Qingdao Bohai Construction Group Company, Ltd and Others Goh Teck Beng and another

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 21 July 2016
• Docket Number: Suit No 99 of 2014
• Date: 21 July 2016

Qingdao Bohai Construction Group Co, Ltd and others

and

Goh Teck Beng and another

[2016] SGHC 142

39 In Ng Koo Kay Benedict v Zim Integrated Shipping Services Ltd [2010] 2 SLR 860 (“Benedict Ng”), the High Court cited (at [26]) two cases — one from Australia and the other from England — on Internet publication for the purpose of defamation law. The cases are Gutnick and Godfrey v Demon Internet Ltd [2001] QB 201. As explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gutnick (at [44]):

Suit No 99 of 2014

High Court

Tort — Conspiracy — Allegedly defamatory articles being posted online and sent to banks — Whether conspiracy by unlawful means established — Whether conspiracy by lawful means established

Tort — Defamation — Corporate plaintiff — Trading or business reputation — Allegedly defamatory articles being posted online — Whether corporate plaintiff had trading or business reputation in Singapore to entitle it to award of damages

Tort — Defamation — Defamatory meaning — Allegedly defamatory articles being posted online — Whether articles defamatory

Tort — Defamation — Justification — Allegedly defamatory articles being posted online and sent to banks — Whether articles justified

Tort — Defamation — Publication — Internet defamation — Allegedly defamatory articles being posted online — Whether publication element in defamation law satisfied

Tort — Defamation — Publication — Print media — Allegedly defamatory articles being sent to banks — Whether publication element in defamation law satisfied

Tor t — Defamation — Publication — Publication in jurisdiction — Abuse ofprocess — Allegedly defamatory articles being posted online — Limited and restricted publication in Singapore — Whether abuse of process

Tor t — Defamation — Reference — Allegedly defamatory articles being posted online — Whether articlesreferred to plaintiff

Facts

The plaintiffs were three companies and two individuals and the defendants were two individuals. The plaintiffs’ first claim was in defamation. The present suit concerned a total of 12 online articles (“the Online Articles”) which were posted on various websites. According to the plaintiffs, the Online Articles contained untrue, scurrilous and defamatory statements which disparaged the character and/or damaged the reputation of the plaintiffs. A number of the Online Articles were published in the name of the second defendant. The plaintiffs pleaded that: (a) various statements in Articles 1, 3, 9 and 10 weredefamatory of all five plaintiffs; (b) various statements in Article 2 were defamatory of the first, second, fourth and fifth plaintiffs; and (c) various statements in Articles 4, 5, 7, 8, 11 and 12 were defamatory of all five plaintiffs. The plaintiffs further pleaded that pursuant to and in furtherance of the first and second defendants acting jointly or severally, the defamatory words in the Online Articles were transmitted and/or caused to be transmitted and published by the first and second defendants and/or published by agents procured by the first and/or second defendant(s) on the World Wide Web. The plaintiffs pleaded that by reason of the publication of the Online Articles, their reputation was lowered in the estimation of right-thinking members of the public.

Separately, two newspaper articles (“the News Articles”) with content similar to the Online Articles were published in Taiwan in two newspapers. The News Articles were purportedly sent by courier to United Overseas Bank Limited (“UOB Bank”) and Oversea-Chinese Banking Corporation Bank (“OCBC Bank”). The plaintiffs pleaded that it was probable that the News Articles were sent to UOB Bank and OCBC Bank by the first and/or second defendant(s) jointly or severally, or that either or both the defendants had procured a third party to do so.

In addition to their claim in defamation, the plaintiffs also brought two alternative claims in conspiracy, viz, conspiracy by unlawful means and conspiracy by lawful means.

