Election Blogging and the Free Speech Framework in Singapore by Dr Jack Tsen-Ta Lee School of Law, SMU ISOC SG Election Blogging Workshop, 29 August 2015

Overview • What the Constitution says about the

right to freedom of speech and its limitations.

• Two examples of limitations on free speech relevant to election blogging: Defamation law. Party political films.

(Other election regulations will be discussed by another speaker.)

The constitutional right to freedom of speech and its limitations

Freedom of speech • The Constitution is the supreme law of

Singapore. • Ordinary statutes that are inconsistent with

the Constitution are void. • Part IV of the Constitution contains a bill of

rights — a list of fundamental liberties that are guaranteed to people.

Freedom of speech Constitution of the Republic of Singapore, Article 14(1)(a): “Subject to clauses (2) and (3) — … every citizen of Singapore has the right to freedom of speech and expression; …”

• Non-citizens do not enjoy the constitutional

right.

Freedom of speech • In two cases, the Singapore courts held

that the right to freedom of speech and expression includes: the right to communicate and disseminate

information, and the right to access information.

• However, it seems that these rights are subject to laws enacted by Parliament, rather than the other way round!

Freedom of speech Constitution, Art 14(2)(a): “Parliament may by law impose — … on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of… public order… and restrictions designed… to provide against contempt of court, defamation or incitement to any offence; …” (Have a look at the full text at Singapore Statutes Online – http://statutes.agc.gov.sg.)

Freedom of speech • In a 2005 case, the High Court interpreted

Article 14(2) broadly.

• Essentially, so long as Parliament passes legislation or an authority makes a decision for any of the purposes stated in the Article, the courts will find that the legislation or decision is constitutional.

Freedom of speech • Although restrictions on the ground of

public order have to be “necessary or expedient”, the test is easily satisfied (expedient = convenient). It appears that the law does not have to be proportionate.

• The second half of Art 14(2)(a) says Parliament may impose restrictions “designed… to provide against… defamation”. The “necessary or expedient” test may not even apply.

Defamation

Defamation • Protects a person from untrue statements

that harm his or her reputation with others. • Classic definition — publication of material

that reflects on a person’s reputation “so as to lower him in the estimation of right-thinking members of society generally” or which causes him to be shunned or avoided.

Defamation Wendy Cheng

• Singapore blogger Wendy Cheng, better known as Xiaxue, posted disparaging remarks about a fellow blogger, Dawn Yang, concerning entertainment contracts and endorsement deals she had entered into.

• She also said she did not like being compared to Yang.

Defamation • In July 2008, Yang got a lawyer to send a

letter to Xiaxue demanding an apology for defaming her.

• Xiaxue removed the offending blog entry, but by then other people had already copied it on to other websites.

• Xiaxue declined to apologize, and said that Yang could sue her if she wanted. It looks like no further action was taken by Yang.

Defamation • Defamation can arise from: the natural and ordinary meaning of the words

(note that inferences can be drawn or there can be an implied meaning); or

a true or legal innuendo. An innuendo arises when the words appear harmless but due to certain facts known to persons to whom the words were published this causes the words to convey a defamatory imputation to a reasonable person having knowledge of those facts.

Defamation • Every republication is a fresh act of

defamation. • You can be liable for republishing a

defamatory statement made by someone else, eg, forwarding a Facebook post.

• If people can leave comments on your blog, you may need to review those comments and delete those which are potentially or actually defamatory.

Defamation • There are some defences to a defamation

claim. • Justification — it’s not defamatory to say

something that is true.

Defamation • Fair comment — Words must be comment, not an assertion of

fact, though they may consist of or include an inference of fact.

Comment must be based on true facts (the facts don’t have to be stated in the same article if already known to the public).

Comment must be one which a fair-minded person can honestly make on the facts proved.

Comment must be on a matter of public interest.

Defamation • Fair comment can be defeated by malice,

ie, the person making the comment did not genuinely believe what he or she said.

• Qualified privilege — if the statement’s maker has a legal, social or moral duty or interest to communicate the information, and recipient has a corresponding duty or interest to receive it.

