For whom the libel tolls: government loses even as it wins



January 4th, 2013

A week after I expressed my hope that the PAP government would stop using the defamation threat in political arguments, it has used a defamation threat in a political argument. One thing I have learnt from this (not for the first time) is that I have no future as a political consultant, and my fortune telling skills are inferior to Huat The Fish and random green parrots on Little India pavements.

The wielding of defamation law against unsubstantiated attacks has turned out to be the most significant development over the past year in the evolving relationship between the government and online critics. It used to be that defamation suits were reserved for opposition politicians and major foreign news organisations. The democratisation of criticism (now, anybody can loudly disparage Singapore’s leaders) has resulted in the democratisation of punishment (now, even a one-man-operated blog like Yawning Bread merits the nerve-wracking attention of the Istana and Drew & Napier).

Defamation law is necessary as a means of protecting people’s reputations against lies. Politicians are people too, and should enjoy the protection that the law provides. “The law of defamation is really about balancing the value of free speech and the value of reputation in a democratic society,” former Chief Justice Chan Sek Keong has pointed out. In the current case, Alex Au has acknowledged that his post and accompanying comments were defamatory. He says he will take down the post and apologise.

Case closed.

Or is it?

Even if the facts are 100% on their side, and even if it is entirely within their rights to sue for defamation, PAP leaders should at some point review whether such a step is a rational and necessary part of their communication strategy in these new times – or if it’s just a case of old habits dying hard.

The official justification for defamation suits was that it would bring false allegations before the courts, where they could be examined in the open. Lee Kuan Yew used to argue that this was the best way to test attacks that disparaged political leaders. Defamation suits were not meant to discourage all criticism as such, but would rightly keep the lies out of political debate, he said.

On closer examination, defamation law was never a very convincing test of truth. Under English-style common law, words with defamatory meaning are presumed to be false. This means that the plaintiff does not have to prove that he was innocent of the allegations. It is up to the defendant to prove that his accusations were true – extremely difficult when dealing with the inner workings of government or big business.

When a defendant loses a defamation suit, it may merely mean that she was unable to substantiate her allegations to the satisfaction of the court – not necessarily that what she said was not true. (This is not a uniquely Singaporean problem. For a fictional Swedish take on the limitations of libel law, watch The Girl With The Dragon Tattoo, which starts with the journalist-hero losing a case even though he was reporting the truth – he just couldn’t prove it.)

Intelligent Singaporeans are therefore unlikely to make up their minds about the truth or otherwise of an allegation against a public official based solely on the result of a defamation suit. Instead, they will be persuaded by the facts that are laid before them in the course of the public debate.

To be fair to the government, it has been trying to address the unease over the AIM affair by providing more and more information. There are still questions being asked, and there’s so far no indication that the government will refuse to entertain them. The subtext of the government’s action is that while it will try to answer all questions, it will not tolerate irresponsible and baseless allegations, like calling the Prime Minister corrupt.

Alex Au himself has set an example by continuing to probe, despite the warning shot – an important message from the man at the centre of all this that Singaporeans should chill, and not be chilled by news of the defamation threat against him.

It is reasonable for the government to want to set a healthy tone for public debate. But the effectiveness and relevance of defamation suits in that process is doubtful. As part of its pledge to review its communication policies, the government should consider surveying Singaporeans about what defamation suits actually communicate to them – the pursuit of truth, or a signal of intolerance.

Furthermore, it is not as if defamation suits are the only way to reason with Singapore’s bloggers. In many cases, a polite conversation with a minister’s press secretary – rather a letter from a senior counsel – might be enough to persuade a blogger that he might have crossed a line of civility. Singapore’s most prominent websites have policies stating that if you find something beyond the pale on their sites, you can let the editors know and they will consider taking it down.

I don’t know if the government tried this with Alex Au before opting for the legal route. If it didn’t, an opportunity was lost for mutual education, and for negligible gain.

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