ABZ v Singapore Press Holdings Ltd

[1] In the 23 May 2008 edition of The Straits Times (“the Newspaper”), the defendant published an article entitled “13-month-old boy critically ill in hospital” (“the Article”). The 13-month-old boy in the Article, [B], had contracted hand, foot and mouth disease (“HFMD”). The Article appeared prominently on the first page of the Newspaper’s Home section at a time when HFMD was prevalent in schools and kindergartens. The plaintiff was named in the Article. In this action, the plaintiff seeks general and aggravated damages for libel in respect of the Article, as well as an injunction to restrain the defendant from further publishing articles which are defamatory of the plaintiff.

[2] The plaintiff is a Singapore company in the business of operating education centres at two locations in Singapore. In particular, the plaintiff is the owner of [xxx] (“the Centre”), which is a childcare centre. The defendant is a well-known Singapore company listed on the Singapore Exchange. It is the owner and publisher of the Newspaper.

[3] For ease of reference, I set out the characters that feature in this suit:

(a) [B], the 13-month old boy who was critically ill from HFMD;

(b) [C], [B]’s mother;

(c) [D], [B]’s five-year old cousin who attended the Centre at the material time;

(d) [E], [D]’s mother who is also [C]’s cousin; and

(e) Salma Khalik (“Salma”), senior health correspondent of the Newspaper and the author of the Article.

[4] The crux of the plaintiff’s case against the defendant is for damages suffered as a result of the publication of certain words (“the Statements”) in the Article. The main body of the Article is reproduced in full below (with the Statements italicised):

[5] In addition to the main body of the Article reproduced above, there were three headings, namely, “HAND, FOOT AND MOUTH DISEASE”, “13-month-old critically ill in hospital”, and “He suffered seizures and doctors fear he may have brain inflammation” (collectively “the Headings”). The second heading was printed in a larger font than the first and third headings. There were also two pictures of [B] in the Article (“the Pictures”). The larger picture depicted [B] lying on a hospital bed with tubes going into his nostrils and bandages covering his head, while the smaller one showed a smiling [B] in healthier times.

[6] For ease of reference, I set out the Statements hereunder:

[7] The plaintiff’s complaint is that the Statements are defamatory of it in its trade and/or business. The plaintiff pleaded that the Statements, in their natural and ordinary meaning, meant and/or were understood to mean that:

[8] The plaintiff submitted that the Statements read together with the Headings and the Pictures create the impression that the plaintiff caused [B]’s illness and predicament. The plaintiff argued that there is no evidence to suggest that [B] contracted HFMD from [D] (who, as mentioned above, attended the Centre). Further, there is also no proof that [D] caught HFMD whilst at the Centre. In addition, the plaintiff also contended that it was untrue that the plaintiff failed to notify parents that certain children who attended the Centre had taken ill with HFMD. The plaintiff asserted that it took all reasonable steps to notify the parents. In fact, the plaintiff maintained that it quarantined the children who fell ill during the material period until doctors had certified that they were free from the HFMD virus.

[9] Further, the plaintiff took issue with Statement 3, which it submitted, suggested that the plaintiff was avoiding the press intentionally. It was not disputed that Salma (representing the defendant) attempted to contact the Centre at least twice in the evening via telephone but there was no one at the Centre to answer the calls. The plaintiff was aggrieved over the fact that the defendant reported in the Article that the plaintiff was unavailable for comment. According to the plaintiff, this gave an implication “by way of ominous conclusion that the Plaintiff was avoiding the press.”[note: 1]

[10] Finally, the plaintiff also contended that the publication of the Article was actuated by malice.

[11] The defendant submitted that, first and foremost, the Statements, in their natural and ordinary meaning, were not defamatory. Secondly and in the alternative, even if the Statements were defamatory, the defendant can avail itself of the defence of justification. Finally, and again in the alternative, the defendant submitted that the Article was published on an occasion of qualified privilege.

[12] Before I turn to address these issues, it would be helpful to first set out the background (as illustrated in the defendant’s evidence) in relation to how both [D] and [B] contracted HFMD. In doing so, it will be revealed exactly what the impetus for the Article was.

[13] [C] deposed that, at all material times, when she and her husband were away at work, [B] would spend the day at [E]’s house from 7.30am to about 6.00pm. [E] herself has three young children, who as at May 2008, were aged five, nine and 11 respectively. The youngest among [E]’s children is [D] who would usually play together with his cousin, [B], when [B] was at [E]’s house.

