High Court · Decided 9 February 2015

Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another

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[2015] SGHC 38Case no. Suit No 888 of 2012

What happened, in plain English

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Laws this judgment relies on

Defamation Act 1957

Grounds of decision

Official text from eLitigation

George Wei JC:
Introduction
[1] Suit 888 of 2012 was started by the Writ of Summons filed on 16 October 2012, and involved a claim by the Plaintiffs against the Defendants for defamation and/or malicious falsehood, and a counterclaim by the Defendants against the Plaintiffs for copyright infringement and passing off.
[2] After hearing the parties and considering their arguments, I find that the Plaintiffs’ action in defamation succeeds in part. The Defendants’ counterclaim for copyright infringement succeeds. The Defendants’ counterclaim for passing off fails.
The Facts
[3] There were a large number of factual disputes and issues which the parties raised. After introducing the parties, I set out a brief summary of the events leading up to the dispute first, and only later discuss my specific findings and further details where relevant to the legal issues before the Court.
The Parties
[4] Golden Season Pte Ltd (“the First Plaintiff” or “Golden Season”) is a company incorporated in 1982 specialising in military and humanitarian relief products. These include ready meals, rescue and medical equipment and military battery assemblies. Designer.SG Pte Ltd (“the Second Plaintiff”) is a company specialising in contemporary home décor products. Ling Yen Wu (“the Third Plaintiff” or “Tedric”) is the sales director of the First Plaintiff and the design director of the Second Plaintiff (the plaintiffs collectively referred to as “the Plaintiffs”).
[5] Whilst Golden Season is in the business of providing (selling) military and humanitarian relief products to organisations including non-governmental organisations (“NGO”) such as Mercy Relief, it is also apparent that they are active in various charitable causes. This includes donating relief products and providing services during disasters, for example, during the Szechuan Earthquake in 2007. Mercy Relief was not just a “customer” of Golden Season: it was also an NGO with whom Golden Season worked with on charitable causes connected with disaster relief. This included help with fund raising.
[6] Kairos Singapore Holdings Pte Ltd (“the First Defendant” or “Kairos”) was incorporated in July 2010 and provides inflatable boats, marine products and yacht charter services. The inflatable boats were suitable for activities such as fishing as well as for use in flood disaster relief work. Roy Soeigiarto (“the Second Defendant” or “Roy”) is the director of the First Defendant (the defendants collectively referred to as “the Defendants”).
Events leading to the dispute
[7] This dispute was set against the backdrop of the 2011 monsoon season which caused severe and prolonged flooding in Thailand. This resulted in an urgent need for rescue equipment including inflatable boats and related gear to assist the disaster relief effort.
The First Order and donation to Mercy Relief
[8] On 12 October 2011, Tedric contacted Roy (through a message on an internet site) expressing his interest to purchase inflatable boats and other suitable equipment for donation purposes in aid of the floods in Thailand. For convenience, the message is set out below:
[9] It would appear that Tedric had initially made the purchase representing the Second Plaintiff, but later decided that it would be the First Plaintiff who would be making the purchase. In any case, it is not disputed that the purpose of the boats (ie, for use in the Thailand floods) was made known to the Defendants. After some correspondence, Tedric placed an order on 13 October 2011 for 16 inflatable boats (comprising 10 KB 430 boats and 6 KB 528XL boats) and two outboard motors (comprising one 5.8hp motor and one 10hp motor) (“the First Order”). Golden Season paid S$ 23,844 to Kairos for the first order. Along with the first order, Roy also donated two additional KB 430 boats, one used generator and two used chainsaws (“the Kairos Donated Items”).
[10] There were two other purchases of boats from the Defendants, which will be elaborated on later, but in total, the Plaintiffs would donate 18 inflatable boats (not including the two boats that the Defendants donated) and 4 motors to Mercy Relief.
[11] The Kairos Donated Items were also passed on to Mercy Relief. Mercy Relief later acknowledged these donations in a letter dated 21 October 2011 addressed to Tedric and the First Plaintiff (“the Acknowledgement Letter”). It is not disputed that the Acknowledgement Letter was not made known to the Defendants until sometime later. As will be seen, this was the cause of much unhappiness.
[12] The inflatable boats stocked and sold by Kairos were sourced from a Chinese Original Equipment Manufacturer (“OEM”). The boats were sold by Kairos under the Kairos Mark comprising the name “Kairos Inflatable” set out within a fish symbol. The term “Inflatable Sampans” was also used in marketing the boats.
The meeting at the Plaintiffs’ office and the Exclusive Reseller Agreement
[13] The parties continued to correspond with each other primarily through email. The contents of these emails generally entailed discussions of prices and features of the various boat models that the Defendants offered.
[14] In the midst of such discussions, a meeting between the Plaintiffs and the Defendants was arranged. While parties are not certain at which date this meeting occurred, it is clear that it occurred before 28 October 2011, the day a training session on how to operate the Kairos boats was held (see below at [20]).
[15] During this meeting, the Plaintiffs allege that they entered into an agreement with the Defendants, whereby the Plaintiffs would become the exclusive reseller of the Defendants’ boats, outboard motors and electrical pumps (at least to humanitarian organisations) (the “Exclusive Reseller Agreement”). It is also during this meeting that the Plaintiffs allege that the Defendants had given the Plaintiffs permission to use photos of the boats owned by the Defendants, and even allowed the Plaintiffs to remove the logo of the Defendants on such photos so that the Plaintiffs could market the goods as their own. Furthermore, the Plaintiffs also claim that the Defendants agreed to remove their prices from the Internet and not to publish their prices anymore.
[16] Clearly, what was agreed upon during this meeting is an issue of dispute between the parties. This will be especially relevant for the purposes of the Defendants’ counterclaim in copyright infringement and passing off.
The Second and Third Order
[17] Tedric later placed a second order on 27 October 2011 for two KB 528XL boats, one 5.8HP motor, and one 10 HP motor (“the Second Order”). Finally, on 31 October 2011, Tedric made a final order of ten more inflatable boats (comprising eight KS 320 boats and two KS 330 boats) (“the Third Order”). Including the first order, Tedric purchased 28 boats and four motors from the Defendants in total:
(a) 10 KB 430 boats (all during the First Order);
(b) 8 KB 528XL boats (six during the First order and two during the Second order);
(c) 8 KS 320 boats (all during the Third Order);
(d) 2 KS 330 boats (all during the Third Order);
(e) 2 5.8hp motors (one during the First Order and another during the Second Order); and
(f) 2 10hp motors (one during the First Order and another during the Second Order).
[18] Although the Plaintiffs eventually purchased a total of 28 boats from the Defendants, only 18 of these were donated to Mercy Relief as mentioned above. According to the Plaintiffs, the remaining boats were “earmarked for [Mercy Relief]’s future missions and were warehoused” by the Plaintiffs. The Defendants claim that they were unaware of this, and were under the impression that all the boats would immediately be deployed in the Thailand floods.
[19] Up to this point, there is also dispute as to whether discounts were offered and provided by Roy, and if they were, the reason why these discounts were offered. What is also in dispute is whether Roy knew of the existence of Mercy Relief and that the boats were intended for use by Mercy Relief (as opposed to simply for flood relief work) before 28 October 2011. This will be dealt with later.
The training session on 28 October 2011
[20] On 28 October 2011, the Defendants carried out a training session to demonstrate how to operate the Defendants’ boats and other equipment. This training session was arranged by the Plaintiffs. However, it was attended by Mr Francis Lee (“Francis”), previously the Strategic and Partnership Director of Mercy Relief. During this training session, Francis took the following items from the Defendants:
(a) 1 portable electric pump GP80DT (“the electric pump”);
