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"Playing To The Gallery" - Defamation Or Fair Comment
June 2005 | Litigation & Arbitration | Litigation Brief

When a court determines the meaning of words said to be defamatory, it would consider the broad impression conveyed by the words in the context in which the words were said and not merely the immediate or literal meaning of the words.

In Jeyasegaram David (alias David Gerald Jeyasegaram) v Ban Song Long David [2005] SGCA 18, the appellant spoke at an EGM of a company to oppose resolutions that had been proposed by the directors. The respondent was subsequently quoted in the press as stating that he felt that that the appellant was "playing to the gallery" when the appellant spoke at the EGM. The appellant sued the respondent for defamation and failed in his claim. The trial judge found that the respondent's description of the appellant as "playing to the gallery" was a comment that was not defamatory or alternatively was covered by the defence of qualified privilege and fair comment. The appellant appealed.

On appeal, the Court of Appeal stated that in determining the meaning of the words alleged to be defamatory, it was the broad impression conveyed by the words that was considered. The Court of Appeal disagreed with the trial judge that the statement by the respondent that the appellant was "playing to the gallery" was not defamatory. It felt that such a comment insinuated that popular support and media attention was the dominant motive behind the appellant speaking at the EGM and the respondent's comment that the appellant was "playing to the gallery" lowered the appellant's reputation in the estimation of right-thinking members of society. The Court of Appeal found that the evidence did not show with sufficient certainty that popular support and media attention was the dominant motive behind the appellant speaking at the EGM and, therefore, the respondent's statements were untrue and defamatory.

The Court of Appeal then turned to consider the defence of qualified privilege and fair comment raised by the respondent. It recognised that the defence of qualified privilege was available when defamatory statements were made by a person in response to an attack on that person's character or conduct, provided they are made in good faith and fairly relevant to the attack. Given that the appellant had publicly attacked the respondent, the respondent was entitled to protect his reputation by publicly responding to the appellant's attack, and there was nothing disproportionate or irrelevant in the respondent's response.

The Court of Appeal also found that the respondent's statement about the appellant "playing to the gallery" ought to be treated as a comment in the sense that it was a statement of opinion rather than an assertion of fact because an ordinary reasonable reader on reading the press article would understand the words as a comment.

The acknowledgment by the Court of Appeal of the point that courts will be sensitive to the broad impression created by words said to be defamatory contributes to a holistic style in analyzing defamation claims. This case also illustrates quite how difficult and complex it can be to litigate a defamation claim and the range of views that the Court and/or the Court of Appeal might adopt in considering the actions of the parties. Perhaps one other way of in which the Court could have decided the case was to hold that the first issue to be decided was whether the statement was to be treated as a statement of fact or as an opinionated comment. If it was an opinionated comment, then there would be no need to consider whether the dominant motive was to "play to the gallery". An opinion need not be factually accurate because it is a statement of a person's view of things and not a statement of that a particular fact or facts occurred.