Mark Cheng

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Legal articles by Mark Cheng

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    string(9786) "In Singapore, we differentiate between libel and slander when discussing defamation.

Libel concerns written or published defamatory statements, including emails, blogs, print media, and even images and cartoons.

Slander involves spoken words.

Whilst Singapore recognises the right to free speech, there are certain exceptions to protect the reputation of people and businesses.

The introduction of the internet, social media, and other online platforms meant that traditional defamation laws had to be adapted to address new challenges. The definition of "publication", for example, had to be revised. The courts have recognised that "sharing" a post on social media can amount to publication. If the post contains false statements that could harm someone's reputation, and you share the post, even if you didn't create it, you can be liable for defamation.

In this article, we will discuss defamation and slander in Singapore and look at the legal framework that governs defamation and slander. We will also discuss what you need to prove to succeed with a defamation claim, look at available defences against a defamation claim, and the types of damages you could claim if successful.
When is a statement considered defamatory?
A statement is defamatory if it harms an individual's reputation or lowers their standing in the eyes of a reasonable person. It can take place in many ways, for example:

 	
In print.
 	
On social media.
 	
On broadcast media.
 	
In visuals, images.
 	
In verbal conversation or utterances.

When talking about defamation, we can speak about libel or slander.
Criminal and civil defamation
In Singapore, you can have a civil or criminal claim for defamation. Criminal claims are governed by section 499 of the Penal Code, and civil actions fall under the Defamation Act of 1957.
Civil defamation
Civil law concerns the relationships and duties between individuals. Under the Defamation Act, a person can claim defamation even if the other person did not intend to defame the complainant. If the statement harmed someone's reputation or social standing, they could file a defamation claim.

A civil claim is available whether it was written (libel) or spoken(slander) defamation.
The elements of a successful civil defamation claim
To be successful in your defamation claim, you need to prove the following:

 	
The statement is defamatory, i.e. it harms your reputation or lowers your standing in the minds of society's reasonable or right-thinking members.
 	
You, the victim, must be identifiable.

Suppose you rely on a cartoon, for example, as a basis for your claim. In that case, you must be identifiable to succeed in your claim.

 	
The statement must be communicated to a third party or otherwise published.
 	
The statement is false.

Criminal action for defamation
In Singapore, you may institute criminal action against someone for defamation under the Penal Code.

Section 499 of the Penal Code states the following:

"Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person".

The elements of a Section 499 defamation claim are:

 	
The words must be spoken(slander) or written(libel).
 	
The words must be "published", i.e. other people must see or hear it.
 	
There must be an intention to harm the person's reputation.
 	
The person must be identified.

The Penal Code provides for some exceptions. You will not succeed with a defamation claim if the other party can prove, for example, that:

 	
The statement is true, and it is for the public good that it should be made or published. The court will decide on all the circumstances if it is for the public good.
 	
The statement is a good faith opinion based on facts regarding the public conduct of public servants.
 	
It is not defamation to publish a substantially accurate report of the proceedings of a court of justice, or of Parliament, or the result of any such proceedings.
 	
The same applies to good faith opinions regarding the merits of a case decided by a court or witness conduct.
 	
The statement is a good faith opinion on the merits of a public performance, such as publishing a book, making a speech in public or performing on stage, and the author or performer submitted the performance to the public's judgment.

Other defences against a defamation claim
Aside from the statutory exceptions in the Penal Code, there are other recognised defences against a defamation claim.
Justification
If you want to succeed with a justification defence, you must prove that the statement is true and based on facts.
Fair comment
A fair comment defence can succeed if you can prove that your comment is:

 	
An expression of your opinion, i.e., you didn't submit it as a statement of fact.
 	
Based on true facts.
 	
A matter of public interest.
 	
Fair, i.e., based on all the facts, it is your honest and unbiased opinion.

If you had malicious intent, you cannot rely on fair comment as a defence.
Qualified privilege
Qualified privilege exists only in a situation where the person who made the statement has an interest or legal, social, or moral duty to communicate the information. The third party receiving the information has a corresponding duty to receive the information. For example, answering police inquiries or communication between employers and employees.

