By Tan Yen Lin Alyssa
Introduction
The defence of ‘honest opinion’ under Section 3 of the UK’s Defamation Act 2013 appears simple in theory: if a defendant makes a statement of opinion based on facts and honestly holds that opinion, they are protected from defamation claims [1]. However, citizen journalism and social media has fundamentally changed public discourse, granting individuals complete freedom to make public comments. This has led to a novel type of libel case, where claimants’ online posts prompt critical responses from defendants [2]. This essay will examine the key issues of the distinction between ‘opinion’ and ‘fact’, the basis of opinions, and the role of public interest. Through a comparative analysis of the UK’s defence of ‘honest opinion’ and Singapore’s defence of ‘fair comment,’ I will assess the effectiveness of both jurisdictions in addressing these challenges.
The Defence of Honest Opinion in the UK
The UK’s statutory framework for the defence of ‘honest opinion’ is provided under Section 3 of the Defamation Act 2013, requiring the defendant to establish:
The statement complained of was a statement of opinion [3].
The statement complained of indicated, whether in general or specific terms, the basis of the opinion [4].
An honest person could have held the opinion on the basis of
Any fact which existed at the time the statement complained of was published;
Anything asserted to be a fact in a privileged statement published before the statement complained of [5].
The defence fails if the claimant proves the defendant did not genuinely hold the opinion [6]. While the framework seems clear, its practical application is fraught with difficulty in the context of social media.
The Defence of Fair Comment in Singapore
Instead of ‘honest opinion’, Singapore’s defence of ‘fair comment’ provides a similar yet stricter framework. According to the elements reiterated in Review Publishing Co Ltd v Lee Hsien Loong (“Review Publishing”) [7], the defendant must prove:
The words complained of are comments, though they may consist of or include inference[s] of facts;
The comment is on a matter of public interest;
The comment is based on facts; and
The comment is one which a fair-minded person can honestly make on the facts proved [8].
However, as stated in Lee Kuan Yew v Jeyaretnam Joshua Benjamin [9], the defence fails ‘if it is found that in making the comment, the defendant was actuated by express malice [10].’
Distinguishing ‘opinion’ from ‘fact’
Section 3(2) of the Defamation Act 2013 requires the statement to be a ‘statement of opinion [11].’ However, differentiating between a statement of opinion and fact becomes increasingly difficult due to the informal and colloquial nature of social media. This was clear in the landmark case of Stocker v Stocker (“Stocker”) [12], which held that this was an objective test and the court had to determine the meaning most likely to be attached to the statement by an “ordinary, reasonable reader [13].” Social media users do not usually read posts in detail but instead form a general impression from a quick glance, and move along swiftly to another post [14]. In that case, it was vital to consider the interpretative norms specific to the context of the remark [15], which in this particular case was the behaviour of Facebook users. Hence, when determining whether a statement is opinion or fact in cases involving social media, it is important to take into account the informal and conversational nature of the platform and how the average user would most likely interpret the statement.
Yet in reality, applying the reasoning in Stocker may still be insufficient for the ‘honest opinion’ defence to hold. In the recent Preliminary Trial of Paisley v Linehan [16], the Defendant made various “defamatory” publications about the Claimant on the platform ‘Substack’. One such statement implied that the Claimant was a paedophile, which, the Defendant argued, was merely “idle gossip which no reasonable reader would take seriously [17].” Even though the judge agreed that it was an expression of opinion, it was still considered defamatory because of the extreme social stigma attached to the accusation— ‘paedophilia’ was deemed to have such a detrimental effect on one’s reputation that the suggestion alone was harmful [18]. Furthermore, Blake v Fox [19] established that “words which might be thought to be evaluative in character (such as ‘homophobia’ and ‘misogyny’) have been held to convey statements of fact in the context in which they were used [20].” This raises questions about where the boundary lies when applying the defence of ‘honest opinion’. While courts acknowledge the informal nature of online discourse in cases like Stocker, they also could impose rigid standards when dealing with statements carrying significant social stigma. As a result, the defence of ‘honest opinion’ appears weak and ineffective in protecting expressions of opinion on social media, particularly when the subject matter is highly sensitive.
