DEFAMATION
Proof Of Publication In Internet Defamation
What does it take for a defamatory post to count as “published” online? “Anyone could have read it” is not evidence that anyone did. That distinction cost the plaintiffs in a Singapore defamation suit part of their damages.
JOO TOON LLC LITIGATION TEAM 4 MIN READ
The internet has forced defamation law to adapt, with news sites, blogs, emails and social media producing an unprecedented wave of suits. The traditional elements still apply, but proving publication online can be problematic. Despite the leading authorities, a misconception persists: that material is published simply because it exists online and is theoretically accessible.
A Misconception Worth Correcting
On appeal from the District Court, the High Court (Chua Lee Ming J, in an ex-tempore judgment) held that damages should be reduced because two website posts (“the Posts”), part of the allegedly defamatory statements, had not been shown to be published. The Appellate Division later dismissed the plaintiffs’ application for leave to appeal for lack of a prima facie case of error.
The defendants had not admitted publication and put the plaintiffs to strict proof, and the plaintiffs had not adduced sufficient evidence to support an inference that the Posts were published. Following Zhu Yong Zhen v AIA Singapore Pte Ltd and another [2013] SGHC 37 (“AIA”) and Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] SGHC 142 (“Qingdao”), the Judge held that there is no presumption of law that material on the internet has been published. Some facts must be in evidence to support an inference that users accessed and read the words complained of.
The Rule In A Nutshell
The principle comes from Matthew Collins, established in The Law of Defamation and the Internet (para 5.05), and was adopted wholesale in AIA and Qingdao:
“The claimant bears the burden of establishing publication. That burden can be discharged directly, by proving that at least one person, other than the claimant, saw, read, or heard the communication. In appropriate cases it may also be proved indirectly, by an inference that publication must have occurred. There is, however, no presumption of law that matter appearing on the Internet has been published. There must be a substratum of fact to support an inference of publication. It is not sufficient for the purposes of proving publication for a claimant simply to allege that defamatory matter was posted on the Internet and was accessible in the jurisdiction of the court.” (emphasis added)
Two Cases, One Message
In Qingdao, claims over allegedly defamatory articles on various websites failed. Uploading is only one component of publication, and the plaintiff must also prove that a third party in the jurisdiction where the plaintiff is suing accessed and read the material. In AIA, claims over statements in a blog by Mdm Zhu failed too. Technical accessibility is insufficient, as third parties must actually have visited the blog, and no direct evidence (witness testimony or web analytics data) or indirect evidence of access was adduced.
No Witness? Three Things the Courts Look At
1. Likes and Comments: The Silence of an Unread Blog
Absent direct evidence, interactive features such as “like” and “comment” functions, common on social media, can support an inference that material was accessed and interacted with. In AIA, the court took into account the blog’s “utter lack of success”. Chan Seng Onn J reasoned that, “In view of the forceful assertions made by Mdm Zhu and Singapore’s vocal Internet audience, it would be reasonable to expect comments expressing views one way or the other to be left on the blog had it gained any attention whatsoever”. Without such features, indirect proof is especially hard. It needs other evidence, expert or otherwise, that certain key terms would necessarily generate the relevant results.
2. Search Visibility: The Very Material Must Rank
Search engine optimisation (“SEO”) raises the chance that material appears at the top of search results for certain key terms, but it does not by itself entail publication. The claimant needs evidence that the very material, not merely the website or platform containing it, would show up prominently for those terms.
In AIA, Chan J cited Steinberg v Englefield and another [2005] EWCA Civ 288 (material accessible to anyone entering the claimant’s name into a standard search engine or visiting the defendant’s website) and went on to state that “AIA could have provided such evidence by, for example, establishing the prominence given to the blog by (an) Internet search engine”.
In Ng Koo Kay Benedict and another v Zim Integrated Shipping Services Ltd [2010] 2 SLR 860, cited in Qingdao, Lai Siu Chiu J (as she then was) did not think it safe to infer publication where there was “no evidence as to the number of Singapore-based subscribers for one of the websites in question”. She also did not believe an inference of substantial publication was warranted even though the material could be found by a search using a combination of specific terms. The deduction: evidence must show that key words likely to be searched by the target audience would produce the very material, and prominently so.
3. Time Online: Long Is Not the Same as Read
Prolonged existence may seem to entail publication, but not necessarily. In AIA, the relatively short 25 days minimised the likelihood of third-party access. The converse does not automatically follow, and AIA did not hold it as a matter of “inexorable logic”. Only perhaps where the claimant proves, on a balance of probabilities, that third parties would very likely enter the relevant key terms and that doing so would necessarily feature the very material prominently among the top results, may long existence support an inference that users must have accessed it.
Key takeaway
A defamatory post is not “published” just because it is online. The claimant must show that someone other than the claimant actually saw it, directly or by a fair inference from evidence such as engagement, search visibility and how long it was up. Without that evidence, a claim, or part of it, can fail.
Frequently asked questions
No. Singapore courts follow the principle that there is no presumption of law that material on the internet has been published. The claimant bears the burden of showing that at least one person other than the claimant saw, read or heard it, either directly or by a fair inference. It isn’t enough to say the post was online and accessible.
The courts look at the surrounding facts. These include evidence of engagement such as likes or comments, whether the very material ranks prominently in searches for the terms people would use, and how long it stayed online. Long exposure helps only in limited circumstances, and a short period such as the 25 days in one case weighs against publication. Web analytics and witness testimony are the strongest direct evidence, and a defendant who doesn’t admit publication can put the claimant to strict proof.
Disclaimer: These articles are intended to provide general information only and do not constitute legal advice. Each article is prepared based on the law and information available as at its date of publication. While care is taken to ensure that the contents are accurate and informative, the law is subject to change, and subsequent legislative, regulatory or judicial developments may affect the interpretation or application of the matters discussed. These articles should not be used or relied upon as a substitute for professional legal consultation, and legal advice should be sought in relation to any specific legal matter.
