The immediate comments made by readers in response to an article are irrelevant in assessing damages that ought to be awarded by the court — instead, the real issue is the impact that the offending words in the article would have on Prime Minister Lee Hsien Loong’s standing as the head of Government, said PM Lee’s lead counsel Davinder Singh in the High Court on Monday (15 Feb).
Mr Singh said the above in response to TOC chief editor Terry Xu’s lawyer Lim Tean at the hearing of the closing oral arguments of PM Lee’s defamation suit yesterday.
Mr Lim had argued that such comments are “the best evidence” of whether PM Lee’s reputation had suffered as a result of the said article.
The article in question, titled “PM Lee’s wife, Ho Ching weirdly shares article on cutting ties with family members”, was published on 15 August 2019.
The TOC article contained alleged defamatory statements made by PM Lee’s siblings Mr Lee Hsien Yang and Dr Lee Wei Ling in relation to the 38 Oxley Road dispute.
Mr Lim noted that PM Lee had himself, at trial, acknowledged that none of the comments about the TOC article referenced the allegedly libellous words about him having misled the late Lee Kuan Yew about the gazetting of 38 Oxley Road as a heritage site.
Instead, the readers in their comments directed their attention to the “irony” of Mdm Ho’s sharing of an article about severing ties with toxic family members, given her and PM Lee’s “poisonous” relationship with his siblings, he said.
Mr Lim on Monday questioned PM Lee’s move to seek aggravated damages for Mr Xu’s article, despite the observation that the majority of the readers’ comments were concentrated on Mdm Ho’s sharing of the article on severing ties with toxic family members instead of focusing on PM Lee.
The aggravated damages sought against Mr Xu, said Mr Lim, is akin to “asking for an oversized bandage when there is no wound” created by the article published by Mr Xu.
“And yet he was willing to have his reputation butchered by a thousand cuts inflicted by his siblings, to which he took no steps to stitch the wound,” he added, referencing PM Lee’s decision not to sue Mr LHY and Dr LWL over their allegations.
While Mr Singh accepted that most of the comments were responding to Mdm Ho’s sharing of the said article and not on the words that had allegedly defamed PM Lee, the lawyer stated that the immediate reaction of readers is irrelevant in seeking such damages for his client.
Beyond the comments, there are three crucial questions that ought to be addressed in assessing damages to be awarded by the court, namely:
- What the court considers the offending words to mean;
- Whether the words were defamatory; and
- Various factors such as the standing of the plaintiff, the standing of the defendant, the nature of the allegations made, the width of the publication, questions of malice, and aggravation, among other relevant factors.
“At the end of the day, evidence of how anyone read the words or understood the words is irrelevant,” said Mr Singh, adding that the comments about the TOC article were merely a means of showing that “certain persons said certain things”.
There must also be evidence of how readers or commenters are unaffected by the offending words, he said.
When asked by Justice Audrey Lim if there is case law that states whether such comments on articles impact the damages sought, Mr Singh said: “Just because you have evidence of comments, it doesn’t change the question of whether those comments are relevant in law to the issue of damages.”
Responding to the judge’s query on whether the courts have considered such responses to defamatory articles in deciding damages for cases that took place before the advent of Internet publications, Mr Singh said that “whether it is social media or not social media, the question is whether it is at all relevant”.
“It is not only in the day and age of social media that you have evidence of responses. Even before that, you would have the ability, if it was relevant as a matter of law, to call evidence of persons to say that, having read the article, it had no effect on them, for example,” he said, to which he argued that the answer is “No”.
Justice Lim then queried Mr Singh on whether there are cases that indicate that such comments are among factors that are not accepted by the courts in assessing damages to be awarded.
“I think this is even more relevant today because of the way publications are done. They are done on a completely different type of platform where people can actually respond to the publications more easily.
“In the past, if one were to put up a defamatory statement, let’s say, in a newsletter or something, you don’t expect people to actually write in and respond to it or to give their comments. Most people just don’t do that, all right? But in this day and age, it is a very different generation … They do comment on things,” said Justice Lim.
Stating that he is not aware of any case law that allows such comments to be factored in such a way, Mr Singh said that if such comments were relevant in law and admissible as evidence, then it would open the floodgates to calling in witnesses who would testify that an offending publication did not “strike a chord” with them.
Mr Singh also argued that the court should take into consideration the “natural indignation of the court at the injury caused to the plaintiff” in deciding on damages to award his client with if so.
Mr Lim later argued that PM Lee had, via the proceedings against Mr Xu, attempted to “seek a false vindication of his reputation because of the ongoing rivalry between him and his siblings” instead of embarking on the “appropriate course” of suing Mr LHY and Dr LWL.
The proceedings, Mr Lim said, are a way of targeting Mr Xu “to make a point to Singaporeans” and a means of hoping that the court “will oblige him by saying that the allegations of his siblings have no foundation no truth”.
Arguing that Mr Xu should have called on the Lee siblings to testify while PM Lee himself refused to sue them out of not wanting to “besmirch” their family’s name, said Mr Lim, is “cynicism at its best”.
“What for? So that he can put it to the siblings in cross-examination, ‘Your evidence is a total lie’? How cynical is that? Would that not be a much further stain on the family’s reputation?” Mr Lim told the court.
PM Lee’s lawyers, in asking for damages for their client, cited two past defamation cases involving prime ministers of Singapore.
In the two cases, the courts had awarded PM Lee and Goh Chok Tong around S$300,000 and S$330,000 on separate occasions against the Singapore Democratic Party and its secretary-general Chee Soon Juan.
Justice Audrey Lim reserved her decision at the end of the hearing on Monday. The hearing is adjourned.