Defamation
Wong Siew Hong, Director
Infinitus Law Corporation
URL: http://www.sirc.ntu.edu.sg/Services/CITE
Email: sirc@ntu.edu.sg
Nature of Defamation
• ‘Defamation’
• The question of what sorts of comments
would produce this effect is not easy to
answer and will vary with changing social
attitudes
General Requirements of Defamation
• The statement must be defamatory;
• The words must refer to the Plaintiff;
• It must have been published to a third party;
and
• The Defendant cannot rely on any of the
defences
Types of Defamation
• Libel
– Applies to comments which are recorded in some
permanent form – in print or on tape
• Slander
– Reserved for comments which are more transient
in nature
Common Law Defences to Defamation
•
•
•
•
Justification (or Truth)
Fair Comment
Absolute Privilege
Qualified Privilege
E-mail, Internet and World Wide Web
• Law of libel applies
• Doubt over chat rooms
• Defence of ‘vulgar abuse’
– Statements made in the heat of an argument
Communication
• The Internet provides a superbly effective
communications medium
• E-mail permits cheap and swift
communications of messages between
individuals
• Newsgroups allow anyone to express views on
almost any topic under the sun
• The World Wide Web permits individuals to
establish themselves as electronic publishers
E-Mails
TJ Systems Pte Ltd and others v Ngow Kheong
Shen [2003] SGHC 73
– The Defendant heard a rumour that the Plaintiffs were
being investigated by CPIB for corruption and bribery
– The Defendant wrote an internal e-mail to 15 other
persons working in Cisco, alleging that the CPIB was
reviewing information relating to projects awarded to the
Plaintiff company and that CPIB had “strong” evidence of
corrupt practices carried out by the Plaintiffs
– Someone printed a copy of the e-mail and sent it
anonymously to one of the Plaintiffs’ director
E-Mails
The High Court found that:
• The Defendant had defamed the Plaintiffs and was unable to
justify the truth of the defamatory allegations.
• The Defendant had acted recklessly and was not able to avail
himself of the defences of qualified privilege or fair comment.
• The Defendant had acted irresponsibly by sending out an email containing such serious allegations without taking steps
to verify what he had heard and embellishing the allegations
in the process.
E-mails
Privileged/confidential information may be
contained in this message. If you are not the
intended address (or responsible for delivery
to such person), you must not copy or deliver
this message to anyone. Any use of its
contents is strictly prohibited. Please destroy
the message and notify the sender of this
error.
Linked content
• A site can be created consisting of nothing but
external links to other sites
• Hird v Wood [1894] 38 SJ 235
– The Defendant sat in a chair pointing out to
passersby a defamatory sign erected over the road
– The author of the sign was unknown but the
person pointing it out was found to have
published it
Godfrey v Demon Internet Ltd [2000] 3
WLR 1020
• The first English case on Internet defamation
• Facts
– The Plaintiff complained to the Defendant of a
defamatory article on the Usenet news-server
– The Defendant did not remove the defamatory
material
– The item remained on the Defendant’s newsserver until automatic expiry
Godfrey v Demon Internet Ltd [2000] 3
WLR 1020 (cont’d)
•
•
S.1 of the UK Defamation Act 1996
Three-level defence (s.1(1))
1. He or she was not the author, editor or publisher of
the defamatory statement.
2. He or she took reasonable care in relation to the
statement’s publication
3. He or she did not know and had no reason to
believe that what he or she did caused or
contributed to the publication of a defamatory
statement.
Godfrey v Demon Internet Ltd [2000] 3
WLR 1020 (cont’d)
• The Defendant satisfied the requirements of
(1) but failed to meet those in (2) and (3)
• The Defendant was not “the publisher of the
posting defamatory of the Plaintiff and could
therefore avail themselves of the defence in
(1) above”
Godfrey v Demon Internet Ltd [2000] 3
WLR 1020 (cont’d)
• The Court held that the UK Defamation Act 1996 was
not intended to cover those who were aware or were
on notice that they were contributing to a defamatory
publication
• “publication”
“In my judgment the Defendants, whenever they transmit and whenever
there is transmitted from the storage of their news-server a defamatory
posting, publish that posting to any subscriber to their ISP, who accesses the
newsgroup containing that posting. Thus every time on of the Defendants’
customers accesses “soc.culture.thai” and sees that defamatory posting of
the Plaintiff, there is a publication to that customer.” (at 1026)
The position in Singapore
• Ng Koo Kay Benedict v Zim Integrated Shipping
Services Ltd *2010+ 2 SLR 860 on ‘publication’
• No equivalent of s.1 of the UK Defamation Act
1996
– Demon Internet’s defence irrelevant
• However, the law should treat a publisher and
a distributor differently
The position in Singapore (cont’d)
• The Electronic Transactions Act 2010 (formerly Cap.
