Cover image credit: Dorine Wu
Co-authored by Luo Xuhong, Lim Ying Kit, Reagan Loke and Dorine Wu, this essay was shortlisted as one of the finalists in the 2024 Singapore Introductory Mooting Programme (SIMP) Law Essay Competition.
Essay Prompt
Do you think that the law of qualified privilege as it stands, should be reformed?
Refer to Court of Appeal decision in Review Publishing Co Ltd and Another v Lee Hsien Loong and Another Appeal [2009] SGCA 46, with regards to the Reynolds principle.
In Review Publishing Co Ltd and Another v Lee Hsien Loong and Another Appeal [2009] SGCA 46 (Review Publishing), the crucial question asked in determining whether the Reynolds principle “in the context of publication of matters of public interest ought to apply [to Singapore citizens] so that [...] constitutional free speech becomes the rule and restrictions on this right become the exception.” Given the evolving role of the media, the changing socio-political landscape, and the shifting definition of 'public interest' in our society, we argue that reforming the current law of qualified privilege is essential to allow greater freedom for fair comment on public figures, including political leaders. We posit that such modification should happen in this respect: firstly, in introducing the Reynolds-like defence and adopting a defence similar to the United Kingdom’s Defamation Act 2013 (UKDA), secondly, in redefining ‘public interest’, and lastly, in re-examining the damages offered in defamation cases. We will refer to this modified Reynolds defence that we are advocating for as a Reynolds-like defence.
Introduction
The tort of defamation seeks to protect reputational interests.
Qualified privilege is a defence to defamation. In Singapore, it applies when one party has a duty or interest to communicate specific information to a third party who has a corresponding interest or duty to receive it. It is purposed to allow free communication in certain relationships without the risk of an action for defamation.
Established in the English case Reynolds v Times Newspapers Ltd, the Reynolds principle provides a defence for publishers who report on matters of public interest, which comply with the various criteria relating to ‘responsible journalism’ and whether or not the statement or content in question was something which the public was entitled to know about as set out.
In the case at hand, Review Publishing, declaratory law was rejected as a rationale for employing Reynold’s privilege. This refers to a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court.
Understanding Review Publishing Co Ltd v Lee Hsien Loong
In Review Publishing, the judge ruled in favour of the respondent on two key grounds. First, the court held that Reynolds privilege was a defence rooted in the European Convention on Human Rights (ECHR) and is therefore not automatically part of Singapore's law of qualified privilege. Second, the court determined that the respondents were non-Singaporeans, and thus could not invoke constitution free speech as a defence. Understanding these two bases for the court's decision, as well as the subsequent rejection of the appellants’ appeal, is crucial for evaluating proposed reforms to Singapore’s qualified privilege framework.
On the second key ground, the court found it relevant that the publishers were not Singaporeans. Article 14(1)(a) of the Singapore Constitution reserves that only Singapore citizens are entitled to enjoy constitutional free speech, which renders the second appeal and key ground invalid. Furthermore, the claims made by the appellants were found to be “extremely serious”, where there was “no urgency to publish the article”, and failed to “seek the Respondents’ comments” on the matter of the article”, fulfilling numerous of Reynold’s factors.
Despite the Court of Appeal rejecting Reynolds privilege from being used as a defence by the defendants, it did not specifically rule against a modified Reynolds-type defence being used against Singapore in the future, demonstrating that extending qualified privilege might not be in direct opposition to our political environment. It was noted that “if the Reynolds rationale were to be applied in Singapore [...] the new balance which has to be struck between constitutional free speech and protection of reputation”. This does not contradict the court’s ruling against the appellants, as the judgment focused on the specifics of the case at hand, where including the lack of sufficient public interest and the appellants' failure to meet the necessary standards of responsible journalism. Notably, the court did not have to discuss [266] onwards but they decided to elaborate and offer their take on the current position of Singapore’s law of qualified privilege (even though the judges could have dismissed it entirely on the abovementioned technical grounds) between constitutional freedom of speech and reputation such that future cases, where all other criteria is fulfilled, may consider a modified law of qualified privilege. Such a revelation suggests that there is opportunity for change in Singapore’s law of qualified privilege.
Reforming Qualified Privilege - A Constitutional Perspective
Singapore does not need to look far for a constitutional justification for expanding qualified privilege. Article 14 of the Singaporean constitution expressly allows for freedom of speech - which means that in turn, a broader definition or expansion of the qualified privilege would adhere to this principle of the freedom of communication.
This concept is not foreign. In Australia, the High Court's decision in Lange v Australian Broadcasting Corporation [1997] reshaped constitutional law by reinforcing implied freedom of political communication. This principle recognised that Australia’s Constitution inherently protects communication about political and governmental matters essential for democracy. It thus might follow that a similar principle could emerge in Singapore - after all, both states were former colonies of the United Kingdom (UK) and inherited the English Common Law tradition.
