May 30th, 2008
The States Times versus IHT
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Our top local English newspaper, the Straits Times, has sometimes been derisively called the States Times, and this observation is not for no good reason. Let’s compare some newspaper reports, two from the Straits Times (Story 1 and Story 2) and the other from International Herald Tribune, about the recent court hearing involving MM Lee and Chee Soon Juan.
The Straits Times stories were published on 27th May and when I read them that day, the first thing that struck my mind was both stories were all coming from the perspective of MM Lee. It was all about the case that MM Lee made against Chee Soon Juan and there was nothing about Chee’s case against MM Lee. I think any educated person will be able to see these two stories are not journalistic writing. These two stories could have well been published in the PAP’s website or newsletter and not look out of place.
Let’s look at the piece by IHT. To be honest, I do think the IHT piece is a wee bit biased against MM Lee but the journalist managed to contain the bias quite well and presented both sides of the story, unlike the two pieces from the Straits Times which were so obviously biased in favour of MM Lee. The IHT piece had quotes from both sides, although there were some unnecessary interpretations, such as the following paragraph:
Lee expressed what seemed an extraordinary sense of vulnerability, even to the words of a lone critic, while his antagonist described a compulsion - even a mission - to challenge power at any cost.
The journalist was very smart in making the negative observation, though. To deny MM Lee any possibility of a defamation lawsuit (IHT is most certainly most familiar with defamation threats from MM Lee), he deliberately added the word “seemed”. This one word might seem to be rather insignificant but those writing online can do well to learn from the IHT journalist and use words or phrases such as “seemed”, “appeared”, “I think that…”, “It is my opinion that…” etc.
When using such words and/or phrases, it is obvious to a reader that the sentence is a statement of opinion and not fact. I am no expert on defamation but my understanding is that opinions are accepted to be inherently flawed and one cannot be successfully sued for defamation if it is clear that one is expressing an opinion and not a statement of fact. Of course, there are many other intricacies involved in determining whether someone has indeed defamed another but if you know how to write cleverly, couching negative observations as an opinion does help reduce the chances of being sued for libel.
I must say I enjoyed the IHT piece a lot more than the two Straits Times pieces. I think it does more justice to Chee Soon Juan. You may say that I’m biased but I do think the IHT piece is real journalism. As for the two Straits Times pieces, you can decide for yourself what labels you want to place on them.
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The Straits Times also has an insidious habit of using quotes from MM Lee or Davinder Singh as their headlines. For example, “Typical Chee - he changes story when caught out” or “Libel was part of strategy to gain political mileage”. This has the cunning effect of subliminally instilling these statements of opinion as fact in the minds of the readers, since headlines are normally used to give summaries of factual happenings.
In contrast, you’d never see The Straits Times quote one of Chee’s statements as a headline in itself, like “MM Lee tramples on human rights”.
On paper the libel law looks much like that found in other commonwealth country. The only difference lies really in, to use a layman term, interpretation of the courts, the case laws that have preceded and statutory defence (i.e. Rights).
The aspects of defamation law are whether in the communication of a statement, a false claim have expressively been stated or implied to be factual.
As far as I can tell all of the Lees and Goh’s defamation have been found in their favour on grounds on implied falsehood — i.e. JBJ, Tang Lian Hong and CSJ have said things that are implied to contain falsehood. The critical factor, in Singapore’s case, given the absence of jury, is how a judge test the “implied”-ness of the statement. I think in one of Lee’s case, a judge used the yard-stick of, words to the effect of some “low grade” meaning of some allegedly libellous word. To suggest grounds of implication.
It seemed also the scope for defence in Singapore is not enshrined in Law or case Law in Singapore.
So in theory you may say something that is factually correct the point is that if the way you presented the fact is implied to have an effect to give a negative effect, you could loose. In other courts, English ones, an opinion itself does not count as, again to use the term loosely, defamatory. In loose term opinions are statements that cannot be proof true or false in a court. Again looking at recent, so called “political cases”, this does not seem to constitute a defence.
So all-in-all it seemed to court in Singapore interpretation of libel seemed to be based on the principle of intended effect not necessarily, to use the term loosely, “actual” effect.
In theory, what you just describe in the above blog may not be much a defence too. Also, it seemed in Singapore courts, “messenger” of defamatory message can also be liable. So beware young Aaron, the Darkside can also sue you too
Hi Editor,
Yes, I agree with you on that one too. I should really do a proper investigation using content analysis on how often MM Lee appears in headlines positively during reports on defamation cases involving him. I’m quite sure the percentage is very, very high.
And I agree that the effect is quite cunning. Even though you may be a very educated person, unless you are media literate, it is likely that you will fall for the headline because there are no other alternatives to compare with. Every other local newspaper says almost the same kinds of things. As the common saying goes, if a lie is repeated often enough, it becomes the truth. Of course, local newspapers don’t report lies but the way they frame their stories, especially stories dealing with local politics, is quite sinister.
Er… I think under Singapore jurisdiction, the law of defamation is based on the intended effects of words. In other words, it is up to the Judge, since there is no jury, to simply determine if a statement made was intended to “defame”.
Since there is no statute to protect what can be justifiably said or not, whether a statement is expressed as a matter of fact or opinion is of no consequence or will not be taken into consideration by the judge.
Sorry this:
Er… I think under Singapore jurisdiction, the law of defamation is based on the intended effects of words.
should be:
Er… I think under Singapore jurisdiction, the law of defamation is based on the intended, not necessarily actual, effects of words.
Aaron,
might not hold true in this Silly state.