88)
s.26 – (1) Subject to subsection (2), a network service
provider shall not be subject to any civil or criminal liability
under any rule of law in respect of third-party material in the
form of electronic records to which he merely provides access
if such liability is founded on –
(a) the making, publication, dissemination or distribution of
such materials or any statement made in such material…
The position in Singapore (cont’d)
(3) In this section –
“provide access”, in relation to third party material, means
the provision of the necessary technical means by which
third-party material may be accessed and includes the
automatic and temporary storage of the third-party material
for the purpose of providing access;
“third-party”, in relation to a network service provider,
means a person over whom the provider has no effective
control
The position in Singapore (cont’d)
• Second reading of 1998 Bill
• Prof Chin Tet Yung:
“First of all, there is no definition of what a network service
provider is. As the exemption from liability is extremely wide for
network service providers, they are exempt from both civil and
criminal liability in certain situations. It seems to me to be a
serious omission not to have defined the technical term
“network service providers” in the Bill. Leaving such a technical
term for the judges to define may be to risk imprecision and
create uncertainty”
The position in Singapore (cont’d)
• Contrast with Dr. Toh See Kiat:
“I think the clause is too narrow in scope. Seemingly, it covers
only Internet service providers (ISPs). It does not cover
resellers of network services, such as Singapore Network
Services, for example or America On Line…It does not cover
search engine operators such as Yahoo and AltaVista…”
• “network service providers” remains undefined
Defences under Singapore Defamation Act
(Cap. 75)
• Section 7: Unintentional defamation
7 – (1) A person who has published words alleged to be
defamatory of another person may, if he claims that the
words were published by him innocently in relation to that
other person, make an offer of amends under this section…
Defences under Singapore Defamation Act
(Cap. 75) (cont’d)
‘Offer of amends’
7 – (3) An offer of amends under this section shall be understood to mean
an offer –
(a) in any case, to publish or join in the publication of a suitable
correction of the words complained of, and a sufficient apology to the
party aggrieved in respect of those words;
(b) where copies of a document or record containing the said words
have been distributed by or with the knowledge of the person
making the offer, to take such steps as are reasonably practicable on
his part for notifying persons to whom copies have been so distributed
that the words are alleged to be defamatory of the party aggrieved.
Defences under Singapore Defamation Act
(Cap. 75) (cont’d)
7 – (5) For the purposes of this section, words shall be treated as
published by one person (referred to in this subsection as the
publisher) innocently in relation to another person if and only if
the following conditions are satisfied:
(a) that the publisher did not intend to publish them of and
concerning that other person, and did not know of
circumstances by virtue of which they might be understood to
refer to him; or
(b) that the words were not defamatory on the face of them,
and the publisher did not know of circumstances
by virtue of
which they might be understood to be defamatory of that other
person…
Defences under Singapore Defamation Act
(Cap. 75) (cont’d)
…and in either case that the publisher exercised all reasonable
care in relation to the publication; and any reference in this
subsection to the publisher shall be construed as including a
reference to any servant or agent of his who was concerned
with the contents of the publication.
Innocent Dissemination
Elements (Emmens v Pottle (1885) 16 QBD 359):
1. The Defendant did not know that the work
contained or was likely to contain libel;
2. The Defendant had no reason to suppose
that the work contained a libel; and
3. The Defendant had exercised all reasonable
care.
CONCLUSION
• The law of defamation applies equally to
statements made on the Internet. Extends to
– Bloggers
– Social Media
• If a claim is brought, the burden of proving
one of the defences lies on the defendant and
it is not easy to discharge.
• It is also very costly to defend.