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There has been much discussion on the defamation suit brought by the Council for Private Education (CPE), a statutory body under the Ministry of Education, against blogger and former student, Ms Han Hui Hui. This raises the question as to whether the Government should sue citizens for defamation.
If the Government, which has no shortage of funds, can sue citizens who do not have the same resources to defend themselves, people will be discouraged from criticising and questioning it. It is a violation of free speech which will lead to an unaccountable government. The Government can also use defamation suits to suppress opposition parties and perpetuate its hold on power.
My understanding of the defamation law is that if an individual sues you because you have allegedly made a defamatory statement, you can still defend your speech or writing on various grounds. The three main types of defences are that what you said was true, that you had a duty to provide information and that you were expressing an opinion.
Allow me to elaborate:
You can defend yourself on the grounds that what you said was true. However, this may not be as effective if the court disregards the evident you present or does not allow you to present the evidence during the trial.
If you have a duty to make a statement, you may be protected under the defense of “qualified privilege”. For example, if you are an employer and make a comment about your employee during a private interview or work review, such as that the employee is lazy or inefficient, a defamation action can only be successful if they can prove you were malicious. You are also not protected if you comment about the employee in public media.
If you are expressing an opinion or analysis of a situation, for example, a government policy, insurance policy, film, restaurant etc, then you may be protected under the defense of “comment” or “fair comment,” if the content of your statement is reasonably accurate.
If you are posting it as an inquiry rather than an accusation. The public has the right to pose questions to any public official on issues such as financial statements, credibility, accountability etc. Similarly, this applies if you are stating facts rather than conclusions, leaving your audience / the public to draw their own conclusions.
There is an extra defense if you are a parliamentarian and speak under parliamentary privilege – your speech is protected by “absolute privilege,” which is a complete defense by law. The same defense applies to anything you say in court.
There are several flaws in the legal system such as cost, selective application and complexity when it comes to defamation suits:
- Cost. If you are sued for defamation, you could end up paying tens of thousands of dollars in legal fees, even if you win. If you lose, you could face a massive pay-out on top of your legal fees. The astronomical costs, due especially to the cost of legal advice, mean that most people never sue for defamation, especially against a rich opponent.
Whether you are suing them or they are suing you, having less money means having a far smaller fighting chance against your rich opponent. Cases can go on for years, judgements can be appealed and the costs will skyrocket. Only those with very deep pockets can pursue such cases to the end. Thus, the defamation law is often used by the rich and powerful to stifle criticisms of them. Ordinary people, on the other hand, whose reputations are attacked unfairly seldom have the means to right the injustice.
- Complexity. The defamation law is so complex that most writers and publishers would rather be safe than sorry, and therefore, do not publish things anything that may be seen as defamatory or controversial to those in power, even if it may be the truth, or a valid line of questioning.
Judges and lawyers have far greater power because most laypeople do not understand how the law can be applied. Those who have no choice but to defend themselves against a defamation suit without a lawyer are deterred by the complexities.
- Slowness. Sometimes defamation cases are opened only years after the statement in question is made. Cases often take years to resolve, causing anxiety to those being sued and deterring free speech in the meantime. As the old saying goes, “Justice delayed is justice denied.”
The result is that the defamation law doesn’t do much to protect most people, but it does operate on several levels to inhibit free speech.
Unlike other corporations and individuals, government bodies, while possessing a “business reputation”, do not possess a “private reputation”, as “their sole existence is public.” There is a need to differentiate between public officials, who maintain private reputations that may be damaged, and the public bodies which they work in.
Where a defamatory statement regarding a public body is properly understood to refer to a specific individual, that person may have a right to sue for defamation. In Ms Han Hui Hui’s case, if her statement had directly targeted a particular officer or minister within the CPE, the person would have the right to sue for defamation.
However, when a public official is defamed, the government body he or she represents should not not have the right to sue. For example, a statement criticising Lee Kuan Yew does not grant the government or any ministry the right to sue for defamation. In other words, taxpayers’ money cannot be used in such cases.
The CPE should respond and rebut the statement by Ms Han and not resort to legal action. On the other hand, if any one individual in the CPE feels that Ms Han’s statement has made a specific reference, that individual should take action in his/her private capacity, not as a representative of the organisation and certainly should not use public funds for the suit.
In conclusion, a government is accountable to the people through the ballot box, and to judges and juries in a court of law. When a government is criticised, its recourse is via the public domain (through public meetings, press releases, boards of inquiry etc), not the court.
Litigation is a form of force, and the government must not silence its critics by force.
Readers who want to help Ms Han Hui Hui in her case can visit her blog at
http://statboard-suecitizen.blogspot.sg/ or contribute to her legal defence cost: POSB Savings: 279-12328-0.
Alvin Ong is a member of the Young Democrats and coordinates the Technical Communications of the SDP’s communications Unit.