The defendants denied thatthey published the News Articles and the Online Articles. They pleaded that the first defendant had submitted an online report to the Central Commission for Discipline Inspection of the Communist Party of the People’s Republic of China (“CCDI”) through the official website of the CCDI. The first defendant had, with the prior consent of the second defendant, used the second defendant’s name and identity card number in the online report (“the CCDI report”). The CCDI report concerned the conduct of the second plaintiff, its group of related companies, and the fourth and fifth plaintiffs generally, but did not contain all the details alleged in the Online Articles. In addition, the defendants denied that the Online Articles had been published in Singapore. The defendants’ other denial related to the plaintiffs’ plea that various statements in Articles 1, 3, 9 and 10 as well as Articles 4, 5, 7, 8, 11 and 12 were defamatory of, and had referred to, the third plaintiff. Furthermore, thedefendants denied that the Online Articles contained statements that meant and/or were understood to bear and/or were capable of bearing the meanings pleaded by the plaintiffs, or any defamatory meaning. The defendants also contended that the first plaintiff (which was pleaded by the plaintiffs to be the sole shareholder of a construction company in Singapore) had failed to prove that it had any reputation in Singapore at the material time.

The defendants pleaded that if and in so far as the statements in the Online Articles meant and/or were understood to bear the meanings pleaded by the plaintiffs, they were true in substance and in fact. The defendants pleaded that the fourth and fifth plaintiffs had deliberately and systematically misappropriated the state–owned assets of the second plaintiff through various complicated schemes and a web of companies.

As for the News Articles, the defendants denied that theyhad jointly or severally sent the News Articles to UOB Bank or OCBC Bank, or had procured a third party to do so. They pleaded that the contents of the News Articles were not similar to the Online Articles published in the name of the second defendant. Finally, the defendants denied that there was any conspiracy as pleaded by the plaintiffs.

Following the close of the trial, the plaintiffs and defendants agreed that the Online Articles should be grouped into three categories, and that the contents and meaning of the articles within each category should be deemed to be the same. Category A comprised Articles 1, 3, 9 and 10 (with Article 1 being the representative article). Category B comprised Article 2. Category C comprised Articles 4, 5, 7, 8, 11 and 12 (with Article 4 being the representative article). As regards the News Articles, the plaintiffs and defendants agreed that they should be deemed to bear the same meaning as the articles in Categories A and C. In addition, the plaintiffs and defendants also agreed: (a) that the Online Articles and the News Articles should be deemed to refer to the first and second plaintiffs; and (b) that the Online Articles and the News Articles should bedeemed to refer to, and be defamatory of, the fourth and fifth plaintiffs.

Held, dismissing the claims:

(1) Publication for the purposes of the law of defamation was bilateral in nature. Therefore, publication had two components: (a) an act that made the defamatory material available to a third party in a comprehensible form (“the first component”); and (b) the receipt of the information by a third party in such a way that it was understood (“the second component”). It was also necessary for the publication to have occurred within Singapore: at [35].

(2) To satisfy the requirements of the first component of publication in the context of Internet defamation, the plaintiff had to establish that the defendant as the Internet user had uploaded or posted the material on the Internet. The second component of publication required the plaintiff to establish that a third- party reader downloaded the material in Singapore. Publication on the Internet could be proved either directly or indirectly. There was no presumption of law that material appearing on the Internet had been published, and it was therefore insufficient for a plaintiff to simply allege that the defamatory material was posted on the Internet and was accessible in Singapore. There had to be some facts in evidence to support an inference of publication in Singapore to a substantial number of third-party readers: at [36], [38], [41] and [136].

(3) The defendants were not responsible for the first component of the element of publication. Cogent evidence was needed to meet the requisite standard of proof in order to discharge the burden of proof. Typically, the use of electronic evidence to link a defendant to any particular material appearing on the Internet would be the most obvious way to achieve this requirement of cogency, since such evidence was objective in nature. If a plaintiff chose to rely on other evidence, hen he had to ensure that such evidence was similarly cogent. On the facts, there was no admission that the first and second defendants had posted the Online Articles on the Internet. Moreover, no proper inference could be drawn from the “sign–offs” in the second defendant’s name appearingon some of the Online Articles. In addition, the court was not persuaded that the matters highlighted by the plaintiffs assisted them on the question of whether the defendants had a motive to publish the Online Articles. The court also rejected the plaintiffs’ arguments concerning: (a) the allegedly incredible account as to how the second defendant’s name came to be used to file the CCDI report; and (b) the defendants’ reliance on the defence of justification: at [74], [97], [101], [105], [112] to [119] and [121].

(4) Even though there was one witness whose evidence was accepted as direct proof of the second component of publication (in...