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Defamation

  • Defamation is frequently used to unjustly stifle dissent. However, it can provide a genuine remedy for those whose reputations are harmed by the statements or actions of others.

  • Criminal defamation is generally considered to be disproportionate under international law.  Even civil defamation is often punished too harshly, going beyond just righting the wrong that was committed.

  • Truth is a core defence against defamation claims.

  • Some types of speech should not be subject to defamation actions, such as opinions and satire.

  • The growth of SLAPP suits by corporate actors using defamation laws to silence or intimidate those who criticise them is a concerning contemporary development that needs to be addressed.

Introduction

The use of meritless defamation proceedings is a notorious method of stifling freedom of expression and dissent, particularly of journalists. While defamation laws aim to provide individuals with a remedy for public statements that harm their reputation, they inevitably come into conflict with the right to freedom of expression.  Correctly balancing the protection of freedom of expression and the public’s right to information with protecting individuals’ reputations is central to the appropriateness or otherwise of defamation laws and claims.

The impact of the internet, and particularly social media networks, has meant that it is easier than ever to publish content to a wide audience.  As a result, defamation proceedings have become a commonly used instrument wielded against the authors of statements published online, whether justifiably so or not, while also contributing to a significant increase in defamatory statements.

The ability to freely post information on social media and the internet without the same degree of thought and review as traditional media, combined with a lack of awareness about defamation laws and the fact that many countries have adopted vague legal rules governing online defamation has led to an increase in online defamation cases and some ambiguity in how defamation applies online.1

Dealing with online defamation cases is particularly challenging for many reasons. The online environment can make it more difficult to identify or trace authors, and victims may want to consider whether to pursue the author or the system operator, since some legal systems consider anyone who participates in distributing defamatory statements to be equally liable.  In addition, deciding the jurisdiction of the court to hear the matter can be difficult as messages posted online are available all over the world, and the parties to a dispute may come from and be located in different jurisdictions.

This module provides an overview of defamation laws in the context of South and Southeast Asia and how courts have attempted to strike a balance between various rights in recent jurisprudence, with a particular focus on online defamation cases.

What is Defamation?

Defamation is a false statement of fact that is harmful to someone’s reputation.2 The law of defamation dates back to the Roman Empire, but while the penalties and costs attached to defamation today are often not as serious as they once were, they can still have a notorious “chilling effect,” with prison sentences or massive compensation awards posing a particularly serious risk to freedom of expression, journalistic freedom, and dissent in many countries.

The foundation for defamation in international law is article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides for protection against unlawful attacks on a person’s honour and reputation.  Article 193 of the ICCPR also makes reference to the rights and reputation of others as a legitimate ground for restricting freedom of expression.3 Reputation is therefore the underlying basis in any claim of defamation.4

There are many examples where defamation suits serve an important purpose in providing a remedy for victims of slanderous and harmful attacks on their reputations.  However, defamation is also frequently misused, particularly by states and officials but also by non-state actors to stifle free speech, including through SLAPP suits.

Criminal Defamation

Historically, defamation was usually a criminal offence.  While many countries still have the offence of criminal defamation on their statute books, it is widely considered to be problematical as a restriction on freedom of expression, including by the United Nations (UN), which has urged states to reconsider such laws.  For instance, the UN Human Rights Committee (UNHRCtte) General Comment No. 34 provides that: “States Parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”.5

The use of criminal sanctions in defamation proceedings in Southeast Asia came under scrutiny by the UN Human Rights Committee in the case of Alexander Adonis v. The Philippines,6 in which the Committee considered an individual complaint by a radio broadcaster who had been convicted of criminal defamation. The author of the complaint alleged that the conviction was inconsistent with article 19 of the ICCPR because less restrictive measures could have been employed instead, the unavailability of a defence of truth except in narrow circumstances, the unavailability of a defence of public interest and the presumption of malice that had the effect of placing the burden of proof on the defendant.7 The Committee found that the conviction in these circumstances was an unjustifiable restriction on freedom of expression which was incompatible with article 193 of the ICCPR.8

Despite the evolution of international standards towards considering criminal defamation to be a disproportionate restriction on freedom of expression, many countries retain criminal defamation laws.  There have, however, been certain positive developments over the years. Notably, in 2002, Sri Lanka amended its Criminal Code to remove the offence of criminal defamation.9