Conversely, in Miller and Power v Turner [21], the defendant also used highly stigmatising language, alleging on ‘X’ and a website that the claimants were antisemitic and fascistic. The defendant argued that the broader context, including hyperlinks and threads of tweets, made it clear that they were expressions of opinion. Ultimately, the court agreed that terms like ‘antisemitism’ and ‘fascism’ were opinions rather than facts, as the ordinary reasonable reader in the context of a tweet would have some contextual awareness of the authorship and subject matter of the tweets [22]. These conflicting rulings further highlight the challenges in distinguishing between opinion and fact in the context of social media, making the defence rather inconsistent in application.
Singapore’s approach to the defence of ‘fair comment’ faces similar difficulties “in trying to distinguish a comment from a statement of fact [23].” Under the Defamation Act 1957, the defence requires “the words complained of [to be] comments, though they may consist of or include inference[s] of facts,” with a ‘comment’ defined to be ‘generally equated with a statement of opinion [24].” Review Publishing similarly established an objective test depending on the “nature of the imputation conveyed, and the context and circumstances in which it is published [25].” Since this test depends on an ordinary, reasonable reader’s understanding of the words as a comment, the defence fails if the reader cannot discern between fact and opinion [26]. However, this test for differentiating opinion from fact for the defence of ‘fair comment’ has only been applied to traditional media forms so far, with no notable applications to social media contexts in Singapore's case law. Unlike the UK, Singapore has yet to adopt the interpretative approach established in Stocker [27], which takes into account the unique norms of digital communication. Without a similar framework, Singapore’s defamation law may struggle to address the unique interpretative challenges posed by the nature of social media interactions.
Basis of Opinion
The second condition for a defence of honest opinion is contained in Section 3(3) of the Defamation Act 2013, which requires “the statement complained of indicated, whether in general or specific terms, the basis of the opinion [28]”, as established in Joseph v Spiller [29]. However, the brevity and immediacy inherent in the functions of social media platforms create significant challenges in meeting this requirement. For instance, platforms like ‘Instagram’, which have visual-focused content, and ‘X’, with its 140-character post limits, often leave users with insufficient space to provide the necessary factual basis for their statements. Previously, in Joseph v Spiller, Lord Phillips asserted that the opinion must be based on facts, questioning how “a defendant can base a defence of honest opinion on a fact that was not instrumental in his forming the opinion that he expressed by his comment [30].” However, the Explanatory Notes to the Defamation Act 2013 [31] suggest a more lenient standard, stating that the author only has to rely on facts existing at the time of the comment [32], without clarifying whether they must have been actually aware of these facts when forming their opinion [33]. The intent behind this was to reduce the technical and often convoluted distinctions regarding the sufficiency of factual bases and the requirement to explicitly or implicitly indicate these facts [34]. However, it remains unclear how the standard applies in online contexts like social media.
Consider a scenario where a user on ‘X’ posts a brief statement accusing a public figure of being ‘untrustworthy’ due to alleged ‘fraudulent behaviour.’ With a 140-character limit, the user has little room to elaborate on the basis of their opinion, and it may thus not be clear if they were even aware of specific incidents or allegations supporting their claim. The situation becomes even more complicated if the statement is made in a ‘quote tweet’, which references another user's post that may contain relevant facts or allegations. On the one hand, the quote tweet could imply reliance on the facts in the original post, thereby meeting the requirement for a factual basis. However, this interpretation assumes that the original post itself is factually sound and that readers will understand the connection between the two posts. On the other hand, if the original post lacks clarity or factual substance, or if the quote tweet does not explicitly reference the original content, the defence of honest opinion may fail. This was apparent in Blake v Fox, where one of the claimants, Ms Thorp, failing to ‘quote-tweet’ the original post placed her at a disadvantage compared to other claimants who had directly referenced the facts supporting their opinions [35], as she would be faced with a higher burden in proving that her statement was ‘substantially true [36]’ if she had been put to defence. This shows how difficult it is to determine a sufficient basis of opinion for the defence of ‘honest opinion’ to apply in the context of social media.
