Defamation 1 Flashcards
How is legal action initiated in criminal law?
State (Attorney General’s Chambers or public prosecutor) prosecutes Defendant
How is legal action initiated in civil law?
Injured party (Plaintiff) sues another (Defendant)
What are the penalties for criminal law?
- Fine (paid to state)
- Prison
- Death
- Caning (only men can be canned, cannot be above 50)
What are the penalties for civil law?
- Monetary damages
(paid to P) OR - Court order
(ie. injunction – order not to do something)
What are examples of criminal law?
Crimes against
- Person (murder, assault)
- Property (theft, vandalism)
- Morality (obscenity)
What are examples of civil law?
- Tort Law: wrongful acts
(eg. defamation, negligence) - Contract Law:
(eg. breaking contract) - Property Law:
(eg. estates)
What are statues?
- (def.) Laws passed by legislature (lawmaking body – In SG –> Parliament)
- All freely available in SG Statutes Online divided into different sections
- Eg. Penal Code, Internal Security Act, Copyright Act, most of SG’s criminal law
What is common law?
- (def.) A whole set of published opinions in decided cases & principles in those cases (precedent cases)
- -> (def.) Precedent: a judicial decision that should be followed by a judge when deciding a later similar case
- Made by courts (judges, also known as justices)
- -> Court can be used for multiple judges to decide OR one judge only
- Sometimes used to help interpret, apply statutes
- SG has its own common law & draws on English common law if SG law is not well developed.
- -> If English courts are not well developed, SG examines common law courts of other nation that were former British colonies.
What is the concept of stare decicis?
- Latin: stand by what’s decided (court normally follows precedent)
- “adhere to precedent in order to insure certainty, consistency, and stability in the administration of justice”
- Court can depart from precedent if:
1) There are compelling reasons to do so
2) They can only avoid an injustice by departing from precedent - Areas of law have different mixes of statutory & common law
(eg. defamation is mostly common law, but SG’s Defamation Act supplements it)
(more info - pg 4)
What is requried for defamation sting?
- Plaintiff has burden of proving elements of the “cause of action”:
- Defamatory sting
- Identification of P
- Publication
If P wins, court may order D to:
- Pay damages to P
- -> To compensate P
- -> As punishment
- Remove or stop spreading defamation
- -> Through an injunction, a court order to D
- Pay P’s legal costs
What are the elements of defamation sting?
- Tends to lower another’s reputation, or makes others shun (avoid) him
- Exposes to hatred, contempt, ridicule – causes loss of good will and confidence
- Objective – not subjective – test for sting: (reasonable test)
- -> To ordinary, reasonable, right-thinking person in audience
- -> Don’t need majority to find it defamatory. Only need 1 person beside plaintiff will suffice.
- -> Doesn’t depend only on P’s interpretation
- D’s intent to defame not required
- Defamation sting may be indirect
- Court read between the lines
- Defamation sting not just based on literal meaning but also
- -> implication, context, slang, comparisons, innuendo – or extrinsic facts (not a meaning contained in the word itself) not in the text but known to some in the audience
What are the elements of Identification?
- Any identifiable characteristics sufficient for identification of P
- -> Name, photo/illustration, description
- “Whether defamatory materials might be understood by reasonable people to refer to “ P
- Not necessary for majority to identify P
- Eg. Social media: by not naming the person does not immunise them from liability, if reasonable person who can figure out who the person being posted is
What are the elements of Publication?
- Communication to at least one other person (3rd person) beside the person it’s about
- Can be spoken or through any medium / no medium at all
- Libel: Recorded (written, stored; includes broadcast)
- -> No need to prove damages to P’s reputation
- -> No damages might have occurred but it is stored and damages may occur in the future
- Slander: Spoken
- -> P must prove monetary damages (“special damage rule”) as it might not have any effect on a person’s reputation
- -> Exception: no need to prove monetary damage if D’s words allege as they are serious cases:
- Criminality
- Loathsome, contagious disease (eg. tuberculosis)
- Unfit for business, profession, trade, office
- Female is unchaste (men alleged unchaste not taken as seriously)
- “Meet special exception to the special damages rule.”
What are the defamation defendant’s options?
- Justification (truth)
- Fair comment (opinion)
- Privilege
- Unintentional defamation
Besides presenting defences at trial, what can a defendant choose?
- Settlement
- Apology
- Grant a reply
What is a settlement?
- (def.) Agreement to call of litigation, sometimes in exchange for money/apology
- Common
Who do defendants choose to settle?
- Why Settle?
–> D see they may not win case
–> D see it is not worth the cost of defending the suit
(litigation stamina: financially/working with lawyers/sitting in court all days)
What is an apology?
- Used:
- -> In settlements
- -> To mitigate damages
- -> In unintentional defamation defence
- Apology made publicly
- Often used in libel litigation in different ways)
What is ‘grant a reply’?
- D may choose to publish P’s reply in the same venue
- Eg. D let P tell her side of the story
What is the truth defence?
- Applies to true material
- -> D must prove the statement to the court, based on evidence (eg. records, memories of credible witnesses who testify)
- -> Doesn’t help to add “rumour is”, “allegedly”
- “Absolute” defence
- -> Defence stands even if D has malice
- -> Not conditional/fulfilling a criteria that words are not said out of malice
- Defence applies if minor details inaccurate
(ie. D stole $25k actually stole $24k, defence stands) - -> Sometimes called substantial justification
What is the fair comment defence?
Fair:
- Could D honestly hold opinion based on the evidence?
- -> Can be exaggerated, prejudiced, unreasonable minority opinion
- -> If evidence that D motivated by malice (spire toward P), not fair
- -> Must be factual basis (opinion based on facts)
Comment:
- -> Not a factual statement that can be proved true or false
- -> On matters of some legitimate public interest
What is the privilege defence?
- Defence against defamation actions in certain situations
- -> Needed for candour (freedom of speech outweighs the need to protect reputation)
- If you have privilege, actions for defamation against you will fail
What does it mean to have privilege in parliament?
Proceedings in Parliament privileged
(ie. MP speak on Parliament floor, confident she won’t be sued for libel)
- For participants, even if communicate with malice
- Exception: if privilege is abused, it can be lifted (ie. MP goes on a tirade - rare)
Reports on Parliament privileged
- Lose privilege if malicious
- Reports must be fair and accurate
- SG Waiver case (pg.16)
What does it mean to have privilege in judicial proceedings?
Courtroom proceedings privileged
- No defamation liability for participants - Judges, lawyers, P, D, witness – even if communicate with malice
Reports on courts proceeds privileged
- If fair and accurate
- Report without malice
How to lose privilege in court proceedings?
- Report only one side (P, not D)
2. Report maliciously
What’s the privilege for media in the courtroom?
- Licensed newspapers & broadcasters have privilege:
- fair and accurate reports
- made without malice of some official matters
Official matters:
- Findings, decisions of professional or industry associations
- Proceedings of international organisations, public meetings, corporate shareholder meetings, foreign courts
- Gov. notices
When are there privileges in other circumstances?
When:
- D has a duty (legal, moral, social, business) to communicate content AND
- Intended recipient has an interest (a stake) in receiving it AND
- D lacks malice (& believes the content is true)
What does it mean if there is no blanket privilege for media?
- Mass media argue they should have blanket privilege for all reporting news:
- -> have duty to report news
- -> audience has an interest in receiving it
- Courts and legislatures only recognise privilege for mass media in limited circumstances
- England has public interest defence
Is niche media more likely to get privilege?
Niche media have more success that mass media in arguing the duty/interest test is met.
