Just this month, PM Lee testified in court against blogger and opposition party member Leong Tze Hian in a libel suit, pertaining to the latter’s sharing of an offensive article on his Facebook page. The article implied that the Prime Minister was allegedly involved in the Malaysian 1MDB scandal, by having “secret deals” with former Malaysian Prime Minister Najib Razak in exchange for local banks’ assistance in money laundering.
While there were many issues that were brought up during the two-day long trial, one of the pertinent arguments that Leong’s lawyer, Lim Tean had brought up was that Leong had merely shared the article, and was not responsible for making these allegations against PM Lee. Furthermore, many others had also shared the offending article, but remained unscathed.
Defamation on social media
Taking away any possible political agendas from both parties, can an individual really be sued in court for a mere Facebook post? Unfortunately, yes. Sharing a defamatory post, or even commenting on one can render one liable for defamation.
What constitutes defamation?
Under section 499 of Singapore’s Penal Code, defamation is considered a criminal offence. Defamation includes words of statements that are spoken (slander), or exist in the written or permanent form (libel).
Defamation occurs when:
- The statements must have been communicated to someone else
- The statements must have referred to or identified the victim
- The statements must have the effects of:
- harming a person’s credibility or reputation; or
- causing a person to be shunned or avoided; or
- exposing a person to hatred, contempt or ridicule.
- The victim must have suffered any of the mentioned effects from the statements.
How has social media changed the way defamation laws work?
Because of how social media differs from traditional forms of media, it is only natural that defamation laws have had to be revamped. According to Law Gazette, the elements that make up a defamation claim remain the same, but the way in which the claims must be proven have changed. Additionally, new doctrines and defences have also arisen to address Internet-related defamation cases, including posts from the likes of Twitter and Facebook.
The very first requirement for a post to be considered defamation is that it must have been communicated to at least one third party. This means that the claimant must prove that a third party has seen and comprehended the content. Determining this also affects the amount of damages payable to the claimant.
Making reference to PM Lee’s suit, one of the experts called in by PM Lee’s lawyers, was Dr Phan Tuan Quang, who submitted a report stating that Leong’s post would have appeared on the Facebook feeds of 11,749 users — indicating a rather substantial reach.
In rebutting Leong’s lawyers that his claims were mere “guesswork”, Dr Phan, who has researched social media for over 15 years, said that at the very least, about 200 to 400 Singaporeans would have clicked on the link to the article in the post — a conservative estimate, taking into consideration the government’s rebuttals of the article that were widely circulated.
He also added that false news has a tendency to spread much faster, and can reach a “maximum penetration” in 1,000 minutes. This means a particular post by a person can reach his friends and friends of his friends, all the way down a chain that is 15 levels removed from him in that time.
One of the factors that contributes to the rapid spread of fake news is the novelty of the content, and the shock factor of the allegations against PM Lee.
The second requirement that must be satisfied is that the offending statement must have referred directly to the claimant. This can be direct or indirect, where an “ordinary reasonable person who, at the material time, was aware of the relevant circumstances or special facts [that would] reasonably understand the claimant to be referred to by the offending words”.
A possible difficulty in satisfying this criteria in the case of Internet defamation is that original content may or may not contain references to the individual, but external content may give the audience contextual clues as to who the individual in question is.
The third criteria is that a claimant must show the statements made against him or her were defamatory, either explicitly, or through their innuendo meaning. Determining whether content is defamatory often relies on the perspective of a hypothetical “right-thinking member of society”, where this question is asked: would such a member of society think less of the claimant after reading the statement?
When PM Lee took to the stand to be cross-examined, he said that one of his reasons for deciding to pursue the case against Leong was the need to clear his name and reputation. “People know me for many years and they will not likely revise their view of me. But each time a question mark is raised without a proper response, each time I don’t clear my name, a little more damage is done, and cumulatively people will start to doubt,”
Additionally, he also said that going to court and getting cross-examined would allow the allegations to be demolished. “This is what clears my reputation, not who is on the other side,” he said.
What to do if you find yourself accused of defamation
Although the legal battle between PM Lee and Leong has not ended (the case was adjourned and the next hearing is slated to take place on 30 November), it’s undeniable that social media has caused a seismic shift in how we deal with defamation today. Given how quickly information can be spread online, protecting one’s reputation has become an increasingly complex task.
What then, should you do if someone accuses you of online defamation? Here are some tips from legal experts:
- Delete the offending post as soon as possible, to minimise damages.
- Avoid direct communication with the claimant or his/her lawyer, as this may lead to other implications or increased damages.
- In the event that you feel that you have a valid defence, start gathering evidence, such as screen captures and time stamps. These may be done even before getting legal assistance. Other useful information may include the date and time of the post, the privacy settings, the claimant’s online following and reach, as well as comments or interactions made on the post.
- Think about whether the defamatory words were circulated only in Singapore, or could have spread overseas.
- Do not apologise or admit liability before considering legal options, as the apology made result in unspecified damages.
More detailed information about legal recourse for online defamation can be found here.