INTRODUCTION The new UK Defamation Act 2013 (the “Act”), retains the basic structure of existing law with the addition of several important amendments. Among these include a new substantial harm requirement, major changes to existing defences, and the addition of some new ones. Major changes however, may not always indicate major deviation: many amendments are merely formative tweaks to substantively constant approaches and recognized principles. The commonalities between both jurisdictions creates potential learning points for application of more salient features of the 2013 Act in advancement of Singapore defamation law. Ultimately the objective of the article is an evaluative, not a suggestive one. Evaluations of new legislation on the basis of their merits will however, almost certainly result in a convergence of these in consequence. It is therefore urged that however compelling or persuasive the arguments for or against application are, the ability to retain existing legislation or to initiate reform still resides with Parliament.1 Though the article discourages complete overlay of English over local civil defamation law,2 the continuing importance of adaptation in advancing common legal frontiers cannot be discounted, and one must consider where to toe the line between retaining substantive autonomy and adaptation for practical improvement. UK AND SINGAPORE DEFAMATION LAW TODAY Without a codified constitution,3 the development of Defamation Law in the UK parallels development in most other areas of common law: through various Acts of Parliament and the concurrent expansion of case law providing mounting precedent. The latest contributing legislation, the Defamation Act 2013, came into force on 26th April 2013, amidst an increasing call to impose greater restrictions on claimants to prevent libel tourism and abuse of the litigation process,4 as well as counteract the chilling effect that potential liabilities in defamation may have on freedom of expression.5 Additionally, the Act served to consolidate and refine existing defences to flow in tandem with modern developments. Singapore libel law on the other hand, largely retains all principles of English libel law up to 1997, with additional restrictions imposed by a codified constitution. Though Article 14(1) of the Constitution of Singapore provides for the freedom of speech, these rights are subject to the restriction of Parliament 1 Application of English law Act Chapter 7A, Act 35 of 1993. 2 Gary Chan: The Law Of Torts In Singapore [2011] - The analysis here shall be restricted to civil defamation laws, (English law has no action for criminal defamation) 3 Thoburn v. Sunderland City Council [2002] EWHC 195 (designation of ‘constitutional statutes’) 4 Jameel v. Dow Jones [2005] EWCA Civ 75 5 Lunney & Oliphaunt, Tort Law, Texts and Materials [2013] 5th ed, p.686
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in defence of several key tenets of society, such as public morality, international relations and others.6 Recent case law has held defamation law to be entirely harmonious with Article 14(1). The right to freedom of speech is therefore subject to restriction by the law of defamation in Singapore.7 As the article aims to evaluate the general impact of these amendments and general legal consequences, its wider political, and economic implications are not discussed in great detail. Furthermore, the recentness of the Act’s assent means case law has not manifested to a great degree, and projected implications will largely be theoretical, rather than affirmatory. SUBSTANTIAL HARM REQUIREMENT (S1 DFA 2013) Following a previous recommendation by the Ministry of Justice for a ‘threshold of seriousness’ for all future actions of defamation, s1 of the 2013 act requires claims to pass an additional ‘substantial harm’ requirement beyond mere harm to one’s reputation. Instituted with aims to curb libel tourism, the added restriction allows ‘trivial’ cases that do not meet the requisite requirement to be halted at earlier courts, streamlining the judicial process.8 This is evident in the landmark case of Cooke,9 where the high court noted that though the natural and ordinary meaning of the words were prima facie capable of bearing a defamatory meaning, it did not cross the serious harm threshold, granting lower courts effective stopping power. Curtailing such cases could lead to cost reductions in the long run, as well as consolidation and distillation of the current law. Also, it seeks to reverse the chilling effect on journalism and freedom of expression10 that the allowance of easier defamatory claims would serve to promulgate. Several issues present themselves immediately. Though fewer cases reaching higher appeal courts means lower costs in those courts, the move potentially frontloads these costs to lower courts in the process of identifying the ‘trivial cases’: a downward diffusion of responsibility.11 Without the backing of binding judicial precedence as guidelines from higher courts, lower courts would be hard-pressed to make initially conclusive judgments on whether an imputation is ‘substantially damaging’ or not. This disorganized treatment of new cases may impact the initial coherence of defamation law, where odd or contentious cases would proceed to higher courts on appeal anyway, defeating its initial purpose of introduction. Also, the new restriction seems to mix-up the strict definition 6 Art.14 s2(a)-(c) Constitution of Singapore 7 Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230; [24][25] 8 Ministry of Justice, Draft Defamation Bill Consultation CP 3/11, Cm.8020 (March 2011) 9 Cooke v MGN [2014] EWHC 2831 10 Art. 10. ECHR 11 Mills & Reeve: The Defamation Act 2013 and its application to the internet- A missed opportunity? (April 2011)