Defamation Act
It is said that in Singapore, defamation laws are “perhaps the most onerous” (Ang, 1998) among the laws which apply across media. Defamation law is meant, most fundamentally, to protect a person’s reputation – a person’s social standing and image in the eyes of reasonable people. It branches out from the law of torts.
There are two forms of defamation: libel, and slander. Libel is defamation that takes place in a permanent form, for example, in newspapers or on television. On the other hand, slander is defamation that is more “transcient” – it is effected in spoken words or gestures. This distinction is made because libel, due to its permanent form, is felt to create more lasting damage to a person’s reputation than slander. It is also felt that libel requires premeditation by the author, as opposed to spoken words, which can be spontaneous.
Regardless of one’s intentions, one is liable to being sued for defamation. However, those who allege must prove – the plaintiff has the burden of proving a few things:
- that the statement or words are defamatory;
- that the defamatory statement or words refer to the plaintiff; and
- that the remarks were in fact exposed to a third party.
With regards to journalism, it is not just the author of an allegedly libelous article, or the editor, that can be sued. Those who are indirectly involved, such as printers and news vendors, can be sued as well. For example, in a libel lawsuit by then PM Lee Kuan Yew against the Far Eastern Economic Review in 1987, the publishers and printers were sued. In this case, the court said that the sued printers had, by a commercial agreement with the publishers, “abandoned any attempt to exercise control on what they print....In that sense, they printed the article, without considering or caring whether it was true or false; they were indifferent to the truth.” (Lee Kuan Yew v Davies and Others, 1989, SLR 1063)
Defamation and the Foreign Press
Defamation is and has been relevant to the foreign press in Singapore. Publications such as the International Herald Tribune, The Economist, the Bloomberg business news wire, Hong Kong-based Yazhou Zhoukan and the Far Eastern Economic Review (FEER) have been sued for defamation before, and have had to pay hundreds of thousands of dollars either in damages or out-of-court settlements.
An example would be the Far Eastern Economic Review – it was sued in 1987 for defamation by then PM Lee Kuan Yew; and only recently, in August, sued by PM Lee Hsien Loong and Minister Mentor Lee Kuan Yew on the same charge. The disputed article is called "Singapore’s ‘Martyr’, Chee Soon Juan". Ironically, this article included the question of whether Singaporean officials use libel lawsuits to quell legitimate criticism. In his October Editor’s Letter, FEER editor Hugo Restall talked about how Singapore had to use draconian laws during its fledging years as a nation. He then went on to talk about Singapore today – prosperous and politically stable – and then questioned: “So why is it (the government) still using repressive measures against a monthly magazine that employs a total of three full-time journalists and has 1,000 subscribers in the country?”
This issue is more often than not a rallying cry for the foreign press as well as press watchdogs. Generally, their stance is that libel actions are politically motivated and used by the government to curb freedom of expression, especially political opposition and criticism of the government.
The independence of the judiciary is also an issue frequently taken up by human rights groups and media watchdogs. For example, in 1997 the International Commission of Jurists talked about the court as being “improperly compliant” to the PAP’s interests. Amnesty International, on the other hand, said in a report that the judiciary “has not moved to check the Executive’s misuse of the law” (see Constitution).
Source Confidentiality
There is a rule of practice known as the “newspaper rule”, which says that newspapers “will not be compelled to disclose sources of information in pre-trial discovery” (KLW Holdings Ltd v Singapore Press Holdings Ltd, 2002, 4 SLR 417). Simply put, this rule protects the confidentiality of a newspaper’s sources. It originated from England and has no history of jurisdiction in Singapore.
In 2002, a company called KLW Holdings Ltd sued Singapore Press Holdings (SPH) for libel (in an article in the Business Times). KLW Holdings applied for SPH to produce the interview notes with the “informant”, and working drafts of the article. They failed. The lawyer who represented SPH brought the newspaper rule into his argument, saying that there is a public interest to be maintained – that is, interest in a free flow of information and interest in press freedom. He also argued that if source confidentiality cannot be maintained, it would lead to lesser sources of information to the press in the future.
Significantly, though, the courts did not find a newspaper rule at work in this case. There were other reasons for their judgment, namely that KLW could not persuade the court that it had a right to the information that it sought, and that the information that was sought was not relevant to the alleged libel.
The newspaper rule was not subscribed to by the court. In fact, it was said that “a free flow of information cannot mean an unstoppable flow of information” (ibid). It was submitted that to undiscerningly support a free flow of information will “only encourage the unseen character assassin and other mischief makers” (ibid). This is perhaps indicative of the more cautious approach taken by the law in Singapore, especially with regards to the media. This is because of an inclination towards the powerful effects model – the belief that media have direct and powerful effects on people.
Newspapers ultimately do not have a right to refuse revealing their sources, especially when it is in the interests of the public and of justice to know. In Singapore, this privilege is only given by the law in one case – under the Legal Profession Act (confidentiality between a lawyer and client).
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