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Defining Actionable Defamation And Relevant Commercial Considerations

A summary of the legal principles relating to the tort of defamation in Singapore, an analysis of the difficulties in establishing such a claim and an evaluation of the business and commercial considerations which ought to be undertaken before filing a claim for defamation.

TODAY released a report dated 10 March 2018 (the “Report“) highlighting the increasing number of defamation claims filed in Singapore.

In light of this, the State Courts of the Republic of Singapore (formerly known as the District Courts) will be “…rolling out several initiatives to improve court processes, including publishing a guidebook on damages.

As noted in the Report:-

Between 2013 and 2017, there were at least 50 defamation writs filed each year, reaching a high of 79 in 2016.

The number of defamation writes filed in the five-year period between 2008 and 2012 was not available.

In his speech at the State Courts workplan seminar on Friday (March 9), Justice See Kee Oon, who is the presiding judge of the State Courts, noted that social media and instant messaging applications “provide an easy and unrestrained forum for views to be expressed on a vast array of issues that can potentially form the subject matter of defamation actions”.”

These changes are welcome, particularly as this author believes that the same will sieve out viable, genuine claims from those which are not.

This is particularly relevant in Singapore, where the tort of defamation is increasingly relied upon by parties to a dispute, whether as a primary and/or secondary claim, particularly where the dispute is marred by personal vendetta (or point of principle, which is usually expensive).

This stems from the perception – or more accurately misconception – that claims in defamation inflict the maximum damage on the alleged tortfeasor (the wrongdoer; person who allegedly is guilty of making defamatory remarks, statements and/or publications) insofar as the claimant may recover damages and insist on the publication of an apology by the wrongdoer. To clarify, a court cannot “order” the making or publication of an apology, although this is usually volunteered to mitigate damages awarded.

The truth of the matter, however, is that defamation claims are far from straightforward. Moreover, and from a commercial point of view, even if one succeeds in a claim for defamation, damages that are recoverable are usually nowhere near what the claimant expects.

This is particularly true of corporate claimants, which cannot recover damages to “feelings” or “pride”, since a corporate entity is physically incapable of suffering such damage. The issue of whether a corporate entity recovers damages in respect of loss of reputation and goodwill though is a separate issue.

Tort of Defamation: Raison d’être

As a start, it is useful to examine what actionable defamation really is.

At the outset, it should be remembered that defamation is a tort, i.e. it is an actionable civil wrong. As noted by the learned authors of Clerk & Lindsell on Torts (20th Edition, 2010) at [1-02]:-

Torts are civil wrongs and according to Professor Birks they are best viewed as ‘‘a distinct category of obligation-creating event within the fourfold classification of such events’’, the other categories being contracts, unjust enrichments and other events such as income generation giving rise to tax liability. What distinguishes civil wrongs is that, whilst in the other categories the nature of the causative event giving rise to the obligation also dictates the nature of the remedy, wrongs ‘‘themselves dictate no fixed measure of response’’. Thus, a civil wrong can be defined simply as a ‘‘breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole’’.

In this respect, the tort of defamation (whether defamation takes the form of slander (spoken) or libel (written)) seeks to provide a remedy to an individual where statements or publications have primarily caused reputational damage.

Consequently, it should be reminded that the tort of defamation is premised on:-

“...the right of every person, during life, to possession of a good name. A person who communicates to a third party matter which is untrue and likely in the course of things substantially to damage the reputation of a third person is, on the face of it, guilty of a legal wrong for which the remedy is a claim in tort for defamation. Defamation is therefore the tort which protects reputation and the courts have, on more than one occasion, stressed that defamation is the only appropriate action for the vindication of reputation.

See Clerk & Lindsell on Torts (20th Edition, 2010) at [22-01]

Elements Necessary to Establish Defamation

To successfully bring a claim in defamation, the claimant must be able to plead and subsequently establish the following at trial:

First, identify with specificity the purported words spoken or published by the tortfeasor (the person who uttered, published and/or circulated the allegedly defamatory remarks – the “Defamatory Words“).

Second, plead and be able to prove that the Defamatory Words are untrue.