(b) 1 bale of rope of 100 metres length (“the rope”); and
(c) 4 units of LED waterproof blinker lights (“the LED blinker lights”).
[21] According to the Defendants, it was agreed that Francis would be buying the rope “through Golden Season”. This would mean that Mercy Relief would pay Golden Season, and after which, Golden Season would pay the Defendants for the price of the rope. For the remaining two items, it is in dispute as to whether or not the items were on loan to Mercy Relief, or whether the same payment arrangements as the rope had been agreed upon. Whatever it is, the Defendants claim that the Plaintiffs never paid them for any of the above items.
The chain of emails after the training session
[22] After the training session, Roy sent the Plaintiffs an invoice on 31 October 2011 billing the Plaintiffs for the electric pump, the rope and the LED blinker lights. Roy followed up with an email dated 1 November 2011 mentioning that Francis had taken the electric pump to Thailand.
[23] On 2 November 2011, a heated chain of emails was exchanged between Roy and Tedric. The main point Tedric wanted to convey in these emails was that the Defendants should, as far as possible, not be in direct communication with the Plaintiffs’ clients. Tedric was also worried that the Defendant had disclosed the prices of certain items to Mercy Relief during the training session. This was the start of the breakdown of the relationship between the parties.
The sale to Singapore Red Cross
[24] On 8 November 2011, the Singapore Red Cross (“SRC”) issued a press release announcing that it was donating boats to Thailand as well. The Plaintiffs thus became aware that the Defendants had sold their boats directly to the SRC as there were photos with boats bearing the Defendants’ logo. The Plaintiffs were unhappy that the Defendants had bypassed them to sell to the SRC direct and thereafter instructed one Mr Kenny Ng (“Kenny”), the purchasing manager of Golden Season, to source for alternative suppliers of inflatable boats and motors. Amongst the suppliers that Kenny found was Rongcheng Bestband Industry Co Ltd, Shandong, People’s Republic China (“Rongcheng”). As it turned out, Rongcheng was also the Defendants’ inflatable boat supplier.
[25] It was during this period when the Plaintiffs started to distribute brochures to advertise the sales of “Golden Season” boats. According to the Defendants, the pictures used in these brochures are unauthorised reproductions of photos owned by the Defendants and contained photos of the Defendants’ boats with the Defendants’ logo removed. This forms the basis of the Defendants’ counterclaim in copyright infringement and passing off.
[26] On 22 November 2011, Roy wrote three emails. The first at 9.55am was an email to the Defendants’ suppliers, where Roy warned his suppliers that there was a “reseller” that was trying to bypass the Defendants and were going straight to the Defendants’ clients and suppliers. This email included the text and body of an email that Kenny had sent to a supplier when he was sourcing for alternative suppliers, and clearly identified Golden Season. The second email at 10.56am was sent to Christopher Chua (“Chua”), Secretary-General of the SRC. This second email contained the first email with a short explanation that Roy was trying to “set things right”. The third email sent at 6.47pm was a relatively cordial email addressed to Tedric, where Roy tried to re-affirm the working relationship between the parties. Roy also offered that an agreement could be signed where parties should not sell to each other’s clients. Tedric did not reply to this email.
[27] Chua later offered to mediate the matter between the parties, and sent an email to Tedric on 23 November 2011. In the exchange of emails on the same day, Chua also clarified that it was him who approached the Defendants for boats for Thailand. He had found the Defendants by conducting a search on the internet. The Plaintiffs sought a number of clarifications as to how the Defendants had acted in the sale to the SRC, including whether the Defendants had asserted that they owned any intellectual property over the boats and that they could not be purchased from the Plaintiffs.
[28] On 24 November 2011, Tedric sent a text message to Roy asking him how long he had been doing business with the SRC. Roy did not reply to this text message. On 25 November 2011, Roy sent an email to the SRC relating the dispute between the Defendants and the Plaintiffs which included the following:
(a) that the Plaintiffs had pressed the Defendants to give details on the business relationship between the Defendants and the SRC;
(b) that the Defendants never gave the Plaintiffs permission to use the Defendants’ photos for the Plaintiffs’ brochures, and that the Plaintiffs were using “other people’s product to pose” as their own; and
(c) that the Plaintiffs had purchased the Defendants’ boats only to resell them to Mercy Relief at “an undisclosed amount”.
The emails to Mercy Relief
[29] On 28 November 2011, the Defendants wrote to Mercy Relief, and received an auto-reply from Mercy Relief. The contents of this email are not known.
[30] On 29 November 2011, the Defendants wrote to the Chief Executive Officer (“CEO”) of Mercy Relief seeking an acknowledgment of the Donated Kairos Items, as well as the discounts that the Defendants had given the Plaintiffs, claiming that this was necessary for “stock audit, tax and accounting purposes”. It would appear that the Defendants never received a response to this letter until sometime during mid-December 2011. In any case, the evidence shows that on 7 December 2011, the Defendants sent another email to Mercy Relief, and in turn, received a further auto-reply.
[31] It was after this that the Defendants started on what the Plaintiffs call the Defendants’ “defamation campaign”.
An overview of the defamatory articles
[32] The following is a brief summary of what the Plaintiffs assert are defamatory of them:
(a) two Facebook posts posted by Roy on 10 December 2011;
(b) eight emails sent to various recipients, including Mercy Relief, the SRC and their officers, sent in the period between 13 December 2011 and 23 February 2011; and
(c) a phone text message sent to Francis.
[33] As an action in defamation is essentially fact-centric, it is important to understand the context in which this dispute arises. It is clear from the above outline that, at the very least, there was some miscommunication and unhappiness in how parties had appeared to have acted in their business relationship. The Plaintiffs were unhappy that the Defendants seemed to have bypassed them and contacted their clients (ie, SRC) while the 2 Defendant appeared to be unhappy with the fact that his donations might have gone unnoticed by Mercy Relief as they had not replied to him. This is the brief background against which the alleged defamatory articles came about. In general, the two Facebook posts were posts by Roy on his personal and business page commenting on the spate of events that had occurred, and the eight emails were correspondences with authorities whom the Defendants thought were relevant to the dispute. I elaborate on this in the later paragraphs.
Issues before this court
[34] The legal issues before this court are:
(a) For the Plaintiffs’ action in defamation -
(i) whether the articles are defamatory of the Plaintiffs;
(ii) if they are, whether any defences are applicable; and
(iii) if applicable, the quantum of damages to be awarded.
(b) For the Defendants’ counterclaim -
(i) whether the Plaintiffs had infringed on the copyright belonging to the Defendants; and
(ii) whether the Plaintiffs were liable in the tort of passing off (inverse passing off).
The applicable law – Defamation
[35] The law of defamation is relatively well-settled and I set out the general principles applicable in this case. The tort of defamation is concerned with protecting a person’s reputation, namely, what other people think of him. The classic elements to establish the tort of defamation are that there must be:
(a) a statement bearing a defamatory meaning;
(b) publication to a third party; and
(c) reference made to the plaintiff.
[36] A statement is considered to be defamatory if it:
(a) lowers the plaintiff in the estimation of right-thinking members of society generally;
(b) causes the plaintiff to be shunned or avoided; or
(c) exposes the plaintiff to hatred, contempt or ridicule.
See Gary Chan Kok Yew & Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2011) ("The Law of Torts in Singapore") at para 12.014.
[37] Whether a statement is defamatory is generally determined based on the construction of the natural and ordinary meaning of the words used. As summarised by the Court of Appeal in Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 ("Chan Cheng Wah") at [18], the following guiding principles apply:
