Chief Justice on Defamation: Court must go by values expressed in law

October 28th, 2009

Extract from Chief Justice Chan Sek Keong’s Keynote Address at the New York State Bar Association Seasonal Meeting, 27 October 2009

… I would like to say something about the law of defamation versus free speech because it is a much misunderstood subject. Here we are not talking about the right of free speech per se, or responsible criticisms or speech. We are talking about irresponsible speech that damages the reputation of other people. At common law, any person is free to do anything or say anything he or she likes, unless prohibited by law. The law of defamation penalizes defamatory speech because it damages a person’s reputation.

Both the right of free speech and the right to reputation are valuable rights. The law of defamation seeks to balance the right of free speech with the right to reputation, and it does so by providing the defendant with four defences to defamation, viz, justification, fair comment, qualified privilege and absolute privilege. Free speech is restricted to the extent that it is held to be defamatory.

Our law of defamation is based on the common law of England which was developed over a period of more than 100 years. The law has been expressly continued in the Constitution for the purpose of restricting the right of free speech. Many lawyers do not seem to know the significance of this – that the drafters of the Constitution decided, in their wisdom, to place a higher social value on reputation than on free speech, where they conflict.

The law of defamation is really about balancing the value of free speech and the value of reputation in a democratic society. How this balance is to be struck depends on the political, social and cultural values of each society as reflected in its laws. These values differ from society to society and at different times of their development.

For these reasons, the “public figure test” of qualified privilege, laid down in New York Times v Sullivan,25 does not apply in Singapore, or for that matter in any Commonwealth jurisdiction. That test is confined to the United States by virtue of the First Amendment to the US Constitution. In England, the law applies what is called the Reynolds privilege (a form of qualified privilege created from the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act of the United Kingdom) from the case of Reynolds v Times Newspapers Ltd (“Reynolds”), and confers qualified privilege on discussions on matters of public interest. The Australian courts apply a different test. So do the New Zealand courts. Each jurisdiction applies its own test as informed by its own political, social and cultural values. In the case of Reynolds, one of the more eminent law lords said:

“There are at stake powerful competing arguments of policy. They pull in different directions. It is a hard case in which it is unrealistic to say that there is only one right answer. And in considering the decisions in other jurisdictions it is right to take into account that cultural differences have played an important role.”

Based on this, it is may be the case that the critics have missed the point, and that criticising the Singapore courts is really criticising them for recognising the political, social and cultural values of Singapore society as expressed in its laws.

For the full text in PDF, visit the Supreme Court website and click “News” and “Speeches”.