Protections against criminal defamation laws

When a criminal defamation law remains on he statue book, here are a number of strict protections hat should at a minimum apply o prevent defamation from being used o stifle freedom of expression:10  
  • The criminal standard of proof — beyond a reasonable doubt — should be fully satisfied.11
  • Convictions for criminal defamation should only be secured when he allegedly defamatory statements are false, and when he mental element of he crime is satisfied, i.e. when hey are made with he knowledge hat he statements were false or with reckless disregard as o whether hey were rue or false.
  • Penalties should not include imprisonment or suspensions of he right o freedom of expression or he right o practice jou alism.12
  • As a less restrictive means, states should not resort o criminal law when a civil law alte ative is readily available.13

Civil Defamation

Despite widespread agreement that criminal punishment for defamation is no longer acceptable, there is nevertheless a need for some sort of remedy for those whose reputations have been unfairly harmed.

Therefore, almost all countries have domestic laws providing protection against defamation, but these laws vary by jurisdiction.  In some countries, defamation laws are overly restrictive vis-à-vis freedom of speech, for example by limiting criticism of leaders or by providing for disproportionately harsh sanctions. Another challenge to freedom of expression is that some judges and juries elect to award disproportionately large damages in civil defamation matters.

If a person is able to prove a civil claim for defamation, and the person responsible for the statement or publication is not able to raise a successful defence, the person who has suffered reputational harm is typically entitled to monetary compensation in the form of reasonably quantified civil damages.  While civil defamation claims may serve the intended purposes of restoring reputation or honour, they can be abused and cause a “chilling effect” on the full enjoyment and exercise of freedom of expression.

Can a True Statement be Defamatory?

In most jurisdictions, consistent with international law, truth is an absolute defence to a defamation claim.  However, in some jurisdictions, truth alone is not sufficient: it is further required that the public interest in the publication be established as well.

Courts in some jurisdictions have also held that even false statements may be protected against a defamation claim. In Rajagopal & Anor v. State of Tamil Nadu,14 decided by the Indian Supreme Court, a key issue was whether public officials could prevent the publication of a biography that they claimed defamed them. The Court discussed a number of leading authorities and concluded that even untrue statements about officials would not sustain a defamation claim unless they were published recklessly:

In the case of public officials … the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official established that the publication was made (by the defendant) with reckless disregard for truth.15

In their 2000 Joint Declaration, which focused, among other things, on defamation, the special international mandates on freedom of expression stated:

At a minimum, defamation laws should comply with the following standards
it should be a defence, in relation to a statement on a matter of public concern, to show that publication was reasonable in all the circumstances.16

Similarly, General Comment No. 34 states that “a public interest in the subject matter of the criticism should be recognised as a defence”17 against defamation.

The Right to Protection Against Attacks on Reputation

The right to protection against attacks on reputation is firmly established in international law.  Article 12 of the Universal Declaration of Human Rights provides that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.  Everyone has the right to the protection of the law against such interference or attacks.”(18) This is echoed in identical words in article 17 of the ICCPR.

Therefore, as indicated above, a balance often needs to be found between protecting individuals from false and harmful attacks on their reputation on the one hand and freedom of expression and the public’s right to information on the other.

What is the Right Way to Deal with Online Defamation?

When a person is found to have been defamed, they are entitled to a remedy.  However, in practice, the rules on defamation are often punitive and disproportionate.  We have already seen that sentences of imprisonment for criminal defamation are disproportionate due to their impact on freedom of expression.(19)

Likewise, fines or damage awards should not be excessively punitive and should instead be aimed at remedying the harm done.

Whenever possible, redress in defamation cases should be non-pecuniary (non-financial) and aimed directly at remedying the wrong caused by the defamatory statement, such as through publishing an apology or correction.

Monetary awards —  the payment of damages —  should only be considered when other less intrusive means are insufficient to redress the harm caused.  Compensation for harm caused (pecuniary damages) should be based on evidence quantifying the harm and the demonstration of a causal relationship with the alleged defamatory statement.

Defamation on new media platforms

The growth of social media in recent years has raised questions about whether existing civil defamation laws and doctrines are adequate.  One challenge is he difficulty of adapting remedies o he online era.  As detailed in Module 2, once defamatory information is published online, it can be difficult o order it fully removed due o he potential for social media content o ‘go viral’.

 

Another issue hat has arisen in various jurisdictions is whether o reat hyperlinks o defamatory content as akin o publication of his content. Clearly a rigid approach hat views all hyperlinks as amounting o publication would have a chilling effect on online expression. However, courts have had o grapple with he ho ier question of whether such links can ever be reated as publications.

