowe [1975] AC 135. Yet, while irrelevant defamatory matter incorporated in a statement made on a privileged occasion may be evidence from which malice can be inferred, totally irrelevant and extraneous matter, which though published on the same occasion as those defamatory matters qualifying for the privilege, can constitute independent defamatory matter falling completely outside the ambit of the defence: Arul Chandran v Chew Chin Aik Victor [2000] SGHC 111 at [244] to [250].

In the circumstances, the analysis is as follows.

> First, there is a distinction between irrelevance and excess or exaggeration.

> Second, it is a question of fact and degree in each case where privilege is raised as a defence, as to which parts are fairly and reasonably connected to the matters occasioning the privilege and thus given consequential protection, and which parts are not so connected such that they cannot enjoy the protection of qualified privilege. Where the issue is not of irrelevance but simply of excess or exaggeration and the statement still has reference to the subject-matter of the privilege, or is in any way pertinent or germane to it, it is material only as evidence of malice and not to the question of privilege: Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [179].

Malice

As mentioned, qualified privilege may be defeated by malice. In proving malice, mere proof that the words are false is insufficient. Instead, the courts will look into the motive with which the statements were made: Horrocks v Lowe [1975] AC 135 at 149-151.

Motive rather than honesty of belief was the essential indicator of the existence of express malice: Hytech Builders Pte Ltd v Goh Teng Poh Karen [2008] 3 SLR(R) 236. The question is whether the plaintiff has been able to establish that these statements were made with the predominant intention of injuring the plaintiff or was motivated by spite or some other improper motive. Where the predominant intention was to advance or protect their own interest, then the defendants will be able to claim the protection of the privilege. The desire to injure must be the dominant motive for the publication of the statements; knowledge that it will have that effect is insufficient if the defendants are nevertheless acting out of a sense of duty or in bona fide protection of their own legitimate interests: Horrocks v Lowe [1975] AC 135 at 149-151; Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004 (HC) at [182].

Tort of Malicious Falsehood

The principles governing the tort of malicious falsehood are found in the common law as well as s 6(1) of the Defamation Act (Cap 75, 2014 Rev Ed).

In WBG Network (Singapore) Pte Ltd v Meridian Life International Pte Ltd [2008] 4 SLR(R) 727 (approved by the Court of Appeal in Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 at [102]), the court held at [68]:
Under the common law, a claim in malicious falsehood succeeds upon proof:

(a) that the defendant published to third parties words which are false;
(b) that they refer to the claimant or his property or his business;
(c) that they were published maliciously; and
(d) that special damage has followed as a direct and natural result of their publication: see Gatley at para 20.1 and Clerk & Lindsell at para 24-09.

Section 6(1) of the DA sets out the circumstances in which it is not necessary to plead and prove special damages in an action for malicious falsehood:

Slander of title, etc.
6.—(1) In any action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage —
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

Whilst the disparaging statement does not have to identify the plaintiff personally, there must be a sufficient (even if indirect) reference to him or his interests. Moreover, the authorities clearly establish that under the tort of malicious falsehood, the claimant bears the burden of establishing the falsity of the statement: DHKW Marketing and another v Nature’s Farm Pte Ltd [1998] 3 SLR(R) 774 at [28]; Challenger Technologies Pte Ltd v Dennison Transoceanic Corp [1997] 2 SLR(R) 618 at [68]. This is a key difference between the tort of malicious falsehood and defamation.

Malice would be made out if there is a reckless disregard of the true facts: WBG Network (Singapore) Pte Ltd v Meridian Life International Pte Ltd [2008] 4 SLR(R) 727 at [72]; Maidstone Pte Ltd v Takenaka Corp [1992] 1 SLR(R) 752.

A defendant is not reckless, for the purposes of proving malice, if he did so believing it was true, even if he was careless, impulsive or irrational in coming to that belief. The law does not require him to be logical. In order for him to be held to be reckless, he must be shown to have not cared or considered if the statement was true.

Protection from Harassment Act

Apart from the torts of defamation and malicious falsehood, the new Protection from Harassment Act (Cap. 256A) also provides for a remedy with regard to false statements made about a person. Section 15 of the Act provides that where there is any false statement made about a person, the person can apply to the District Court to order that “no person shall publish or continue to publish the statement complained of unless that person publishes such notification as the District Court thinks necessary to bring attention to the falsehood and the true facts”.

In other words, if a false statement is published about you, you can get the Court to order for a notice or a statement setting out the true facts to be published. For an interesting discussion of the legal principles on the application of section 15 of the Act, see my case update on the High Court decision of Ting Choon Meng v Attorney-General and another appeal [2015] SGHC 315.

Conclusion

In today’s hyper-connected social media-crazy world, any of our words, statements, communications can be easily re-shared and propagated throughout the Internet. What we say on the Internet can be exposed to defamation liability. There have been litigation in various countries involving defamatory statements made on blog comments, social media and so on. This works both ways for any of us. We can protect our reputation online by bringing claims for defamation, malicious falsehood or applications under the Protection from Harassment Act. We can also be exposed to liability for what we say online. It would do us all good to be prudent about what we say and how we say. As a matter of basic decency, respect others in how we communicate, whether online or offline. Observe etiquette and courtesy. That should do us all some good.

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