[14] [E] also deposed that, at the material time, [D] attended the Centre every weekday from about 10.00am to 2.00pm. Further, [E] also stated that before and after [D] went to the Centre each weekday, [B] would usually be at her house.

[15] On or around 14 May 2008, [D] was diagnosed with HFMD. On 16 May 2008, [B] himself developed a fever. The following day, [B]’s condition took a turn for the worse and on 18 May 2008, he was admitted to KK Women’s and Children’s Hospital (“KK Hospital”). On 19 May 2008, [B]’s blood pressure dropped and he fainted. He was then transferred to the Intensive Care Unit (“ICU”). There, [B] suffered a seizure and stopped breathing for about 15 minutes before he was resuscitated. [B] spent the next 11 days at the ICU.

[16] On one of her visits to KK Hospital to see [B], [E] discussed [B]’s condition with [C]. The latter opined that “[B] probably contracted HFMD from [D] given that [B] had spent a significant part of the weekdays the previous week at [[E]’s] house and that [D] was diagnosed with HFMD just a few days before [B] was diagnosed with HFMD.”[note: 2] In response, [E] told [C] that [D] himself “probably contracted HFMD from one of the children at the [Centre] but that the [Centre] had not informed [[E]] of any cases of children at the [Centre] with HFMD.” [E] also gave evidence that she told [C] that had she been informed that “there were children at the [Centre] with HFMD, [she] would not have allowed [D] to attend the [Centre] until the [Centre] had no cases of children with HFMD.”[note: 3]

[17] On 22 May 2008, Salma received an e-mail from one Miss Lim Jing Ting (“Miss Lim”), a media relations executive at the Ministry of Health (“MOH”). The e-mail was titled “MOH Press Release: Update on HFMD Situation”, and was sent to a number of reporters and editors of various other newspapers and news media agencies. It read as follows:

The press release (“Press Release”) which was enclosed with the e-mail was titled “Update on Hand, Foot and Mouth Disease (HFMD) Situation in Singapore”. At the top left hand corner of the Press Release, there was an underlined notation in bold depicting that it was “For Immediate Release”. The Press Release was one among a series of press releases that were posted on MOH’s website between 27 March 2008 and 3 June 2008. These press releases were generally meant to be a source of information for the public on the HFMD situation.

[18] I shall now set out the main body of the Press Release in full:

[19] Salma’s evidence is that it was not uncommon for the defendant to receive such communication from MOH as the defendant, during the material period, was working with MOH in updating and alerting the general public on the HFMD situation in Singapore. After Salma saw the Press Release on 22 May 2008, she started her preparations (by using the information gathered in the Press Release) for the drafting of the Article. Salma intended to publish the Article the following day (ie 23 May 2008). To this end, Salma made arrangements to interview [B]’s parents at KK Hospital on 22 May 2008 itself (the very same day she received the Press Release).

[20] During the interview on 22 May 2008 at KK Hospital (“the Interview”), [C] informed Salma that [B] probably contracted HFMD from [D], who himself was diagnosed with HFMD on 14 May 2008. The reason for [C]’s belief was that [B] had been playing with [D] at [E]’s house when [C] and her husband were at work, a point which I alluded to at [13] above. [C] also told Salma that she was upset over the fact that parents in general, and [E] in particular, were not informed that there were HFMD cases at the Centre. [C]’s position was that had [E] known of existing HFMD cases at the Centre, she would not have allowed [D] to attend the Centre.

[21] After the Interview, Salma returned to her office at around 6.00pm. Salma’s evidence is that at or around this time, she attempted to contact the Centre to seek its comment for the purposes of the Article which the defendant intended to publish in the following day’s edition of the Newspaper. Salma said she made at least two attempts to contact the Centre by telephone. As it turned out, there was no one at the Centre to pick up Salma’s calls.

[22] Bearing in mind that the Press Release indicated that the information stated therein was “for immediate release” to the public (see above at [17]), Salma proceeded to draft the Article based on the information that she gathered from the Press Release itself and the Interview. The Article was published on 23 May 2008 in the Newspaper. Further, as the defendant usually did with most articles, an electronic copy of the Article was published online.