 

In Crookes v. Newton, he Supreme Court of Canada held hat he use of basic hyperlinks cannot alone, in he absence of actually repeating specific content, count as publication of defamatory material.20 However, he majority declined o offer any definitive approach o more complex links (such as hose embedded in ext or images hat automatically display content without leaving he original webpage), noting he “inherent and inexorable fluidity of evolving echnologies” hat made it “unwise in hese reasons o attempt o anticipate, let alone comprehensively address, he legal implications of he varieties of links hat are or may become available”.21

 

A minority opinion did not agree with he majority’s approach of not reating any basic hyperlinks as publications and instead preferred a more contextual approach o assessing whether “the ext hat includes he hyperlink constitutes adoption or endorsement of he specific content it links o”22 while, in another separate opinion, one justice advocated for an approach based on assessing whether a defendant had, on a balance of probabilities, deliberately made defamatory content readily available.23

 

In Magyar Jeti Zrt v. Hungary24, he European Court of Human Rights established a more contextual approach owards assessing liability for use of hyperlinks o defamatory content, requiring an individual assessment, aking into account he following factors:

 
  • did he jou alist endorse he impugned content;
 
  • did he jou alist repeat he impugned content (without endorsing it);
 
  • did he jou alist merely include a hyperlink o he impugned content (without endorsing or repeating it
 
  • did he jou alist know or could he or she reasonably have known hat he impugned content was defamatory or otherwise unlawful;
 
  • did he jou alist act in good faith, respect he ethics of jou alism and perform he due diligence expected in responsible jou alism?

In Loong v. Hiang,25 he High Court of Singapore considered a Facebook post hat contained a link o an article hat was alleged o contain defamatory material about Singapore’s Prime Minister, in particular, reports hat investigations were “trying o find he secret deals between he wo corrupted Prime Ministers of Singapore and Malaysia.”26

 

The High Court rejected he ‘bright line’ approach o basic hyperlinks adopted by he majority of he Supreme Court of Canada, instead opting for a “more holistic assessment”, citing   Australian and British jurisprudence hat he Court noted relied upon he European Court of Human Rights’ judgment in Magyar Jeti Zrt.27 In applying he contextual approach, he High Court found hat he linked article should be deemed part of he Facebook post after reasoning hat he link contained no other content other han he link o he article and finding hat here was no plausible interpretation of he article other han an endorsement of its content.28

 

Although Loong v. Hiang is an example of attempts o grapple with how o approach hyperlinks and of he cross-pollination of European Court of Human rights and national constitutional jurisprudence on his matter, he Court’s ultimate decision o award damages in a case involving content critical of he Prime Minister raises significant conce s from an inte ational human rights perspective.  This case is part of an unfortunate patte of Singapore’s leaders bringing defamation suits against jou alists and political opponents,29 which can have a chilling impact on freedom of expression.

 

The UN Human Rights Committee, he European Court of Human Rights, he Inter-American Court of Human Rights and he African Court on Human and Peoples’ Rights have all underscored hat political speech directed against gove ment officials deserves a particularly high degree of protection in view of he public interest in open political debate.30

Types of Potentially Defamatory Statements

Opinion versus statements of fact

We discussed above factual statements that may be defamatory. However, expressions of opinion are differentiated from factual statements. General Comment No.34 states that defamation laws, particularly penal defamation laws, “should not be applied with regard to those forms of expression that are not, of their nature, subject to verification,”31 such as opinions and value judgments. It also notes: “All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature.”

To determine what counts as an opinion, courts tend to look at whether a reasonable person would understand the statement as asserting a statement of verifiable fact, which is capable of being proven to be true or false.  In the context of social media, a reasonable reader tends to be defined as someone who would ordinarily be following and reading the statement. The Singapore High Court has applied a somewhat broader definition of the ‘ordinary reasonable person’ as someone “assumed to possess general knowledge and experience of worldly affairs”.32

The context in which the statement was made is critical to determining whether a reasonable person would understand it as an opinion or as a statement of fact.  There are, for example, ways in which a statement of opinion may appear to be factual in nature.33 In 2020, a US District Court dismissed a defamation lawsuit against controversial Fox News talk show host Tucker Carlson, noting that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”34

Humour

Similarly, content that a reasonable person would identify as humour or satire, rather than as stating a fact, should also be treated as an opinion. For example, the Malaysian Court of Appeal has stated that:

