Defamation on Social Media - What May Satisfy the Element of "publication"

The Element of Publication

In any defamation suit, it is essential for a claimant to show that the defamatory articles had been "published" to a third party. In other words, if the defendant had only uttered the defamatory words to the claimant but not conveyed to another third party, then the element of "publication" would not be satisfied.

Traditionally, it is straightforward to establish whether an article had been published to a third party. However, given that more and more defamation suits now involve online articles and/or comments on social media, the Court would have to revisit the traditional concepts of "publication" and refine it to match modern realities of the ever evolving online landscape.

Application to Online Publications

The Court in Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128 had the opportunity to consider and set out detailed considerations for online publications. In that case, the defendant had shared a bare link to a defamatory article concerning the claimant. In other words, the defendant did not share any of his own views or comments in his own post. An important issue to consider is whether the article had been published by thge sharing of a bare link on social media.

The Court first examined the Canadian principle in Crookes v Newton [2011] 3 SCR 269 which suggests that "a bare link is all that it is: there is no publication, because all that is in fact published is the hyperlink, which on clicking, would bring the reader elsewhere". However, the Singapore Court rejected this principle and found that it was "heavily influenced by the Canadian Charter of Rights and Freedoms, and has not been followed in both Australia and England".

Instead, the Court adopted a more pragmatic and holistic approach.

The first element to consider is whether the defendant did make the Article available online by linking to it in the Post. This was found to be satisfied vide the hyperlink.

The second element is whether a third party has accessed the defamatory material in an intelligible form. The Court found that this element was also satisfied and held at [45] and [46]:-

"45 On the basis of what has been described as a “platform of facts”, there is at least a prima facie case that the Article had been accessed through the link in the Post in an intelligible form...

46 On the facts, it is uncontested that 45 persons responded to the Post containing the link to the Article in the manner outlined at [45(a)] above. It is similarly common ground that, at the material time, the defendant had about 5,000 Facebook friends, and 149 “followers”. Moreover, the privacy settings of the Post had been set to “public”. Given this evidence, I consider it exceedingly unlikely that it could seriously be the case that not a single person accessed the Article through the link in the Post. To my mind, insisting on direct evidence of such access is unrealistic, and does not reflect the simple truth of how hyperlinks are used on the internet. In any event, the circumstantial evidence outlined here does not need to give rise to an irresistible inference given the defendant’s submission of no case to answer. All that is required is that the desired inference is one of the possible inferences: Lena Leowardi at [24], Tan Juay Pah v Kimly Construction Pte Ltd [2012] 2 SLR 549 at [37]. I am satisfied that, on the facts outlined above, it is at least a possible inference that a third party had accessed the Article through the link on the Post, and that there had thus been publication of the Article."

More pertinently, the Court found that by sharing the hyperlink, the defendant is assumed to have supported or endorsed the content of the article. This is explained in [42(b)]:-

"Second, there does not appear to be any other plausible interpretation of the link to the Article in the Post apart from the defendant in some way supporting or endorsing the content in the link. The entirety of his message in the Post centred around the link to the Article, and he was at the very least drawing attention to the Article and providing access to it in the Post. Further, an interpretation that the defendant was endorsing the content of the Article would cohere with his own self-described role as a “staunch government critic”. This descriptor is present on, inter alia, the defendant’s own website."

While this holding by the Court does clarify the ambit of online publications, it is actually grounded soundly in precedents. The Court observed in [43]:-

"43 In addition, I note two Singaporean decisions pertaining to when publication online suffices as publication for the purposes of defamation. In both Qingdao Bohai at [35] and Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 (“Golden Season”) at [54], the High Court held that publication by the defendant occurred if (a) the defamatory statements were made available online, and (b) the defamatory material was received by a third party in such a way that it is understood and intelligible. (The related but separate question of where such publication occurred is determined by where the reader or end user accesses the statement: Ng Koo Kay Benedict at [26]). This implies that a Facebook post which carries a link, and which makes the defamatory statement available, would count as a publication if it could be established that third parties had accessed that link. In contrast, and subject of course to the precise facts, a hypothetical Facebook post that merely referred or alerted other users to the existence of the original defamatory statement, without carrying a link, might not count as publication. I do note that it is perhaps easier for a Facebook user to post or a share a link to the original statement than to compose and type out an entirely new statement alerting others to the original, but such ease of posting or sharing cannot rescue a post from being publication for the purposes of defamation."

Therefore, it is crucial for owners of social media platform to be mindful when they are sharing links to online articles. It is important to consider if the link you are sharing contains questionable contents and whether the author of the article has legitimate credentials and expertise in preparing the article. Notably, the Court in the case above had left open the potential issue of someone sharing a link to an article but denouncing/critising the article in the accompanying text of his or her post. This would be an interesting issue to consider though in practical terms, a claimant might not choose to go after the potential defendant in such cases.

A related point would be the doctrine of "grapevine effect" in the context of online defamation. This would be examined in a separate article.

For queries on defamation in relation to renovation and construction disputes, you may contact our Head of the Defamation and Reputation Protection Practice, Mr. Wilbur Lim, at wilbur.lim@wmhlaw.com.sg 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.