Partner - TSMP Law Corporation
Defamation, Privacy and Data Protection
Contributor: Adrian Tan (Partner, TSMP Law Corporation)
(a) Defamation; and
(b) Malicious falsehood, encompassing slander of goods and slander of title.
4. The limitation period within which one must make a civil claim in defamation and malicious falsehood is six years from the date on which the cause of action accrued. An action in defamation accrues at the time the defamatory words of the plaintiff are published. An action in malicious falsehood accrues on the date the damage is suffered.
5. There is no limitation period for prosecuting criminal offences.
6. The elements of an offence of criminal defamation are laid out in s 499 of the Penal Code. The requisite physical element is the making or publishing of any imputation concerning any person, whether by words, signs or visual representations. The requisite mental element is the intention, knowledge or reason to believe that the imputation would harm the victim’s reputation.
7. To succeed in defamation, the plaintiff must prove that:
(a) The defendant must have published the material to a third party;
(b) The material must refer to the plaintiff; and
(c) The material must be defamatory of the plaintiff.
Making comments or sharing articles on social media constitutes publication
8. In Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd, the Court held that a claim in defamation was made out with respect to a Facebook post and its comment thread as a thread of comments would in most cases be read together and should be treated as a single publication.
9. In Lee Hsien Loong v Leong Sze Hian, a claim in defamation succeeded for the sharing of an article on Facebook. The shared article was by a Malaysian news site, and contained corruption allegations falsely linking the Prime Minister (“PM Lee”) to the scandal engulfing the 1Malaysia Development Berhad. Although the defendant had shared the article with no caption, the Court held that the defendant was responsible for publication of the article for two reasons:
(a) First, the article was part of the post, by virtue of having been hyperlinked.
(b) Second, the defendant made the article accessible through the hyperlink, and individuals from Singapore had accessed it.
10. To succeed in malicious falsehood, the plaintiff must prove that:
(a) The defendant published to third parties words which are false;
(b) The words refer to the claimant or his property or his business;
(c) The words were published maliciously; and
(d) Special damage has followed as a direct and natural result of their publication.
11. Unlike defamation, both malice and falsity of the statement must be alleged and proved by the plaintiff.
12. Two particular forms of the tort of malicious falsehood are slander of title and slander of goods.
13. The burden of proof is on the complainant to prove the elements of criminal defamation beyond reasonable doubt.
14. The burden of proof is on the defendant to prove the defences in the Exceptions under s 499 of the Penal Code. The standard of proof is the balance of probabilities.
15. The burden of proof is on the plaintiff to prove the three elements to the tort of defamation on a balance of probabilities.
16. Once the plaintiff establishes all three elements, the law assumes that the defamatory words are false. The onus of proof shifts to the defendant to establish a valid defence.
17. The plaintiff bears the burden of proving the elements of the tort of malicious falsehood on a balance of probabilities.
18. The principal defences to a criminal action for defamation are set out as “Exceptions” under s 499 of the Penal Code. They relate to the following:
(a) Imputation of any truth which the public good requires to be made or published;
(b) Public conduct of public servants;
(c) Conduct of any person touching any public question;
(d) Publication of reports of proceedings of courts of justice;
(e) Merits of a case decided in a court of justice; or conduct of witnesses and others concerned therein;
(f) Merits of a public performance;
(g) Censure passed in good faith by a person having lawful authority over another;
(h) Accusation preferred in good faith to a duly authorised person;
(i) Imputation made in good faith by a person for the protection of his interests; and
(j) Caution intended for the good of the person to whom it is conveyed or for the public good.
19. The following defences may be mounted against a defamation claim:
(a) That the defendant did not publish the words complained of;
(b) That the words complained of:
(i) Did not refer to the plaintiff;
(ii) Did not bear any meaning defamatory of the plaintiff;
(iii) Were true in substance and in fact;
(iv) Were published on an occasion of absolute or qualified privilege;
(v) Were fair comment on a matter of public interest; or
(vi) Were published with the consent of the plaintiff; or
(c) That the defendant has made an offer of amends and did not know or have reason to believe that the words complained of referred to the plaintiff and were false and defamatory of the plaintiff.
20. In defence of a claim in the tort of malicious falsehood, the defendant may dispute that any of the elements of the tort of malicious falsehood are not satisfied.
21. Where convicted, the defendant could be punished with imprisonment for a term which may extend to 2 years, or be sentenced to a fine, or to both.