No reasonable person will read a cartoon with the same concentration, contemplation and seriousness as one would when reading a work of literature. Cartoons exaggerate, satirize and parody life, including political life. […] The political cartoonist, unlike the serious political pamphleteer, seeks to ridicule persons and institutions with humour to deliver a message. It will be most exceptional if a political cartoon will have the effect of disrupting public order, security or the safety of the nation.35

Malaysian Court of Appeal, Zulkiflee Bin SM Anwar Ulhaque v. Arikrishna Apparau (Zunar Case), Civil Appeal No. W-01-500-2011 (2014).

The Supreme Court of India came to a similar conclusion in respect of a film containing a song that was deemed offensive to the Bata India footwear company, concluding:

[T]he song appears to have been written in the context of the theme of the film and ought not be taken as any kind of aspersion against the persons named in said song.

Bata India Limited v. Prakash Jsh Prodcutions And Others, (Record of Proceedings), SLP (C) No. 32998 (2012) (accessible here).

Statements of Others

A point of consideration, particularly for journalists, is the extent to which they are liable for repeating defamatory statements of others since a central part of their work is reporting on the words of others.  The European Court of Human Rights (ECtHR) has found that a journalist is not automatically liable for quoting opinions of others, and is not required to “systematically and formally” distance themselves from “the content of a statement that might defame or harm a third party,” 36 provided they have not repeated potentially defamatory statements as their own, endorsed, or clearly agreed with them. 

Privileged Statements

Privileged statements refer to certain statements which receive protection against defamation liability due the public interest in this based on the circumstances in which they were made. Statements from legislature or judicial proceedings are usually considered absolutely privileged, meaning that neither the author of the statement nor a fair media report on it may be held liable for defamation. A number of other statements which involve social or moral responsibilities – such as giving a reference on someone or reporting a crime to the police –also enjoy qualified privilege, which means they are protected unless they were made with malice.

Whose Burden of Proof?

A general principle of law is that the burden of proof lies with the claimant — the person who brings the suit or makes the “claim”. However, with defamation, this principle is generally reversed, and the responsibility lies with the defendant — the person who made the allegedly defamatory statement — to prove that the statement did not damage the claimant’s reputation, either because it is true or for one of the other reasons listed above. The United States is a prominent exception to this rule, wherein the burden of proof of falsity of the statement in cases brought by any public figure falls on the claimant.

However, in defamation cases concerning the public interest, international standards have been evolving towards the US approach to the burden of proof, as articulated by the Supreme Court in New York Times v. Sullivan.37 The special international mandates on freedom of expression have called for the burden of proof to be on the plaintiff in such cases. For example, in their 2000 Joint Declaration, they noted that “the plaintiff should bear the burden of proving the falsity of any statements of fact on matters of public concern”.38 The UN Special Rapporteur on Freedom of Expression has also affirmed that “where truth is an issue, the burden of proof lies with the plaintiff”.39 Nevertheless, a clear consensus on this approach has not yet emerged, with the European Court of Human Rights’ dismissing arguments to adopt the Sullivan approach in their 2002 judgment in McVicar v. United Kingdom.40

Remedies and Penalties

As discussed above, criminal penalties have been the focus of much attention by international bodies. It is notable that no international human rights court has ever upheld a custodial sentence imposed on a journalist. It is important that civil defamation laws contain sufficient checks and balances on the size of damage awards to prevent them from unduly stifling freedom of expression.

Types of Claims

SLAPP Suits

Defamation suits are being abused to silence critics and journalists. The term “strategic lawsuits against public participation” (SLAPPs) is being used to describe cases which aim intentionally to bury critics under expensive and baseless legal claims in order to intimidate and silence them. The objective in these cases is not a positive judgment but rather to leverage the threat of financial damage through costly litigation.  Defamation allegations are often used as the underlying complaints in SLAPP suits. 

In many cases, courts have found against plaintiffs bringing such suits. For example, in the case of Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee,41

a mining company brought a complaint for libel and malicious falsehood before the Malaysian courts against the author of two articles. In these articles, the author had alleged the existence of medical complications suffered by residents in the vicinity of the company’s mining operations. Although the suit ultimately failed, the mere threat of costly, protracted litigation against well-financed corporations can have a chilling effect on the freedom of expression of activists and journalists.

