This article was written by Nadia Moynihan from August Law with the assistance of Annette Liew, an L.L.B. undergraduate at Singapore Management University’s School of Law.
Cyberbullying as a phenomenon has grown exponentially over the last two decades and Singapore apparently now has the second highest incidence of cyberbullying in the world. This should not be surprising, given the growth in online interactions over the last two decades and the viral speed at which offensive material can be spread online, especially considering that Singapore is one of the top three countries in the world in terms of social media penetration.
This increase in cyberbullying in recent years has resulted in a corresponding increase in the number of potential claims that can now be brought under traditional defamation law as well as under more recently enacted laws specifically designed to provide victims of cyberbullying with additional legal recourse.
DEFAMATION
Defamation is the act of communicating a false statement about a person that injures the reputation of that person. Defamatory statements can be subdivided into libel and slander – libel refers to defamatory words permanently printed, while slander refers to spoken defamatory words.
To prove a claim for defamation, you have to show that the allegedly defamatory statement satisfies the following elements:
1) The words must be defamatory in nature;
The alleged defamatory statement must cause hurt to the victim’s reputation by exposing him to hatred, contempt or ridicule which would lower him in the estimation of right-thinking members of society. In short, words are defamatory if they tend to create a negative opinion of the victim in the mind of a reasonable person.
A judge would consider the natural and ordinary meaning of the words to determine if they are defamatory, which can include the literal meaning or the implied meaning of the words. Some examples of defamatory statements are words which refer to the victim as a liar, drug addict or a thief, all of which imply immorality. In situations involving business people or professionals, words may be defamatory if they impute the lack of qualification, knowledge or skill in the conduct of his/her business or profession.
2) The statement refers to the victim
The statement must explicitly identify the victim or if it is not explicit, you have to show that an ordinary, reasonable man would believe that the defamatory statement is about the victim.
3) The statement must be published
If a defamatory statement is written down and conveyed to a third person (e.g. online), it is libel for which you can sue the maker of the statement without the need for proof of damage.
On the other hand, if a defamatory statement is merely spoken, it is slander and you need to prove that you have suffered some special damage such as the loss of profits or employment arising from slander, or even the loss of hospitality of friends in order to succeed in a claim for defamation. This is unless the slander falls within one of these exceptions, for which no proof of special damage is necessary to succeed in a claim for defamation, even if the defamatory statement was never written down:
- Any allegation of unchastity or promiscuity;
- Any allegation of a lack of qualification, knowledge or skill in the conduct of your business or profession;
- Any allegation that you committed a crime punishable with imprisonment; or
- Any allegation that you suffer from a serious contagious disease.
However, if you have been a victim of cyberbullying on social media, the defamatory statement will have been written down online and the exceptions applicable to proving special damage for slander won’t be relevant.
However, it is insufficient to say that there is publication merely because defamatory material on the internet is technically accessible. The publication must have actually been visited, accessed or downloaded by a third party. If only the cyberbully and the victim have read and accessed the material or webpage (e.g. private messages exchanged only between you and the cyberbully), it does not constitute defamation. Conversely, public Facebook posts and messages sent to third parties amount to valid publications for the purposes of a defamation claim.
Most valid defamation claims are settled following a letter of demand and some negotiation. More often than not, it is unnecessary to incur the expense of taking a defamation claim all the way to trial.
REMEDIES FOR DEFAMATION
Should an action in defamation be successful, a victim has access to a range of remedies: damages, injunction and/or a correction and apology from the perpetrator.
Damages
In deciding the amount of damages, the court will take into account a number of different factors including:
(a) the nature and gravity of the defamation
(b) the conduct, position and standing of the victim and the defendant
(c) the mode and extent of publication
(d) the conduct of the defendant from the time the defamatory statement is published to the very moment of the verdict
(e) any failure to apologise and retract the defamatory statement
(f) the presence of malice.
The court may order aggravated damages in circumstances where some of the above factors are particularly significant.
Injunctions
Courts can issue either mandatory or prohibitory injunctions. Mandatory injunctions require the cyberbully to retract his defamatory publication, while prohibitory injunctions prevent the future publication of defamatory materials. However, courts are often slow to award this remedy because of public interest in the freedom of speech.
PROTECTION FROM HARASSMENT ACT (POHA)
One can also seek protection via the Protection from Harassment Act (POHA), a good alternative or an additional cause of action to a claim in Defamation. The POHA is particularly useful when the alleged defamatory statement does not satisfy the aforementioned elements to prove the tort of defamation, or when the cyberbully can avail himself of the defences for defamation. For example, a cyberbully could escape an action in defamation if his statement is not published to a third party, or when his statement does not contain any falsehood. However, the making of these statements may still amount to harassment within the meaning of POHA.
HARASSMENT in the context of cyberbullying
Sections 3 and 4 of the POHA criminalise acts of using threatening, abusive or insulting words, behaviour or communication to cause harassment, alarm or distress to any other person. In the context of cyberbullying, this likely occurs when a cyberbully deliberately directs threatening, abusive or insulting words to the victim online with the intent of alarming or distressing the victim.
“DOXXING”
In May 2019, POHA was amended to make doxing illegal. Doxxing is the publication of any identifying details or contact information of a person or their family member(s) with the intention of causing alarm or distress to them. Previously, the requirement for publications to be “threatening, abusive or insulting” did not provide recourse for victims who had their personal information leaked online even though the consequences of such leaks posed serious privacy concerns.
CRIMINAL VS CIVIL ACTIONS UNDER POHA
POHA allows the government to bring criminal charges against a cyberbully resulting in fines and/or imprisonment. It also allows a victim to sue the cyberbully directly for damages and/or to apply for a protection order against him/her.
REMEDIES – Damages vs Protection Orders (PO)
Protection Orders (PO)
A Protection Order is a court order that can require someone not stalk or harass another person or to remove any threatening, abusive or insulting publications. If the victim urgently seeks interim protection before the PO hearing, he may opt to obtain an Expedited Protection Order (EPO). A Non-Publication Order (NPO) can also be ordered for the cyberbully to stop publishing offensive material, or make clear that the publications are false. Breaches of POs or NPOs are now arrestable offences.
Damages
Courts may order a cyberbully to financially compensate his/her victim for the harm suffered as a result of the cyberbullying.There is little information publicly available on the amount of damages one can expect to secure in a POHA award as these court decisions are rarely appealed and therefore seldom reported. However, if you have evidence of significant harm, such as psychiatric illness, arising from cyberbullying, this is likely to push up the amount of damages you are likely to receive.
EVIDENCE
In order to support a claim for harassment under POHA or a defamation claim, you should always keep evidence of cyberbullying. This can easily be done by screenshotting posts before they are taken down. It would also be useful to record the dates and times of when the cyberbullying occurred. For defamation, evidence of how one’s reputation has been adversely affected could also help to increase the quantum of damages a victim of cyberbullying receives.
CONCLUSION
If you feel that you have been the victim of cyberbullying, you should reach out to a lawyer to evaluate whether you may have a valid claim against the cyberbully. Often, with the help of a lawyer, the cyberbullying can be stopped and the cyberbully can be forced to pay you, sometimes without the need to go to court.
“This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.”