Nonetheless, it must be acknowledged that Article 14 of the Singapore Constitution is inherently subject to significant limitations as interpreted by the Singapore Court of Appeal, being interpreted as being “informed by the needs of the public order”, in effect putting the needs of the society and the community over the individual. Article 14 has been described as the most “circumscribed in the constitution”. For instance, In Lee Kuan Yew v. Vinocur & Ors [1995], Goh, J. held that an accusation of corruption and nepotism against the Prime Minister (and two other ministers) “was an attack on the very core of their political credo [and] would undermine their ability to govern.” In effect, it showed the judiciary’s preference for preserving stability and order instead of prioritising the freedoms of expression in political communication. This explains the approach the judiciary has taken towards the interpretation of Article 14 - where to date, it is seemingly uninterested in expanding freedom of speech rights, especially regarding political defamation.
Thankfully, there is good reason for optimism - whilst at first, Article 14’s subservience to the needs of public order may seem at odds with an expansion of qualified privilege, Singaporean courts have shown remarkable sympathy. As stated before, the Court of Appeal did not expressly rule out a modified Reynolds-like defence being used in Singapore in the future, which showed that a modified defence might not contradict even a very narrow interpretation of Article 14. Furthermore, the judiciary has a responsibility to interpret Article 14 in a way that advances democratic values, including robust public discourse. Hence, it is opportune to note that Singapore’s courts can and should develop common law defences such as qualified privilege in line with constitutional rights. Thus, under a regime that expands qualified privilege cautiously, news agencies would be far more keen to comment on matters of public interest, effectively counteracting the chilling effect seen in Singapore’s media landscape - whilst constraining the press sufficiently for public order.
A Modified Reynolds-like Defence
Clearly, updates to Singapore's law on qualified privilege are in order. While Reynolds privilege may be too liberal for Singapore's conservative environment and presents too many loopholes for publishing defamatory information under the guise of public interest, a modified version would be in line with Singapore's constitution and new media and political environment.
Since the introduction of the Reynolds privilege in Reynolds v Times Newspaper Ltd, defamation law in the UK has undergone extensive reforms. Prior to 2013, UK defamation law was condemned for having a chilling effect on the freedom of speech by failing to strike the right balance. Concerns expressed by various interest groups included the exorbitant costs associated with defending defamation proceedings, the emergence of the UK as the preferred forum for libel tourism as well as the absence of a public interest defence. A 2010 Publishers Association survey found that all respondents had modified content in some form prior to publication due to fears of libel action. Moreover, the lack of a statutory public interest defence that “reconciles the competing interests in relation to reputation and the right to freedom of expression” has led to publishers opting to self-censor rather than facing the possibility of defending a protracted and costly defamation suit. Lord Lester of Herne Hill criticises the shortfalls of existing defamation legislation: “the chilling effect leads to self-censorship [and] impairs the communication of public information about matters of legitimate public interest”.
A Libel Working Group was established in early 2010 to reform defamation law to address these issues, and their recommendations eventually formed the basis of the new UK Defamation Act 2013. The Reynolds principle was codified into statute in the UKDA. Section 4 of the UKDA replaced the common law Reynolds principle, and created a new statutory public interest defence available to defendants who establish that (a) the content published is a matter of public interest, and (b) that the defendants have a reasonable belief that the act of publication was in public interest. Both limbs have to be satisfied for the defendant to successfully plead this defence.
Notably, the original 10-point checklist proposed by Lord Nicholls in Reynolds v Times Newspapers Ltd was not included in s 4 UKDA. Lord McNally justified the decision to omit a variation of the checklist from a draft of the Defamation Act in 2012: the inclusion of a list may lead to “litigants and practitioners adopting a risk-averse approach and gathering detailed evidence on all the factors listed”. Later in Serafin, the UK Supreme Court reiterated that this intentional omission conveyed that the Reynolds factors “were not to be used as a checklist” even though certain factors were useful in assessing the reasonableness of the defendant’s belief, once again confirming that greater flexibility was afforded by s 4 in the absence of a statutory list. Moreover, subsequent court rulings have shown that a high bar is required to satisfy the reasonableness test, contrary to earlier concerns that the balance would be tipped against the protection of reputation. In Banks v Cadwalladr, evidence of defendant Cadwalladr’s extensive investigations prior to publication was credited by Justice Steyn, thereby successfully proving that she indeed held a reasonable belief that publication was in public interest.