Third, to explain the natural and ordinary meaning of the Defamatory Words or the innuendo of the same, and how such meanings are defamatory.

As eruditely set out in [21.7.6] of the Laws of Singapore: Commercial Law: Chapter 21: Economic Torts:-

In terms of construction, a statement may be defamatory in two ways: (i) via the natural and ordinary meaning of the words used or as may be reasonably inferred from the words; and (ii) by way of true or legal innuendo. True innuendo arises from words which appear innocuous, but may be understood to be disparaging of the plaintiff by third parties who have knowledge of special facts which are not generally known. To support a cause of action based on true innuendo, the plaintiff will have to plead those special facts known to such third parties to whom the statement has been published.”

[emphasis added]

In other words, the Defamatory Words must be defamatory from the perspective of an ordinary, reasonable and fair-minded reader or convey a defamatory meaning to person(s) who had / have knowledge of facts extraneous to the words complained of. In the latter case, the claimant must identify the extraneous facts which give rise to the innuendo meaning.

Finally, the claimant must prove how the Defamatory Words are causative of loss and/or damage which has been or will be suffered by the claimant.

Damage allegedly suffered is also subject to the principles of remoteness of damage, i.e. damages which are not reasonably foreseeable are generally irrecoverable. 

Defences to Claims For Defamation

Even if the above criteria are satisfied, the tortfeasor (defendant) has several defences available to him, namely absolute privilege, qualified privilege, justification (truth) and/or fair comment.

It is not within the scope of this article to examine each and every defence that may be raised by a person facing a claim for defamation, save that the “defence” of justification is not, in essence, a true defence.

This is because if the truth of the allegedly Defamatory Words is established, then such words are not defamatory at all.

It ought to be borne in mind though that where a defendant pleads the defence of justification and is later held liable to the claimant, aggravated damages may be awarded against the defendant.

Commercial Considerations

By and large, a claim for defamation should be clearly thought out before being brought. This is because even if one succeeds in proving defamation, damages suffered are not crystallized and are therefore subject to assessment.

Consequently, even where the successful party establishes liability in principle, the quantum of damages must still be determined by the Court.

In ascertaining the appropriate general damages to be awarded in a case of defamation, the following factors should be considered:

(a)     the nature and gravity of the defamatory statement itself;

(b)     the conduct, position and standing of the plaintiff and the defendant; and

(c)     the mode and extent of publication.

See [29] of ATU and ors v ATY [2015] SGHC 184 available here.

Consequently, the process of assessing damages usually increases the amount of legal cost and expense incurred by the party asserting the claim. Even though the wrongdoing party may be expected to pay part of the successful party’s costs, this rarely (if ever) covers the entire quantum of legal costs incurred. 

Finally, one must bear in mind the opportunity costof pursuing such legal proceedings to conclusion (and this is true of any type of legal proceeding). Time spent preparing for a trial or instructing lawyers is time lost on actually doing business.

Consequently, potential claimants should think long and hard about:-

(a) whether they have a claim;

(b) whether the defendant has a viable defence; and

(c) even if they succeed in a court of law, whether it makes financial and commercial sense to proceed.

From personal and professional experience, there are sometimes no alternatives but to seek vindication in a court of law. However, this should be motivated by business and commercial considerations, rather than a “battle of wills” or personal vendetta.

10 March 2018

*The contents of this article represent the views and observations of the author alone from a Singapore law perspective and are subject to copyright protection under the laws of the Republic of Singapore (as may from time to time be amended). No part of this article may be reproduced, licensed, sold, published, transmitted, modified, adapted, publicly displayed and/or broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save as permitted herein) without the prior written permission of the author.

Please note that whilst the information in this article is correct to the best of the author’s knowledge and belief at the time of writing, it is for academic reference, does not constitute legal advice and is only intended to provide a general guide to the subject matter. It should therefore not be treated as a substitute for specific professional advice for and/or in respect of any particular course of action as such information may not suit your specific business, operational and/or commercial requirements. You are therefore urged to seek legal advice for your specific situation. All the author’s rights are expressly reserved and nothing herein shall be construed as a waiver thereof.

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