[23] There are three issues in this case, the first of which is, what is the natural and ordinary meaning of the Statements? Further, do the Statements (in their natural and ordinary meaning) bear the defamatory meaning (with respect to the plaintiff’s trade and/or business) pleaded by the plaintiff or some lesser defamatory meaning? (collectively “Issue 1”). The second issue is whether the defence of justification is made out (“Issue 2”). The third issue is whether the defendant can avail itself of the defence of qualified privilege; in this regard, it is also necessary to consider whether the publication of the Article was actuated by malice such that the defendant is precluded from this defence (collectively “Issue 3”).

[24] In respect of Issue 1, the plaintiff’s submissions pertained only to the last meaning as pleaded in [8] of its Statement of Claim (see above at [7]). This stated that “but for the plaintiff’s negligence, [B]’s illness could have been avoided”. In other words, the last meaning is that [B]’s illness was caused by the plaintiff’s negligence. I therefore proceed on the basis that the plaintiff has not made any submissions on the first eight meanings pleaded and only deal with the last pleaded meaning. I turn now to consider the natural and ordinary meaning of the Statements.

[25] The general principles applicable in determining the natural and ordinary meaning of the alleged defamatory words were neatly summarised in the Court of Appeal decision of Microsoft Corp v SM Summit Holdings Ltd [1999] 4 SLR 529 (“Microsoft Corporation”) as follows (at [53]):

[26] It bears emphasising that the natural and ordinary meaning of words is not confined to its literal or strict meaning, but includes inferences or implications that the ordinary man would draw from those words in light of his general knowledge, common sense and experience (see Gatley on Libel & Slander (Sweet & Maxwell, 11th Ed, 2008)) (“Gatley”) at para 3.17 and Doris Chia and Rueben Mathiavaranam, Evans on Defamation in Singapore and Malaysia (LexisNexis, 3rd Ed, 2008) (“Evans on Defamation”) at p 14; see also Lord Reid’s comments in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 at 58 which was cited with approval in Microsoft Corporation at [54] and Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 3 SLR 337 at 346).

[27] Before proceeding to consider the meaning of the words in question, it is necessary to set out the state of the general knowledge possessed by an ordinary person at the relevant time. On 23 May 2008, the day the Article was published in the Newspaper, the following would be what an ordinary person in Singapore would be aware of:

(a) There was a prevailing HFMD scare in Singapore. I note that this is actually accepted and conceded by the defendant in its submissions[note: 4], albeit in a different context.

(b) Children were especially susceptible to HFMD.

(c) If a child suffered from some of the symptoms of HFMD, it is advisable that he/she sees a doctor, stays at home, and avoids going to school. This will obviously help prevent the spread of the disease in the Singapore community.

(d) Some schools were temporarily closed because their students contracted HFMD.

(e) Schools were advised to monitor their students, and keep the parents informed of the latest developments on the HFMD front.

(f) High standards of hygiene were strongly encouraged.

[28] Armed with the knowledge of an ordinary person at the material time, and reading the entire Article in context (together with the Pictures as described above at [5]), I am of the view that the Article is well capable of conveying the meaning that “but for the plaintiff’s negligence, [B]’s illness could have been avoided”.

[29] I now turn to the question of whether the Statements are defamatory. Although it has been remarked that it is difficult to formulate a “comprehensive definition” of “defamation” (see in particular the comments made by Lord Atkin in Sim v Stretch (1936) 52 TLR 669; Gatley at para 2.1), the classic test of whether the words are defamatory has been authoritatively stated by the Court of Appeal in Aaron v Cheong Yip Seng [1996] 1 SLR 623 (“Aaron”) at 641F as follows:

[30] The plaintiff had alleged that the ordinary and natural meaning of the Statements is defamatory of it in its trade and/or business (see above at [7]). For the Statements to be defamatory of a plaintiff in its trade and/or business, the meaning derived from the Statements must impute to the plaintiff some quality which would be detrimental, or the absence of some quality which is essential, to the successful carrying on of its business (see Gatley at para 2.26). In this regard, it is instructive to refer to the remarks made in Griffiths v Benn (1911) 27 TLR 346 at 350 where Cozens-Hardy M R stated what a plaintiff has to show in order to prove that the words are defamatory of its trade and/or business:

[31] In order for the Statements to be held to be defamatory of the plaintiff’s trade and/or business, it must be shown that the Statements would ordinarily lead reasonable people to the opinion that it conducts its business in a dishonest, improper or inefficient manner. Having said that, it is my view that Statement 1 and Statement 2 are, by themselves, not defamatory. These two Statements, however, must be read in the context of the entire Article.

