Two economics tutors competed for the same A-level students but had never met. One published posts on his tuition centre’s website, under his wife’s name and a pen name, questioning the other’s qualifications and results. In 2019 he went further, telling schools, teachers and a tutors’ association that the rival had admitted his students wrote his books, and paying to boost a Facebook post repeating the claim. The rival, his tuition centre and his publishing company sued.
What was published
- 2017 website posts saying the plaintiff’s media profile came from marketing rather than teaching, that he lacked an economics degree, and that many of his students fared poorly (at [5]–[6]).
- 2019 statements: an oral claim, emails to the Association of Tutors, schools and teachers, and public and sponsored Facebook posts alleging an admission that students had written his books. These continued after a letter of demand (at [8]–[11]).
Meaning
The court applied the objective test from Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52: what the words would mean to an ordinary reasonable reader, not what the writer intended (at [17]). Both sets of statements were defamatory.
Why the defences failed
- Justification. It was pleaded only for three narrow statements, leaving the real sting, that the plaintiff attracted students through marketing and that many of them fared poorly, untouched (at [26]–[27]).
- Fair comment. The defendants did not prove the facts on which the comments rested. The claim that students fared poorly was a statement of fact and could not be comment, and section 9 of the Defamation Act 1957 did not save the defence (at [32]).
- Qualified privilege. The defence attaches to communications made under a duty or interest to particular recipients. It has never been held to cover statements broadcast indiscriminately to the world on a website (at [33]). The privilege claimed for the 2019 statements also failed.
The claim in malicious falsehood added nothing once defamation was established, as there can be no double recovery (at [48]–[49]).
Damages
Exemplary damages were refused. Aggravated damages were justified because the defendants repeated and widened the defamation after being asked to stop, and maintained unsupported defences to the end (at [56]). The court awarded the tutor $80,000 in general damages and $40,000 in aggravated damages, and each company $25,000 in general damages (at [61]–[65]).
Our role
Akesh Abhilash acted for all three claimants. The court found their claim “amply proven” and the defences “evidentially unsupported” (at [1]), rejected every defence, and awarded aggravated damages because the defendants had repeated and widened the defamation, conduct the court found to be actuated by malice (at [56]).
Why it matters
Competitors who criticise each other online need facts they can prove, and should never present allegations as statements of fact. For the person attacked, the case shows the value of a clear letter of demand: persisting after one can lead to aggravated damages.
Common questions
Can you defend online criticism of a competitor as fair comment?
Only if it is comment, based on facts you can prove, that a fair-minded person could honestly make, on a matter of public interest. Statements of fact, such as claims about a competitor’s students’ results, are not comment.
Does qualified privilege protect posts warning the public about a competitor?
Not in this case. The court held that the defence attaches to communications made under a duty or interest to particular recipients, not to statements broadcast indiscriminately on a website.
When are aggravated damages awarded?
Where the defendant’s conduct increases the hurt, for example by repeating and widening the defamation after a demand to stop, or by persisting with unsupported defences.
Akesh Abhilash is a Singapore disputes lawyer with eleven years in practice, acting in commercial, cross-border and criminal matters before the Court of Appeal, the High Court, the State Courts and international tribunals. Read his profile.