Defamatory internet publications and the need for evidence

0
2456

In a recent Singapore High Court case, Qingdao Bohai Construction Group and others v Goh Teck Beng and another (2016), the plaintiffs failed to prove defamation mainly because they could not establish that the defendants had published allegedly defamatory online articles.

While restating the trite legal principles of defamation in Singapore, this case highlights the importance of obtaining electronic evidence to identify defendants, and to show that third parties have downloaded and read such defamatory online publications.

defamatory-internet-publications-and-the-need-for-evidenceThe five plaintiffs, three companies and two senior executives, sued two Singaporean defendants for defamation and conspiracy. The plaintiffs claimed that the two defendants – directors of HuanYu (Qingdao) Development, which was then involved in multiple legal disputes with the Qingjian Group’s construction projects in China – had a motive to take revenge on the Qingjian Group of companies.

The relevant publications involved 12 online articles on various websites based in mainland China, Hong Kong and the US, and two newspaper articles that the plaintiffs claimed contained untrue and defamatory statements about them, and that this resulted in damage to the plaintiffs’ reputation.

The plaintiffs claimed that the defendants published these articles, and tendered the following evidence as proof of such publication: video and audio recordings as evidence of the second defendant’s alleged admission to the publication; circumstantial evidence including the sign-off containing the second defendant’s name on the online articles; and the defendants’ filing of a report to the Central Commission for Discipline Inspection (CCDI) of the Communist Party of the People’s Republic of China.

However, the plaintiffs did not adduce any electronic evidence to prove that the defendants had published the online articles. In contrast, the defendants denied that they had published the online articles, that publication occurred in Singapore, and alternatively that the meanings of the online articles pleaded by the plaintiffs were true in substance and in fact.

The law on defamation

The court reiterated the three legal requirements for defamation:

  1. The defendants must publish material to a third party;
  2. The material must make reference to the plaintiffs; and
  3. The material must be defamatory to the plaintiffs.

To prove defamation, a corporate plaintiff must also prove it has a reputation in the jurisdiction at the time of publication as a prerequisite for pursuing defamation.

Here, the court held that the first plaintiff, a China-incorporated company, had no such international reputation and failed to show a trading or business reputation. The court held that the mere fact that the first plaintiff had a wholly owned Singaporean subsidiary was insufficient to prove the first plaintiff’s trading or business reputation in Singapore.

To satisfy the publication requirement in the context of internet defamation, a plaintiff must generally establish, on the balance of probabilities, that the defendant as the internet user had uploaded or posted the material on the internet. The plaintiff also needs to prove, on the balance of probabilities, that at least one third-party reader has downloaded the material in Singapore.

Merely uploading or posting the material on the internet does not satisfy the publication requirement, even if the defendant makes the offending material available to a third party. The plaintiffs failed to prove that the defendants were responsible for the publication of the online articles in Singapore.

Internet users are often protected by a wall of anonymity and the burden of proof of publication is therefore particularly challenging with online publications. Where a party claiming defamation fails to take decisive steps to show the electronic trail, or adduce other objective electronic proof to identify the publisher of the allegedly defamatory content, the circumstantial evidence tendered needs to be very strong.

It is clear that with our digital environment, even a person’s sign-off or personal details on an article may be insufficient to show that the person has written and published that article. Overall, electronic evidence is objective and remains the “most obvious way” to prove publication by defendants. As such, any person initiating a defamation suit should be taking proactive steps to ensure that such evidence is quickly and efficiently gathered.