Understanding Defences to Defamation: What You Need to Know

Making a statement that harms someone’s reputation can have serious legal consequences – this is known as defamation.

However, not every negative statement will attract liability. The law provides several key defences for individuals who find themselves accused of defamation. These defences aim to balance the protection of a person’s reputation with the importance of free speech and open communication.

Three of the most common defences to a defamation claim are justification, fair comment, and qualified privilege.

Justification (The “Truth” Defence)

The most straightforward defence to defamation is justification, which essentially means proving that the defamatory statement is true. If you can demonstrate that the “substance or gist” of what you said is factually correct, this defence applies, even if minor details are inaccurate.

However, the burden of proof is entirely on the person who made the statement (the defendant). It’s not enough to simply believe something is true. You must be able to prove it in court with evidence.

This defence failed in the case of Foo Diana v Woo Mui Chan [2025] 4 SLR 95 (“Foo Diana”). In this case, the defendant posted a public review on the Law Society of Singapore’s Google page claiming a lawyer, Ms Foo, had forced her to “do illegal deals”.

To use the defence of justification, the defendant needed to prove three things:

1. The deals were, in fact, illegal.
2. The lawyer knew that the said deals were illegal.
3. The lawyer forced the defendant to participate in the said deals.

The Court found that the defendant had failed to prove all three things. She could not provide evidence that the deals were illegal and even admitted during cross-examination that one of them was not. As the defendant could not prove the truth of these allegations, her defence of justification failed, and she was found liable for defamation.

Fair Comment (The “Opinion” Defence)

This defence protects the expression of opinions, not the assertion of facts. To succeed with a defence of fair comment, four elements must be established:

1. The statement is a comment: The statement must be recognisable as an opinion, deduction, or criticism, rather than a statement of fact.
2. The statement concerns a matter of public interest: The topic must be something the public has a legitimate interest in.
3. The statement is based on facts: The opinion must be based on a “sufficient substratum of facts” that are either stated or implied and are themselves true.
4. The statement is honest: The comment must be one that a fair-minded person could honestly make based on those facts.

The test for distinguishing between a fact and a comment is objective: would an ordinary, reasonable reader understand the words to be the expression of an opinion or a statement of fact? If the line is blurry and the reasonable reader may have a difficult time distinguishing whether the words are an opinion or a statement of fact, the defence is likely to fail.

In the case of Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52, an article questioned Singapore’s reputation of having a “squeaky-clean government” by drawing parallels between the government’s management of public funds and a scandal at the National Kidney Foundation (NKF). The article ended with rhetorical questions like, “How many other libel suits have Singapore’s great and good wrongly won, resulting in the cover-up of real misdeeds?”.

The publisher argued these were expressions of opinion, and thus the defence of fair comment ought to apply. However, the Court disagreed, finding that the statements, including the questions, would be understood by a reasonable reader as assertions of fact. The reasonable reader would understand these statements as assertions that government officials were corrupt and were using their defamation suits to hide their wrongdoing.

Furthermore, the Court found that, even if the statements were comments, they were not based on facts that could warrant such a serious imputation. The Court advised that writers can help characterise their words as comments by using phrases like “it seems to me” or “in my judgment” to make the distinction clear.

Qualified Privilege (The “Duty and Interest” Defence)

Qualified privilege protects statements made in situations where the law recognises the need for frank and uninhibited communication for the “common convenience and welfare of society”.

This defence applies when the person making the statement has a legal, social, or moral duty or interest to communicate the information, and the recipient has a corresponding duty or interest to receive it. For example, this defence may apply to an employer making an employment reference, or to someone reporting a suspected crime to the police.

In Foo Diana, the defendant lodged a formal written complaint against the plaintiff, who was a lawyer, with the Law Society of Singapore (LSS), alleging professional misconduct. The Court held that this communication was protected by qualified privilege. The defendant, as a member of the public and as a purported client of the plaintiff, had an interest in reporting the alleged misconduct. The LSS, as the regulatory body for lawyers, also had a corresponding duty and interest to receive and investigate such complaints.

However, this defence is called qualified privilege because the existence of such privilege can be defeated if the person making the statement was motivated by malice. In other words, even if a communication is protected by qualified privilege, if it is made with malice, the defence no longer applies.

Malice can be proven if the defendant:

• Knew the statement was false or was reckless as to its truth.
• Was driven by an improper motive, such as a desire to injure the plaintiff.

In the Foo Diana case, despite the communication being privileged, the defence ultimately failed because the Court found the defendant acted with malice. Given the bitter history between the parties over unpaid debts, and the fact that the defendant had made allegations she could not have honestly believed to be true (she had made claims of unwanted sexual advances from the plaintiff, which were contradicted by affectionate text messages she herself had sent), the Court concluded that the defendant’s complaint was not a genuine grievance but an act of retaliation intended to harm the plaintiff’s career.

The defences to defamation serve as a crucial mechanism for balancing the protection of an individual’s reputation against the safeguarding of freedom of expression. However, the success of these defences is highly contingent on the specific facts of each case, turning on core principles of truth, honest opinion, good faith, and the absence of malice.

If you believe you have been defamed, or have been accused of defamation yourself, our firm can assist you.

This publication is not intended to be, nor should it be taken as, legal advice. It is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking any action(s) based on this publication. We shall not be responsible for, nor do we accept any responsibility for, any loss or damage that may arise from any reliance on this publication.