Such information or statements are protected by privilege, even if the statement is defamatory.
Public apology for unintentional defamation
Although not strictly speaking a defence, a party who innocently made a statement and didn't intend any harm could avoid a lawsuit by offering a public apology.

Section 7 of the Defamation Act provides that:

"A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends."

If the offer is accepted and duly performed, there shall be no proceedings for libel or slander.

If the offer is not accepted, it could be a defence in any proceedings against the person claiming innocence that the words were uttered or published innocently, and that the party made an offer of amends as soon as practicable after being notified that the statement might be defamatory.
What damages can you claim for defamation?
Defamation laws in Singapore aim to protect an individual's reputation and provide compensation for damages caused by defamation. The court can award monetary damages, which may include general and aggravated damages.

Damages are awarded to grant some relief for the distress caused and to restore the person's damaged reputation.
General damages
General damages are assessed based on several factors, including the nature and seriousness of the statements, their impact on the victim's reputation, and the extent of the publication.

The wider the publication, the more damage is caused, and the greater damages can be awarded. The context and where the statement was published will also influence the amount of damages.
Aggravated damages
In some instances, the court will consider awarding aggravated damages. This usually depends on the conduct of the person who made the statement.

 	
Did the person apologise, offer to apologise, or refuse to apologise?
 	
Did the person repeat the statements?
 	
Did the person have malicious intent, or was the statement made recklessly?

In the case of Prime Minister Lee Hsien Loong v Leong Sze Hian [2021] SGHC 66, the court awarded aggravated damages because a blogger shared a link to an article that made allegations of corruption against the prime minister. The court found that the blogger had complete reckless disregard for whether the allegations were true or not.
Other available remedies
Victims of defamation may seek injunctions. An injunction can be prohibitory (to stop future defamatory statements) or interlocutory (to retract existing statements).
Legal advice
If you find yourself in a situation where your reputation was harmed, or you are accused of libel or slander, you should seek legal advice immediately.

If you stand accused of defamation, an experienced lawyer can explain your options and help you determine whether you have a defence.

If you feel that your reputation was harmed, an experienced lawyer can assist in deciding whether you should proceed under the Defamation Act or the Penal Code, and what damages could be available to you. We can guide you through the steps to protect and restore your reputation and explore legal remedies.

To minimise the risk of further damage to your reputation, filing for an injunction might be the first step.

Defamation law can be complex and nuanced. Whether you stand accused, or are the victim, an experienced lawyer can make all the difference to the outcome of your case."
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Singapore has robust anti-harassment laws. Although sexual harassment is not specifically mentioned, the Protection from Harassment Act (POHA) 2014 includes any form of sexual harassment.
Sexual harassment in the workplace often involves power play between more senior and subordinate employees. It can take on many forms - from very subtle advances to blatant sexual harassment.

Besides the protection in the POHA, there are specific responsibilities on employers under the Employment Act to provide a safe working environment for all employees.

This article will discuss the Protection from Harassment Act, how sexual harassment is defined, and the different types under the Act. We’ll touch on the employer’s responsibilities, the criminal offence of sexual harassment, and possible penalties if convicted. Also, we’ll look at remedies available to victims of sexual harassment in the workplace, and the steps to take if you find yourself to a victim of sexual harassment in the workplace.
What is sexual harassment?
The POHA stipulates that no individual may cause another person harassment, alarm, or distress by:

 	
using any threatening, abusive or insulting words or behaviour; or
 	
making any threatening, abusive or insulting communication; or
 	
publishing any identity information of the target person or a related person of the target person.

If the words, behaviour, communication, or publication causes the victim harassment, alarm or distress or is likely to cause such a reaction, the person can be guilty of an offence.

This definition includes words, behaviour, communication, or publication that amounts to sexual harassment.

The Act gives a few examples:

 	
X and Y are coworkers. At the workplace, X loudly and graphically describes to coworker Z, their desire for a sexual relationship with Y in an insulting manner. X knows that Y is within earshot and intends to cause Y distress. Y is distressed. X is guilty of an offence under this section.
 	
X and Y were formerly in a relationship which has since ended. X writes a post on a social media platform making abusive and insulting remarks about Y’s alleged sexual promiscuity. In a subsequent post, X includes Y’s photographs and personal mobile number, intending to cause Y harassment by facilitating the identification or contacting of Y by others. Y did not see the posts but receives and is harassed by telephone calls and SMS messages from strangers (who have read the posts) propositioning Y for sex. X is guilty of an offence on each post.
 	
