Defamation

Question 1

What are 2 differences between Criminal and Civil Law?

Answer 1

1) Criminal: state prosecutes defendant. Civil: Plaintiff prosecutes defendant
2) Criminal: fine to state, Civil: monetary damages to plaintiff

Question 2

What is the difference between statutory and common law?

Answer 2

Statutory: law passed by legislature
Common: published opinions for special cases, based on precedent cases

Question 3

What are the 3 burdens of proof the Plaintiff have to file a defamation case?

Answer 3

DIP
Defamatory String
Identification of Plaintiff
Publication

Question 4

Define Defamatory Sting.

Answer 4

The whole topic & cause of action that lowers another’s reputation, or make others avoid him, exposing them to hatred, contempt, ridicule, causing loss of good will and confidence.

Question 5

What’s the objective test of sting? (3 qualities)

Answer 5

1) feels defamatory to the ordinary, reasonable, right thinking person - no need majority & doesn’t depend on P’s interpretation
2) D’s intend to defame not required.
3) Defamatory sting may be indirect: courts read between the lines

Question 6

How to prove identification for a Defamation case? (2 qualities)

Answer 6

1) whether defamatory material might be understood by reasonable people to refer to (majority unnecessary)
2) does not have to be named - as long as some people in the audience can identify

Question 7

How to prove Publication for a Defamation case? (2 qualities)

Answer 7

1) communication to at least one other person (3rd person) besides the subject
2) can be spoken/through any medium

Question 8

What are 2 differences between Libel & Slander?

Answer 8

1) Libel is recorded while Slander is spoken.

2) Libel: no need to prove damage to P’s reputation, but Slander: P must prove monetary damage (special damage rule)

Question 9

What are 4 exceptions to the special damage rule?

Answer 9

1) Criminality
2) Loathsome, contagious disease
3) Unfit for business, profession, trade, office
4) Female in unchaste

Question 10

What are the 4 options a defendant can take in a defamation suit?

Answer 10

1) Defences
2) Settlement (agree to call off allegation)
3) Apology (to mitigate damages)
4) Grant a reply (D publish P’s reply - part of settlement sometimes)

Question 11

What are the 4 defences a defendant can take in a defamation suit?

Answer 11

1) Justification/Truth
2) Fair comment
3) Privilege
4) Unintentional Defamation

Question 12

What is the truth/justification defence, and what 3 qualities does it have?

Answer 12

Defendant must prove that the statement is true in court, based on evidence like records & memories of credible witnesses

1) defence stands even if D has malice
2) Applies even if minor details are inaccurate
3) Content must still be true, so words like “rumour is”, “Allegedly” still makes it liable for defamation.

Question 13

How to qualify for the fair comment defence? (4)

Answer 13

1) Must be an opinion: not a factual statement that can be proved true/false
2) Must be fair: D must have some factual basis to hold the opinion, though opinion can be prejudiced, exaggerated or unreasonable.
3) If evidence that D is motivated by malice towards P, then it is not fair
4) Must be a matter of some legitimate public interest

Question 14

What is the privilege defence and what 4 circumstances can it be used in?

Answer 14

Defence against defamation actions in certain situations, where there is a strong need for candour (frankness).

Parliament, Judicial Proceedings, Media, other circumstances

Question 15

How are proceedings in the parliament privileged from defamation claims? (2)

Answer 15

1) Participants are immune to defamation claims even if they communicate with malice
2) reports on parliament are privileged, but they lose privilege if malicious

Question 16

How are judicial proceedings privileged from defamation claims?

Answer 16

1) no defamation liability for participants even if they communicate with malice
2) reports are privileged only if they are fair & accurate. Malice can negate privilege in some cases (reporting only on one side)

Question 17

How is the media privileged from defamation claims?

Answer 17

1) Licensed newspapers & broadcasters have privilege for some official matters, but they must be fair and accurate without malice
2) Niche media is more likely to get the privilege (in arguing that duty/interest test is met)

Question 18

What are 4 criteria to fulfil as “other circumstances” that are privileged from defamation claims? (4)

Answer 18

1) When D has a duty (legal, moral, social, business) to communicate the content
2) Intended recipient has an interest (stake) in receiving it
3) D lacks malice
4) D believes content is true

Must fulfil all criteria

Question 19

Does D’s intent matter in a defamationsuit?