[32] Statement 1, by itself, reveals a probable source of how [B] caught HFMD, ie from his older cousin, [D]. As I mentioned above, Statement 1 by itself is not defamatory. In this regard, I agree with the plaintiff[note: 5] that Statement 1 gives a reader the impression that [B] may have contracted HFMD from his older cousin, [D]. However, by itself, it does not convey the idea that the plaintiff had been conducting its business in a dishonest, improper or inefficient manner.

[33] Statement 2 then discloses that [D] goes to “[the Centre] in [address redacted]”. Statement 2 gives an ordinary and reasonable reader the impression that [B]’s cousin, [D], went to the Centre, contracted HFMD whilst at the Centre, and then passed the virus to [B]. I formed this impression with Statement 1 (in particular) at the back of my mind. To this extent, I agree with the plaintiff. The plaintiff, however, went further and contended that Statement 2 conveys an ordinary and natural meaning to the reader that “[l]ike the 24 kindergartens that were told to close down and the other 75 that were urged to do the same, the Centre should be amongst the same category”. I cannot agree with the plaintiff that Statement 2 gives an ordinary and reasonable reader the impression that the Centre should have also closed down like the other 24 kindergartens (that were closed down) and another 75 (which were urged to do so). In the Article (which I have set out in full above at [4]), there is this passage which immediately precedes Statement 2:

In light of the above, I am of the impression that the natural and ordinary meaning of Statement 2 is that the Centre did not have the requisite number of infected students to be compelled to close down. In this regard, I agree with the defendant.

[34] I now turn to Statement 3 which says that “[C] [[B]’s mother] was upset that the centre did not inform parents that it had some children down with this illness, so parents could keep their children away.” To my mind, Statement 3 is the bane of the entire Article. Read with Statement 3 in particular at the back of one’s mind, the Article in general is capable of the meaning that “[b]ut for the plaintiff’s negligence, [B]’s illness could have been avoided”.

[35] The Statements, taken as a whole, are defamatory of the plaintiff’s trade and/or business because, read with the entire Article, they would ordinarily lead reasonable people to believe that the plaintiff conducted its business in an improper and negligent manner. It cannot be disputed that the Centre itself had the responsibility and duty to inform and update the parents of the latest developments on the HFMD situation at the Centre, and more importantly, whether there were any new cases of their students contracting HFMD. Reading the Article in its entirety, it appears that the meaning which is being portrayed is that the sole source of [B]’s predicament and illness appears to be the plaintiff’s negligence in failing to inform the parents that the Centre had students who were ill with HFMD. To put it simply, the individual Statements were tainted by the context of the entire Article.

[36] I have considered whether there is, in the Article, any antidote to the bane in Statement 3. In De Souza Tay & Goh v Singapore Press Holdings Ltd [2001] 3 SLR 380 (“De Souza Tay & Goh”), I had held at [33] that:

In that case, I had referred to the House of Lords decision of Charleston v News Group Newspapers [1995] 2 AC 65 (“Charleston”) where it was held that a publication must be considered in its entirety so as to determine whether it is defamatory, and stated the following at [32]:

[37] Returning to the present case, I could find nothing in the Article that may be considered to be an antidote to the bane contained in it.

[38] I turn now to consider the second issue, whether the defendant can avail itself of the defence of justification. The defendant pleaded in its defence at para 13 that the defamatory meaning of the Statements is that “the Plaintiff did not take due care in the prevention and control of HFMD, including taking reasonable steps in warning parents of the children under their charge, and that as a result [B]’s cousin contracted HFMD”. The defendant contended that such meaning is “derived solely from Statement 3”[note: 6]. The accompanying particulars state as follows:

[39] The applicable legal principles for the defence of justification have been summarised in Aaron ([29] supra) at 647D:

[40] To succeed in a plea of justification, the defendant need not prove the truth of every detail of the words published. He need only prove the truth of the “sting of the charge”; see Lim Eng Hock Peter v Lim Jian Wei [2009] SGHC 31 at [127]. I have held in [28] above that the Statements bore the meaning pleaded by the plaintiff, namely that “[b]ut for the plaintiff’s negligence, [B]’s illness could have been avoided”. In my view this is essentially the same as the meaning pleaded in the defence that the defendant sought to justify, namely that “the Plaintiff did not take due care in the prevention and control of HFMD, including taking reasonable steps in warning parents of the children under their charge, and that as a result [B]’s cousin contracted HFMD”. However I do not find that the defendant had proved its case of justification as there was no evidence to prove that [D] contracted HFMD whilst at the Centre, and that in turn, [B] himself contracted HFMD from [D]. Consequently, the defence of justification clearly fails.

