Talk by Mr Jack Lee, Associate Professor, Singapore Management University, on Election Blogging and the Free Speech framework in Singapore Law. Topics covered: General Election 2015 Singapore, Constitution of Singapore, Defamation Law. Presented at the workshop on Election Blogging and Social Media, organized by the internet Society Singapore Chapter, August 2015, panel discussion co-moderated by Prof Ang Peng Hwa (NTU) and me (Benjamin Ang).

1. Election Blogging and the
Free Speech Framework in
Singapore
by Dr Jack Tsen-Ta Lee
School of Law, SMU
ISOC SG Election Blogging Workshop, 29 August 2015

2. Overview
• What the Constitution says about the
right to freedom of speech and its
limitations.
• Two examples of limitations on free
speech relevant to election blogging:
 Defamation law.
 Party political films.
(Other election regulations will be
discussed by another speaker.)

3. The constitutional right to
freedom of speech and its
limitations

4. Freedom of speech
• The Constitution is the supreme law of
Singapore.
• Ordinary statutes that are inconsistent with
the Constitution are void.
• Part IV of the Constitution contains a bill of
rights — a list of fundamental liberties that
are guaranteed to people.

5. Freedom of speech
Constitution of the Republic of Singapore,
Article 14(1)(a): “Subject to clauses (2) and
(3) — … every citizen of Singapore has the
right to freedom of speech and
expression; …”
• Non-citizens do not enjoy the constitutional
right.

6. Freedom of speech
• In two cases, the Singapore courts held
that the right to freedom of speech and
expression includes:
 the right to communicate and disseminate
information, and
 the right to access information.
• However, it seems that these rights are
subject to laws enacted by Parliament,
rather than the other way round!

7. Freedom of speech
Constitution, Art 14(2)(a): “Parliament may
by law impose — … on the rights conferred by
clause (1)(a), such restrictions as it
considers necessary or expedient in the
interest of… public order… and restrictions
designed… to provide against contempt of
court, defamation or incitement to any
offence; …”
(Have a look at the full text at Singapore Statutes Online –
http://statutes.agc.gov.sg.)

8. Freedom of speech
• In a 2005 case, the High Court interpreted
Article 14(2) broadly.
• Essentially, so long as Parliament passes
legislation or an authority makes a
decision for any of the purposes stated in
the Article, the courts will find that the
legislation or decision is constitutional.

9. Freedom of speech
• Although restrictions on the ground of
public order have to be “necessary or
expedient”, the test is easily satisfied
(expedient = convenient). It appears that
the law does not have to be proportionate.
• The second half of Art 14(2)(a) says
Parliament may impose restrictions
“designed… to provide against…
defamation”. The “necessary or expedient”
test may not even apply.

10. Defamation

11. Defamation
• Protects a person from untrue statements
that harm his or her reputation with others.
• Classic definition — publication of material
that reflects on a person’s reputation “so
as to lower him in the estimation of right-
thinking members of society generally” or
which causes him to be shunned or
avoided.

12. Defamation
Wendy Cheng
• Singapore blogger Wendy Cheng, better
known as Xiaxue, posted disparaging
remarks about a fellow blogger, Dawn
Yang, concerning entertainment contracts
and endorsement deals she had entered
into.
• She also said she did not like being
compared to Yang.

13. Defamation
• In July 2008, Yang got a lawyer to send a
letter to Xiaxue demanding an apology for
defaming her.
• Xiaxue removed the offending blog entry,
but by then other people had already
copied it on to other websites.
• Xiaxue declined to apologize, and said that
Yang could sue her if she wanted. It looks
like no further action was taken by Yang.

14. Defamation
• Defamation can arise from:
 the natural and ordinary meaning of the words
(note that inferences can be drawn or there can
be an implied meaning); or
 a true or legal innuendo. An innuendo arises
when the words appear harmless but due to
certain facts known to persons to whom the
words were published this causes the words to
convey a defamatory imputation to a
reasonable person having knowledge of those
facts.

15. Defamation
• Every republication is a fresh act of
defamation.
• You can be liable for republishing a
defamatory statement made by someone
else, eg, forwarding a Facebook post.
• If people can leave comments on your
blog, you may need to review those
comments and delete those which are
potentially or actually defamatory.

16. Defamation
• There are some defences to a defamation
claim.
• Justification — it’s not defamatory to say
something that is true.

17. Defamation
• Fair comment —
 Words must be comment, not an assertion of
fact, though they may consist of or include an
inference of fact.
 Comment must be based on true facts (the
facts don’t have to be stated in the same article
if already known to the public).
 Comment must be one which a fair-minded
person can honestly make on the facts proved.
 Comment must be on a matter of public
interest.

