Blogger files High Court application challenging statutory board’s legitimacy to sue for defamation

Landmark case to protect Singaporeans from defamation lawsuits by public bodies

In the first case of its kind in Singapore, 21-year-old local blogger Han Hui Hui has applied to the High Court for a declaration that the Council for Private Education (CPE), a statutory body under the Ministry of Education (MOE), is not entitled to bring any defamation action against her.

Her counsel, human rights lawyer M Ravi, is arguing that the freedom of speech and expression, enshrined in article 14 of the Singapore Constitution, protects citizens from any defamation proceedings by the government and public bodies. The right to sue for defamation is reserved only for individuals and private entities, and not public bodies.

The CPE had threatened Ms Han with defamation proceedings by way of letter of demand through their lawyers, Allen and Gledhill, following two emails they received from Ms Han, which they regard as defamatory. Ms Han now seeks protection against this threat via the constitution and the ordinary laws of the land.

According to Ms Han’s affidavit, made in 2010, she enrolled in a private education institute in Singapore. She chose the school primarily because of its low tuition fee. On the first day of school, she realised she was the only Singaporean and was shocked to see students smoking in the school premises. After attending the school for awhile, she felt that the school was not providing competent education. Lecturers were disinterested and the learning culture was substandard. In 2011, she tried to tell the school’s management but she was not taken seriously.

Feeling disappointed, she started to pen her thoughts and opinions on her blog.

On 15 March 2013, she published a blog post suggesting that measures should be taken to prevent foreigners from getting their qualifications through private education institutes that are unethical. Her posting went viral on the Net.

On 4 April 2013, a reporter from The New Paper (TNP) who had been corresponding with Ms Han over the blog post, emailed her to say that he had spoken with Mr Andy Ong from CPE. The reporter was under the impression Ms Han was from Kaplan and was having a dispute resolution with them. Ms Han, in her affidavit, said she was puzzled where the reporter got the idea as it was untrue that she studied in Kaplan.

On 5 April 2013, Ms Han emailed Mr Ong of CPE to seek clarification. When CPE did not reply, she said that she sent two follow-up emails on 8th and 11th April. It was these emails that CPE took issue with. Ms Han admitted that the language she used was “somewhat clumsily worded”.

On 15 April 2013, Ms Han received a letter of demand from CPE, claiming that she had defamed them.

Government and public bodies cannot sue for defamation

Ms Han then sought help and was advised to consult human rights and constitutional lawyer M Ravi. Mr Ravi looked at the case and felt that CPE, as a public body, does not have the right to sue individuals for defamation.

Ms Han was advised that although the CPE is a “body corporate” capable of suing and being sued, it is nevertheless a body that is arguably of sufficiently “public character” because:

The CPE is accountable to the Minister and to Parliament through annual reports.
The CPE has specific duties and powers established by law which, in the exercise of them, have great impact on a significant proportion of the public at large.
The CPE is carrying out a core function of the Ministry of Education which is to regulate educational establishments and a particular industry linked with the Ministry’s area of responsibility.
The CPE does not act independently of the government and is directed in its key functions and duties by the Minister.
The CPE receives money from the government provided by parliament and the Minister’s permission must be sought when appointing and removing the chief executive of the council.
The employees of the CPE are deemed as public servants as far as the Penal Code is concerned.
The CPE and its officers and employees enjoy certain state protections like the immunity from personal liability and preservation of secrecy.

Hence, it is argued that CPE is a public body and should be treated like one.
Indeed, CPE’s own website reads:

"Established under the Private Education Act, the Council for Private Education (CPE) is a statutory board sanctioned with the legislative power to regulate the private education sector. In addition to its role as the sectoral regulator of private education institutions (PEIs), the Council facilitates capability development efforts to uplift standards in the local private education industry."

The nature of public bodies is such that, inter alia, they can affect many people, overwhelm myriad disparate alternative voices, and conceal their actions behind official privileges of secrecy and immunity from personal liability. As such, the constitutional right to freedom of speech and expression is indispensable as a means for a member of the public who is susceptible to being affected by the actions of public bodies, to both raise concerns and defend oneself against any adverse actions or policies such bodies might undertake.

Ms Han wrote in her filings, “Sometimes, it is even the case that I might have to call such a body out and accuse it of things I cannot prove, precisely because the power of such bodies might not render it possible for me to acquire enough information about it. The lack of freedom of speech and expression in this instance might very well allow public bodies to get away with misdoings.”

In a Canadian case, Justice Corbett wrote as follows:

“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation action… Governments are accountable to the people through the ballot box, and to judges in courts of law. When a government is criticized, its recource is in the public domain, not the court… Litigation is a form of force, and the government must not silence its critics by force.” (Halton Hills v Kerouac [2006] OJ No 1473 (SCJ))

That is, “its recourse is in the public domain” meaning that the Government can counter a criticism overwhelmingly simply by issuing a press statement that will be published in the headlines of the newspapers, or simply release records publicly which will put any suspicions to rest.

Ms Han added, “Because the actions and policies of public bodies have such high impact and stakes, it is unacceptable that they can silence criticism through fear in the form of litigation.”

“My constitutional right to freedom of speech and expression protects the ordinary citizen against such potential abuse, and because public bodies have more than enough means to defend themselves and their reputations in the first place, my constitutional right should be upheld against being sued for defamation by any public body.”

Also, referring to the relevant part of the judgement in a Derbyshire case in UK, under Common Law:

“Since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation; and that, accordingly, the plaintiff (i.e, the Govt institution) was not entitled to bring an action for libel against the defendants, and its statement of claim would be struck out.”

“If the council were to succeed in this appeal, any governmental body with corporate status could bring libel proceedings against a newspaper or individual citizen alleged to have defamed its governing reputation. Such bodies would be able to wield the very sharp sword of libel proceedings to deter or suppress public criticism and information about what they do as the people’s representatives and public servants. They could do so using public funds and knowing that an ordinary individual citizen could not afford access to justice to defend his freedom of political expression against such a claim… The freedom to express criticism of a governmental body can be more easily stifled by a series of civil actions… The mere issue of a writ tends to have a gagging effect.”

Ms Han concluded in her filings, “Such a ruling would therefore gravely diminish public accountability through fear of defamation and runs contrary to the constitutional guarantees under article 14 of the constitution. Currently, I am being threatened with legal proceedings as a result of my purported defamatory words.”

“According to the letter of demand, I have been asked to comply with certain demands not limited to a full and unqualified apology and undertaking in terms of the attached draft by 12pm on Monday, 22 Apr 2013. By this letter of demand, my rights are violated and before I decide whether to apologise to the defendants, I wish to seek the determination of my constitutional right as a citizen whether government in the capacity of a statutory board, namely the CPE, can sue for defamation.”

Ms Han, therefore, wanted the High Court to:

1.Declare that the Council for Private Education (CPE) being a public body does not have a right to sue or threaten to sue for defamation under common law and/or under Article 14 of the Constitution of the Republic of Singapore;
2.Restrain the Defendants (CPE) from commencing any defamation proceedings against the Plaintiff (Ms Han) on account of the above.

Ms Han’s application was filed on 19 April 2013. A date to appear in the High Court will be obtained later.

This is a landmark case involving the Singapore constitution, which is of interest to all Singaporeans especially bloggers and netizens. Basically, it asks the question: can public bodies in Singapore sue anyone for defamation?

Plainly put, if the CPE can sue for defamation, then hypothetically speaking the traffic police can also sue any member of the public for defamation if he/she writes to complain that a traffic mobile police officer was not doing his duty and the traffic police is incompetent.