Law of Defamation: Employer's Liability

  1. In the age of social media, an important issue for companies is whether the company could be held liable for defamatory remarks made by its employees in their personal social media accounts and page.

  2. To answer this question, we have to first define what is vacarious liability in law. In the case of Ng Huat Seng v Munib Mohammad Madni [2017] SGCA 58 (“Ng Huat Seng”), the Singapore Court of Appeal (“CA”) made it abundantly clear that vicarious liability is a form of secondary liability and for this reason, the inquiry must be specific. The CA then pronounced a two-stage inquiry to determine whether vicarious liability should be imposed, namely:

    (a) Whether the relationship between the tortfeasor and the defendant was of a type capable of giving rise to vicarious liability; and

    (b) Whether the tortfeasor’s conduct had a sufficient connection with the relationship between the tortfeasor and the defendant.

  3. The CA in Ng Huat Seng held the following at [66]::-

    “... Not only must there be a special relationship between the tortfeasor and the defendant, but in addition, the defendant must in some way have created or significantly enhanced, by virtue of that relationship, the very risk that in fact materialised in order to be held vicariously liable for the tortfeasor’s wrongful acts.”

  4. In the case of Various Claimants v Catholic Child Welfare Society and ors [2012] UKSC 56, Lord Philips summarised the principles of vicarious liability as follows:

    “(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be a part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employee.”

  5. Next, in a recent case that was handled by our Mr. Wilbur Lim (Head of the Defamation and Reputation Protection Practice Group), the Singapore Court in The Social Outcast v OSEAS Pte Ltd had explored this issue of vicarious liability for defamation matters in great details. Agreeing with our submissions and ruling in favour of our client (the Defendant), the Court was unable to accept the Plaintiff’s submissions for vicarious liability for several reasons.

  6. First, the Plaintiff did not plead vicarious liability, but rather primary liability in its Statement of Claim, alleging that our client, the Defendant, was responsible for the statements made by the Defendant’s employee. The inquiry depends on whether the Defendant’s employee’s conduct had a sufficient connection with the relationship between the Defendant’s employee and its director. The Defendant must in some way have created or significantly enhanced, by virtue of that relationship, the very risk that in fact materialised, in order to be held vicariously liable for its employee’s wrongful acts (Ng Huat Seng and another v Munib Mohammad Madni and another [2017] 2 SLR 1074 at [62]-[66]). It is not clear from the Plaintiff’s pleadings that the Defendant had done anything to enhance the risk of its employee making the defamatory statements.

  7. The Court distinguished the case of Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 (“Bellman”), where the English Court of Appeal imposed vicarious liability on the employer for the employee’s wrongful conduct even though it occurred outside the workplace and outside office hours. The present facts are distinguishable from Bellman as the Defendant’s employee did not make the defamatory statements in exercise of his authority as a manager of the stall, but rather, they were published in his capacity as a purported customer of the Plaintiff.

  8. The Court also found Mohamud v Wm Morrison Supermarkets plc [2016] AC 677 (“Mohamud”) to be distinguishable as the Defendant’s employee’s publication of the statements was rooted in a personal dislike that he took against the Plaintiff’s director. In the statements he published, he did not claim that he was acting on behalf of the Defendant, but acted in his own capacity to vent his inner frustration.

  9. Taking into account the above principles, whether the company would be held liable for its employee’s actions would be a question of mixed fact and law. A claimant must satisfy the elements set out above to hold the company liable for the employee’s statements.

  10. For queries on defamation, you may contact our Head of the Defamation and Reputation Protection Practice at or 6514 6351.

Disclaimer: The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

Filed under: Defamation
Wilbur Lim

Wilbur Lim

Wilbur’s wide practice includes commercial and construction litigation and arbitration. He also handles a range of criminal and matrimonial matters. Wilbur's clients consist of individuals and large corporations, including foreign listed company with annual turnover of approximately USD$1 billion.

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