Using words like “seemed”, “appear to” still means implies to silly coffers …
Don’t believe , read this about conspiracy theory JAYAKUMAR,
http://singaporeelection.blogspot.com/2007/07/prof-jayakumar-reprimanded-sylvia-lim.html
Puttting some statements seem to implicate thing even though it is not directly.
I wonder what happen if Sylian Lim is not in the parliament and say this elsewhere…
Erm,
under the law of defamation, the intended effect of the words is irrelevant in construing whether they are defamatory. The Judge uses a hypothetical construct, called the reasonable man, to determine whether the statement is defamatory; namely whether the statement would lower the standing of the victim in the eyes of a reasonable person. This appears to be a rather easy threshhold to cross; see the previous case where the statement “Where is the money” was held to be defamatory.
One defence to defamation is fair comment Whether the statement is an opinion is relevant to the defence of fair comment. However to rely on the defence there must be some facts to support the statement. Needless to say it is rather difficult to rely on such a defence.
All of us are blessed with sunshine but I guess to every life, a little rain must fall!
Of all the changes and progress in S’pore since the 50’s, I’m fortunate to live long enough to see broadband, internet and what’s happening on the blogs.
If not for the blogs with their alternative viewpoints, the msm would have it easier brainwashing peoples’ minds.
The interest and responses generated in the Lees vs Chees case has been interesting. I must admit I learned some after reading the submission by Chee Soon Juan to Belinda Ang at http://yoursdp.org/
What’s beyond expectation and amazed me most is Gopalan Nair’s challenge to MM Lee Kuan Yew to sue him at http://singaporedissident.blogspot.com/
Another test on integrity?
Times, they are a changing.
feedmetothefish
Ned,
Are you talking a defamation law in the theoretical abstract form or how the law is “implemented” in Singapore?
As Adrian pointed out. In Singapore legal jurisdiction, there is no statue or, for that matter, case laws that “defines” whether a comment is considered fair or otherwise. Neither is there anything in law (statues and case laws) that demarcate facts from opinions. As far as I can tell. Unless, Ned you know better.
If you look at all the cases that Lee Kuan Yew and others have taken out, all have been won on how the fact that the defendants had used words or statements that the judge deemed to be defamatory. In all these cases the plaintiff won NOT because the statement were untrue or not an opinion. You could be saying things that are true but you could still loose your case. Because the judge could still say that you have bought up a truthful statement in order to defame someone.
For example, if you said I saw Tan Ah Kow, walking in a Red Light District in the context where Ah Kow is running for election. And if you prove that was true — say you produce a photo — that Ah Kow did do so. But Tan Ah Kow could turn the table round and say that you deliberately made the statement to demean Tan Ah Kow because you IMPLIED that he visits prostitutes. And since you can only prove Ah Kow was walking but not actually visited prostitute. Under Singapore jurisdiction you could still loose, if the judge deemed that to be the case.
In Singapore Law it appears that there is no way of entering “fair comment” as a defence. What you pointed out may work in English Law but I am not sure how it would work in Singapore.
TAK,
Yes I was referring to Singapore law. I am not that familiar with the approach in other jurisdictions, save that in the US, there is no way a politician can bring an action because of the fear that such a law would prevent valid criticism which is deemed as a citizen’s right.
With regards to truth, the truthfulness of a statement is a defence to defamation. However this is an extremely difficult defence and to my mind I only know of a single instance where it “succeeded”; when Durai sued ST. From what i gather, in Singapore it is very easy to defame someone, but of course you can escape liability if you can come under the defences. Of course ur scenario is entirely possible given that defamation can be implied, but i know nothing concrete about that.
Ned,
On this point about ST deploying the “fair comment” defence. You cited the Durai v ST case and indicated that in that instance it exemplified a successful outcome. Ok I note that you use the word success in quotes. So I am guessing you are expecting people to read between the lines, so to speak.
Anyway, as I saw it, the “fair comment” defence really never took effect because Durai himself chose not to contest further. So technically, it was in a sense a default judgement rather than a case won on the basis of “fair comment” defence. Had the case gone on, would the judge have award the suit to Durai? It’s anybody’s guess as to how the judge would have drawn inference.
TAK,
Yes I agree that Durai had no choice but to discontinue the suit; but it is entirely possible that that case would have been one of the few instances when the defence of justification was made out.
Another interesting point is that if i remember correctly the defence of fair comment was successfully employed by ST regarding a piece they did on a Christian group known as the House of Isreal.
Anyway in the Durai case I was referring to the justification defence, and not the fair comment defence. Justification requires the statement to be true; for fair comment the statement may not necessarily be true, although from the facts there is a possibility of the statement being true. Apologies for not making myself clearer.
Ned,
Whilst I did not have the full account of the Durai case, I had some opportunity, based on information I got, to study it purely for knowledge.
The long and short of it all, is that the so-called “scandalous” issues that were raised were in my mind not scandalous in the breaking-the-law sense. For example, things like flying on first class tickets “cheaper”, using company cars, etc, may not in themselves break any rules. After all, the board of NKF has been given powers to approve the actions of its executive officers. So technically, all the people on the NKF board and executives were playing by the rules, albeit to their own advantages. I guess morally speaking, their actions were somewhat dubious.
So technically, Durai could have challenged on the basis that the ST played up these issues, which were themselves technically not illegal, to imply something more sinister. Much in the way, for instance, the Lees have done with all their court cases.
Assuming that Singapore still practices common law, in spirit, as in English law, than the Lees’ cases would have been instituted as case laws and technically Durai would have won!
As ever, technicality is one thing, reality is another.