Defamation / Reputation, Digital Rights, Hate Speech
Die Grünen v. Facebook Ireland Limited
Closed Contracts Expression
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On March 24, 2021, the High Court of Singapore directed Mr. Leong Sze Hian, a columnist, to pay Mr. Lee Hsien Loong, the Prime Minister of the Republic of Singapore, the sum of S$133,000 in a suit of defamation. Mr. Hian had shared an article titled “Breaking News: Singapore Lee Hsien Loong Becomes 1MDB’s Key Investigation Target – Najib Signed Several Unfair Agreements with Hsien Loong In Exchange For Money Laundering” on Facebook. The judge opined that the article’s headline implied that the plaintiff and Mr. Najib had made a number of “unfair” agreements which were the result of a quid pro quo with the plaintiff providing the assistance of Singapore banks in laundering stolen money. The judge consequently determined that the article insinuated that the plaintiff was involved in criminal activities. The court also held that the publication by the defendant occurred even if the defamatory statements were made available online by sharing an article and the defamatory material was received by a third party.
Mr. Lee Hsien Loong, the Prime Minister of the Republic of Singapore (the plaintiff), sued Mr. Leong Sze Hian, a columnist (the defendant), for defamation for having shared an article titled “Breaking News: Singapore Lee Hsien Loong Becomes 1MDB’s Key Investigation Target – Najib Signed Several Unfair Agreements with Hsien Loong In Exchange For Money Laundering” on Facebook [para. 1].
The article was published on November 7, 2018 on a website called “The Coverage.” It claimed that Malaysian investigators were “trying to find the secret deals between the two corrupted Prime Ministers of Singapore and Malaysia” in relation to the country’s 1Malaysia Development Berhad (“1MDB”) fund. The article also provided additional information concerning other “unfair agreements” Mr. Najib Razak had made with the plaintiff, including the agreement to build the Singapore-Malaysia High Speed Rail [para. 5].
Over the following days, the article was discussed in many media outlets. On November 8, 2018, the Straits Times reported responses to the article by the Minister for Law and Home Affairs, Mr K Shanmugam, as well as the High Commission of the Republic of Singapore in Malaysia. The responses reported uniformly sought to refute the article and its contents [p. 9]. On November 9, 2018, it was further reported in the Straits Times that the Monetary Authority of Singapore had filed a police report in respect of an article materially similar to the article in question which had been published on November 5, 2018 on the States Times Review (the “STR). Further, the Straits Times also reported on the Info-communications Media Development Authority’s issuance of a statement that the article on STR’s website was “baseless and defamatory” [p. 11].
On November 10, 2018, the defendant removed the post from his Facebook timeline and on two days later, he received a Letter of Demand from the plaintiff demanding a published apology and compensation. On November 20, 2018, the plaintiff commenced the instant suit [p. 11].
Justice Aedit Abdullah of the High Court of Singapore presided over this case. The central issues for consideration before the court were whether the publication and/or republication of the defendant’s post had injured the plaintiff’s character and reputation and whether the defendant had maliciously aggravated libels [para. 15].
First, the judge examined the “appropriate meaning” attributable to the allegedly defamatory words by looking at their “natural and ordinary meaning” through the lens of an “ordinary reasonable person” (Review Publishing Co Ltd and another v Lee Hsien Loong and Lee Hsien Loong v Leong Sze Hian  1 SLR 52) [para. 25]. The court relied on news reports to determine how widely known certain facts were, and thus how an ordinary reasonable person would identify the natural and ordinary meaning of the words used (Lee Hsien Loong v Singapore Democratic Party  1 SLR(R) 642). As a result of extensive reporting on the issue, the judge noted that the facts surrounding the 1MDB episode could not be said to go beyond the ordinary reasonable person’s general knowledge [p. 30]. The judge ruled that the phrase “Lee Hsien Loong becomes 1 MDB’s key investigation target” clearly implied that the plaintiff was at the centre of the 1MDB-related wrongdoing because being a “key” investigation target strongly suggested one’s deep involvement in the 1MDB scandal. Additionally, the 1MDB scandal had also become synonymous with corruption and improper governmental dealings, which the average reader of the Facebook post and/or article would be well aware of. The judge further opined that the article’s headline also implied that the plaintiff and Mr. Najib had made a number of “unfair” agreements which were the result of a quid pro quo with the plaintiff providing the assistance of Singapore banks in laundering stolen money. The judge consequently determined that the article insinuated that the plaintiff was involved in criminal activities [para. 29].