[41] I note at the outset that the plaintiff, in both its opening and closing statements, submitted that I should consider the defence of qualified privilege in the light of the House of Lords decision in Reynolds v Times Newspaper Ltd [2001] 2 AC 127 (“Reynolds”). This is somewhat puzzling as the test in Reynolds sets a threshold for the defendant that is lower than the traditional common law test. It has been observed by Lord Hoffmann in Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 (“Jameel”) at [50] that:

[42] Furthermore, Reynolds has been expressly rejected on a number of occasions by this court (see for instance Lee Hsien Loong v Singapore Democratic Party [2007] 1 SLR 675 (“LHL v SDP”) and Lee Hsien Loong v Review Publishing Co Ltd [2009] 1 SLR 177 (“Review Publishing”)). In LHL v SDP, this court observed at [75] as follows:

[43] In any event, the party interested in the Reynolds defence, viz the defendant, did not rely on it and I do not propose to take this matter any further.

[44] The law of libel has long recognised various occasions of qualified privilege which exist for the “common convenience and welfare of society” (see Toogood v Spyring (1834) 1 C M & R 181 (“Toogood”) at 193). Indeed Bankes LJ in Gerhold v Baker [1918] WN 368 held at 369 that:

Further, it is also helpful to refer to Parke B’s classic formulation in Toogood at [193]:

[45] The categories of qualified privilege “can never be catalogued and rendered exact” (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 at [10]), but they commonly arise out of some existing relationship between the maker of a statement and the recipient (see Gatley at para 14.1). The foundation of such privilege is the existence of a duty (whether legal, social or moral) or interest on the part of the defendant to make the statement and a corresponding duty or interest on the part of the recipient to receive it (see Evans on Defamation at p 118). In this regard, I would gratefully adopt the following summary of the common law position prepared by the learned authors of Gatley at para 14.6:

(See also the observation made by Lord Atkinson in Adam v Ward [1917] AC 309 at 334 to the same effect as above).

[46] The general legal principles with regard to the defence of qualified privilege concerning newspapers has been set out in Aaron ([29] supra)(at 651C–652H) as follows:

[47] In light of the foregoing legal principles, the question which I have to address now is whether qualified privilege extends to an occasion where the publication relates to information concerning public health. In this regard, the defendant has drawn my attention to two cases namely, Allbutt v The General Council of Medical Education and Registration [1889] 23 QBD 400 (“Allbutt”) and Camporese v Parton (1984) 150 DLR (3d) 208 (“Camporese”). In Allbutt, it was held that the medical council had a social or moral duty to publish the name of a doctor who had been taken off the medical register. Consequently, the medical council could avail itself of the defence of qualified privilege. In Camporese, it was held that a published warning of possible food contamination from canning lids in a newspaper article fell within the ambit of the defence of qualified privilege.

[48] As I have noted earlier, the categories of qualified privilege are not closed. It is important, in my view, to note that there is no magic formula (comprising of a standard assortment of criteria) that would enable the court to ascertain whether an article is published on an occasion of qualified privilege. In the final analysis, the actual decision as to whether the defence of qualified privilege is applicable is largely dependent on the precise factual matrix of the case itself.

[49] Having said that, in accordance with the legal principles as set out in Aaron (see above at [46]), there are two indispensable elements that must be present together before an article in a newspaper can be said to be published on an occasion of qualified privilege. First, that article must pertain to a subject and contain information of prima facie general public interest. That is the minimum threshold; a mere general public interest in the information published is however never enough to found the defence of qualified privilege (see further Evans on Defamation at pp 120 and 131; Gatley at para 14.1). Secondly, and equally as important, the publisher must have a legal, social or moral duty to communicate the information to the general public. Coupled with this duty to communicate is a corresponding interest (on the part of the public) to receive the information. Therefore a general public interest by itself is not sufficient to give rise generally to a duty to communicate. In this regard, such a duty has been held to exist only on special facts (see Aaron at 651–652). With these legal principles in mind, I shall now discuss whether these two elements are in fact present in this case.

