REPUTATION AND DEFAMATORY MEANING ON THE INTERNET

• Published date: 01 December 2015
• Date: 01 December 2015
• Author: Gary CHAN Kok Yew LLB (Hons), MA (National University of Singapore), LLM, BA (University of London); Associate Professor, School of Law, Singapore Management University.

Communications, Contexts and Communities

The determination of the appropriate scope of protection of reputation in the tort of defamation is crucially dependent on the construction of defamatory meaning. With the continuing rise of Internet publications, it is important to assess the impact of the various modes of Internet communications such as Internet websites, hyperlinking, blogs, emails, Twitter, Facebook and other forms of social media on defamatory meaning. Such defamatory meaning is being constructed based on the unique contexts and social expectations that have been generated by the various modes of Internet communications. The potential impact on defamatory meaning can also be assessed from the perspectives of the diverse online communities.

I. Introduction

1 The Internet has evolved rapidly from its humble beginnings in 1960s as a mere interconnection of computers amongst military personnel known as ARPANET,1 its use in the 1980s of transfer control protocol/Internet protocol (TCP/IP) software for interconnection, to what is now regarded as an indispensable means of worldwide communication whether for private, public or commercial and non-commercial usage. Various epithets have been used by the courts to describe the Internet and its impact: it is “ubiquitous, borderless, global and ambient in its nature”2 as well as “instantaneous, seamless, inter-active, blunt, borderless and far-reaching”.3 Sundaresh Menon JC (as he then was) in Lee Hsien Loong v Review Publishing Co Ltd4 observed that:5

In what Thomas Friedman terms a ‘flattening world', accessibility to instruments of mass media and communication — in particular, the Internet — is dramatically shortening the globe's communicative synapses and greatly increasing the potential reach and impact of any individual idea or expression.

2 Globally, Internet usage is clearly on the rise.6 Internet penetration in Singapore society has also increased considerably judging from the official figures for both individual and business usage. The percentage of individual Internet users7 in Singapore has risen from 53% in 2003 to 72% in 2012, whilst the percentage of households with Internet access increased from 65% in 2003 to 87% in 2013.8 Perhaps not surprisingly, the younger members of the population registered significantly higher Internet usage rates compared with the older groups.9 For Internet usage by businesses, the overall figure was 86% in 2013. Businesses with a website(s) constitute 46% of the total businesses in 2013. As of 2012, the main mode of Internet communication in Singapore was social networking across the age groups,10 followed by instant messaging, reading blogs posted by others and Voice over Internet Protocol.

3 There has been a proliferation of Internet-based publications due to the sheer variety of Internet modes of communication such as e-mails, websites, blogs, Wikipedia, YouTube videos,11 group chats, voice messaging and communications over iPhone and Android devices. With the continuing rise of Internet publications, it is important to assess its impact on the law of defamation. Menon JC in Lee Hsien Loong v Review Publishing Co Ltd cautioned that though “[s]uch accessibility [to the

Internet] gives rise to power which holds promise”, it also “portends abuse”.12 As highlighted by Rowland:13

… the participatory nature of the Internet and the ease of anonymous communication may also foster anti-social, malicious and immoral behaviour. The impact of this aspect of Internet communication is such that others may be deterred from entering the conversation.

4 It is common knowledge that cyber-libel has also become a means of cyber-bullying that is perpetuated by adolescents and students.14 Defamatory remarks can be posted online by the authors personally; alternatively, the defendant can impersonate the online identity of the plaintiff and post messages that reflect adversely on the reputation of the plaintiff.15 Several cases involving Internet defamation via e-mails,16 websites17 and social media such as blogs18 and Facebook19 have been litigated in the last two decades before Singapore courts though the judicial focus has not been on the construction of defamatory meaning of Internet publications.

5 The central question for the modern tort of defamation is how the protection of reputation should be balanced against the freedom of speech which one has come to expect in the Internet era. Whilst Internet technologies are harnessed to promote free speech, one should, at the same time, be mindful of the potential harms to online reputations. The first point of contact in reputational protection is the determination of whether the statements published via the Internet are defamatory in nature. How is defamatory meaning constructed and interpreted? Does the medium of the Internet through which the material is being disseminated or published matter? If so, what is the impact of the specific Internet contexts and communities on the construction of meaning of the publication? The ascertained defamatory meaning not only affects the plaintiff's prima facie case in defamation and the

question of whether the claim should be struck out for abuse of process,20 but also the viability of the defences of justification and fair comment, all of which depend on the constructed meaning of the words accepted by the courts.

6 In general, the Singapore courts have not explicitly examined whether and how the Internet medium affects the construction of defamatory meaning. This exercise of construing defamatory meaning with the advent of the Internet is an ongoing project being undertaken in the English and common law courts generally, with no definitive conclusions thus far. On the whole, the courts have largely clung on to existing legal concepts and principles under the tort of defamation but have, from time to time, recognised the need to adapt to the different scenarios due to the Internet medium.

7 Hence, this article would essentially be an exploratory study into the construction of defamatory meaning set against the background of the evolving Internet technology. References will be made to existing legal approaches and techniques to determine defamatory meaning for traditional print media in comparison with how defamatory meaning is being constructed via the various modes of Internet communications. Further, the Internet has generated new ways for managing online reputations even as it allows reputations to be attacked.21 The article then discusses how the different Internet contexts impinge on the meaning of the publication through the use of signs, its characteristic language and expressions, and even anonymity.22 The Internet has also allowed the growth of online communities based on their special interests, characteristics and activities. This raises the question of whether some leeway should be given to the views of these online communities for ascertaining defamatory meaning. The potential impact on defamatory meaning will also be assessed from the perspectives of these diverse cyberspace communities.23

II. The construction of defamatory meaning, reputation management and the modes of Internet communication

8 The main tests for defamatory meaning in Singapore are whether the impugned words tend to lower the estimation of the plaintiff in the eyes of right-thinking members of society generally;24 subject the plaintiff to hatred, contempt and ridicule; and/or cause the

plaintiff to be shunned or avoided. A less common legal test that the imputation induces an ill opinion of the plaintiff in the eyes of the third party has also been applied.25 In order to determine defamatory meaning, the focus is on the perspective of the average or the moderate reasonable person in society. This “hypothetical reasonable man” in Lewis v Daily Telegraph26 has been referred to in several local decisions:27

There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

The Court of Appeal in Review Publishing Co Ltd v Lee Hsien Loong28 cited Skuse v Granada Television Ltd29 that the ordinary reasonable man is:30

… not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. [emphasis added by the Court of Appeal]

He steers the moderate path avoiding extremist views, according to Lord Reid in Lewis v Daily Telegraph:31

Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. [emphasis added by the Court of Appeal]

9 The English court in Lennon v Scottish Daily Record and Sunday Mail32 has noted the general enhanced education of the population in the UK and that the:33

… modern readership can be treated as more discriminating and better able to understand what they read. The ordinary reader must presumably now be credited with having achieved a level of education which was not widely accessible to earlier generations.

The same can be said about the general Singapore population which has enjoyed considerably high levels of literacy and education.34

A. Natural and ordinary meaning and innuendoes

10 The plaintiff may plead defamatory meaning based either on the natural and ordinary meaning of...