Leslie Chew, SC, seeks to examine defamation law applicable to those persons or entities which provide electronic services.
Introduction
These days, the buzzword seems to be 'e-commerce'. Indeed, most businesses will at least explore the possibility of doing business electronically, if not take the plunge head-first. Many businesses have also shifted focus wherever they can to the internet, rather than relying on the traditional 'Bricks and Mortar' infrastructure to deliver their products or services.
In Singapore, almost any form of e-business is greatly encouraged. These businesses, however, utilise the medium more as a means of doing business or delivering their services rather than the delivery of electronic services, unlike:
In the Singapore context, these would include re-sellers of internet services such as the Singapore Network Services.
This article seeks to examine the law relating to defamation as may be applied to those persons or entities which provide electronic services, both in the general context and in the context of the Electronic Transactions Act (Cap 88).
The Peculiarity of the Electronic Medium
The beauty and yet the peculiarity of the electronic medium, as in the case of communications over the internet or even over a Local Area Network or intranet, lies in the fact that, unlike face to face meetings, electronic communications can quite often become highly opinionated and amount to 'fighting words'. The result, it has been suggested, is the phenomenon of 'flaming' - a shouting match between two subscribers on a service engaged in computer warfare (F Lawrence Street & Mark P Grant, Law of the Internet (2001 ed) at page 768).
It seems that the anonymity or, more accurately, the perceived anonymity that the medium affords to its users encourages the bravado to say things which the users would not normally say in a face to face confrontation or meeting. Indeed, it has been observed that:
The content of these messages can quickly degenerate into harmful statements that can proliferate throughout the computer network. Significant liability can quickly result from unfavourable product reviews, negative comments regarding a company's performance or damaging statements regarding one's character (Street & Grant, supra).
The Law of Defamation
The law of defamation in Singapore largely follows the English common law. English common law does not afford a comprehensive formulation of what defamation is. Rather, it is based on various formulations found in different cases. Thus, in the textbook by Gatley on Libel and Slander (9th ed, 1998, at page 23), reliance is placed on a formulation contained in the Second Restatement of Torts of the American Law Institute, which reads:
a statement is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her.
This same definition is largely echoed in the local cases in Singapore (see, for example, Lee Kuan Yew v Derek Gwyn Davies & Ors [1990] 1 MLJ 390 at page 400).
The Case of the Internet Service Provider (ISP)
The issue here is how the ISP or the chat room or bulletin board 'manager' is to be treated with respect to defamatory statements found on these bulletin boards or other Internet services provided by the ISP. The law on both sides of the Atlantic seems to treat the question in the context of the liabilities as understood by the law in the traditional brick and mortar world of 'the Publisher versus the Distributor'. It may seem surprising that the new e-based phenomenon has to find its analogy in the most paper-based industry of all: the Publishing and Distribution businesses. Here is a sense of irony! Be that as it may, the law seems to have (as indeed it always does) borrowed from the nearest traditional parallel.
Turning first to English common law, the starting point appears to be the case of Godfrey v Demon Internet Ltd (Street & Grant, supra, at page 786), which has been suggested to be the first English internet defamation case.
Godfrey's case
In the case of Godfrey v Demon Internet Ltd [2000] 3 WLR 1020, the plaintiff, Mr Godfrey, complained to Demon Internet that he had discovered that someone had posted on the Usenet news-server an article which was defamatory of him. Demon Internet did not deny receiving such a complaint but did not remove the defamatory material as requested by the plaintiff and the item remained on its news-server until its automatic expiry ten days later. Mr Godfrey sued Demon Internet in libel. In its defence, Demon Internet relied on section 1 of the UK Defamation Act of 1996, which permits a three level defence to a defendant facing a defamation claim. They are as follows (Street & Grant, supra, at page 787):
The court held that Demon Internet satisfied the first requirement but failed to meet the second and third because it was aware that the message on its servers were in fact defamatory. In coming to that decision, the court first concluded that Demon Internet was clearly not 'the publisher of the posting defamatory of the plaintiff and could therefore avail themselves of the defence in (1) above' (at page 1024).
