MARUAH: DEFAMATORY OR NOT, GOVT OFFICIALS SHOULD NOT SUE ITS CRITICS

MARUAH, a Human Rights Non-Governmental Organisation, objects to government leaders using the Defamation Law to institute defamation lawsuits against its critics, regardless of whether the offending statement is defamatory or not.

We make these remarks as the court assesses the damages that Mr Roy Ngerng has to pay for the remarks made against Prime Minister Lee Hsien Loong. In May 2014 Mr Ngerng, a blogger, was sued by Mr Lee Hsien Loong, whom we assume is acting in his private capacity and not as the Prime Minister. Mr Lee’s lawyers demanded that Mr Ngerng remove the article in question, issue an apology on his blog, and offer compensation to Mr Lee. Mr Ngerng acceded to all the demands, including removing four other articles, and made an offer of S$5,000 as compensation to Mr Lee. Mr Lee’s lawyers, however, dismissed the amount as ‘derisory’, and commenced legal action on 30 May 2014. In January 2015, Mr Ngerng was ordered by the court to pay $29,000 to Mr Lee. Today (1 July 2015) the courts will decide on the damages that Mr Ngerng has to pay to Mr Lee Hsien Loong.

This was one of the few cases in Singapore where a defendant was found liable for defamation over an online article. Given the proliferation of the use of the Internet as an open platform to discuss and debate various issues, the use of defamation lawsuits against members of the public is likely to have a chilling effect on the freedom of speech and expression. While freedom of speech and expression is not absolute and has to be exercised responsibly, in our view, there are more constructive ways of responding to online dissent (both valid and invalid) than resorting to a defamation lawsuit.

Defamation proceedings are costly, often resulting in hefty damages awarded to the plaintiff, and the threat of financial ruin is likely to deter the average person from criticising the government. While it can be argued, to some extent, that such deterrence would foster responsible criticism as the speaker would take care not to make careless or baseless allegations, we believe that there are more constructive ways to foster responsibility in exercising freedom of speech. For instance, instead of taking an offending critic to court, the public official could publish a statement in the press or on the relevant website, refuting the critic.

Thus MARUAH calls for a review of the Defamation Law to ensure that allegations of defamation and defamation lawsuits do not suppress the provision of constructive and debatable opinions. As public officials (including government officials) owe a duty of accountability to the public, defamation lawsuits brought by public officials should be subjected to a higher standard of review than those brought by purely private parties. Namely, in addition to proving the test for defamation under Singapore law, the public official plaintiff should bear the burden of proving that the alleged defamatory statement is false.

This would ensure that public officials bring only the most serious cases to court, and by proving his critic wrong, it would also boost public confidence in the public official’s conduct. This would simultaneously minimise the impression that the defamation lawsuit is a tool used by the government to silence (justly or unjustly) its critics. If the evidence to be proffered by the public official plaintiff is of a sensitive nature, in camera court proceedings should be allowed, but only if it is absolutely necessary.

This is a statement that MARUAH has also issued under a A Collective of Singapore NGOs (COSINGO) to the UN Human Rights Council as part of the Universal Periodic Review system. We ask that our Defamation Law be reviewed, the actions of public officials initiating defamation suits become a last resort after other ways of resolving the matter have been pursued and that we need to realise that different approaches are needed when social media is becoming a public communication tool.