Defamation • The statement must be made without

malice, that is, honestly and without any indirect or improper motive.

• Unless there are exceptional circumstances (eg, 2009 case about newspaper article on HFMD), the public as a whole is usually not considered as having a sufficient duty or interest to receive information published in the media.

Defamation • Unlike in the Defamation Act 2013 (UK),

section 4, in Singapore there is no defence to defamation of making a statement on a matter of public interest.

• This defence tends to place greater importance on free speech than on the protection of reputation.

Defamation • Defamation can also be a criminal offence

under the Penal Code, s 499 (making or publishing any imputation intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of a person).

Defamation • Under the Parliamentary Elections Act,

s 61(1)(f), it is also an offence to make or publish, “before or during any election, for the purpose of promoting or procuring the election of any candidate, any false statement of the withdrawal of any other candidate at the election”.

• Anonymous letter sent to WP candidate Daniel Goh a few days ago — police report made.

Party political films

Party political films • Under the Films Act, s 33, it is an offence

to make or reproduce; distribute or have for distribution purposes; or exhibit or possess for exhibition purposes any party political film.

• A party political film includes a film “which is made by any person and directed towards any political end in Singapore”: s 2(1).

Party political films • Directed towards any political end in

Singapore is defined in s 2(2) and includes a film which contains wholly or partly: “any matter which, in the opinion of the Board

[of Film Censors], is intended or likely to affect voting in any election or national referendum in Singapore”; or

Party political films “references to or comments on any political

matter which, in the opinion of the Board, are either partisan or biased”.

• Political matter includes but is not limited

to any of the following: an election or a national referendum in

Singapore; a candidate or group of candidates in an

election;

Party political films • (Meaning of political matter) an issue submitted or otherwise before electors

in an election or a national referendum in Singapore;

the Government or a previous Government or the opposition to the Government or previous Government;

a Member of Parliament;

Party political films • (Meaning of political matter) a current policy of the Government or an issue

of public controversy in Singapore; or a political party in Singapore or any body

whose objects relate wholly or mainly to politics in Singapore, or any branch of such party or body.

Party political films • However, under s 2(3), a film is not a party

political film if, among other things, it is:

“made solely for the purpose of informing or educating persons on the procedures and polling times for any election or national referendum in Singapore”;

Party political films “a film which records live the whole or a

material proportion of any performance, assembly of persons or procession that is held in accordance with the law and that does not depict any event, person or situation in a dramatic way”;

“a film designed to provide a record of an event or occasion that is held in accordance with the law for those who took part in the event or occasion or are connected with those who did so”;

Party political films “a documentary film without any animation and

composed wholly of an accurate account depicting actual events, persons (deceased or otherwise) or situations, but not a film — • wholly or substantially based on unscripted or ‘reality’

type programmes; or • that depicts those events, persons or situations in a

dramatic way”.

• On 17 August 2015, the MDA said the SDP’s YouTube video Pappy Washing Powder was an illegal party political film.

Party political films • On the other hand, the video Re-ignite the

Passion of Servant Leadership issued in May 2014 by Young PAP was cleared by the MDA.

• The Authority apparently didn’t consider it unlawful as it fell within one of the other exceptions to the definition of party political film set out in s 2(3)(f).

Party political films • Section 2(3)(f) excludes “a film without

animation and dramatic elements — composed wholly of a political party’s

manifesto or declaration of policies or ideology on the basis of which candidates authorised by the political party to stand will seek to be elected at a parliamentary election; and

made by or on behalf of that political party.”

Concluding thoughts • The right to freedom of speech in

Singapore is limited by laws such as the common-law tort of defamation and the Films Act.

• The constitutionality of the Films Act has not yet been challenged in court.

• However, unsuccessful attempts have been made to argue that defamation law should be modified so that free speech is given greater protection.

Election Blogging and the Free Speech Framework in Singapore by Dr Jack Tsen-Ta Lee School of Law, SMU ISOC SG Election Blogging Workshop, 29 August 2015