LIBEL

Aim:

To give enough of an overview/flavour of defamation law to know the pitfalls and to call in a lawyer when pitfallen.

What is Defamation

•     Plain English: saying bad things that are not true about someone to other people (without defence)

•     Legalese: Publication/Communication to a third person of a statement that tends to lower another person in the eyes of right-thinking members of society, or that which makes them shun him.

Rationale

•     Protect reputations from powerful media—Magic Bullet view of media.

•     Based on UK law, which dates back to 1792

–   Defamation is governed by common law and mitigated by the Defamation Act

•     Restrictive effect on free-speech given some recognition by courts on public interest, not legal/constitutional, grounds

 

  

What Is Defamatory I

Places to Avoid
The Nakashima Japanese restaurant must rank as one of Singapore's most overpriced and overrated eating places. Service is underwhelmingly indifferent.  Quality varies from so-so to you-call-that-cooked?.  Chef John Tan may not be able to hardboil even an egg.  Mercifully, his portions are small.  Go only if you have time and money to waste.

 

What Is Defamatory II

�Mr Chiam is power crazy and irresponsible in resigning abruptly as secretary-general on May 17, 1993.

‚Mr Chiam is spiteful and jealous that the SDP had progressed after he quit as Secretary-General.

ƒMr Chiam should join the PAP.

Note:

•     Distinction between Slander and Libel is not important for media

–   Slander—oral—requires proof of actual damage

•   Exception: tale of two virgins

–   Libel—broadcast, permanent storage

–   Most of the time, it will be libel

Defences

Ineffective defences

•     I said “may be”/“may have”

•     I used “allegedly”

•     It’s been published before

–   and they did not get into trouble then

•     Everyone knows it is true

•     Everyone knows he is a crook

•     I did not identify her by name

•     I was only quoting someone else

–   This is considered spreading the libel

•     I did not intend it (unintentional vs innocent)

–   The lack of intention is generally not an excuse or defence.

 

Unintentional Defamation

•     Artemus Jones (fictitious character over radio)

•     Cassidy (newspaper called wife “fiancee”)

•     Mother Looks on As Baby Is Kidnapped

•     Singapore Tycoon Shares Secret of Success in China: Says bribes are necessary in Shenzhen

•     CASE’s Model Consumer award--example of how easy to “accidentally” defame

 

 

Effective Defences

•     Justification—statement is true

•     Fair Comment—for “fair” read “honest” not balanced,  accurate

•     Absolute Privilege—judicial/quasi-judicial proceedings; solicitor-client communication; public proceedings of international organisations and conferences in which Singapore is a member or to which Singapore has sent a representative. (Defamation Act Schedule Part I)

•     Qualified Privilege—Protection of fair and accurate contemporaneous accounts without malice; events of public interest; the promotion of arts, science, religion, learning, interests of professions and businesses; findings and decisions of associations and of lawfully assembled public meetings; government notices.

•     Statements made during electioneering are not as a matter of course privileged (S.14 Defamation Act).

 

Examples of Qualified Privilege Defence

•     Mr Chiam should join the PAP.

–   Fair comment/Qualified Privilege defence fails because of presence of malice. Press release was given to embarrass Chiam.

•     Central Christian Church

–   Qualified Privilege was successful for Impact (Christian) magazine but not New Paper and Wan Bao.

–   Written judgment at: www.tolc.org/sing15.htm

 

“Statutory” Defences

S.7(5) Defamation Act

•     Unintentional defamation

•     Innocent disseminator--vendors and distributors

Key: Publisher took reasonable care in publication.

 

Innocent Defamation

(a) Publisher did not intend defamation and did not know of circumstances that refer to plaintiff, or

(b) words were not defamatory on the face of them and publisher did not know of circumstances that refer to plaintiff

Similar notion applies to Innocent disseminator--vendors and distributors

 

How To Invoke Defence of Innocent Defamation/Dissemination s.7

a)  Make an offer of amends

b)  Publish correction

c)Apologise

d)  Take reasonable steps to notify those who had receive libellous publication

 

Who May Be Sued

Anyone who passes on the defamation

·   author

·   editor

·   publisher

·   printer

·   distributor

·   librarian

 

Damages

·    Bank says account does not have enough funds to cash a cheque--$500

·    LKY 1981 $130k; 1989-$250k; 1990-$230k, $260k; 1995-$300,000

·    IHT 1995 $350,000 to PM Goh Chok Tong

·    John Philip Louis, pastor of Central Christian Church $35,000 (1997)

·    Louis Yeap, MD of real estate agency, $40,000 (1999)

 

What Do I Do When I Have Been Defamed

•     Do not be rash/greedy.

•     Write a letter of demand only when you know you will win, and win big.

•     If you write a letter of demand, be ready to issue a writ.

•     Be prepared to settle.

 

What Do I Do When I Defame

·    If innocently

–  Make an offer of amends (Defamation Act, S7(5))

·    If not innocent,

–  Apologise quickly (mitigage not aggravate damages)

–  Attempt to make amends

–  Look for contribution from others

 

 

Reducing The Cost Of A Defamation Suit

•     Bring others in to defray the cost of the suit and damages.

Also, a concept of Payment Into Court

 

Defamation Checklist For Media

1.     Give party attacked the chance to comment or deny.

2.     Place the comment or denial in a prominent position in the story.

3.     Do not allow extraneous materials (clips, photos) to skew the meaning in the story, as in following.

4.     Check headline for both literal and implicit meanings.

5.     Look at the overall impression of the story.

6.     Check spelling and identification of names (eg Toh Chin Chye case).

7.     Is the person likely to sue?

8.     Consider calling in the lawyer in cases of doubt.

9.     Keep good notes (and for a few years)

10.  Avoid practices that could get you in defamation suits (eg ST drops honorific of accused)

 

Questions to Ask When Faced With A Potentially Libellous Statement

�Is the statement defamatory?

‚Is there a defence?

ƒIs there contribution?

 

Reform of Defamation?

1     Cap on damages

2     Defence of innocent dissemination extended to printers, broadcasters and Internet providers

3     UK--Aligning with New York Times v Sullivan (1964), those in public life have to prove malice

4     India—civil servants may not sue if conduct mentioned in the press regards public duty

5     New tort of false light?

 

Libel On The Internet:

General rule: Offline laws apply online

•     In Singapore,

–   successful suits, notably by David Tan, but settled without trial

–   NKF email cases have been publicised

•     Internationally, British physicist Laurence Godfrey

•     Even jail for Net libel

 

 

Libel On The Internet: Issues

•     What standard of wrong?

•     What standard of defence?

•     What size of damages?

•     Can the Net alone create liability?

•     To what extent should disseminators—ISPs—be liable?

•     Should the law be amended only for the Net? Or should the law be amended to take into account of the Net?