In this instance, let us take the simplistic view that a defendant posted alleged defamatory statements about the plaintiff on Facebook. This hypothetical situation would aid me in structuring my legal argument.
Identifying the impugned statement
First, we will need to identify the impugned statement. For example, as the impugned statement is a Facebook post, then we will need to clearly identify the statement before we commence our legal argument.
Next, we will need to identify whether there are multiple publications. Even if the post were on say Facebook, and if the post were shared on another Facebook page, that would constitute two publications. This “multiple publication” rule was stated in the case of Loutchansky v Times Newspapers Ltd (No 2)  QB 783. It stated that mere repetition or republication is itself a publication and hence each republication gives rise to a fresh and separate defamation action.
Determine whether the statement is libellous or slanderous
Once we have identified the impugned statements, we will next need to determine whether the impugned statements are libellous or slanderous as that will determine whether we will need to establish whether proof of special damage is required.
As held in the case of Worker’s Party v Tay Boon Too [1974-1976] SLR(R) 204 (“Workers Party”), libel refers to words in permanent form and are actionable per se, whereas slander refers to words in temporal or transient form and are not actionable per se and hence proof of special damage arising from the slander is required unless there is a statutory or common law exception that applies.
To determine whether a social media post is a form of libel or slander, we will need to turn to the Defamation Act 1957 (2020 Rev Ed) (“DA”). (I just learned that there are such posts which can disappear after a certain period of hours on social media. Apparently, I am not in tune with the latest social media trends!)
Section 2 of the DA states that “telecommunication” means any system for the transmission, emission or reception of signs, signals, writings, images and sounds of all kinds by means of radiowaves, wire, cable or other electromagnetic systems. Social media, therefore, fulfils the definition of “telecommunication” in section 2 of the DA. Therefore, the social media posts which are broadcast on social media will fall under “broadcasting by means of telecommunication” in section 2 of the DA.
Next, we look at section 3 of the Defamation Act which states that “the broadcasting of words by means of telecommunication shall be treated as publication in a permanent form”. Therefore, as social media posts are “broadcasting of words by means of telecommunication”, they are treated as “publication in a permanent form” and hence are considered libellous and are actionable per se (i.e., there is no need to prove special damage) as per Worker’s Party so long as the elements of defamation are made out.
Are elements of defamation made out?
Next, we move on to consider whether the elements of defamation are made out.
As stated in Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another  SGHC 38 (“Golden Season”) at , defamation contains three elements:
First element: The statement bears a defamatory meaning;
Second element: The statement is published to a third party; and
Third element: The statement refers to a third party
All three elements need to be present for a prima facie case of defamation to be made out.
First element: Whether the statement bears a defamatory meaning
As stated in Golden Season at , “A statement is considered to be defamatory if it:
Test 1: Lowers the plaintiff in the estimation of right-thinking members of society generally;
Test 2: Causes the plaintiff to be shunned or avoided; or
Test 3: Exposes the plaintiff to hatred, contempt or ridicule”
These are the three tests to be used when determining whether a statement is considered to be defamatory.
The most widely used test by Singapore courts is the first test which is concerned with reputation. The least likely used one would be the controversial third test due to reasons that fitting a statement that causes hatred, contempt or ridicule would unduly restrict free speech in general. Simply put, people might be held liable simply for making innocuous statements poking fun at each other. Hence it’s rare usage.
In our scenario, we will use the first test and consider whether the statement lowers the plaintiff in the estimation of right-thinking members of society generally. At this juncture, it is important to focus on how the plaintiff’s reputation has been harmed or lowered by the defendant’s alleged defamatory statement.
To determine if the impugned statement had caused such an effect, we will have to consider the natural and ordinary meaning of the impugned statement.
As in Golden Season at , “[w]hether a statement is defamatory is generally determined based on the construction of the natural and ordinary meaning of the words used”. This means that the court will consider the natural and ordinary meaning of the words used in the impugned statement. Not the meaning of what the maker of the impugned statement intended to convey. The case of Review Publishing Co Ltd v Lee Hsien Loong  1 SLR 52 at  further reinforces this view when it stated that “the court decides what meaning the words would convey to an ordinary reasonable person, not unduly suspicious or avid for scandal, using his general knowledge and common sense”. Hence we then apply these principles to the facts in the current scenario.
Consider: is there true innuendo that can arise from the impugned statement?
This might be applicable if, on the surface, the statement might seem innocuous. However, the statement may turn out to be defamatory if knowledge of special facts are present in third parties receiving the statement. We must then consider whether there is true innuendo that can arise from the impugned statement.
As held in the case of Lim Eng Hock v Lin Jian Wei  2 SLR(R) 1004, we can also establish a cause of action based in innuendo if it can be proven that
(a) There were facts extrinsic to the words, where such facts gave rise to a defamatory imputation;
(b) Those facts were known to one or more of the persons to whom the words were published; and
(c) Knowledge of those extrinsic facts could cause the words to convey the defamatory imputation on which the plaintiff relied, to a reasonable person possessing knowledge of those extrinsic facts.
Consider: Limited class
In usual cases, the lowering of the plaintiff’s reputation should be in the eyes of the community as a whole, and not that of a limited class. This was the holding as stated in the case of Chiam See Tong v Ling How Doong  3 SLR(R) 942 at .
