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Explainer: How sharing an article on social media could run afoul of defamation laws

Explainer: How sharing an article on social media could run afoul of defamation laws

Source: TODAY
Article Date: 26 Mar 2021

While the Defamation Act is a civil law, defamation is also covered under the Penal Code, which is a criminal statute. This means that the police may also press criminal charges for defamation.

  • Questions were asked about whether sharing an article on social media is a risk that could get one sued
  • Blogger Leong Sze Hian did just this and lost a defamation lawsuit filed by Prime Minister Lee Hsien Loong
  • Lawyers said that sharing a defamatory article is akin to republishing the material itself
  • Even if the link was the only thing being shared, it is a risk

We have seen it before: Someone posts a questionable article on Facebook or re-tweet it on Twitter. In some cases, the person ends up being sued for doing that.

Can this really happen to you just because you “shared” something on social media?

The answer is yes, if the article contains potentially defamatory content, several lawyers told TODAY.

These questions about Singapore’s defamation laws — what they cover and why they exist — have been asked in the wake of a court judgement on the case of Lee Hsien Loong versus Leong Sze Hian on Wednesday (March 24).

It prompted several queries from the public as to why someone could be responsible for the mere sharing of an article that they did not write, but contained untrue statements that harms another person’s reputation.
Some online users have also asked whether they would be liable for defamation if they shared a defamatory article but made no comments about it.

Prime Minister Lee, 69, had sued Mr Leong, 67, for posting a web link on Facebook, without captions, to an article by Malaysian news site The Coverage in November 2018, which falsely claimed that PM Lee was linked to the 1Malaysia Development Berhad scandal.

The High Court awarded PM Lee with damages amounting to S$133,000.

In his written judgement, Justice Aedit Abdullah said that PM Lee won the case because of several reasons such as these:

The article in The Coverage suggested that PM Lee was involved in serious and dishonest criminal activity

Mr Leong’s Facebook post and web link amounted to the publication of defamatory material

Mr Leong endorsed the content even though he made no caption about it

Mr Leong acted with reckless disregard as to whether the article was true

PM Lee’s reputation was harmed

To answer these questions, TODAY reached out to several lawyers to shed some light on a civil law that predates the founding of Singapore and stretches all the way back to the Romans.

WHAT IS DEFAMATION

Mr Suang Wijaya from law firm Eugene Thuraisingam LLP said that defamation occurs when somebody publishes a statement that lowers the standing of the subject in the eyes of  third parties.

WHY DOES A DEFAMATION LAW EXIST?

When Person A expresses or publishes information about Person B, the law on defamation is what balances the right of Person A to free speech and expression, and the right of Person B to defend his honour and reputation.

“The purpose of defamation law is therefore to protect the subject’s reputation and restore any damages caused to the subject,” Mr Wijaya said.

Mr Azri Imran Tan and Mr Joshua Chow from IRB Law said that such a concept existed in ancient Rome, where a person’s good character was regarded as valuable and deserving of protection under the law.

Bringing this into disrepute without any justification was an offence, and much of modern defamation law retains these guiding principles, both said.

“The test is whether the defendant unjustifiably exposed the claimant to hatred, ridicule or contempt, or lowers the reputation of the claimant in the eyes of reasonable, right-minded members of society, or both,” the two lawyers said in an email reply. 

Explaining further, Mr Jonathan Cho from Covenant Chambers set out the general considerations used to determine whether there was defamation:

Whether the statement was defamatory — it lowers the reputation of the subject being defamed

Whether the statement was published, made available and accessible to the public

Whether the subject was identified 

Mr Cho added that if sued for defamation, a person can give a number of valid reasons to defend themselves such as:

The statement was justifiable because it was true

The statement was a fair comment, because it was a fair and genuine opinion, based on true facts, and was a matter of public interest

The courts will then look at each case based on its facts to determine whether the person was liable, he said.

AM I LIABLE FOR CONTENT I SHARE ON FACEBOOK?

The short answer is: If the article contains defamatory information, then the person sharing it online is liable for it.

This is not new, Mr Wijaya from Eugene Thuraisingam LLP said, because it is “very well established” that the sharing — or republishing — of someone else’s content is the same as publication under the law of defamation.