We propose the adoption of s 4 UKDA coupled with the modification of the statutory definition of public interest as per the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) to grant greater consideration to matters of public interest in Singapore. Serafin also noted that it was incorrect to equate the elements of the statutory defence with those of the Reynolds defence, where the former prioritised whether the statement was on a matter of public interest and whether the publisher reasonably believed it was, whilst the latter focused on whether the publisher acted “responsibly” based off a complex checklist. As established by Economou, this defence should not be limited to media organisation defendants, and a court is not expected to hold all defendants to the same standard as expected of professional journalists.
The implementation of such a modified defence is also in line with the “subsidiary right” approach, whereby the protection of reputation takes precedence over the right to free speech in Singapore’s context. More specifically, Parliament is permitted to restrict the right to free speech under specific circumstances (such as to protect against defamation and maintain public order) as per Article 14(2)(a) of the Constitution.
However, a proportionality principle should still fairly apply across all publications. In Reynolds v Times Newspaper Ltd, the seriousness of the allegation was one of the 10 factors in Lord Nicholls' checklist. This recognised that the more serious the charge, the higher the standard of responsibility a publisher must meet to rely on the public interest defence. Similarly, under Article 10 of the ECHR, any interference with freedom of speech must be prescribed by law, pursue one of the legitimate aims listed in Article 10(2)—such as “the protection of the reputation or rights of others”—and be necessary in a democratic society. Measures taken by state authorities must be proportionate to their stated goals, and the reasons provided for such measures must be relevant and sufficient. Moreover, the ECHR has imposed particularly stringent requirements on restrictions involving "political" publications, while granting other types of publications greater flexibility. In the digital age, the increased diversity of publishers and the ease with which sensational claims can go viral underscore the need for non-professional publishers to adhere to high standards of responsible journalism, particularly when making serious allegations.
Instead, Singapore should redefine what constitutes “public interest”, using the definition from the Protection from Online Falsehoods and Manipulation Act (POFMA) as a guide. Whilst cases after the UK 2013 Defamation Act do not include a definition of public interest, heavier emphasis on “reasonableness” means greater tolerance of what constitutes as public interest, which may be too liberal for Singapore courts. Thus, to make the criteria for the public interest defense to be less contentious, a definition is necessary to distinguish Singapore’s level of tolerance from that of the UK. We chose the definition adopted by POFMA as we found both common law and statutory law similar in that they both address matters regarding freedom of speech, particularly in the media. Currently, POFMA defines public interest broadly, as anything that may (d) influence an election outcome or (f) cause a diminution of public confidence in the government. However, in 2021, the Singapore Democratic Party argued that Singapore’s constitution’s interpretation of “public interest” leans toward "public order" instead, suggesting that an explication of the term is necessary. Instead, issues related to political communication as defined in Lange might better define the public interest, being “the interests of national security, public safety, the economic wellbeing of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.” Notably, in Lange, the court redefined implied freedom, stating that although it does not give individuals or entities a free-standing right to political communication, the government is unable to enact laws or take actions that unjustifiably limit this communication.
Damages Assessment for a Reynolds-like Defence
Our proposed Reynolds-like defence will discourage those who publish materials of public interest from doing so recklessly through the option of aggravated damages awarded by a judiciary. This will serve as an effective deterrent for traditional media publishers that are more likely to be familiar with defamation law and thus would have made reasonable efforts to avoid publishing potentially defamatory material. Remedies available to a successful claimant include monetary damages and an injunction that restrains the defendant from further publication of defamatory content. Aggravated damages are typically awarded to remedy additional injury inflicted by the defendant’s conduct or bad motives. Established case law has shown that a prolonged (but ultimately failed) plea of justification is a factor considered in assessing for aggravated damages. Similarly, we propose that failed pleas of the Reynolds-like defence will also be a factor in consideration. For instance, defendants who plead the defence with the knowledge that the published allegations were false may be liable for aggravated damages if eventually found liable for defamation.
In addition, the court may consider the “degree of care” taken in ensuring that the material is accurate and fit for publication even if the defendant is later found liable for defamation as evidence of conduct that merits a reduction in aggravated damages, if any. Examples of effort taken that suggests a prudent editorial judgment include an attempt at contacting the claimant to verify the truth of the allegations to be published as well as offering the claimant a right to reply. Notably, the public interest defence failed in Lachaux when the defendants were found to have failed to take steps to properly investigate defamatory allegations prior to publication. In particularly egregious cases, punitive damages meant to promote societal welfare may still be imposed if the defendant is proven to have been reckless in publishing defamatory material for personal gains.
Given our evolving society, there is an inherent need to reform qualified privilege, redefining “public interest” and re-examining damages to encompass the changing political climate and media landscape in Singapore.
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