A limited number of jurisdictions, such as certain provinces in Canada,42 have adopted anti-SLAPP legislation to protect freedom of expression by allowing baseless defamation and other cases to be dismissed at an early stage of the proceedings and sometimes also to provide for special remedies for defendants to reclaim costs from the claimants.  However, there is a need for much more widespread adoption of such anti-SLAPP laws to protect critical speech. A 2020 study from the Business & Human Rights Resource Centre found that in 2019 Southeast Asia was the region with the second highest incidence of recorded SLAPP suits (after Central America) and that the Philippines was the only state in the region with legislation defining SLAPPs, albeit with its application restricted to environmental cases.43

Online harassment as a method of suppressing dissent

Online harassment of jou alists using non-legal means is another oo-often used method of stifling freedom of expression and dissent. Women jou alists have been found o disproportionately be subjected o online harassment.44 Online harassment can ake many forms, including surveillance, posting hreatening messages, hacking, doctoring or sharing personal images and other forms of ‘doxxing’ (i.e. maliciously sharing personal or identifying information).   Anonymous harassing messages can be difficult o race but, when part of a broader patte of online harassment, hey may be evidence of a state-sponsored campaign o harass dissidents. In Vietnam, for example, Amnesty Inte ational reported dozens of incidents of activists receiving hreatening online messages.45 The report noted hat he deputy head of he Vietnamese military’s political department had in December 2017 introduced a cyberspace military battalion made up of around 10,000 ‘cyber-troops’ asked with information warfare and correcting what he gove ment deemed “distorted information on he inte et”.46

Insult Laws

A number of insult and other related laws are still in place across Asia and continue to pose risks for journalists and others critical of government. Thailand, for example, has particularly draconian ‘lèse majesté’ laws, with one individual receiving a 43-year prison sentence for insulting the royal family, a sentence that elicited condemnation by multiple UN special rapporteurs.47 Likewise, the crime of sedition remains on the statute books in many countries and continues to be used to stifle freedom of expression. Sedition has been defined as the crime of “incitement of resistance to or insurrection against lawful authority.”48

A more recent development has been the passing of ‘false news’ laws in various countries. These laws are justified by states as being necessary to protect national security or public order and to deal with the misinformation pandemic that has been unleashed by the growth of the internet and social media. Inasmuch as they generally prohibit the dissemination of false news, these laws represent a breach of the right to freedom of expression.

The UN Human Rights Committee and regional courts, including the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights and the European Court of Human Rights, have increasingly argued that public officials should enjoy less protection from criticism than others.49 Because of their status, access to the media, and power, public officials can use their office to try to curtail freedom of expression and prosecute critics. Additional protections for those who criticise them may therefore be warranted to counter this imbalance of power. In addition, there is a real need for those serving in public office to be open to criticism and public input. As the European Court found:

The [politician] inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.50

Oberschlick v. Austria, Application No. 20834/92 (1997), para 29

The Office of the High Commissioner for Human Rights (OHCHR) has also called for the abolition of the offence of ‘defamation of the State,’51 and some jurisdictions have refused to allow public authorities, as such, to sue for defamation.52 The ECtHR has limited such suits to situations which threaten public order, implying that governments cannot sue in defamation simply to protect their honour.53

Conclusion

The criminalisation of defamation poses a serious risk to freedom of expression, particularly with the rise of social media platforms online. Defamation proceedings serve a legitimate purpose of protecting individuals’ reputations but are also often abused to silence and punish dissent. Despite the recent trend towards the decriminalisation of defamation, there remains a need to decriminalise in more countries, or at least to remove criminal punishments, to address excessive civil defamation awards, to ensure that defamation laws provide appropriate defences to defendants, and to adopt legal protections against SLAPP suits.