(a) the natural and ordinary meaning of a word is that which is conveyed to an ordinary reasonable person;
(b) as the test is objective, the meaning which the defendant intended to convey is irrelevant;
(c) the ordinary reasonable reader is not avid for scandal but can read between the lines and draw inferences;
(d) where there are a number of possible interpretations, some of which may be non-defamatory, such a reader will not seize on only the defamatory one;
(e) the ordinary reasonable reader is treated as having read the publication as a whole in determining its meaning, thus “the bane and the antidote must be taken together”; and
(f) the ordinary reasonable reader will take note of the circumstances and manner of the publication.
[38] Apart from establishing that the statement is defamatory, it must also be shown that it is the plaintiff who has been defamed by the publication of the statement. There is no need for the plaintiff to be named, but it must be shown that the words would be understood by ordinary people to refer to the plaintiff. The act of publication and reference to the plaintiff are key elements of the tort.
[39] Once the above are established, the defendant will be liable for defamation unless he can rely on defences such as justification, qualified privilege or fair comment. I further elaborate on the relevant legal principles specific to each article later on when necessary.
Are the elements of the tort of defamation made out?
The Facebook posts
[40] On 10 December 2011 at 9.58pm, Roy posted on his personal Facebook page:
Roy followed up with a comment posted on 11 December at 9.30am, stating:
I refer to the above post as well as the comment collectively as the “First Facebook Post”.
[41] On 10 December 2011 at 11.11pm, the First Defendant posted on its business Facebook page:
Roy then followed up with three comments. The first:
The second:
And the third:
Tedric responded to the thread of comments by commenting:
The Second Defendant then replied to the thread stating:
I refer to the later posts and string of comments collectively as the “Second Facebook Post”. It is noted that the Second Facebook Post was posted about an hour after the First Facebook Post.
[42] In the statement of claim dated 16 October 2012, it is pleaded that the words contained in the Facebook Posts were defamatory in their ordinary and natural meaning in the following manner:
a. The First and Third Plaintiffs deceived, tricked and conned the Defendants into selling the Kairos boats/sampans at a discounted price whilst having no intention whatsoever to donate the same to a charitable cause.
b. The First and Third Plaintiffs did not donate the GS donations or donate used items to Mercy Relief but instead sold them to Mercy Relief for a profit.
c. In so deceiving, tricking and conning the Defendants, the First and Third Plaintiffs are crooks and cheats.
[43] The Defendants argue that read in their ordinary and plain meaning, the Facebook posts are not defamatory. I disagree. In my view, the First Facebook Post strongly suggests that the Defendants have been cheated by “some folks” – these unnamed third parties had approached the Defendants on the “pretext” of donation but did not make any donation, suggesting that they had lied. For the Second Facebook Post, it is important to note that the thread of comments was prefaced with the original post which stated “no more 3rd party [nonsense]”, which is strongly suggestive of malpractices. There are then several comments asserting that donor’s monies should be used wisely. Read together, it would be reasonable for an ordinary man to surmise that the post is made in reference to the malpractices of these unnamed third parties, which caused donor’s monies to be used unwisely. The continual stress on corporate discounts and the prices charged suggest some form of overcharging. Furthermore, it would be odd to mention in the abstract that “[c]opyright infringement is an offence.” This clearly suggests an incident of copyright infringement.
[44] In ABZ v Singapore Press Holdings Ltd [2009] 4 SLR(R) 648 at [31], it was held that if a statement was made suggesting that the plaintiff conducted its business in a dishonest, improper or inefficient manner, it would be defamatory of the plaintiff. The words/phrases “cheating”, “should be used wisely”, and “nonsense”, for example, all suggest some form of dishonesty or some form of business misconduct, and therefore, I find that both the First and the Second Facebook Posts bear defamatory meaning.
[45] The real challenge, however, is for the Plaintiffs (in particular the First and Third Plaintiff) to establish that the two Facebook posts refer to them.
[46] Whether or not something refers to or identifies a plaintiff is an issue of mixed law and fact. As explained by Viscount Simon LC in Knupffer v London Express Newspaper, Limited [1944] AC 116 at 121 and cited with approval in Mohamed Hussain v Chew How Yang Eddie [1995] 1 SLR(R) 916 at [36]:
[47] Ultimately, the question before the court is whether based on the Facebook posts, a reasonable person could identify the Plaintiffs. The Plaintiffs, essentially, rely on two arguments to establish this:
(a) First, the Plaintiffs argue that they are widely known to be associated with Mercy Relief. A simple search on an internet search engine or the search engine available in Facebook would allow the ordinary and sensible reader to surmise that the Defendants were referring to the Plaintiffs.
(b) Second, the Plaintiffs also argue that Tedric had commented on the Second Facebook Post, and thus had identified himself. The ordinary reader would then understand that the comments were made in reference to the Plaintiffs. The Plaintiffs also argue that the ordinary reader would associate the First Facebook Post with the Second Facebook Post, and therefore, when Tedric had identified himself in the Second Facebook Post, readers would also understand that the First Facebook Post was referring to him.
[48] There are three questions to be explored in considering the Plaintiffs’ arguments. First, pertaining to the Second Facebook Post, will a defendant still be liable for defamation if the defamatory article does not identify the Plaintiff but for the Plaintiff’s act of self-identification? Second, can the Plaintiffs rely on its identification in the Second Facebook Post such that the Plaintiffs are also identified in the First Facebook Post? Third, can the Plaintiffs rely on the fact that they are easily associated with Mercy Relief such that an ordinary person would read the Facebook posts to be in reference to them?
The Second Facebook Post – self-identification by the Plaintiff
[49] Can a plaintiff rely on his “self-identification” in alleging that a defendant’s publication has defamed him? While there seems to be little case authority to give guidance on this point, it stands to reason that this cannot be the position. Starting from first principles, it is clear that it must be the defendant’s publication that identifies the plaintiff before liability will attach (assuming that defamatory meaning is already found), and not the act of the plaintiff. A plaintiff who goes around announcing that something published by the defendant actually refers to him cannot rely on that very same act in arguing that the defendant’s publication now refers to him.
[50] Take, for example, a newspaper which publishes an article claiming that a certain unnamed businessman is guilty of dishonest practices. An individual thinking that the newspaper is referring to him, publishes a public refute claiming that the newspaper is defaming him. Assuming that a case of innuendo (reference to the individual) cannot be made out, it would be absurd if the individual could rely on his own act of publication and identification in order to claim that the newspaper article refers to him. From an objective point of view, the newspaper’s publication did not refer to the plaintiff. In such a situation, unless the plaintiff can show some form of innuendo that links the defendant’s publication to the plaintiff, the plaintiff’s action must fail. This would be answering the first question as posed by Viscount Simon LC – as a matter of law, the article, having regard to its language, is not capable of referring to the plaintiff.
[51] Applying the reasoning to this case, the fact that Tedric subsequently “identified” himself by responding to the thread of comments cannot in itself cause the Defendant’s Second Facebook Post to now identify him. However, there is one significant difference between the newspaper example discussed above and the present case. After Tedric had “identified” himself, Roy went on to post a comment in the thread:
[52] I refer to this comment as “Roy’s response comment”. A larger question belies this inquiry – what exactly is the Defendants’ publication? Given the advances in digital technology and the rising popularity of “instant” electronic communication, a Facebook post which allows for and generates comments by means of posts under a thread, all of which are published instantly, is much more dynamic (as a publication/communication medium) than a print newspaper article.