18. Defamation
• Fair comment can be defeated by malice,
ie, the person making the comment did not
genuinely believe what he or she said.
• Qualified privilege — if the statement’s
maker has a legal, social or moral duty or
interest to communicate the information,
and recipient has a corresponding duty or
interest to receive it.

19. Defamation
• The statement must be made without
malice, that is, honestly and without any
indirect or improper motive.
• Unless there are exceptional
circumstances (eg, 2009 case about
newspaper article on HFMD), the public as
a whole is usually not considered as
having a sufficient duty or interest to
receive information published in the media.

20. Defamation
• Unlike in the Defamation Act 2013 (UK),
section 4, in Singapore there is no defence
to defamation of making a statement on a
matter of public interest.
• This defence tends to place greater
importance on free speech than on the
protection of reputation.

21. Defamation
• Defamation can also be a criminal offence
under the Penal Code, s 499 (making or
publishing any imputation intending to
harm, or knowing or having reason to
believe that such imputation will harm, the
reputation of a person).

22. Defamation
• Under the Parliamentary Elections Act,
s 61(1)(f), it is also an offence to make or
publish, “before or during any election, for
the purpose of promoting or procuring the
election of any candidate, any false
statement of the withdrawal of any other
candidate at the election”.
• Anonymous letter sent to WP candidate
Daniel Goh a few days ago — police report
made.

23. Party political films

24. Party political films
• Under the Films Act, s 33, it is an offence
to make or reproduce; distribute or have
for distribution purposes; or exhibit or
possess for exhibition purposes any party
political film.
• A party political film includes a film “which
is made by any person and directed
towards any political end in Singapore”:
s 2(1).

25. Party political films
• Directed towards any political end in
Singapore is defined in s 2(2) and includes
a film which contains wholly or partly:
 “any matter which, in the opinion of the Board
[of Film Censors], is intended or likely to affect
voting in any election or national referendum in
Singapore”; or

26. Party political films
 “references to or comments on any political
matter which, in the opinion of the Board, are
either partisan or biased”.
• Political matter includes but is not limited
to any of the following:
 an election or a national referendum in
Singapore;
 a candidate or group of candidates in an
election;

27. Party political films
• (Meaning of political matter)
 an issue submitted or otherwise before electors
in an election or a national referendum in
Singapore;
 the Government or a previous Government or
the opposition to the Government or previous
Government;
 a Member of Parliament;

28. Party political films
• (Meaning of political matter)
 a current policy of the Government or an issue
of public controversy in Singapore; or
 a political party in Singapore or any body
whose objects relate wholly or mainly to politics
in Singapore, or any branch of such party or
body.

29. Party political films
• However, under s 2(3), a film is not a party
political film if, among other things, it is:
 “made solely for the purpose of informing or
educating persons on the procedures and
polling times for any election or national
referendum in Singapore”;

30. Party political films
 “a film which records live the whole or a
material proportion of any performance,
assembly of persons or procession that is held
in accordance with the law and that does not
depict any event, person or situation in a
dramatic way”;
 “a film designed to provide a record of an event
or occasion that is held in accordance with the
law for those who took part in the event or
occasion or are connected with those who did
so”;

31. Party political films
 “a documentary film without any animation and
composed wholly of an accurate account
depicting actual events, persons (deceased or
otherwise) or situations, but not a film —
• wholly or substantially based on unscripted or ‘reality’
type programmes; or
• that depicts those events, persons or situations in a
dramatic way”.
• On 17 August 2015, the MDA said the
SDP’s YouTube video Pappy Washing
Powder was an illegal party political film.

32. Party political films
• On the other hand, the video Re-ignite the
Passion of Servant Leadership issued in
May 2014 by Young PAP was cleared by
the MDA.
• The Authority apparently didn’t consider it
unlawful as it fell within one of the other
exceptions to the definition of party political
film set out in s 2(3)(f).

33. Party political films
• Section 2(3)(f) excludes “a film without
animation and dramatic elements —
 composed wholly of a political party’s
manifesto or declaration of policies or ideology
on the basis of which candidates authorised by
the political party to stand will seek to be
elected at a parliamentary election; and
 made by or on behalf of that political party.”

34. Concluding thoughts
• The right to freedom of speech in
Singapore is limited by laws such as the
common-law tort of defamation and the
Films Act.
• The constitutionality of the Films Act has
not yet been challenged in court.
• However, unsuccessful attempts have
been made to argue that defamation law
should be modified so that free speech is
given greater protection.

35. Election Blogging and the
Free Speech Framework in
Singapore
by Dr Jack Tsen-Ta Lee
School of Law, SMU
ISOC SG Election Blogging Workshop, 29 August 2015