The Defences to Defamation - Fair Comment and Qualified Privilege (part 2)

This is a continuation from the first part of the article on the defence of Justification.

Fair Comment (“FC”)

As held in the CA of Review Publishing, the defendant must prove four elements to successfully invoke the defence of FC: (a) the words complained of are comments, though they may consist of or include inference[s] of facts; (b) the comment is on a matter of public interest; (c) the comment is based on facts; and (d) the comment is one which a fair-minded person can honestly make on the facts proved.

The test, consisting of the above elements, is an objective one depending on the “nature of the imputation conveyed, and the context and circumstances in which it is published.” The key inquiry, as articulated in [140], is whether an ordinary, reasonable reader would understand the words as a comment or fact upon reading the whole article. Further, if a reader cannot distinguish whether the defendant is stating a fact or making a comment, the defendant should be denied the benefit of the defence.

In Review Publishing, the court considered the tone and language used to determine that the statements were definitive statement of facts. It further noted it does not matter if the statements were couched in a question form.

The HC in Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1979–1980] SLR(R) 24 supplements the test by stating at [58] that for a comment to be fair, it “must not contain imputations of corrupt or dishonourable motives on the person whose conduct or work is criticised, save in so far as such imputations are warranted by the facts”. It also held at [60] that FC can be defeated by malice:

“Even though the comment satisfies the objective test of fair comment, the defence of fair comment will nevertheless fail if it is found that in making the comment, the defendant was actuated by express malice.”

Malice – either express or implied has a high threshold and applies to the defence of qualified privilege as well and hence will be discussed in the next section.

Qualified Privilege (“QP”)

Cases of QP primarily concerns itself with communications of a private nature which commonly arise out of necessities of some existing relationship between the maker and the recipient. The CA in Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 (“Chan Cheng Wah”) set out the key inquiry and the approach to QP at [87]:

“…the “ultimate question” is whether they were “fairly warranted by the occasion”… the court must consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient…”

A Jamaican Privy Council decision which was cited with approval in Chan Cheng Wah, stated that QP arises when there is a duty (legal, social or moral) or sufficient interest on the defendant to communicate the statements to the recipient, who has a corresponding duty or interest to receive them, even if they were defamatory. If this question is answered in the positive, the follow-up question is whether the defendant is actuated by malice. A finding of malice will deprive the defendant of the defence of QP.

The CA summarised the law on malice at [89] by stating that it refers to the desire to injure the defamed person. For QP to fail, this desire must be the dominant one. It was further stated that knowledge that it will have that effect of injury is insufficient if the defendant is nevertheless still acting in accordance “with a sense of duty or in bona fide protection of his own legitimate interests.”

With reference to Lim Eng Hock Peter v Lin Jian Wei [2010] 4 SLR 331, the CA stated that malice may be proven in two ways: (a) the defendant’s knowledge of falsity, recklessness, or lack of belief in the defamatory statement; and (b) where the defendant has a genuine or honest belief in the truth of the defamatory statement, but his dominant motive is to injure the defendant or some other improper motive.

This article is prepared with the assistance of our intern, Ms. Tan Wei Lin.

For queries on defamation, you may contact our Head of the Defamation and Reputation Protection Practice, Mr. Wilbur Lim, 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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