In a similar vein, Singapore’s Defamation Act 1957 requires the comment to be ‘based on facts [37]’, but adheres to a more stringent standard compared to the UK. In On Site Car Accessories.SG (KEL Services) v Tang Mun Wah Jerry [38], the respondent was a motorist who posted in 3 Facebook groups for car enthusiasts, claiming that a workshop was seeking to charge him a fee for checking a car battery that was under warranty. However, the respondent’s claim that their Facebook post was a ‘fair comment’ on the appellant’s service failed [39] because the alleged factual basis that the appellant would charge a service fee even for a faulty battery was untrue [40]. As noted in ‘The Law of Torts in Singapore [41]’, the comment must be based on true facts, and “where the basic facts stated are untrue, the defence of fair comment does not arise [42].” This contrasts with the UK’s more lenient approach, which allows for statements to be based on “anything asserted to be a fact in a privileged statement published before the statement complained of [43].” Hence, the court found that even though commenting on the quality of service provided by the appellant may constitute an opinion, whether the appellant would charge a service fee for a faulty battery is a factual matter. Since this ‘fact’ was false, the respondent could not rely on the defence of ‘fair comment [44].’
Public Interest
Singapore also has an additional requirement for the ‘fair comment’ defence, that ‘the comment to be on a matter of public interest [45].’ This provision further limits the scope for the fair comment defence, as the comment must not only be based on true facts but also address an issue that is of public concern.
In Soh Rui Yong v Singapore Athletic Association [46], the Defendant posted a Facebook post captioned, “The Women World Marathon Record is faster than our Singapore Men’s National Record by 9 minutes,” targeting the Plaintiff, the current national record holder in Singapore [47]. Although the Claimant argued the statement constituted “fair comment on a matter of public interest, namely the explanation as to why a top track athlete in the Plaintiff was not selected to represent Singapore on a regional stage [48]”, the court held that the Defendant’s comment was “made with the malicious intention to insult the Plaintiff and undermine his reputation [49]” and lack of genuine belief in the truth of the statement rendered the defence inapplicable [50].
This sets a higher threshold for defendants to prove the ‘fair comment’ defence compared to jurisdictions such as the UK, where the ‘public interest’ requirement was removed from the ‘honest opinion’ defence and added as a new separate defence under Section 4 of the Defamation Act 2013. The ‘publication on matter of public interest’ defence was created and based on principles established under the ‘Reynolds’ defence, as seen in Reynolds v Times Newspapers Ltd [51]. Under Section 4 of the Defamation Act 2013, it is a defence for the defendant to show that the statement was made on a matter of public interest and that they reasonably believed publishing it was in the public interest [52]. It can be argued that the UK’s approach is more comprehensive as it incorporates both the subjective element of the defendant’s belief in the public interest of the statement and the objective element of whether this belief was reasonable under the circumstances [53].
Unlike Singapore’s more restrictive approach, the UK system allows for greater leeway for defendants by focusing on their reasonable belief in the public interest. The UK does not rigidly “attempt to define what is meant by ‘the public interest’” but is somewhat similar to Singapore by allowing the common law’s evolving interpretation of the term to guide its application [54]. This broader approach considers not just the specific words, but the wider context of the statement within the document or article, allowing for a more holistic assessment of whether the matter is indeed of public interest.
Potential for reform
Singapore’s defence of ‘fair comment’ can be explained by the country’s commitment to maintaining social harmony, especially in its fairly conservative multicultural society, where differences can be highly sensitive. Hence, these stringent standards for defamation defences are highly necessary to prevent this from being used as a tool for political or social disruption. However, it is apparent that the rigid application of the ‘fair comment’ defence may fail to adequately address the challenges of the digital age. Adopting aspects of the UK’s approach could help Singapore to better accommodate this, though it would need to be carefully adapted in light of Singapore’s policy concerns.
Instead of fully adopting the UK’s model, Singapore could consider a hybrid approach that would retain the ‘fair comment’ framework but introduce a more flexible standard for cases involving online discourse. For instance, Singapore could adopt a less stringent requirement for the factual basis of a comment, allowing the defendant to establish that the opinion was honestly held based on information reasonably available to them at the time, even if the supporting facts are not explicitly stated. This would be particularly useful and relevant for social media, where posts are often short and context-dependent. Additionally, Singapore could also explore introducing a ‘public interest’ test similar to the UK’s which could help to differentiate between protected expressions of opinion and malicious defamatory statements. Whatever the case, any potential reforms must continue to respect Singapore’s commitment to maintaining a stable, harmonious society by focusing on curbing malicious speech that could harm public order and disrupt social cohesion.