[53] In Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 3rd Ed, 2005), the learned author at paras 5.24 to 5.25 elaborates:
[54] In Webb v Bloch (1928) 41 CLR 331 at 363, Isaacs J commented that publication of a libel is “to convey by some means to the mind of another the defamatory sense embodied in the vehicle.” In this sense, it has been said by the High Court of Australia in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [26] that publication is a bilateral act:
[55] It follows that every time an individual displays or views a Facebook post on his computer, it counts as a separate publication. This is important because given the ability to comment on a thread on a Facebook post means that potentially, the content of the publication continues to change. A newspaper article in most cases, remains in the same form as it was when originally published, editorial corrections aside. Later articles may revise or develop themes and issues discussed in the first article. The reality of Facebook and other social networking sites is that every time the author of a Facebook post comments on his own post, he is essentially “building on” the original publication. The Facebook post and the thread of comments bear a passing resemblance to a conversation. Later comments really belong to a single thread of comments originating from the same post. For this reason I am of the view that in many cases it is most probable that they will be read together and thus should be treated as a single publication. This can be likened to a newspaper who re-publishes the same article (previously published), but now with a descriptive or elaborative passage in another column beside it.
[56] Bringing this to the case at hand, by responding to Tedric’s comment on his Second Facebook Post, Roy can be said to have “built on” his original publication in such a way as to confirm Tedric’s identity. From a legal point of view, the whole string of comments now has to be read together, and, in my judgment, form a singular instance of publication. This is different from taking the perspective that the original post and Roy’s response comment are two different sets of publications. This difference is critical because the Defendants rely on the case of Grappelli v Derek Block (Holdings) Pte Ltd [1981] 1 WLR 822 CA (“Grappelli”) to argue that there is a general rule that a statement is to be understood in the way in which a reasonable recipient would understand it at the time it is published; subsequent knowledge which makes the recipient look back on it in a different light will not make it defamatory (See also Gatley on Libel & Slander (Patrick Milmo & W V H Rogers eds) (Sweet & Maxwell, 11th Ed, 2008) at para 7.4 (“Gatley”)). Even accepting the general rule at face value, it is clear that Grappelli does not apply here because there is no “subsequent knowledge” – the string of comments and the original post are one singular publication. To be fair, the Defendants rely on Grappelli in relation to another point, but its possible applicability for this issue should be clarified.
[57] Viewed from the perspective of a singular publication, the issue of self-identification then becomes less important. Applying the two questions as posed by Viscount Simon LC, the two questions before the court are therefore: considering the entire Second Facebook Post including Roy’s response comment, as a question of law, can it having regard to its language, be regarded as capable of referring to Tedric, and as a question of fact, does it in fact lead reasonable people to the conclusion that it does refer to him? I had mentioned above that it must the defendant’s publication which identifies the plaintiff. To this end, although it goes without saying that Tedric’s response identifies himself, I find that Roy’s response comment is also capable of identifying the Third Plaintiff (Tedric) given the circumstances in which it was made. By commenting immediately after Tedric’s comment that “some people” were “following the post”, I find that it is possible that a reasonable man would surmise that Roy’s comment was referring to Tedric, who was “following the post”. As a result, I find that the Plaintiffs’ action of defamation on the Second Facebook Post succeeds.
[58] For completeness, I note that the Plaintiffs also argued that they were highly associated with Mercy Relief, and a simple internet search would have enabled the ordinary reader to discover that the Defendants were referring to the Plaintiffs in the Second Facebook Post. Given my findings above, there is no longer a need for the Plaintiffs to rely on this, but I would state that if they were to succeed based on this, the Plaintiffs would have to prove that the ordinary reasonable reader was likely to have undertaken an internet search in order to identify the Plaintiff. To this end, little evidence was led to establish this point, but in any case, as mentioned, it was not required of me to make a finding on this issue.
The First Facebook Post – reliance on the Second Facebook Post
[59] The Plaintiffs argue that since the Second Facebook Post identifies the Plaintiffs, readers would naturally understand the First Facebook Post to refer to the Plaintiffs. As explained in The Law of Torts in Singapore at para 12.049:
[60] In order to succeed, the Plaintiffs would have to prove that the ordinary reasonable reader had knowledge of the Second Facebook Post. The Plaintiffs are therefore relying on another publication to establish reference. The following passage from Gatley 2013 at para 7.4 is instructive:
[61] The Plaintiffs argue that Roy’s friends, who would have seen the First Facebook Post, would also have been supporters of his business, and would therefore have also seen the Second Facebook Post. It bears repeating that the First Facebook Post was on Roy’s personal Facebook page. The Second Facebook Post was on Kairos’s business Facebook page. In such circumstances, the Plaintiffs argue that this would allow them to have the necessary knowledge to conclude that the First Facebook Post refers to the Plaintiffs. On a balance of probabilities, I disagree. The fact that a number of readers might have access to both posts does not lead to the conclusion that they would have observed these two posts and then conclude that the First Facebook Post refers to the Plaintiffs. More importantly, it is noted that the reference to Tedric in the Second Facebook Post was also formed sometime later, only after Roy’s response comment was posted. In those circumstances, a reader would have to be cognizant of the Second Facebook Post at this stage, and then go back to the First Facebook Post to establish the reference to the Plaintiffs. In such circumstances I hold that the general rule in Grappelli applies, and that the Plaintiffs should not be able to rely on the Second Facebook Post to establish reference to the Plaintiffs in the First Facebook Post. As such, the Plaintiffs’ action based on the First Facebook Post fails.
Publication
[62] For purposes of completeness, I also find that there is no difficulty in establishing that there is publication by means of the Facebook posts. Whether or not the publication was substantial is a matter of damages which will be considered later in the event that no defence is established.
The chain of emails
[63] Shortly after posting the two Facebook posts, Roy sent a total of eight emails to various parties, including the Chairman of Mercy Relief, Mr T K Udairam (“Mr Udairam”), and the CEO of Mercy Relief, Mr Hassan Ahmad (“Hassan”). The content of the emails broadly relates to the spate of events described above. A summary of the emails and the dates they were sent are as follows:
I refer to these emails collectively as the “chain of emails”.
[64] The same legal question that must be answered is whether the content of the chain of emails is defamatory in nature. The defendants argue that the chain of emails was sent by Roy because Roy was in a “perplexing situation”. As mentioned above, on 29 November 2011, Roy had written to Hassan seeking an acknowledgment of the Donated Kairos Items and the discounts that the Defendants had given the Plaintiffs, but had not received any reply from Hassan or Mercy Relief. The chain of emails from Roy was therefore in pursuit of his “legitimate interest in asking the charity he had donated to about how the donations had been received” (or not, as the case may be). To this end, I share some sympathy for Roy insofar as the replies from the various parties may not have been as clear as they could have been in addressing directly the concerns raised by Roy.