In deciding the case, the English court looked at US cases on the issue. Morland J found that the US cases took a different approach to defamation (at page 1027). Thus, it has been observed in respect of the United States of America that:
Courts have addressed the question of whether an online provider is acting as a distributor or as a publisher of online messages that contain defamatory statements. If the defendant is acting in a role similar to the traditional distributor, the law is clear that this party should not be held liable as the courts have held that vendors and distributors of defamatory publications are not liable if they neither knew nor had any reason to know that the material was defamatory. If the party is a publisher, the courts have held that a publisher has editorial control and must be liable for defamatory content in the published materials (Street & Grant, supra, at page 769).
In reaching its decision in the Godfrey case, the court held that the Defamation Act 1996 was not intended to cover those who were aware or were on notice that they were contributing to a defamatory publication. It has also to be remembered that under English law, the concept of strict liability applies to publishers of defamatory material. The term 'publication' in the law of defamation is also given a wide meaning. This applies both in Singapore and England. Thus, in the Godfrey case the court held that (at page 1026):
In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news-server a defamatory posting, publish that posting to any subscriber to their ISP, who accesses the newsgroup containing that posting. Thus every time one of the defendants' customers accesses 'soc.culture.thai' and sees that defamatory posting of the plaintiff, there is a publication to that customer. [Emphasis added.]
Further, Morland J referred to the New York case of Lunney v Prodigy Services Co (1998) 2 AD 2d 230, which he said had factual similarity to the Godfrey case. His Lordship concluded that if English law decided the New York case of Lunney, Prodigy Services '… would clearly have been the publisher of the practical joker's message …' (Godfrey, at page 1030). This means that Prodigy, unlike in New York, would have been found to be liable for the publication of defamatory material. Lunney concerns an 'infantile practical joker, with access to a computer, who sent an offensive electronic message to a boy scout leader', with Lunney appearing as the signatory of the offensive message.
The Position in Singapore
Cases similar to Godfrey have yet to be dealt with by the Singapore courts. It is submitted that Godfrey's case may be instructive. It should, however, be noted that we do not have the equivalent of section 1 of the UK Defamation Act 1996. The defence relied on by Demon Internet would therefore not be relevant. The case may be instructive in another way.
In the Godfrey case, Morland J did consider the United States cases which drew a distinction between a service provider who is the publisher of the defamatory material and those who merely distribute the data which contains defamatory material. The distinction being that the law ought to treat a publisher, who has editorial control, and a distributor, who has no editorial control of the data containing defamatory statements, differently.
The case is instructive, therefore, in the sense that it brings into focus the different approaches taken by the English courts and the US courts. It would, therefore, permit a court in Singapore the opportunity to compare the approaches and to see which way it ought to go. In this respect, so far as the US judicial decisions are concerned, it should not be forgotten when looking at the New York case of Lunney, for example, that the American cases' approach is partly based on the rationale enshrined in the First Amendment of the United States Constitution (Street & Grant, supra, at page 770).
The Electronic Transactions Act (Cap 88)
It is perhaps more important to consider what a case such as Godfrey would call for if the provisions of the ETA were to be applied. Indeed, it is submitted that if a similar case were to come to be considered in Singapore, the relevance of the ETA would be obvious.
So far as the ETA is concerned, the proper interpretation and application of section 10 would be crucial and would determine the position of the law in Singapore. The relevant provisions under section 10 state as follows:
10(1) A network service provider shall not be subject to any civil or criminal liability under any rule of law in respect of third-party material in the form of electronic records to which he merely provides access if such liability is founded on -
(a) the making, publication, dissemination or distribution of such material or any statement in such material; …
10(3) For the purposes of this section -
'provides access' in relation to third-party material means the provision of the necessary technical means by which third-party material may be accessed and includes the automatic and temporary storage of the third-party material for the purpose of providing access;
'Third-party' in relation to a network service provider means a person over whom the provider has no effective control.
On a plain reading of the section and its accompanying sub-sections, it seems clear that they are of wide import. On a closer reading, it has been suggested, and probably quite rightly, that the section lacks certainty or clarity.