X and Y are classmates. X posts a vulgar tirade against Y on a website accessible to all their classmates. One of Y’s classmates shows the message on the website to Y, and Y is distressed. X is guilty of an offence under this section.

From the definition and examples, we can see that sexual harassment can take on many forms. It is not confined to what happens on the actual work premises; it could also occur at work functions or client premises.
Threatening, abusive or insulting words - verbal harassment
Verbal harassment includes lewd comments, inappropriate suggestions or proposals of sexual favours, sexual jokes or any other sexually explicit utterance that is inappropriate, unwelcome, and causes the victim distress or alarm.
Threatening, abusive or insulting behaviour - physical harassment
Physical, sexual harassment includes any deliberate inappropriate or unwelcome physical contact of a sexual nature. It could be hugging, touching, patting, kissing, sexual assault, or rape. It could also include stalking the victim.

Sexual harassment can also amount to an outrage of modesty under the Penal Code.
Threatening, abusive or insulting communication or publication
Digital harassment on social media platforms is becoming more common. It includes posting insulting and inappropriate sexual comments or remarks, photos, etc., on social media.

It can also include notes, emails, and letters with inappropriate sexual content that is likely to cause distress or alarm.
What are the employers’ responsibilities regarding sexual harassment in the workplace?
The POHA does not impose any direct duties on employers. However, employment laws impose a legal obligation on all employers to provide a safe working environment for employees. This duty includes taking reasonable steps to protect employees against sexual harassment at the workplace.

The Tripartite Advisory on Managing Workplace Harassment sets out practical guidance for employers. To comply with their duties, employers should put anti-harassment policies and procedures in place for reporting and managing sexual harassment complaints.
What is the offence of sexual harassment?
Regardless of where the harassment occurred, section 3 of the Act states that anyone who intentionally causes another harassment, alarm, or distress by using threatening, abusive or insulting words or behaviour or communication or publishes any identifying information of the target person is guilty of an offence.

Section 4 of the Act makes behaviour or communication that is likely to cause the victim harassment, alarm, or distress an offence.
What is the penalty for sexual harassment?

 	
A person convicted under section 3 (intentionally causing) can be punished with a maximum fine of S$5,000, or imprisonment up to 6 months, or both.

If the person is a repeat offender, the penalty can be a maximum fine of S$10,000, imprisonment not exceeding 12 months, or both.

 	
A person convicted under section 4 (likely to cause) can be punished with a maximum fine of S$5,000.

If the person is a repeat offender, the penalty can be a maximum fine of S$10,000, or imprisonment not exceeding 6 months, or both.
Victim remedies for sexual harassment in the workplace
Although the perpetrator can be convicted of an offence and punished with a fine or even imprisonment, these penalties do not compensate the victim. However, the Act does provide civil action for compensation.
Civil action for monetary compensation
Section 11 of the POHA states that any victim of sexual harassment under section 3 or 4 may bring civil proceedings against the perpetrator and claim monetary compensation.

If the court is satisfied on a balance of probabilities that the perpetrator is guilty of a section 3 or 4 offence, the court can award damages to the victim to the extent the court thinks is just and equitable.
Protection orders
Section 12 of the Act provides that victims of sexual harassment can apply for a protection order against the perpetrator.

If the court is satisfied on a balance of probabilities that:

 	
the perpetrator is guilty of a section 3 or 4 offence; and
 	
the perpetrator is likely to continue with the harassment.

The court may grant a protection order against the perpetrator if the court thinks it is just and equitable to do so.

A protection order may involve:

 	
Prohibiting the perpetrator from continuing with the harassing behaviour.
 	
If the behaviour involves communication or publication, the perpetrator will be required to stop publishing the communication or any similar communication.
 	
The court may also refer the perpetrator to attend counselling or mediation. The court may also refer the victim to counselling.