[65] However, even if the replies Roy received to his email queries could be said to be unsatisfactory, it does not cure or excuse any defamatory sting in the contents of the email queries. Simply because the Defendants received an unsatisfactory reply from a third party does not give them the right to make defamatory remarks of another, especially so when this is based on personal uncorroborated suspicions. That said, the reason for sending the email queries may allow Roy to rely on the defence of qualified privilege, which will be considered later on.
[66] The Plaintiffs assert that the chain of emails bears a number of defamatory imputations. As in the case of the Facebook posts, the words complained of in the eight emails were pleaded to be defamatory in their natural and ordinary meaning.
[67] For convenience, the Plaintiff said to be defamed by each email are as follows:
(a) Email 1: First and Third Plaintiffs;
(b) Email 2: First and Third Plaintiffs;
(c) Email 3: Primarily the First and Third Plaintiffs. Second Plaintiff in respect of an allegation of having outstanding debts;
(d) Email 4: Primarily the First and Third Plaintiffs. Second Plaintiff in respect of an allegation of having outstanding debts;
(e) Email 5: First and Third Plaintiffs;
(f) Email 6: Primarily the First and Third Plaintiffs. Second Plaintiff in respect of an allegation that it gave the Defendants permission to use photographs belonging to Mercy Relief;
(g) Email 7: Primarily the First and Third Plaintiffs. Second Plaintiff in respect of an allegation that it gave the Defendants permission to use photographs belonging to Mercy Relief; and
(h) Email 8: Primarily the First and Third Plaintiffs. Second Plaintiff in respect of allegations of outstanding debts and permission to use the photographs belonging to Mercy Relief.
[68] In respect of each email, the Statement of Claim sets out the particular words said to be defamatory. Detailed particulars of the defamatory meaning (on the basis of the natural and ordinary meaning) of the words were also set out in the Statement of Claim in respect of each email.
[69] Since many of the statements and alleged meanings are repetitive or similar, a few examples of the alleged natural and ordinary meanings said to be defamatory will suffice to illustrate the alleged stings. To be clear, these stings or defamatory meanings are based on the particular words and statements contained in the emails and which were also set out in the Statement of Claim. The alleged defamatory stings include, for example, that:
(a) the First and Third Plaintiffs misled, deceived, tricked and conned the Defendants into selling Kairos boats at a discounted price whilst having no intention whatsoever to donate the same to a charitable cause;
(b) the First and Third Plaintiffs did not donate the Kairos boats to Mercy Relief but instead sold them at a profit, and hence are crooks and cheats;
(c) the First and Third Plaintiffs intended to deceive Mercy Relief into believing that all the donated items were from the Plaintiffs, thus robbing the Defendants of any credit;
(d) the First Plaintiff was not a trustworthy corporate citizen;
(e) the First and Third Plaintiffs would cause Roy and his family grave personal harm and damage to his business such that Roy had to make a police report;
(f) that a police report had to be made against the First Plaintiff because they conducted their business in an illegal manner;
(g) that the Second Plaintiff had outstanding debts with the Defendants and was in poor financial shape;
(h) that the First and Third Plaintiffs were in a position of conflict of interest and the Defendants had to make a report to the COC;
(i) the Third Plaintiff had carried out illegal fund raising on behalf of Mercy Relief;
(j) the Plaintiffs deliberately infringed the Defendants’ registered trademarks and copyright;and
(k) the First and Third Plaintiffs had used Mercy Relief’s photographs illegally in breach of Mercy Relief’s copyright.
[70] On the whole, while I do not agree with every single imputation of defamatory meaning as alleged (such as the imputation of illegal fund raising for Mercy Relief), I am of the view that there is some merit to the Plaintiffs’ argument that the contents of the chain of emails are defamatory in nature.
[71] As briefly alluded to above, the test for determining the natural and ordinary meaning of allegedly defamatory words is the meaning that the words would "convey to an ordinary reasonable person, not unduly suspicious or avid for scandal, using his general knowledge and common sense" (see Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52 at [27]). It is also important to note that the chain of emails was published primarily to Mr Udairam and Hassan, and therefore, their interpretation of Roy’s email would continue to develop with each email they received. I therefore considered the chain of emails together. (I considered those sent to Mr Udairam and those sent to Hassan separately.)
[72] Reading the chain of emails both individually and together, they strongly suggest that the Plaintiffs, at the very least, are guilty of some misconduct in dealing with either the Defendants or Mercy Relief. This is especially so in the context of the donations that the Plaintiffs had provided to Mercy Relief. Throughout the chain of emails, it is clear to me that Roy is insinuating some form of malfeasance on the part of the Plaintiffs. The contents of the chain of emails, as well as the tone used, generally seek to question the Plaintiffs’ actions and their honesty. I state a few example statements in the chain of emails which, in my judgment, bear some defamatory meaning:
[73] Read individually and in the context of the whole chain of emails and the situation that was occurring, I am of the view that the contents of the emails are defamatory in nature. It is also not disputed that the elements of reference to the Plaintiffs and publication are also met.
The Short Message Service (“SMS”) texts
[74] On 5 October 2012, Roy sent three SMS texts to Francis stating the following:
[75] Reading the third SMS on its own, I am of the view that the third SMS is not defamatory in nature. While, to a certain extent, the phrase, “the truth will be out [about] Tedric and the way he do his business” might suggest that Tedric is conducting his business in an improper or illegal manner, I am not ready to find that the ordinary reader will conclusively draw this meaning from this phrase alone. The phrase could just as well mean that Tedric is a hard or aggressive businessman.
[76] However, the first SMS, which states that a police report had been made against Tedric, is slightly trickier. Leaving aside the fact that Roy had indeed made a police report, the question is whether an ordinary reader would infer from the ordinary meaning of these words that Tedric had conducted his business in an illegal manner or that he had threatened some harm against Roy. On its own, I am of the view that the ordinary reader would not infer from the first SMS that harm had been threatened against Roy. This can be compared, for example, with Email 1 where Roy stated in no uncertain terms that:
[77] The position, however, may be different if these three SMS texts are viewed as a whole. Whether or not the statement in the first SMS that he had made a police report against Tedric is defamatory depends on how the statement would be perceived by an ordinary person in the position of Francis. It is clear that ordinarily a statement that X is under investigation does not imply that X is guilty of an offence. As stated in Gatley on Libel and Slander (Alastair Mullis & Richard Parkes eds) (Sweet & Maxwell, 12th Ed, 2013) (“Gatley 2013”) at para 3.28, if the law was otherwise, it would be almost impossible to give accurate information about anything.
[78] Where the statement means nothing more than the fact that there is an investigation or that a complaint has been made, a serious question must arise as to whether the statement is defamatory. Indeed, even if it is defamatory, the statement may be justified by showing that an investigation is being conducted or that a complaint had indeed been made. The question in many cases is whether the ordinary reader would understand the words as meaning more: namely that X is guilty or that there is some reasonable basis for suspecting that an illegality or offence has been committed.
[79] It is also stated in Gatley 2013 at para 2.28 that “it may be defamatory to say that someone is suspected of an offence even where that does not imply guilt”. Much will depend on the context in which the statement was made and how the statement will be perceived by an ordinary reader. Is there an implication that there is a reasonable basis for the investigation or suspicion? If so, subject to defences, liability for defamation arises.
