Legal Recourse for Online Defamation in Singapore
Are you the subject of cruel comments by a blogger? Have you been victimised by malicious or untrue allegations over the internet? Laws on defamation are designed to protect you against such injustice.
(Refer to our other article if you are the one being sued for leaving negative comments online.)
What is Defamation?
Defamation is a criminal offence under section 499 of the Penal Code. This means that the police can take action and arrest the perpetrator for defamation if there is sufficient evidence of such transgression. For the prosecution of criminal defamation, it must be shown that the defamer intended, knew or had reason to believe his words would harm the reputation of the victim.
In addition, defamation is also a wrongful act that can give rise to civil action under the tort of defamation and the Defamation Act. A tort is a breach of civil duty owed to a fellow person, as differentiated from a crime, which is the breach of duty owed to society in general.
Under the tort of defamation, written words can constitute libel, while spoken words can constitute slander, both of which can give the victim a right to commence a civil lawsuit against the wrongdoer and pursue either compensation or an injunction.
When Can You Sue for Defamation?
Defamatory words published over the internet would constitute libel, if the 3 elements described below are present.
1. The statement in question must be defamatory
A statement is defamatory if it lowers the victim in the estimation of right-thinking members of society, causes the victim to be shunned or avoided, or exposes the victim to hatred, contempt or ridicule.
For example, if a blogger publishes a post accusing you of being a thief, or a philanderer, the post would be defamatory because it harms your reputation, causing you to be exposed to contempt.
In addition, a statement is defamatory if the inferential meaning alone defames, as opposed to the literal meaning. For example, in 1998, Senior Minister Goh Chok Tong successfully sued Mr Joshua Benjamin Jeyaretnam when the latter made a loaded statement without directly accusing the former of wrongdoing.
Therefore, if a blog post impliedly accuses you of wrongdoing, by claiming, truthfully or otherwise, that you were being investigated by police for crimes, you may have a case against the blogger of the post.
Was the statement made with the purpose of humour or to insult?
However, a common counter-argument as to whether a statement was defamatory was that it had been made for the purposes of humour rather than to insult someone.
Generally, statements on websites which are light-hearted and filled with slang phrases in youthful, non-literal language may be interpreted in a loose or figurative sense. Posts on Twitter, for instance, are typically regarded more casually as it is commonly used as a forum for ranting and venting personal frustrations. Such statements are thus less likely to be considered defamatory.
For example, in the English case of Chambers v Director of Public Prosecutions, after the defendant found out that an airport where he was taking a flight from had closed, he posted on Twitter:
“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!”
The decision of the English High Court suggested that it was inclined to believe that the post was meant as a joke, and that the defendant was therefore unlikely to have intended the post to be of menacing character. Therefore, the defendant was not found guilty of defamation.
Nevertheless, this does not mean statements published via the Internet can never be considered defamatory. For instance, a tweet containing an “innocent face” emoticon was considered serious enough to be defamatory in the English case of Lord McAlpine v Sally Bercow as “the reasonable reader would understand the words ‘innocent face’ to be insincere and ironical”.
Hence, whether a statement is considered defamatory depends on the individual facts and circumstances of each case. The court will thus assess the seriousness or triviality of the situation to decide whether the statement was defamatory.
2. The statement in question must refer to the victim
For example, a blog accusing one of being a dishonest person, referring to the victim by your name, or posting a photograph of the victim, would constitute a reference.
The crux is whether the victim can be identified by the words or pictures in the statement. This means that if a blog post accuses an organisation of wrongdoing, and a reasonable person can relate the imputation of dishonesty to you, a member of that organisation, reference would be found.
Careless words or inadequate research, leading to mistaken identities, is no defence to the tort of defamation.
3. The statement in question must be published, or communicated to a third party
For an online publication, there must be evidence to show that the offending statement has actually been read. For example, if an individual were to make defamatory statements about you on his blog, a viewing counter may be sufficient evidence.
The number of people who have read the statement is immaterial with regards to establishing defamation. However, the so-called “audience size” is taken into account during the quantification of damages. Generally, the larger the audience, the greater the damage.
Defences to a Defamation Lawsuit
Where there is no privilege, 2 defences which can be raised against defamation:
- Fair comment
Defence of justification
For the defence of justification, the maker of the statement must prove that it was true in both substance and in fact, meaning that the statement and the facts on which it was based must be substantiated.
Defence of fair comment
For the defence of fair comment, the statement maker must prove that the statement was:
- An expression of an opinion;
- Based on true facts
- The opinion of a relatively unbiased person; and
- Related to a matter of public interest.
What happens if either defence is successful?
If either of these 2 defences is successfully utilised, the action for defamation is defeated. The maker of the statement might also able to absolve himself of liability if he makes an “Offer of Amends”- a procedure requiring proof that the defamatory statement was made “innocently”, a public apology, and informing the recipients of the statement that its contents were defamatory.
Should the victim accept the Offer of Amends, the statement-maker would no longer be liable for a lawsuit.
If the statement is not defamatory but is still very damaging, you may still have grounds to sue the perpetrator, under the tort of malicious falsehood. For example, if a website falsely claims that a doctor has retired, it may not be defamatory, but such words could take a huge toll on the doctor’s earnings.
Remedies in a Defamation Lawsuit
A successful action in defamation would allow the court to award monetary damages and/or an injunction against the maker of the statement.
Monetary damages are awarded with the purpose of easing the distress suffered by the claimant, as well as restoring his or her damaged reputation. (The claimant is the person who brought the claim, and may also be known as the “plaintiff”.)
When deciding how much damages to award, the court will take into account several factors, such as:
- The gravity of the statement
- The effect of the statement
- The extent of the publication
There are 2 types of injunctions:
Prohibitory injunctions are granted with the aim of halting the publishing of future defamatory statements, while interlocutory injunctions would force the maker of the statement to retract it.
Protection from Harassment Act
Furthermore, when a false statement is published about a person, he may apply to the District Court for a protection order under section 15 of the Protection from Harassment Act, which can result in the offending statement being banned from future publication.
Can Network Service Providers be liable for defamation?
Network Service Providers (NSPs) are not liable for the making, publication, or dissemination of defamatory statements as per section 26 of the Electronic Transaction Act. This is because the NSPs were merely providing access to these statements.
Steps to Take
If you are indeed the victim of defamation, your first course of action should be to make a police report, provided that there is sufficient evidence showing that the maker of the statement, intended, knew or had reason to believe that the statement would harm your reputation.
Subsequently, you can choose to commence a civil lawsuit for defamation, or explore an application under the Protection from Harassment Act. Depending on the circumstances, you may also choose to resort to mediation, arbitration, or a private settlement outside of court. When in doubt, get professional legal advice.