What is Defamation?
Defamation can be defined as the intent, knowledge or reason to believe that one’s words will harm the reputation of another (the victim). It is a criminal offence in Singapore, according to section 499 of the Penal Code.
Defamation may also give rise to a civil action under the law of tort and the Defamation Act. In tort law, there are two kinds of defamation:
- Libel – defamatory written words
- Slander – defamatory spoken words
When can legal action be taken for defamation?
To determine that someone has been defamed by another, three elements must be present in the offence:
The statement in question must refer to the victim:
The statement must have contained the victim’s name or an image of them – if not, the court will decide if an indirect statement was defamatory against the victim.
Merely being careless with your statements or ignorant of the true facts is not a defence for defamation.
The statement must be defamatory
A statement will be defamatory if, in the eyes of right-thinking members of society, it lowers their estimation of the victim, or causes them to be shunned, avoided, hated, or ridiculed by society.
For instance, a person posts an accusation about you on social media, accusing you of being a murderer, without any evidence. That post would be defamatory, as it causes harm to your reputation.
Defamatory statements may be direct or indirect. Indirect means the accusation is implied in the statement, without being said directly. In other words, the statement contains inferential meaning (for example in the well-known 1998 case of Tong vs Jeyaretnam).
The statement must be published, or communicated to someone else
The statement must have been read or heard by others – the number of others is not relevant in establishing the offence of defamation. However, the court will look at how many people read or heard the statement when they assess the amount of damages to be awarded. The more people who read or heard it, the higher the award of damages will be.
Defences to Defamation
There are 6 types of defence to defamation:
1. Fair comment
The defence of fair comment may be available if the statement was an expression of opinion according to true facts that relate to matters of public interest and are fair. The defendant must prove the following elements to use this defence:
- The statement was in the form of a comment – i.e. an expression of their opinion, not a statement of fact
- The statement was based on true facts (section 9 of the Defamation Act)
- The statement was fair – i.e. it was the honest opinion of a person of fair mind, even though the maker of the statement might be prejudiced or use exaggeration
- The statement related to a matter of public interest.
Note that a defendant cannot use this defence if they had intent to injure, arouse controversy, or were motivated by malice.
If the defendant can prove at trial that the statement they made was true in substance and fact, then they can use the defence of justification.
There are two kinds of privilege which can be used as a defence:
- absolute privilege (which cannot be defeated by the plaintiff’s proof that the statement was made with malicious intent)
- qualified privilege (which can be defeated by proof of malicious intent)
Absolute privilege may apply in the following circumstances:
- Executive matters: i.e. communications made by members of the government or civil servants about affairs of state.
- Parliamentary proceedings: immunity is given to Members of Parliament from both civil and criminal actions, for defamatory statements made during Parliamentary proceedings. This is set out in section 6 of the Parliament (Privileges, Immunities and Powers) Act (PPIPA). In addition, any papers, reports or journals which are authorised by Parliament and which relate to proceedings are also immune from prosecution (section 7 of PPIPA).
- Judicial proceedings: statements made by judges, counsel, witnesses or other parties during judicial proceedings or legally recognised tribunals, are immune from prosecution. Public reporting of judicial proceedings which is fair, accurate and contemporaneous will also be protected by absolute privilege.
Qualified privilege may apply in the following situations:
- The defendant has a duty or other interest to communicate information and the 3rd party has a corresponding duty or interest to receive it. This might apply when communications are made by lawyers in order to advance clients’ interests, or when communications are made between employees about work matters. Here, protection is usually conferred by qualified privilege.
- The defendant makes a statement with the aim of protecting their own self-interests – for example, when they need to respond to accusations).
- A newspaper reports on parliamentary or judicial matters, including proceedings in the Commonwealth (section 12 of the Defamation Act). If the reporting is fair and accurate, then it will be protected by qualified privilege under common law (in other words, not within the scope of statutory provisions).
4. Assent by plaintiff
This defence applies if the plaintiff gave their clear, undisputed consent for the defamatory statement to be published, and the consent was given freely and voluntarily. The defendant need not prove that the plaintiff consented to the exact, specific defamatory words, but the publication must fall within the scope of the plaintiff’s consent.
5. Offer of amends
This applies when the defendant proves that their statement was made innocently, but offers to publicly apologise and notifies the recipients of the original statement that it was defamatory. This allows the defendant to avoid an action for defamation being taken against them. If an action is underway for defamation, it can be discontinued. The defendant must:
- Prove they have innocently defamed another, having exercised all reasonable care before publishing it;
- Take reasonable steps to tell the recipients of the statement in question that the content was defamatory;
- Offer to make a public apology.
If this offer is accepted by the plaintiff, and the defendant fulfils all these conditions, then the plaintiff is barred from beginning legal action against the plaintiff, by virtue of section 7 of the Defamation Act.
6. Innocent dissemination
This defence occurs where the intermediate party (the disseminator) proves they did not know the publication was defamatory. It is usually used by people such as delivery agents, libraries, or retailers.
Remedies for Defamation
1. Monetary damages
The plaintiff who succeeds in a defamation action may be granted monetary damages by the court. The aim is to repair the damage to the plaintiff’s reputation and ease their distress. The following factors will be considered when assessing the amount of damages:
- The statement’s gravity
- The statement’s extent
- The statement’s effect.
There are 2 kinds of injunction:
- Prohibitory – to prevent defamatory statements being made in future.
- Interlocutory – to compel the maker of the defamatory statement to withdraw it.
Should you consult a lawyer if you become a victim of defamation?
It is advisable to consult a lawyer if you are the victim of defamation. If you prefer, you could lodge a report with the police, giving sufficient evidence that the maker of the statement intended, knew or had reason to believe, that their statement would cause harm to your reputation.
You may also choose to begin a civil action for defamation against the person who made the statement. Sometimes, you might be able to resolve the case through arbitration, mediation or a private out-of-court settlement.