Second, the judge examined whether the Facebook post amounted to the publication of defamatory material and whether hyperlinking to the article amounted to the publication of defamatory material while deciding if there had been substantial publication/republication by the defendant of the defamatory words [para. 32]. The defendant acknowledged that he published the post but he argued that there was no “substantial” publication as not many individuals accessed and read the post. The defendant contended that he was not responsible for the publication because there was no proof that anyone clicked on it as a result of his sharing the post [para. 34]. However, Justice Aedit Abdullah observed that the defendant had published the post as there has been “substantial” damage by the publication as it attracted a sufficient number of readers. Following the case precedent of Charleston v News Group Newspapers Ltd  2 AC 65, Justice Aedit accepted the pleading of the plaintiff that the sharing of the hyperlink of the article attracted the principle of “irresistible inference.” However, the plaintiff tried to differentiate between sharing the link and sharing the link with some comments of his own to endorse the readers. The court heavily relied on Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd  2 SLR 751, wherein the court held that the publication by the defendant occurred even if the defamatory statements were made available online and the defamatory material was received by a third party.
Third, the court ascertained whether the enactment of the Protection from Online Falsehoods and Manipulation Act (Act 19 of 2019) (“POFMA”) provided an alternative cause of action affecting the defamation law [p. 48]. The judge decided that POFMA did not alter the law of defamation in Singapore since POFMA was more concerned with falsehoods than with damage to a person’s reputation in general. As per Justice Aedit, POFMA’s goal was to prevent harm caused to the government and its agencies because of online falsehoods rather than giving people any rights or legal avenues to pursue claims made against them that were untrue and defamatory [para. 50].
Fourth, Justice Aedit while examining the facets of article 14 of the Constitution of Singapore, laid emphasis on the restriction of the law of defamation on the right of freedom of speech and expression by relying on Jeyaretnam Joshua Benjamin v Lee Kuan Yew  1 SLR(R) 337. The court did not consider the arguments of the defendant on the grounds that the plaintiff had been gravely injured in his character and reputation. The court rejected the responses of the defendant that the plaintiff’s reputation had already been vindicated and rebutted by a series of statements and articles from government agencies and ministers refuting the allegedly defamatory meaning. The court stated that it did not follow the standard of proof of whether there was any actual damage to reputation or not, rather the standard was notional or fictional and as far as it was reasonable that one’s reputation could be harmed, it did not matter if no one with such a view in fact found and produced to the court [para. 62].
Fifth, the court then went ahead to decide the applicability of the Rule established in the Derbyshire v Times Newspapers  AC 534 that a government cannot bring an action in libel [para. 65]. The plaintiff argued that the rule was not applicable herein as the defendant claimed as an individual and not as a government organ or entity. The defendant argued to the contrary that the instant proceedings had been brought by the plaintiff to circumvent the rule in Derbyshire and it was the government de facto bringing the action under the “unconvincing guise of a personal suit.” However, Justice Aedit Abdullah was not satisfied by the arguments put forth by the defendant and considered the plaintiff as an individual rather than the government itself [para. 79].
Lastly, the judge decided whether the plaintiff was entitled to general and aggravated damages. The plaintiff argued in favour of substantial damages citing a number of relevant factors such as nature and gravity of defamation, mode and extent of publication and failure to retract the statement [para. 85]. According to the plaintiff, Singaporean courts distinguish between public and private personalities, with public people frequently receiving substantial damages if the defamation involves their honesty, integrity, or character [p. 89]. On the other hand, the defendant claimed that only nominal damages should be granted since the libel was not serious, less believable because it was on social media, and did not originate from the defendant, rather, it was only shared by him [para. 86]. The judge ascertained whether the defendant’s conduct was malicious. He opined that refusal to apologise for the defamatory words might indicate malice on the part of the defendant however the defendant didn’t willfully post something he knew to be false at the time of posting, nor did he defiantly insist on the truth of his libelous claims despite clear evidence to the contrary [p. 121]. After examining all the factors, the judge finally directed the defendant to pay the plaintiff the sum of $133,000 [para. 130].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision restricts the freedom of speech and expression. The court lays emphasis on the damages claimed by the plaintiff, as well as on the reputation of Loong as the political leader of Singapore, and overriding the freedom of speech and expression of the defendant in a case otherwise made against the defendant. Such a reconsideration, resulting in a return to historical standards of the common law of libel, would be at odds with current international standards, which require public officials to tolerate a higher level of criticism on issues of public importance, and overturning the standard could have a substantial chilling effect on public discourse.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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