Answer 19

P need not prove D’s intent to defame/identify P, but proof of D’s intent may increase damages award.

Question 20

How to qualify for the Statutory Defence for Unintentional Defamation? (2)

Answer 20

If the publisher (D):

1) Took reasonable care (use reasonable standard to evaluate) AND
2) Published “innocently”: D didn’t know/intend for words to refer to P, OR words are not defamatory on the surface & D didn’t know they would be understood as defamatory of P

Question 21

What are the 3 procedural requirements for Unintentional Defamation?

Answer 21

1) D makes corrections & unreserved apology AND
2) Take reasonable steps to reach recipients of libel
3) P decides to whether to accept offer to close case. If no, the defence would only work partially, where D still has to pay damages but lesser

Question 22

Who can sue for defamation? (3)

Answer 22

1) Living individuals,
2) Corporations & Societies
3) Individual public/civil servants
4) individual members of groups (if more than 12 members, less likely to win)

Question 23

Who cannot sue for defamation? (3)

Answer 23

1) survivors of dead individuals (though dead can be criminally defamed)
2) groups as a whole
3) governments (SG not enough cases, UK and US cannot)

Question 24

Which parties involved in offline defamatory material can be liable for defamation?

Answer 24

Before 1900: anyone disseminating material can be liable, including printer, distributor, bookseller, librarian etc
After 1900: Author, editor, publishing house only

Question 25

What is the innocent dissemination defence against defamation? (2)

Answer 25

For potential Defendants who are

1) unaware of libel in offline material, and
2) did not have a duty to be aware

Question 26

In USA, which parties involved in online defamatory material won’t be liable for defamation? (2)

Answer 26

Online intermediaries (internet service providers, social media platforms etc) cannot be liable for material posted by users, even if they are

1) aware of defamatory content
2) moderates content, but leaves up some unlawful content

Question 27

In SG, which parties involved in online defamatory material won’t be liable for defamation? What is the issue with the statute?

Answer 27

A network service provider will not be subjected to liability for third party material online, where it merely provides access to content.

“Network service provider” is not defined in the statute. Are social network platforms counted?

Question 28

In the UK, which parties involved in online defamatory material would be liable for defamation?

Answer 28

If the intermediary knows about the defamation and fails to act, there is a possible liability.

Question 29

Who will be liable for criminal defamation in Singapore? (3 qualities)

Answer 29

1) Whoever makes/publishes any imputation (accusation) concerning any person,
2) intending to harm, or knowing/having reason to believe that such imputation will harm the reputation of the person.
3) Applies to words or visible representations, spoken or in any medium

Question 30

Is criminal defamation also applied in UK and US?

Answer 30

US & SG: rare

UK: abolished

Question 31

What are the 2 reforms made by the UK government on its defamation act in 2013?

Answer 31

1) Serious Harm Requirement: to discourage frivolous, vexatious litigation
2) Public Interest Defence

Question 32

What is the Serious Harm Requirement? (2)

Answer 32

1) Addition to P’s burden of proof: defamatory material must actually cause/be likely to cause serious harm to P’s reputation
2) If P is a corporation: caused/likely to cause serious financial loss

Question 33

What is the Public Interest Defence? (2)

Answer 33

Even if DIP can be proven, the defence can be used if

1) D’s statement is on matter of public interest, AND
2) D reasonably believed publishing it would be of public interest (can examine tone)

Question 34

Does D need to verify all assertions to use the Public Interest Defence?

Answer 34

If D’s statement is an accurate, impartial account of a dispute, then no need to verify all assertions

Question 35

What are the 2 additional requirements for Burden of Proof in USA’s defamation common law?

Answer 35

1) Falsity of allegation (falsity presumed in SG)
2) Fault on defendant’s part: defendant not appropriately careful about truth. There would be no liability if D fulfilled all duties by acting reasonably

Question 36

How does the level of fault required for defamation liability differ for public and private figures?

Answer 36

Public figure: Knowledge of falsity/recklessness of falsity

Private figure: Negligence regarding falsity

Question 37

What is the difference between knowledge, recklessness and negligence of falsity?

Answer 37

Knowledge > Recklessness > Negligence

Knowledge: lying/convinced by multiple credible sources, but still reported it
Recklessness: don’t care about risk of falsity
Negligence: fail to do what a reasonable person would do/do something a reasonable person would not do