[80] For example, in De Souza Tay & Goh (suing as a firm) v Singapore Press Holdings Ltd and another suit [2001] 2 SLR(R) 201, an article was published in The Straits Times about a company that was being investigated by the United States Securities and Exchange Commission. The article took up almost a third of an entire page and comprised words and graphics. The words included “But a cloud has been cast over this with launch of a probe into the recent surge in its Asia sales by the US Securities and Exchange Commission” and “… possibility that [the company’s] fast sales growth may not be all that it appears”. Lee Seiu Kin JC (as he then was) added at [24] that these statements had to be read in the context of the emphasis in the article that two individuals who were shareholders of the company’s licensees had acted as directors for 678 companies, many of which appeared to be shell companies and that the same two individuals were linked to 15 companies with the same address and which had paid US$57 million to the company for software licences. In this context, Lee Seiu Kin JC found that the ordinary, reasonable reader would interpret the article to mean that the company had used these companies to manipulate financial transactions to create the impression of a high turnover in 1999 and were guilty of fraudulent conduct. At the very least it was found that the article bore the defamatory meaning that there were reasonable grounds to suspect fraud.
[81] In the present case, looking at the first SMS on its own, I am not satisfied that the ordinary, reasonable reader (in the position of Francis) would conclude that that there were reasonable grounds to suspect Tedric to be guilty of an offence.
[82] The issue is whether the three SMS texts should be treated as separate and distinct messages or as part of single chain of communication to be read as a whole. On the evidence, it appears that the messages were sent at or about the same time and were essentially part of a single communication to Francis. Any reader in the position of Francis would be well aware of the business dispute between Tedric and Roy. On balance I am not satisfied that the three SMS texts, even when read as a whole is defamatory. The statement that a police report had been made was followed by the message that a defamation suit had been brought by Tedric for “300K”. This was followed by the request that Francis “be truthful and not be afraid” and that “come what may, the truth will be out abt Tedric and the way he do his business.” The SMS messages as a whole conveys to the ordinary, reasonable reader that a serious legal dispute between Tedric and Roy had arisen out of business dealings. This meaning is not defamatory without any more. The SMS messages do not necessarily bear the meaning that Tedric is guilty of an offence or that there are good grounds to think that an offence had been committed.
Conclusion on the defamatory articles
[83] In summary, I find that the elements of the tort of defamation has been established by the Plaintiffs for:
(a) the Second Facebook Post; and
(b) the chain of emails sent to Mr Udairam and Hassan.
Can the Defendants rely on the defences of justification, qualified privilege or fair comment?
[84] I now turn to examine whether the Defendants can rely on any of the established defences in order to absolve them of liability. I start first with a brief review of the principles of law applicable to the defences, before applying it to the facts at hand. The law concerning the defences available to a defendant in a defamation action is not contentious, and in summary, I find that the Defendants can rely on the defence of fair comment for the Second Facebook Post but not on any defence for the chain of emails.
The law
Justification
[85] It is an absolute defence in a civil defamation claim that the defamatory imputation is true or substantially true – something that is substantially true cannot be used by the claimant to recover damages (see Littledale J's observations in M'Pherson v Daniels (1829) 10 B & C 263 at 272, as cited by the High Court in Hady Hartanto v Yee Kit Hong and others [2014] 2 SLR 1127 (“Hady Hartanto”) at [127]). A defamatory imputation is presumed to be false, and the burden of proof falls upon the defendant to plead and show that it is true. It is important to note that the meaning that must be proven true must be that which the relevant statement is held to bear, and the defence will not succeed if a materially less serious meaning is proved to be true. It is the imputation contained in the words which has to be justified, not the literal truth of the word (see the decision of the Court of Appeal in Chan Cheng Wah at [43]).
[86] The defendant need only prove the "sting" of the charge, and some leeway for exaggeration and error is given. The Court of Appeal in Chan Cheng Wah (at [44]) accepted the following position laid down by Burrough J in Edwards v Bell (1824) 1 Bing 403, who stated at 409 that:
[87] The basis of the defence of justification is truth, and therefore, for this defence, the state of mind of the publisher is not relevant. This means that a defendant can succeed in such a defence even when he publishes the defamatory article believing it to be false, for no amount of malice, bad faith or belief in the falsity of the statement will make it actionable when the allegation is true (see Carter-Ruck on Libel and Privacy (Alastair Mullis & Cameron Doley gen eds) (Lexis Nexis, 6th Ed, 2010) at para 9.1).
Qualified privilege
[88] In Chan Cheng Wah, the Court of Appeal (at [86]) accepted the following explanation of the defence of qualified privilege as found in Gatley at para 14.1:
[89] A defendant can rely on the defence of qualified privilege when it can be shown that the defendant has an interest or duty, whether legal, social or moral, to communicate the information and the recipient has the corresponding interest or duty to receive the information. In this sense, the defence attaches itself to the occasion. As stated by Lord Atkinson in Adam v Ward [1917] AC 309 at 334 (“Adam v Ward”), the reciprocity of duty (between the communicator of the defamatory article and the recipient) is essential. It is the existence, in fact, of this duty or interest, not merely the defendant's belief in its existence, which is relevant to the question whether the occasion was or was not privileged.
[90] This approach is succinctly summarised in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193, where at [63] it was stated that:
[91] The defence protects a wide range of interests. In general, the law does not restrict the interests which the defendant may protect by reference to qualified privilege. Statements made in the protection or furtherance of a private interest are also covered (see for example Hytech Builders Pte Ltd v Goh Teng Poh Karen [2008] 3 SLR(R) 236 (“Hytech Builders”). In the majority of the cases, the interests protected have been business interests. As can be seen, it is important that the communicator believes that the communication is true. There must also be no malice on the part of the defendant. As stated in The Law of Torts in Singapore at para 13.069, “where the Defendant makes a statement with a view to protecting his or her self-interests, such statements are privileged to the extent that they are published bona fide and are relevant and necessary for protecting such interests.”
[92] Malice is generally proven in two ways. The first is where it can be shown that the defendant had knowledge of falsity or where there was recklessness or lack of belief in the defamatory statement. The second is where although the defendant may have a genuine or honest belief in the truth of the defamatory statement his dominant intention is to injure the plaintiff or some other improper motive. As explained by the Court of Appeal in Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 331 at [38]:
Fair comment
[93] In order to rely on the defence of fair comment, the defendant must prove four elements:
(a) the words complained of are comments, though they may consist of or include inference[s] of facts;
(b) the comment is on a matter of public interest;
(c) the comment is based on facts; and
(d) the comment is one which a fair-minded person can honestly make on the facts proved.
See Review Publishing at [139], citing with approval Jeyaretnam Joshua Benjamin v Goh Chok Tong [1983-1984] SLR(R) 745 at [18] and Oversea-Chinese Banking Corp Ltd v Wright Norman [1994] 3 SLR(R) 410 at [24]. I note in passing that the defence of fair comment is also defeated by malice. Malice in this context requires proof that the defendant did not genuinely believe what he has stated.
[94] As identified in Review Publishing, the challenge is to distinguish a comment from a statement of fact, as the defence only applies to comments and not imputations of facts. The Court of Appeal in Review Publishing (at [140]) cited with approval the following passage from Doris Chia & Rueben Mathiavaranam, Evans on Defamation in Singapore and Malaysia (LexisNexis, 3rd Ed, 2008) ("Evans on Defamation") at p 103, where the learned authors state:
[95] It should be borne in mind that the burden lies on the defendant to distinguish clearly between his statements which are his comments as opposed to allegations of facts. If the defendant fails to distinguish clearly between statements of facts and comments, then the statements may not attract the defence of fair comment. As explained by Fletcher Moulton LJ in Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309 ("Hunt") at 319-320:
[96] As helpfully suggested by the Court of Appeal in Review Publishing, a comment has been said to be "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observance, etc."
Application of the law
The Second Facebook Post
[97] The defence pleaded by the Defendant for the two Facebook posts is that of justification and fair comment. It is explained in The Law of Torts in Singapore at para 13.012 that “the underlying rationale for the defence of fair comment is the right of free speech and promotion of open discussion.” The discussion must, however, be on a matter of public interest.
[98] Turning first to fair comment, in posting the Facebook posts, it was asserted that:
[99] As mentioned above, it must be shown that the Second Facebook Post is one of comment, rather than of an allegation of fact. To that end, I found the following passage as pertinently noted in Geoffrey Robertson & Andrew Nicol, Robertson & Nicol on Media Law (Sweet & Maxwell, 4th Ed, 2002) at p 120 instructive:
[100] At the end of the day, a common sense approach must be taken in determining whether or not something is a comment. Much will depend on the context, and the court must consider how the statement would strike the ordinary reasonable reader, ie whether it would be recognisable by the ordinary reader as a comment or a statement of fact – see Hytech Builders at [18]. Having all this in mind, in my judgment, I find that the Defendants can rely on the defence of fair comment. As much as the Defendants’ Second Facebook Post was suggestive of the Plaintiffs engaging in some form of business malpractice, that being the sting of the defamatory publication (as found in [43]), I am of the view that the post would be interpreted as Roy expressing his concerns as to what he thought might have gone wrong. Roy had stated (see above at [41]):
[101] While there is some difficulty interpreting whether this should be considered as a statement of fact or opinion (understandably so, as acknowledged by the authorities discussed above), the use of the words “hope” and the phrase “that’s our concern” demonstrate that this was Roy’s interpretation of what was going on, rather than to expressly allege a fact. In this manner, I am prepared to find that these were statements of comments rather than statements of fact.
[102] I am also of the view that these comments were premised on facts such that a fair-minded person could have honestly made the comments. It must be remembered that Roy had emailed Mercy Relief on 29 November 2011 and sought an acknowledgment of the Donated Kairos Items, as well as the discounts that the Defendants had given the Plaintiffs. The Defendants never received a response to this letter until sometime during mid-December 2011. Just prior to this, Roy had also received a number of queries from the Plaintiffs questioning him on his contact with the SRC. In the context of the situation, it is my judgment that Roy’s comments attracted the defence of fair comment.
[103] It is, therefore, not necessary to consider the defence of justification. Nevertheless for the sake of completeness, to the extent that the Second Facebook Post sets out defamatory statements of fact, I am not satisfied that the defence of justification has been made out. In particular, aside from copyright infringement in respect of certain photographs and brochures belonging to the Defendants, there is no proof that the Plaintiffs have engaged in any criminal or illegal business activity. As will be discussed later, whilst I have found that copyright in some photographs and brochures were infringed, no passing off has been committed by the Plaintiffs. The fact that the Plaintiffs committed some incidental acts of copyright infringement in respect of these works does not support or justify the conclusion that the Plaintiffs are guilty of wider business malpractice. To be clear, there is no doubt on the evidence that the 18 boats obtained by the Plaintiffs and supplied to Mercy Relief for flood relief use in Thailand were indeed donated without payment from Mercy Relief. There is also no doubting that Mercy Relief was aware that another two used boats had been donated by Roy.
The email chain
[104] The primary defence the Defendants rely on for the email chain is the defence of qualified privilege. To this end, it was asserted that Roy had a legitimate interest in:
(a) seeking clarification as to whether Mercy Relief regarded Kairos as having donated two boats, and whether Golden Season received any consideration for the boats that were supposedly donated by it;
(b) expressing his view, as a donor to Mercy Relief, on the propriety of Golden Season wearing the hats of both fundraiser and supplier;
(c) expressing his view that Golden Season had passed off the boats purchased from Kairos as the boats of Golden Season;
(d) expressing his concerns about Mercy Relief, given the development of the communication between him and Mercy Relief, the relationship Tedric shared with Hassan, and Hassan’s previous conviction; and
(e) alerting Mercy Relief that Golden Season (and/or Tedric) had used Mercy Relief’s photographs illegally in breach of Mercy Relief’s copyright.
[105] In order to rely on the defence of qualified privilege, Roy must be able to prove that he has a legitimate interest in communicating this information to Mercy Relief, and likewise, Mercy Relief must have a corresponding interest or duty to receive it. It is generally accepted that some leeway will be given in discerning what is a legitimate interest and the recipient’s duty or interest to receive the information. Eventually, the ultimate question is whether the disputed words were "fairly warranted by the occasion" (see Hady Hartanto at [174]). The legal question is, therefore, whether Roy had a duty or interest in communicating the contents of the chain of emails to Mercy Relief.
[106] Considering all the circumstances of the case, I find that Roy did have a legitimate interest to communicate, and likewise, Mercy Relief did have a corresponding interest to receive the information on matters pertaining to the two Kairos boats that Roy had donated and the matter of the discounts that the Defendants gave to Golden Season but which he thought might not have been extended to Mercy Relief. It must be remembered that the two Kairos boats were donations to a charitable organisation. If there was any reason to suspect that the donation was misused or did not make it to the intended charity, it would be reasonable to expect the donor to inquire and set out his suspicions as to what happened to the donations. As the donor of the items, Roy had a right to know what happened to his goods and whether or not Mercy Relief had received them. In that manner, I also find that Roy had the interest to know whether Kairos was being acknowledged for these donations. The confusion caused by the replies as found in the chain of emails is perhaps more understandable given that Mercy Relief had already acknowledged the Defendants’ contributions in a letter dated 21 October 2011. This letter was sent to the Plaintiffs, but never made its way to the Defendants.
[107] Despite this, I find that the Defendants cannot rely on the defence of qualified privilege because of malice. As stated above, malice is generally proven in two ways – first, where the defendant had knowledge of falsity, recklessness, or lack of belief in the defamatory statement, and second, where the defendant’s dominant intention is to injure the plaintiff or some other improper motive. At the end of the day, malice in the latter sense is a matter of intention, which can only be discerned from the actions of the Defendants. To this end, three observations can be made.
[108] First, while Roy had a legitimate interest to pursue the above two mentioned matters, the contents of the chain of emails clearly set out extraneous matters above and on top of Roy’s legitimate interest. To this end, the introduction of extraneous matter which falls outside of this legitimate interest can be evidence of malice on the part of the Defendants. As mentioned in Adam v Ward at 318:
[109] While I have some sympathy for Roy given the relatively slow responses given by Mercy Relief, I find that it was unnecessary for Roy to have included statements which went clearly beyond these two matters. This included for example, the insinuation that Roy’s family was in danger and that he had to report the matter to the police for the safety of his family, and that all “proofs” were in the possession of Roy’s elders and advisors for safe keeping. This, as Roy himself had admitted, was clearly not the case as the Plaintiffs had not conducted themselves in anyway where there could have been a reasonable apprehension of danger.