Conclusion
The UK’s ‘honest opinion’ defence has adequately adapted to changing needs in the context of social media, as seen in Stocker. This allows the UK to better address the challenges posed by the novel cases arising from the use of digital platforms. Conversely, while Singapore’s higher thresholds arguably provide stronger protections against misuse and malicious claims, the unique challenges of social media may require Singapore to reform its comparatively “outdated” defamation laws. To conclude, both jurisdictions nevertheless remain effective in different aspects, as the UK emphasises protecting freedom of expression while Singapore’s stringent framework seems to prioritise protecting individual reputations instead.
Bibliography
[1] Defamation Act 2013, s.3
[2] Thomas DC Bennet, ‘Interpretation is opinion: realigning the fact/opinion distinction in English defamation law’ (1 June 2023) Journal of Media Law, 15(1), 62–89. <https://doi.org/10.1080/17577632.2023.2216523> accessed 20 Jan 2025
[3] ibid (n. 1), s.3(2)
[4] ibid (n. 1), s.3(3)
[5] ibid (n. 1), s.3(4)
[6] ibid (n. 1), s.3(5)
[7] Review Publishing Co Ltd v Lee Hsien Loong and Another [2009] SGCA 46
[8] ibid, [139]
[9] Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1979-1980] SLR(R) 24
[10] ibid (n. 9), [60]
[11] ibid (n. 3)
[12] Stocker v Stocker [2019] UKSC 17
[13] ibid, [1]
[14] ibid, [43]
[15] ibid, [41]
[16] Paisley v Linehan [2024] EWHC 1976 (KB)
[17] ibid (n. 16), [32]
[18] ibid (n. 16),[37]
[19] Blake v Fox [2023] EMLR 12
[20] ibid (n. 16), [15]
[21] Miller and Power v Turner [2023] EWHC 2799 (KB)
[22] ‘The rise and rise of defamation on social media’ (Stewarts Law, 14 September 2021) <https://www.stewartslaw.com/news/the-rise-and-rise-of-defamation-on-social-media/> accessed 20 January 2025
[23] ibid (n. 9), [140]
[24] Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore (2015)
[25] Wilbur Lim, ‘The Defences to Defamation - Fair Comment and Qualified Privilege (part 2)’ (WMH Law Corporation, 14 May 2024) <https://www.wmhlaw.com.sg/articles/2024/05/14/the-defences-to-defamation-fair-comment-and-qualified-privilege-part-2> accessed 20 January 2025
[26] ibid (n. 24)
[27] Fong Wei Li and Nicholas Leong, ‘How the Internet is Reshaping Defamation Laws’ (Law Gazette, June 2020) <https://lawgazette.com.sg/feature/internet-reshaping-defamation-laws/> accessed 20 January 2025
[28] ibid (n. 4)
[29] Joseph v Spiller [2010] UKSC 53
[30] ibid, [95]
[31] Defamation Act 2013 Explanatory Notes
[32] David Mangan, ‘Regulating for responsibility: reputation and social media’ International Review of Law, Computers & Technology, (2015) 29(1), 16–32. <https://doi.org/10.1080/13600869.2015.1008960>
[33] ibid (n. 32)
[34] ibid (n. 31), [22]
[35] ibid (n. 19), [58]
[36] ibid (n. 1), s.2
[37] ibid (n. 6)
[38] On Site Car Accessories.SG (KEL Services) v Tang Mun Wah Jerry [2022] SGHC 243
[39] ibid, [25]
[40] ibid, [21]
[41] ibid (n. 23), [13.021]
[42] ibid (n. 38), [23]
[43] ibid (n. 5)
[44] ibid (n. 38), [24]
[45] ibid (n. 6)
[46] Soh Rui Yong v Singapore Athletic Association [2020] SGHCR 7
[47] ibid, [7]
[48] ibid, [5](a)
[49] ibid, [7]
[50] ibid, [6]
[51] Reynolds v Times Newspapers Ltd [2001] 2 AC 127
[52] ibid (n. 1), s.4(1)
[53] ibid (n. 35), [29]
[54] ibid (n. 35), [30]
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