The New Media
With the internet now reaching every aspect of our lives, we are constantly being assailed with new and different forms of communication. We have to contend with instant messaging, emails, blogs and social networking sites, such as Facebook.
There is relative freedom to write what you want, and instantly publish whatever you write. Some blogs even allow publication under an anonymous pseudonym, leading some to believe that they cannot and will not be held accountable for what they write and that one can hide under the cloak of anonymity of the internet.
A more sinister use of these forms of media has emerged with this freedom. Words which can be seen to be defamatory may be posted on blogs or social networking sites or sent via email (which has been set up using false registration data provided by the subscriber when signing up for a free email service). The defamatory comments may range from an allegation of infidelity by an ex-spouse, dishonesty of an employer by an ex-employee or even insolvency of a competitor. Whatever the motivation may be for the posting of such comment, depending on the content and context of the comment, if the comment is not true, and lowers the person who is the subject of the comment in the estimation of right-thinking members of society or causes him or her to be shunned or avoided and it has been published, it may be defamatory.
While the traditional poison-pen letter was only sent to a select group, the internet allows such letters to be electronically sent to hundreds of persons by email or by posting on a blog at the touch of a “send” button. The loss of reputation caused by a defamatory posting or email may have serious and long lasting consequences on the person being defamed.
In Singapore it is well founded that the right of freedom of speech and expression conferred by art 14(1)(a) of the Constitution was not unrestricted and wholly free of any restraint. Such constitutional right was unarguably restricted by the laws of defamation. In enacting the Defamation Act, the legislature had clearly intended that the common law relating to defamation, as modified by the Act, should continue to apply in Singapore. (X Pte Ltd and Another v CDE [1992]).
Identity of the tortfeasor
Although discovering the identity of the person who authored and published the defamatory comments (the tortfeasor) is cumbersome and time consuming, it is quite achievable.
It is likely that most of the service providers have details and copies of
(i) registration data (provided by the subscriber when they register for the email account),
(ii) access logs (identifying IP addresses from which the subscriber accessed the email accounts or blogs)
(iii) emails held in the subscriber’s inbox and sent folders.
While these service providers are likely to hold their records in different jurisdictions, and have different policies with regard to disclosing information relating to IP addresses, most do comply with court orders for the disclosure of such information which need to be either obtained in the country in which the information is held or alternatively jurisdictions which they recognise as being binding on them. An action for pre-action discovery is available in most jurisdictions and will usually be quite effective in obtaining this information.
Once the IP address is obtained it is possible to obtain information on the country from which the emails or the blogs were accessed, trace the internet service provider and by making an appropriate application in that country, obtain information about the identity of the subscriber from the local internet service provider.
Evidence contained in the tortfeaser’s computer
Order 24 (1) of the Rules of Court in Singapore stipulate that the court may at any time order any party to a cause or matter to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to provide a copy to the other party
In a recent case of Alliance Management SA v Pendleton Lane P and Another [2007], the High Court of Singapore has held that material stored on a computer database was within the definition of a “document” and this concept embraced the hard disk for the purpose of Order 24 of the Rules of Court.
The court accepted the dicta from Vinelott J in Derby & Co v Weldon (No.9) [1991] that the data base of the computer was a document within the meaning of Order 24 (the equivalent UK rules) and that the court had power to order discovery of what was in that database. But the discretion to order production and inspection and copying would not be exercised so as to give unrestricted access to the other party’s computer, and inspection would be ordered only to the extent that the party seeking it could satisfy the court that it was necessary for disposing fairly of the cause or matter or for saving costs.
While the access to the tortfeasor’s hard disk is not unrestricted, the information on the tortfeasors’ hard disk in his computer which contains information about his access to postings on blogs and email access, is liable for discovery in so far it is relevant to the claimants’ claim.
The message is clear to those who use the internet. The responsibility for what you say still lies with you. On the internet you cannot say what you want with impunity. The perceived anonymity is not real. The advice is simple. Think before you write.
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Renganathan Nandakumar
KhattarWong
Tel: (65) 6535 6844
Fax: (65) 6534 4892
Email: nandakumar@khattarwong.com
Website: www.khattarwong.com
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