References

  1. On the use of overbroad defamation provisions to target online speech, see International Commission of Jurists, Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia(2019) (accessible at: https://www.icj.org/wp-content/uploads/2019/12/Southeast-Asia-Dictating-the-Internet-Publications-Reports-Thematic-reports-2019-ENG.pdf). ↩
  2. Article 19, Defamation ABC at p. 1 (accessible at https://www.article19.org/data/files/pdfs/tools/defamation-abc.pdf). Under some legal systems, especially common law jurisdictions such as India and Pakistan, libel is the term used for a written defamatory statement, while slander refers to spoken defamation. [1] ICCPR: International Covenant on Civil and Political Rights (1976) (accessible at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx). ↩
  3. ICCPR: International Covenant on Civil and Political Rights (1976) (accessible at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx). ↩
  4. Article 19, Defamation ABC at p. 1 (accessible at https://www.article19.org/data/files/pdfs/tools/defamation-abc.pdf). ↩
  5. UN Human Rights Committee, ‘General Comment No. 34 at article 47 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). ↩
  6. CCPR/C/103/D/1815/2008/Rev.1 (2008) (accessible at https://juris.ohchr.org/Search/Details/1613). ↩
  7. Id. at para 7.7 ↩
  8. Id. at para 7.10. ↩
  9. Zee News, ‘Sri Lanka abolishes criminal defamation’ (2002) (accessible at https://zeenews.india.com/news/south-asia/sri-lanka-abolishes-criminal-defamation_45922.html). ↩
  10. Toby Mendel, Defining Defamation Principles on Freedom of Expression and Protection of Reputation (Article 19, 2000) at Principle 4 (accessible at: https://www.article19.org/wp-content/uploads/2018/02/defining-defamation.pdf). ↩
  11. Inter-American Court of Human Rights, Kimel v. Argentina, (2008) (accessible at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_177_ing.pdf). ↩
  12. See for example: African Court of Human and Peoples’ Rights, Konaté v. Burkina Faso, Application No. 004/2013 (2014) (accessible at: http://www.ijrcenter.org/wp-content/uploads/2015/02/Konate-Decision-English.pdf). ↩
  13. See for example: European Court of Human Rights, Amorim Giestas and Jesus Costa Bordalo v. Portugal, Application No. 37840/10 (2014), para. 36 (accessible at: https://hudoc.echr.coe.int/eng?i=001-142084 in French). ↩
  14. Rajagopal & Anor v. State of Tamil Nadu, [1994] 6 SCC 632 (SC) (accessible at: https://indiankanoon.org/doc/501107/). ↩
  15. Id., para 26. ↩
  16. Joint Declaration on Current Challenges to Media Freedom (2000) (accessible at: https://www.osce.org/files/f/documents/c/b/40190.pdf). ↩
  17. UN Human Rights Committee, ‘General Comment No. 34 at p 12 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). ↩
  18. UN General Assembly, ‘Universal Declaration of Human Rights, Resolution 217 A (III)’ (1948) (accessible at: https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf). ↩
  19. UN Human Rights Committee, ‘General Comment No. 34 at article 47 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). ↩
  20. 2011 SCC 47, [2011] 3 SCR 269 (2011) (accessible at: https://www.canlii.org/en/ca/scc/doc/2011/2011scc47/2011scc47.html ). ↩
  21. Id. at para 43 (opinion of Abella J for the majority, joined by Binnie, LeBel, Charron, Rothstein and Cromwell JJ). ↩
  22. Id. at para. 50 (opinion of Fish J, joined by McLachlin C.J.). ↩
  23. Id. at para. 93 (opinion of Deschamps J.) ↩
  24. Application No. 11257 (2019) (accessible at: https://bit.ly/41k7GDd) ↩
  25. [2021] SGHC 66 (2021), (accessible at: https://www.elitigation.sg/gd/s/2021_SGHC_66) ↩
  26. Id. at para 5. ↩
  27. Id. at para. 41. ↩
  28. Id. at para. 42. ↩
  29. Committee to Protect Journalists, ‘New York Times to pay damages to Singapore’s leaders’ (2010) (accessible at: https://cpj.org/2010/03/new-york-times-to-pay-damages-to-singapores-leader/). ↩
  30. General Comment 34 at para. 38; Magyar Jeti Zrt v. Hungary, above at n 44, paras. 81-82; Ricardo Canese v. Paraguay, Merits, Reparations and Costs, H.R. (ser. C) No. 111 (2004) at para. 103 (accessible at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_111_ing.pdf; and Ingabire Victoire Umuhoza v. Rwanda, Application No. 003/2014 (2017) at para. 142 (accessible at: https://bit.ly/3EJZxPv). ↩