[50] It cannot be disputed that the Article conveyed information on the HFMD situation in Singapore, which at the material time was plainly an issue of public health of great concern to the public at large and in particular to parents of young children. In this regard, the defendant had also drawn my attention to the fact that the Press Release was one among a series of press releases (ten in total) that had been posted on MOH’s online website between 27 March 2008 and 3 June 2008 informing the public of the HFMD situation in Singapore.

[51] Further, according to the “Weekly Infectious Disease Bulletin” (for the week starting 23 March 2008) which is published by the MOH, the epidemic threshold for HFMD is surpassed when the total number of active HFMD cases exceeds 600. In the week ending 24 May 2008, the total number of HFMD cases notified to MOH was 729 (see in this regard the MOH press release dated 27 May 2008), and was clearly past the epidemic threshold. Consequently, as at 23 May 2008 when the Article was published, there was in fact an HFMD epidemic in Singapore.

[52] I note that the plaintiff had also made certain concessions relating to the seriousness of HFMD. First, at para 4 of its statement of claim, it acknowledged that:

Secondly, at para 3 of its reply, the plaintiff admitted to para 4 of the defendant’s defence which states as follows:

Finally, at para 3 of the plaintiff’s reply, it accepted that:

[53] There are two facets of HFMD which made it a very worrying concern for the public at the material time. First, as acknowledged by the plaintiff itself, HFMD is an infectious disease and although mild and self-limiting, it has nevertheless been associated with deaths due to heart and nervous system complications. Second, as again accepted by the plaintiff itself, children under five years of age are especially susceptible to HFMD. This is the reason why outbreaks of this infectious disease occurred across childcare centres, kindergartens and schools throughout Singapore.

[54] In the circumstances, it is clear that, at the time the Article was published, it was in the public interest for information pertaining to the HFMD situation in Singapore to be disseminated. It cannot be disputed that HFMD is a subject of public health which, in my view, is a subject of general public interest. Consequently, in view of the fact that the Article was published so as to alert and update the public on the HFMD situation in Singapore, the first element of general public interest is indeed present in this case.

[55] With regard to the second element of the publisher having a duty to communicate the information to the general public who, in turn, must have a corresponding interest to receive the information, this is essentially a question of fact that must be determined based on the evidence before me.

[56] In this regard, the defendant’s evidence is that the Article was one of many articles published in the Newspaper between April 2008 and May 2008 reporting on the HFMD situation in Singapore. During this period, the health team of the Newspaper (“the Health team”) was working intimately with MOH in updating and alerting the public on the HFMD situation in Singapore. To this end, the Health team would regularly receive from MOH important updates and information on the HFMD situation for dissemination to the general public. An example of such an update is the Press Release received by Salma via an e-mail from Miss Lim on 22 May 2008 (see above at [17]–[18]).

[57] It bears emphasising that the Press Release was titled “Update on Hand Foot and Mouth Disease (HFMD) Situation in Singapore”. It is also apposite to reiterate that there was an underlined notation in bold (at the top left hand corner of the Press Release) depicting that it was “For Immediate Release”. The Press Release has been set out in full above at [18], and the material parts therein emphasised accordingly in italics. In particular, the Press Release made a specific reference to a 13-month old boy (“the boy”) who had been hospitalised for suspected encephalitis. As it turned out, the boy is [B] himself. The Press Release also mentioned that the boy was in contact with his cousin who had HFMD and attended a kindergarten with an active HFMD cluster. Seen in this light, there is no doubt in my mind that the Press Release in fact formed the impetus for the Article.

[58] Taking into account the fact that MOH had conspicuously and intentionally denoted (in underlined bold font) that the Press Release (pursuant to which the Article was written and published in the Newspaper) was “for immediate release”, it is clear to me that MOH itself was of the view that the Press Release contained information which the public should be informed of immediately (or at least on an urgent basis). As alluded to earlier at [53], HFMD is a disease which is not only infectious but one that young children are especially susceptible to. Further, there was also in fact an HFMD epidemic at or around the time of the publication of the Article. In the circumstances, I would accept that parents and schools responsible for the care and well-being of young children must be kept well-informed of the HFMD situation and the possibly dire consequences of contracting this potentially fatal disease. In this regard, I am of the view that the Newspaper and therefore, the defendant (as the owner and publisher of the Newspaper) has a duty to publish the Article on an urgent basis (in this case, the Article was published on the very next day following the receipt of the Press Release by Salma) to the general public who in turn have an interest in receiving the information contained in the Article.