22. In a civil action for defamation, a plaintiff may claim damages of the following kinds:
(a) General damages;
(b) Special damages; and
(c) Exemplary damages.
23. The basis of the award under general damages is compensatory and not punitive. It may include aggravated damages.
24. Special damages may be awarded over and above general damages in respect of actual material loss proved to have been sustained as a natural result of the words complained of. Special damages have to be specifically pleaded and proved.
25. Exemplary damages are damages going beyond mere compensation. They usually serve as a punishment and can only be awarded in special circumstances.
26. A plaintiff may also apply for an injunction to restrain the publication of defamatory words or matter. The Court has jurisdiction to grant an injunction where it is just and convenient to do so.
27. A successful claimant in the tort of malicious falsehood may obtain damages in respect of the interest that the defendant’s false statement attacks. For example, where the slander causes the claimant’s business to decline, he can recover for any consequential loss of business.
28. Special damage may be awarded after it is proven as an element of the tort of malicious falsehood.
29. Art 14(1)(a) of the Constitution of the Republic of Singapore states that every Singaporean citizen has the right to freedom of speech and expression.
30. Concomitantly, Art 14(2) of the Constitution provides that Parliament may enact restrictive legislation that limits this freedom of speech “as it considers necessary or expedient”, in relation to various interests. Parliament thus has the power to legislate for defamation under Art 14(2)(a) of the Constitution.
(1) Whether privacy falls under the criminal or civil law
31. The privacy laws in Singapore are found in the civil action of the tort of breach of confidence and data protection laws governed by the Personal Data Protection Act 2012.
32. The privacy laws in Singapore are quasi-criminal due to the applicability of penalties such as fines and imprisonment in the PDPA.
(2) The limitation or time period within which one must make a privacy claim
33. Under s 6(1)(a) of the Limitation Act, a claimant has 6 years to bring an action for the tort of breach of confidence.
(3) What a claimant must show to establish a case
34. The approach as set out by the Singapore Court of Appeal in I-Admin (Singapore) Pte Ltd v Hong Ying Ting is authoritative on the requisite elements for an action in the tort of breach of confidence. These are:
(a) The information concerned is confidential in nature; and
(b) It was imparted in circumstances importing an obligation of confidence.
(c) Thereafter, a breach of confidence is presumed and the defendant, in turn, bears the burden of showing that his conscience has not been affected.
35. The I-Admin approach modifies the well-established requirements for an action in breach of confidence in Singapore. In its decision, the Singapore Court of Appeal stated that such a change was necessary to accord more weight to the “wrongful loss interest” of the plaintiff and to accommodate for the information asymmetry between the plaintiff and the defendant in this digital age.
(4) The burden of proof
36. The burden of proof of the first two elements of the I-Admin approach rests on the plaintiff. Thereafter, the burden of proof shifts to the defendant who has to show that his conscience was not affected.
(5) The principal defences to a claim
37. In Singapore, unauthorised disclosure of confidential information is allowed if it is in the public’s interest. In Shanmugam Manohar v Attorney-General, the Singapore High Court decided that unauthorised disclosure to a professional regulatory body fell within the public interest exception.
38. In an action in breach of confidence, there is no limit to the level of financial compensation that the Singapore Courts can grant.
39. The maximum financial penalty imposed on organisations for breaches of key obligations under Parts III to VIA of the PDPA is one million Singapore dollars.
40. In a nutshell, section 13 of the PDPA prohibits organisations from collecting, using or disclosing personal data about an individual unless the individual’s consent is obtained (either actual or deemed) or such collection, use or disclosure is required or authorised under the PDPA or any written law.
41. In Re Majestic Debt Recovery the Personal Data Protection Commission (“PDPC”) of Singapore held that a debt collection company’s video recording of the debt collection process against a debtor was in breach of the PDPA as debt collection company had not obtained the consent of the debtor.
42. Section 24 of the PDPA requires an organisation to protect personal data in its possession or under its control by making reasonable security arrangements to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks (the “Protection Obligation”).
43. In Re Everlast Project Pte Ltd, the PDPC held that organisations operating as a group of companies may comply with the Protection Obligation through binding group-level written policies or intra-group agreements that set out a common and binding standard for the protection of personal data across all organisations in the same corporate group.
44. There is no constitutional right to privacy in Singapore.
45. Jury trials in Singapore were abolished in 1969.
Contributor: Adrian Tan (Partner)
TSMP Law Corporation
6 Battery Road
The material in this Guide is for general information only and does not constitute legal advice.
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