If the communication or publishing involves a third party, the court may order the third party to stop publishing the offending communication or disable access by end-users to the offending communication.
What to do if you are sexually harassed at work?
As we can see, Singapore laws aim to protect employees from any form of harassment in the workplace. If you are the victim of sexual harassment, you should take immediate action to protect yourself and your rights.
Approach your employer
If your employer has proper anti-harassment procedures in place, you can start by reporting the harassment to the reporting officer and following the employer’s grievance procedures. Your employer should then initiate a proper investigation and assist you with filing a police or magistrate’s report where appropriate.
Approach the TAFEP
You can also report your case to the Tripartite Alliance for Fair and Progressive Employment Practices. This is often useful in cases where meeting the requirements for a criminal sanction under the Act or a civil lawsuit is difficult.

The TAFEP will engage with you and your employer to deal with the current situation, and prevent further harassment.
Approach the court
Victims can file a Magistrate’s Complaint. This can lead to either mediation in less severe cases, or criminal proceedings against the perpetrator.

You can file for a protection order, as explained above. Breach of a protection order can lead to more penalties.

For personal compensation, the victim can file a civil lawsuit.
Seek legal advice
Often, sexual harassment follows a pattern, and dealing with it inside the workplace can be tricky. In some cases, the employer is the perpetrator, making it very difficult for the victim to take action.

If you feel that you are being sexually harassed at your workplace, you should seek legal advice to understand your rights and decide on the appropriate remedy for your case.

An experienced employment lawyer can explain the different options and differences between criminal remedies under the POHA, and civil remedies to claim monetary compensation or protection from further harassment.

If you are facing a claim of sexual harassment against you, you need legal assistance as soon as possible. The penalties can be severe and costly, both on a professional and a personal level.

An experienced lawyer can navigate the law and guide you towards the best outcome for your case."
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    string(9652) "In many employment contracts, an employee will be prevented from engaging in certain activities that compete with those carried out by their employer. This term is known as a non-compete clause and is designed to protect an employer’s business interests both during and after the duration of employment.

One of the main issues with non-compete clauses is striking the appropriate balance between the protection of the business and an employee’s right to work. In Singapore, there is no statute governing the regulation of non-compete clauses. This means that every dispute brought before the court must be decided on a case-by-case basis, with reference to previous case law.

The labour regulation bodies in Singapore are soon to release some much-needed guidance on using non-compete clauses. In the meantime, various factors need to be considered by any business or employee entering such a contract.
What can non-compete clauses restrict?
It is standard for a non-compete clause to restrict how and where an employee does business during and after their employment. The scope of a non-compete clause depends upon the type of industry. A few examples of what can be restricted are as follows:

 	
Working for a competing business
 	
Starting a competing business
 	
Soliciting clients from a former employer
 	
Soliciting colleagues from a former employer
 	
Working within a geographical area

A non-compete clause will also come with a set duration, which states how long the employee will be bound by the restriction following the end of their employment.
Are non-compete clauses enforceable in Singapore?
In short, it depends. Due to the lack of a legislative framework, the enforceability of non-compete clauses is guided by the court’s decisions in previous cases. Over time, a two-part criterion has been established to assist the court in determining whether such clauses should be enforced, as follows:

 	
Does the clause protect a legitimate proprietary interest of the employer?
 	
Is the scope of the non-compete clause reasonable?

These are examined in more detail below.
Legitimate proprietary interest of the employer
This generally refers to an interest of the business that it would be reasonable to protect. The courts have stated three types of proprietary interests will be considered legitimate for the purposes of a non-compete clause. They are:

 	
Trade secrets;
 	
Trade connections; and
 	
Maintaining a stable, trained workforce.

However, the employer must go one step further and show the interest they rely on is relevant to that employee. For example, a less senior employee is unlikely to have access to confidential information constituting trade secrets. Therefore, a non-compete clause in this context is unlikely to be enforceable.

The court will consider whether it is fair for an employee to use the business’s information or connections for their personal benefit. It is important to note the skills developed by an employee during their employment will not fall within this definition and cannot be restricted.
Reasonableness
The court will then consider whether the non-compete clause is reasonable, both in respect of the interests of the parties and those of the public. The law has been developed to avoid overly restrictive clauses, but whether it is reasonable will depend on the type of employment and industry.

Regarding the employee’s interests, a person’s future employment may be significantly hindered if their non-compete clause prevents them from working within a wide geographical area for an indefinite duration. Conversely, a non-compete clause that only applies to a small geographical area and lasts, say, 12 months, is more likely to be reasonable.