  31. UN Human Rights Committee, ‘General Comment No. 34 at p 6 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). ↩
  32. Loong v Hiang [2021] SGHC 66 (2021), (accessible at: https://www.elitigation.sg/gd/s/2021_SGHC_66). ↩
  33. Electronic Frontier Foundation, ‘Online Defamation Law’ (accessible at https://www.eff.org/issues/bloggers/legal/liability/defamation#:~:text=Generally%2C%20defamation% 20is%20a%20false,slander%20is%20a%20spoken%20defamation. ↩
  34. US District Court, Southern District of New York, Case No. 1:2019cv11161 – Document 39’ (2020)(accessible at: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2019cv11161/527808/39/). ↩
  35. Malaysian Court of Appeal, Zulkiflee Bin SM Anwar Ulhaque v. Arikrishna Apparau (Zunar Case), Civil Appeal No. W-01-500-2011 (2014). ↩
  36. European Court of Human Rights, Application No. 1131/05 (2007). ↩
  37. New York Times Company v. Sullivan, 376 U.S. 254 (1964) at para. 40. ↩
  38. 2000 Joint Declaration on Current Challenges to Media Freedom (2000) (accessible at: https://www.osce.org/files/f/documents/c/b/40190.pdf). ↩
  39. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mission to Italy from 11 to 18 November 2013, (2014) at para. 23 (accessible at: https://undocs.org/A/HRC/26/30/Add.3). ↩
  40. Application No. 46311/99 (2002) at para. 87 (accessible at: https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-60450&filename=001-60450.pdf ↩
  41. Civil Appeal No. 02(f)-125-11/2017(W) (2017) (accessible at: https://elaw.org/system/files/attachments/publicresource/raub_fedcourt_2019.pdf). ↩
  42. Osler, O’Brien and Tsilivis, ‘Ontario Court of Appeal clarifies test under “anti-SLAPP” legislation’ (2018) (accessible at: https://www.osler.com/en/resources/regulations/2018/ontario-court-of-appeal-clarifies-test-under-anti-slapp-legislation). ↩
  43. Business & Human Rights Resource Centre, ‘Strategic Lawsuits against Public Participation: Southeast Asia cases & recommendations for governments, businesses, & civil society’ (2020) (accessible at: https://media.business-humanrights.org/media/documents/files/SLAPPs_in_SEA_2020_Final.pdf). ↩
  44. UNESCO, ‘Online violence against women journalists: a global snapshot of incidence and impacts’ (2020), accessible at: https://unesdoc.unesco.org/ark:/48223/pf0000375136). ↩
  45. Amnesty International, ‘ “Let Us Breath!” Censorship and Criminalization of Online Expression in Vietnam’ (2020) at p. 51, s. 4.3.2. (accessible at: https://www.amnesty.org/en/documents/asa41/3243/2020/en/). ↩
  46. Id. at s. 4.3.3, pp. 52-53. ↩
  47. United Nations Office of the High Commissioner for Human Rights, ‘Thailand: UN experts alarmed by rise in use of lèse-majesté laws’ (2021) (accessible at: https://www.ohchr.org/en/press-releases/2021/02/thailand-un-experts-alarmed-rise-use-lese-majeste-laws?LangID=E&NewsID=26727). ↩
  48. Merriam Webster Dictionary, ‘Sedition’ (accessible at: https://www.merriam-webster.com/dictionary/sedition). ↩
  49. General Comment 34 at para. 38; Magyar Jeti Zrt v. Hungary, above at n 44, paras. 81-82; Ricardo Canese v. Paraguay, Merits, Reparations and Costs, H.R. (ser. C) No. 111 (2004) at para. 103 (accessible at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_111_ing.pdf; and Ingabire Victoire Umuhoza v. Rwanda, Application No. 003/2014 (2017) at para. 142 (accessible at: https://www.african-court.org/en/images/Cases/Judgment/003-2014-Ingabire%20Victoire%20Umuhoza%20V%20Rwanda%20-%20Judgement%2024%20November%202017.pdf). ↩
  50. Oberschlick v. Austria, Application No. 20834/92 (1997), para 29 (accessible at: https://hudoc.echr.coe.int/eng?i=001-58044). For more on this topic, see the seminal case establishing the need for public officials to face a higher threshold of criticism, New York Times v Sullivan in the United States Supreme Court, 376 US 254 (1964) at paras. 279-80 (accessible at: https://supreme.justia.com/cases/federal/us/376/254/). ↩
  51. OHCHR, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, CCPR/CO/81/SEMO (12/08/2004) at para. 22 (accessible at: https://www.refworld.org/docid/42ce6cfe4.html). ↩
  52. OHCHR, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,’ E/CN.4/2000/63 (2000) (accessible at: https://www.ohchr.org/en/issues/freedomopinion/pages/annual.aspx). ↩
  53. Id. ↩

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