Defamation Claims: Key Legal Defences
Being accused of defamation does not mean that liability is automatic. The claimant must first establish defamatory meaning, reference and publication. Even then, one or more recognised defences may apply. The correct response depends on the precise words, their context, the audience, the factual basis and why the communication was made.
Justification: the allegation was substantially true
Justification can be a complete defence if the defendant proves the defamatory sting or substance of the allegation (Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 at [134]). Every minor detail need not necessarily be proved, but the material accusation that caused the reputational harm must be established on the balance of probabilities (Goh Lay Khim and others v Isabel Redrup Agency Pte Ltd and another appeal [2017] 1 SLR 546 at [89]).
This defence should not be pleaded casually. The defendant bears the legal burden and should have admissible evidence capable of proving the relevant imputation.
Fair comment
Fair comment protects qualifying expressions of opinion rather than assertions of fact. Broadly, the words must be recognisable as comment, concern a matter of public interest, be based on facts that are true or otherwise protected, and be an opinion that a fair-minded person could honestly hold (Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 at [139]–[140]).
Adding the words “in my opinion” does not automatically protect what is, in substance, a factual accusation.
Qualified privilege
Qualified privilege may apply where the maker has a legal, social or moral duty or interest to communicate information and the recipient has a corresponding interest in receiving it (Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 at [87]). It can arise in a properly directed complaint, employment reference or internal report to the relevant decision-maker (see e.g. Foo Diana v Woo Mui Chan [2023] SGHC 221, where a complaint to the Law Society was capable of attracting qualified privilege in principle).
The defence is fact-sensitive and may be defeated by malice (Horrocks v Lowe [1975] AC 135; Foo Diana v Woo Mui Chan [2023] SGHC 221, where the defence failed on this ground). Sending the allegation to a wider audience than necessary may also take the communication outside the privilege.
Absolute privilege
Absolute privilege provides complete protection in limited categories, including certain statements made in the course of judicial proceedings (a common law immunity covering judges, counsel, witnesses and parties, distinct from the separate statutory privilege in s 11 of the Defamation Act 1957 for fair, accurate and contemporaneous reports of judicial proceedings). Because the protection is complete, courts define its boundaries carefully.
Offer of amends and apology
Section 7 of the Defamation Act 1957 provides a formal offer-of-amends procedure for a publisher who claims that the words were published innocently in relation to the claimant. The offer must comply with the statute, including the affidavit, timing, correction and apology requirements. An ordinary informal apology is not the same as a statutory offer.
An apology is not usually a complete defence, but it may reduce damages. Its timing, prominence and sincerity can matter.
Do not repeat the allegation or destroy the evidence
Forwarding, sharing or repeating an allegation may create separate liability. A defence available to the original publisher will not necessarily protect every person who republishes it.
Keep the complete publication, underlying documents and audience details. Do not delete potentially relevant material after receiving a complaint. Early advice can help identify the meaning alleged, the evidence needed and whether a correction, apology, formal offer or defended response is appropriate.
Key takeaway
Defamation defences are not labels that can simply be added after the event. Each has legal requirements that must be supported by the facts and evidence.