However, the court held in the case of Chaim See Tong v Xin Zhang Jiang Restaurant Pte Ltd  SGHC 109 (“Xin Zhang Jiang Restaurant”) that it would be appropriate to take the exceptional step of evaluating the impugned statement from the perspective of a limited class. In that case, the publication was an advertisement with both English and Chinese content. Depending on whether the reader read and understood the English or Chinese portion of the same publication, it would have very different meanings. Therefore, in that case, the court held that they would have to evaluate the impugned statement from the perspective of the readers who read the English portion of the publication. In the current scenario, is the meaning of the impugned statement read by a limited class different from the meaning read by the rest of the community? In such cases, then the holding in Xin Zhang Jiang Restaurant of considering how the impugned statement might be perceived by a limited class might apply.
Consider: Levels of defamation
We might need to consider whether there are levels of defamatory meaning as stated in the case of Ng Koo Kay Benedict v Zim Integrated Shipping Services Ltd  2 SLR 860 at  which referred to the English case of Chase v Newsgroup Newspapers Ltd  EMLR 218 at  which gave a rough guide to the different levels of defamatory meaning, namely that:
(a) Libellous words may mean that the Plaintiff has in fact committed some serious act (such as murder); or
(b) The libellous words may mean that there are reasonable grounds to suspect that the Plaintiff has committed such an act; or
(c) That the libellous words may mean that there are grounds for investigating whether the Plaintiff has been responsible for such an act.
This would be applicable if there is a prima facie case of defamation made out and then analysing whether defences to defamation might apply. For example, If the libellous words mean that the plaintiff committed a crime, the only way to justify that would be to adduce evidence that the plaintiff has been convicted of that crime. On the other hand, if the libellous words were to mean that there are reasonable grounds that the plaintiff has committed a crime, then evidence that the plaintiff has been charged would suffice. Hence, the need to consider the levels of defamation as it would affect how the defences would play out.
Second element: The statement must refer to the plaintiff
As stated in Knupffer v London Express Newspapers  AC, the issue of whether a third party would reasonably understand the impugned statement to refer to the Plaintiff is an issue of mixed law and fact. We then look at the statement and analogise whether the statement refers to the plaintiff. If the impugned statement states the plaintiff’s name then this is easily made out.
Third element: The statement must be published.
As held in the case of Pullman v Walter Hill & Co Ltd  1 QB 524, the defamatory statement needs to have been communicated to at least one person other than the Plaintiff, who would reasonably understand the statement to be defamatory of the Plaintiff. This is true even if the defendant did not intend the statement to be published to a 3rd party. Also, if the statement was read by people who did not reasonably understand the statement to be defamatory of the Plaintiff, then this element is not made out.
Therefore, if all three elements of defamation are made out, a prima facie case of defamation is made out.
Do any defences to defamation apply?
A prima facie case of defamation can be defeated by defences to defamation. Hence, we will need to consider whether any of the defences to defamation applies.
The defences are namely
1) Defence of Justification
2) Defence of Fair Comment
3) Defence of Privilege (absolute or qualified)
Does the defence of Justification apply?
The defendant will have to prove the meaning that was ascertained when a prima facie case of defamation was made out (i.e., the natural and ordinary meaning), not his own meaning. As stated in section 8 of the DA, he would have to prove the substance of the statement that “materially injure[s] the claimant’s reputation”. If he can do so, then this would constitute a complete defence against the plaintiff’s claims and cannot be defeated by proof of malice. Here we must apply the facts to show that the meaning was either true or not true in substance and in fact. This is with application to section 8 of the DA which states that in an action for libel or slander in respect of words containing 2 or more distinct charges against the claimant, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant’s reputation having regard to the truth of the remaining charges. (Naturally, I’m summarising the section)
Therefore, applying the principle in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 which states that “the law does not protect the reputation that a man has, but only the reputation that he deserves”, even though the Plaintiff’s statement was defamatory because it is justified to be true, the defence of justification will apply. It is important to note that the defence of justification is a complete defence and cannot be defeated by malice. This is different from the defence of fair comment which can be defeated by malice.
Does the defence of fair comment apply?
As stated in Gary Chan, The Law of Torts in Singapore (Singapore: Academy Publishing, 2016) at para 13.013, for the defendant to succeed in the defence of fair comment, the following criteria have to be satisfied:
1) The words complained of are comments;
2) The comments are based on facts;
3) The comments are ones where a fair minded person could have honestly made on the facts proved; and
4) The comment was made on a matter of public interest.
Therefore, we must analogise with the scenario to determine whether these criteria have been satisfied. Section 9 of the DA further guides us as to the level of proof required. Section 9 of the DA states that in an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.
If the criteria are satisfied, we will need to still consider whether there was malice. This was held in the case of Oei Hong Leong v Ban Seng Long David  3 SLR(R) 609, where if the defendant’s comments were motivated by malice, i.e., he did not genuinely believe in what he stated, the defence of fair comment will fail.
Does the defence of absolute privilege apply?
This defence usually refers to parliamentary and judicial proceedings
Does the defence of qualified privilege apply?
As held in Gary Chan, The Law of Torts in Singapore (Singapore: Academy Publishing, 2016) at para 13.064, the defence of qualified privilege may arise in one or more of the following circumstances:
(a) The defendant has an interest or duty to communicate information and the recipient has the corresponding interest or duty to receive the information
(b) The defendant makes a statement with a view to protecting his or her self-interests; or
(c) The statement constitutes fair and accurate reports of parliamentary and judicial proceedings.
Therefore, if one of these defences can apply, the prima facie case of defamation made out in the earlier stage would be defeated.
p.s. This is my thought process after my 3rd semester at the SUSS School of Law. Hopefully, I’ll improve as my journey progresses.