In terms of the interests of the public, overly restrictive non-compete clauses will impact freedom of trade and competition, which is a fundamental aspect of business, giving the public the ability to choose. The court will, therefore, want to avoid a situation where one business monopolises a particular industry.

In assessing reasonableness, the court will look at several factors, including:

 	
Whether the clause is specific to the employee; if so, it is more likely to be considered reasonable.
 	
What the employee is restricted from doing. A general restriction preventing an employee from working for any competitor in any geographical area is more likely to be unreasonable.
 	
Duration of the clause. It is more likely to be reasonable if the restriction only lasts for a set duration. A longer period will usually be reasonable for an employee who works at a more senior level.
 	
Geographical limitations. Depending on the type of business, it may be reasonable for an employee to be restricted from carrying out business in a specific country, region, or city. However, any geographical restraints must be necessary and justified and should not disproportionately impact competition.

Unenforceable non-compete clauses
If the court finds the two criterions above are not met, the non-compete clause will not be enforceable.

A mechanism known as the “blue pencil test” will allow the court to strike out the unreasonable parts of the clause, meaning the rest of it can stay in force. This avoids the need for the entire clause or contract to be rewritten, which the court could not do in any event. Alternatively, if the entire non-compete clause is found to be unreasonable, it can be struck out, leaving the rest of the contract in force.
Enforcing a non-compete clause
If an employee breaches a non-compete clause that is valid and reasonable, the employer may apply to the court for either of the following:

 	
An injunction to prevent the employee from committing the breach; and/or
 	
Compensation for any financial loss suffered due to the breach.

An injunction usually prevents the employee from being employed with or setting up a competing business. Compensation will be awarded if the employer can show that the loss, they have suffered is a result of the employee breaching the non-compete clause.

It is important to note that the employer will first need to satisfy the court the non-compete clause is reasonable before it will further consider the enforcement application.
Things for the employer to consider
A business that wants to include a non-compete clause in its contracts will want to avoid a situation where the clause is challenged or deemed unenforceable. Seeking the assistance of an employment lawyer to draft the employment contract will ensure the non-compete clause is drafted properly. However, there are also some general guidelines employers can follow:

 	
Ensure any restrictions on the employee are reasonable. The employer should only restrict what is necessary to ensure the business’s legitimate interests are protected.
 	
Make the clause specific to the employee. Blanket restrictions that apply to all employees are unlikely to be enforceable, particularly considering the varying roles and responsibilities in different companies.
 	
Avoid ambiguity. A dispute or unenforceability is much less likely to arise if the clause clarifies which activities the employee is prevented from doing.

Things for the employee to consider
A future employee may be tempted to sign their non-compete agreement without fully understanding its implications. The law will seek to protect employees from unjustified restrictions, as we have seen above. However, they should still take the time to review the contract and obtain clarification on any elements they are unsure of. If presented with a non-compete clause, employees should consider doing the following:

 	
Speak to an employment lawyer. They will be able to advise the employee on the terms of the agreement and whether it is reasonable and capable of enforcement.
 	
Speak to the employer. After reviewing the agreement and taking advice from a lawyer, the employee may be concerned that parts of the non-compete clause are overly restrictive. The employee is wholly entitled to negotiate these terms with the employer or, at the very least, seek clarification from them.
 	
Keep a note of any changes. The employment contract will be the final version, including any amendments, as signed by both parties. The employee should keep a copy of the contract and note any subsequent amendments, just in case of any dispute. It is also sensible to keep a record of any discussions had with the employer about the terms of the non-compete agreement, as these may need to be referred to if the matter ends up in court.

Conclusion on non-compete clauses in Singapore
Non-compete clauses are an effective mechanism for providing businesses with confidence when hiring employees at all levels of their business. It is reasonable for employees’ activities to be restricted to a degree so that standard business interests can be protected.

However, non-compete clauses used as an attempt to disproportionately restrict trade and employment will not be recognised by the court and will be deemed unenforceable.

It is expected that the guidance due to be released in the latter half of 2024 will shed further light on the effective use of such clauses, thereby providing further clarity on this complex area of the law."
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