At the second reading of the Bill in Parliament, a number of members of Parliament dealt with this issue. The comments of two members of the House, who are lawyers themselves, should be noted. Prof Chin Tet Yung felt that the seemingly wide scope of the section without a suitably worded accompanying definition of 'network service provider' could pose problems (see Singapore Parliamentary Reports System - Parliament No 9, Session No 1, Vol No 69, Session 2). Thus he observed:
Now I turn to a provision that is both imprecise and perhaps too wide. I refer to Clause 10 - liability of network service providers. First of all, there is no definition of what a network service provider is. As the exemption from liability is extremely wide for network service providers, they are exempt from both civil and criminal liability in certain situations. It seems to me to be a serious omission not to have defined the technical term 'network service providers' in the Bill. Leaving such a technical term for the judges to define may be to risk imprecision and create uncertainty.
Interestingly, on the other hand, Dr Toh See Kiat, another lawyer member of the House, felt that the lack of definition potentially excluded the secondary providers of internet services, for example, the resellers of such services. He commented:
Sir, I beg to differ and because I beg to differ, may be it is not clear after all. I think the clause is too narrow in scope. Seemingly, it covers only internet service providers (ISPs). It does not cover resellers of network services, such as Singapore Network Services, for example or America On Line … It does not cover search engine operators such as Yahoo and AltaVista …
Whatever the sentiments of the House were at the time of the second reading of the Bill, on its passing, the ETA retained its original form of clause 10, now section 10. Thus, currently the phrase 'network service providers' remains undefined. The difficulties that such a lack of definition in respect of the phrase 'network service providers' could pose has been the subject of comment by various local writers and it is not the intention of the writer to further discuss these issues. [See, for example, Tan Ken Hwee, 'Breaking New Ground: The ET Act 1998' Asia Business Law Review No 23 (January 1999).]
More germane in this discussion are the following:
Looking at the problem (if indeed there is one) purely from a practical point of view, the plain reading of the section must be given effect. On that basis, it would appear that in a case of similar facts to that of Godfrey, the network (internet) service provider would be able to rely on section 10(1) of the ETA to found a defence against a claim in defamation. This is so long as it can show that it merely 'provided access'. Presumably, that means it will have no editorial control - that too is a question of interpretation.
Again, purely from a practical point of view, it is submitted that that would have been the intention of framers of the ETA. Of course, the matter awaits the courts' consideration and determination.
The application of section 10
If section 10 is to be read literally and applied to a similar fact situation, as in the Godfrey case, this would result in the network service provider having a valid defence against defamation suits. This is far reaching since the defence in section 10(1) of the ETA is limited only by the requirement to show that the network service provider 'merely provided access' in respect of the impugned electronic records or data, assuming, of course, as a matter of fact the person relying on such a defence can show that he is a 'network service provider' - a term undefined in the ETA. It is assumed that ISPs are within the scope of the section. It has been suggested that it does not cover search engine operators, for example, AltaVista.
Issues to be considered
Conclusion
Therefore, section 10 of the ETA should be given a wide interpretation, since that must have been the intention of the framers of the law who must surely have wanted to further the cause of electronic business.
It may well be that some of the members of Parliament recognised at the second reading of the Electronic Transactions Bill that some further explanatory drafting needs to be done. Nevertheless, the ETA must be seen as a facilitative vehicle rather than an obstruction to E-business.
Until Parliament seeks to regularise the position, the courts must be left to grapple with the matter and its interpretation.
The other issue is a conceptual one. English law (at least as represented by Godfrey) treats the publication and distribution of defamatory material in the same way, ie there is no distinction to be made between the liability to be accorded to a publisher and a distributor of defamatory material. American courts make that distinction. At the appropriate time, our courts should consider this distinction. Perhaps the American approach should not be disregarded, notwithstanding our English law roots. It would appear that section 10 of the ETA, at least on a plain reading, accords more with the US approach than that taken in Godfrey in the English court. Thus, section 10 seems to suggest that so long as the network service provider merely provides access, suggesting in turn little or no editorial control, then immunity from suit should be the case.
Leslie Chew, SC
Khattar Wong & Partners