The same goes for quoting someone else in quotation marks.

Asked why this is the case, Mr Wijaya said that this would not allow people to dodge defamation action simply by saying that they do not know the accuracy of the content being shared.

“Imagine if someone says, ‘I heard about this thing, don’t ask me if it is true or not’, but that statement goes on to lower a person’s standing, and (the person) suffers damages” Mr Wijaya added.

Mr Gary Low, director of dispute resolution from law firm Drew and Napier, explained further: “Publication is how a defamatory statement reaches the eyes and ears of third parties.

“When a defamatory content is ‘shared’ on Facebook or other forms of social media, and the defamatory statement becomes known to third parties, such sharing is naturally considered a form of publication.”

Every republication of a defamatory statement is thus a new act of defamation, Mr Low stressed.

He said that applying this principle to the realm of social media, all reposts and sharing of defamatory material can potentially lead to a defamation lawsuit. 

WHAT IF I SAY NOTHING ABOUT A SHARED ARTICLE?  

In the case of Mr Leong Sze Hian, the High Court determined that he had published the article, even though he had not added his own captions or commentary, Mr Low noted.

Mr Fong Wei Li from Forward Legal LLC said that in some legal jurisdictions, the law distinguishes between endorsing a statement and merely reposting or sharing the statement.

“(In these jurisdictions), someone who reposts an article may only be liable if he endorses or embellishes the article in the process of sharing it, such as by adding a caption that says ‘Wow, this article is so true’ or ‘Please read; good points made in here!’.”

However, this legal principle has not yet been applied formally in Singapore, Mr Fong added.

In the lawsuit brought by PM Lee against Mr Leong, Justice Aedit said in his written judgement that he was not persuaded of such a legal stance taken in Canada, which states that the use of a web link by itself cannot amount to a publication.

The judge was in favour of a “fact-centric” approach instead, stating: “(Canada’s position) more fundamentally ousts an entire species of publication from potentially being defamatory, without closer examination on the facts of what a bare hyperlink (that has) no added commentary might convey in all the circumstances.”

Speaking in general, Mr Fong said that common defences, such as a person making fair comment, would not be valid if the person was making such statements out of malicious intent, adding that it could be difficult to prove whether any malice was intended.

“Often, the courts would look at circumstantial evidence such as if the person was saying something about his competitors, for example,” Mr Fong said.

Justice Aedit determined that there was no other plausible interpretation of Mr Leong’s Facebook post other than that he was supporting or endorsing the article’s contents, adding that this would “cohere with his own self-described role as a staunch government critic”. 

He also judged that Mr Leong intended malice based on the facts, which was partly used to determine the amount of the S$130,000 damages for which he is liable.

“It was, at the very least, reckless disregard of whether the article was true or not for the defendant to have posted it without making any enquiries as to its truth whatsoever,” the judge said, adding that he could not query Mr Leong’s state of mind since he did not take the stand as a witness.

SO EVERYONE SHARING SUCH MATERIAL WILL BE SUED?

Mr Low from Drew and Napier said: “The person defamed may sue every person who republished the statement, and hold such re-publishers liable as if they had been the originators of the defamation.”

However, as in all civil lawsuits, it is left up to the person being defamed to decide whether he wishes to sue and claim for monetary damages or other remedies, Mr Low added. 

While the Defamation Act is a civil law, the lawyers said that defamation is also covered under the Penal Code, which is a criminal statute. This means that the police may also press criminal charges for defamation.

So, in this day and age, where false and potentially defamatory information is commonplace online, lawyers urged people to be careful about what they are posting or reposting online.

Mr Wijaya from Eugene Thuraisingam LLP said: “People have to be cautious generally about retweeting claims, because all of this can be considered to be re-publication of a defamatory statement.”

Mr Cho from Covenant Chambers agreed, suggesting that people should think carefully before they share anything on social media.

“And, of course, be clear in your mind what is the purpose of your posting, because you may possibly be called to give an answer on why you did what you did, why you said what you said.”

Copyright 2021 MediaCorp Pte Ltd | All Rights Reserved

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