[59] In light of the legal principles as set out above from [46] to [47], and my decision as to whether the two elements of the defence of qualified privilege are present in this case (see above at [54]–[58]), it is my view that the Article was in fact published on an occasion of qualified privilege.

[60] However, this is not an end to the matter as the plaintiff also alleged that the publication of the Article was actuated by malice. Indeed, it is a well-settled principle of law that a plaintiff can defeat the defence of qualified privilege by proving that the publication of the alleged defamatory words was actuated by malice, ie with some improper or indirect motive, which the plaintiff usually proves by way of evidence that the defendant knew the statement to be untrue, or was recklessly indifferent as to the truth (see further this court’s decision in Hytech Builders Pte Ltd v Goh Teng Poh Karen (“Hytech Builders”) [2008] 3 SLR 236 at [35]–[39]).

[61] The starting position of any analysis of the defence of qualified privilege must be the House of Lords decision in Horrocks v Lowe [I975] AC 135 (“Horrocks”), which has recently been adopted and applied by this court in Hytech Builders. In Horrocks, Lord Diplock observed that the defendant’s motive in publishing the defamatory statements plays a critical role in the court’s decision of whether the defendant can avail itself of the defence of qualified privilege in the following manner at 149F:

[62] As was observed in Hytech Builders, Lord Diplock also (very helpfully) in Horrocks considered not only how motive can be proven but also emphasised the important role that honesty of belief in the truth of the defamatory statements plays in determining whether malice is present (at 149H–151B):

[63] For easy reference, the principles stated in Horrocks can be summarised (very broadly) as follows:

(a) A defendant is entitled to the defence of qualified privilege unless some dominant and improper motive on its part is proved. In general, motive here equates to the use of a privileged occasion for some purpose other than that for which the privilege is accorded by law. It bears emphasising that in order for the defence to be defeated, the desire to injure the plaintiff must be the dominant motive for the defamatory publication.

(b) As long as the defendant is acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests, its knowledge that a statement will injure the plaintiff does not destroy the defence.

(c) If the defendant publishes untrue defamatory statements recklessly, ie without considering or caring whether these statements are true or not, it will be deemed to have known that they are false. In this regard, carelessness, impulsiveness or even irrationality in arriving at a belief that the statements are true is not to be equated with recklessness.

(d) Notwithstanding a positive belief in the truth of what is published, the defence will be defeated if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by law.

[64] In my view, there is no evidence to suggest that the publication of the Article was actuated by malice. Indeed Salma testified that she positively believed in the truth of what [C] told her during the Interview (ie that the Centre failed to inform the parents on the HFMD cases at the Centre). This can be seen from Salma’s evidence as adduced under her cross-examination:

[65] Further, counsel for the plaintiff, in the course of cross-examining Salma, sought to establish the present state of Salma’s belief as to the truth of the Statements. This, however, is irrelevant in my view. It is obvious that, in determining whether there was any malice present in the publication of the Article, the mental state of Salma must be determined at the time the Statements were published and not at trial (almost 11 months after the Article was published in the Newspaper).

[66] I also accept that the defendant was not reckless or indifferent as to the truth of the Statements, and that Salma did believe in the veracity of the Statements on the basis of the information provided by [C] during the Interview even though she did not conduct an independent check to verify it. In my view it was not unreasonable for Salma, in the circumstances, to accept as true information provided by [C]. In this regard, I also note that Salma attempted to contact the plaintiff by telephone for its comment as soon as she returned to her office following the Interview. It was unfortunate that there was no one at the Centre to take the calls. In the circumstances, the Article duly reflected the fact that the plaintiff could not be contacted the night before the Article was published. It was not unreasonable, given the urgency of the matter to publish the article the following day without the benefit of the plaintiff’s response.

[67] The plaintiff’s assertion that the publication of the Article was “a tactic to increase the sales of the Newspaper by naming a Centre and creating drama that [the plaintiff] tried to avoid the press” is therefore a bald one which is unsupported by any evidence. In my view, there is nothing to show that the true impetus for the publication of the Article was anything other than the urgent need to alert and inform the public of the latest developments on the HFMD situation in Singapore.

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[note: 1]plaintiff’s opening statement, p 7, para 14

[note: 2][E]’s affidavit evidence-in-chief (“AEIC”), tab D, para 18

[note: 3][E]’s AEIC, tab D, para 19

[note: 4]Para 19 of defendant’s closing submissions (“DCS”)

[note: 5]see bundle of pleading, p 6

[note: 6]para 34 of DCS