[110] Second, I also considered the tone and the language of the emails. Exceptionally strong language can reveal an intention to convey a certain message that may not be expressly stated. In the emails, Roy had chosen to use phrases such as:
(a) “due to his ethics”;
(b) “Please be warned that rightenous [sic] reigns and may the grace be upon him”;
(c) “This is a breach of trust”;
(d) “What would a member of the public think if this was in the media?”;
(e) “I also serve in a few committees and serve my country just like you so as a volunteer so I appreciate that this matter is resolved swift and fast with due diligence”;
(f) “But what was mentioned by Golden Seasons to clients is really misleading with such bold statement”;
(g) “Again he said his new stocks will arrive in December. So did MR buy any supplies from Golden Season after that? Facts are facts and cannot be lied. Perhaps you would like to report this to the police and COC if MR have been mislead”; and
(h) “I trust that this official email be kept to this number of people being sent to and that this email should not be seen by tedric.”
[111] I contrasted this to the case of Hytech Builders. In that case, the alleged defamatory statement was as follows:
This statement appeared in an email sent by a home owner to the developer, expressing her concerns that the contractor, Hytech Builders, was on the brink of bankruptcy. The language employed by the defendant in Hytech Builders can be strongly contrasted with the language used in this case. In my opinion, Roy’s choice of words and language indicated that the purpose of these emails went beyond expressing his grievances, confusion, or even suspicions.
[112] Finally, while Roy had a legitimate interest to pursue these two matters, I found it significant that Roy did not contact the Plaintiffs to clarify these matters. After the heated exchange of emails between Roy and the Plaintiffs where the Plaintiffs had told the Defendants not to contact the Plaintiffs’ clients directly, Roy effectively stopped communicating with the Plaintiffs - the last email being sent on 22 November 2011. Roy then chose to directly communicate his suspicions to Mercy Relief through a barrage of emails. In fact, a number of these suspicions could have easily been verified if the parties had simply communicated with each other. For example, the Defendants’ allegation that the Plaintiffs had breached Mercy Relief’s copyright in using their photographs would have been verified to be untrue. In a letter from Mercy Relief’s solicitors to the Defendants’ solicitors, Hassan clarified that permission had been sought for the Plaintiffs to use their photographs on its website.
[113] Apart from the Facebook posts, Roy also went on to file a police report and a commissioner of charities report. Even without considering the veracity of the content of the reports, I find that these actions, considered cumulatively, speak of some malicious intent on the part of the Defendants.
[114] Considering these three points, I am of the view that the Defendants were motivated by some malicious intent in writing these emails to Mercy Relief. It may very well have been the case that certain information should have been conveyed to Roy much earlier by Mercy Relief and that Roy found himself in a perplexing and confusing situation over the donations, especially in light of miscommunications leading to Roy taking an inaccurate perspective of the whole situation. Be that as it may, while it is understandable why Roy felt aggrieved and had to express his frustration at the situation, the law does not condone those who seek to defame others as an outlet for their frustration. It is a matter of perspective – what was the whole point of the communication of the defamatory material?
[115] In this case, I find that the objective of the email was not to highlight the two matters which were of legitimate interest to Roy, which would have caused the Plaintiffs to be defamed incidentally. Instead, the point of the emails was to defame the Plaintiffs, and the two matters of legitimate interest, in addition to extraneous material were included, and were used as examples to support the point. Although not conclusive, an added layer of circumspection was appropriate given that the Defendants were essentially competing with the Plaintiffs in the area of inflatable boats and disaster relief during this period of time when these emails were being exchanged. I, therefore, find that the Defendants cannot rely on the defence of qualified privilege for the chain of emails.
[116] For completeness, whether or not the defence of justification applies (to one particular sting) depends on whether the Plaintiffs have infringed upon the copyright of the Defendants. As will be seen below, the claim for copyright infringement succeeds but not the claim for passing off. Apart from this issue, it is clear that the defence of justification cannot apply to the matter of discounts and reselling of the boats from the Plaintiffs to Mercy Relief – the boats were indeed donated to Mercy Relief. To the extent that allegations were also made of conflict of interest, improper fund raising etc., I am not satisfied that the facts before me go anywhere close to establishing the defence.
Damages for defamation
[117] I find the Defendants liable for defamation for the chain of emails sent to Mercy Relief, and now move on to consider the quantum of damages that should be awarded to the Plaintiffs. Before doing so, however, some clarification needs to be made as to exactly who has been defamed. For ease of reference, the above analysis had generally considered the Plaintiffs collectively, ie, Tedric, Golden Season and Designer.SG together. However, for the purposes of damages, especially in considering whether aggravated or exemplary damages should be awarded, it is necessary to consider whether it is one or all of the Plaintiffs that have been defamed. This is critical because corporations, unlike individuals, are not able to rely on “injured feelings and hurt” as a kind of damage suffered. Aggravated damages are usually awarded to compensate such losses.
Who has been defamed?
[118] The answer to the question above must be derived from the plain ordinary reading of the defamatory material by a reasonable man. At the very least, it is clear that the Third Plaintiff, Tedric, has been defamed. The chain of emails constantly refers to Tedric and the emails are worded such that it is suggested that Tedric is in control of the First Plaintiff, Golden Season, as well as the Second Plaintiff, Designer.SG, and that he has been the mastermind behind the whole incident. Although both Golden Season and Designer.SG have been mentioned in the emails, the thrust of the emails and in fact, the defamatory “sting” of the email appears to be centred on how Tedric has allegedly cheated both Mercy Relief and the Defendants in his dealings with them. It is also apparent that these allegations arose in the context of Tedric being the “Entrepreneur from Designer.SG” and “the Marketing Director of Golden Season”.
[119] The question before me therefore, is whether as a result of this, the First and Second Plaintiff are also defamed. Taking a plain and ordinary reading of the defamatory material, would the defamatory sting reasonably refer to Golden Season and Designer.SG?

The judgment continues past this page. Read the rest at eLitigation.

Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another

Laws this judgment relies on

Grounds of decision

Introduction

The Facts

The Parties

Events leading to the dispute

The First Order and donation to Mercy Relief

The meeting at the Plaintiffs’ office and the Exclusive Reseller Agreement

The Second and Third Order

The training session on 28 October 2011

The chain of emails after the training session

The sale to Singapore Red Cross

The emails to Mercy Relief

An overview of the defamatory articles

Issues before this court

(a) For the Plaintiffs’ action in defamation -

(b) For the Defendants’ counterclaim -

The applicable law – Defamation

Are the elements of the tort of defamation made out?

The Facebook posts

The Second Facebook Post – self-identification by the Plaintiff

The First Facebook Post – reliance on the Second Facebook Post

Publication

The chain of emails

The Short Message Service (“SMS”) texts

Conclusion on the defamatory articles

Can the Defendants rely on the defences of justification, qualified privilege or fair comment?

The law

Justification

Qualified privilege

Fair comment

Application of the law

The Second Facebook Post

The email chain

Damages for defamation

Who has been defamed?