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During the last election campaign, the reaction of Singaporeans to Dr Vivian Balakrishan’s remarks about opposition candidate, Dr Vincent Wijeysingha’s possible same sex preference has given many public relations consultants new barometers. This applies to media lawyers, too. Whilst the general principles for defamation and privacy may remain, the standards have definitely shifted. 

This is the real Singapore value. One that I have repeated till I am hoarse to our dear government. 

Whilst the amount of supporters for the Parliamentary Petition to repeal s377A and the AWARE saga are evidence of our values on the issue of homosexuality, Balakrishnan’s remarks and press release allowed me to test Singaporeans’ values to legal principles. 

The reaction of netizens and other Singaporeans to Dr Balakrishnan’s statementsis the third time (after the Parliamentary Petition to repeal s377A and response to the AWARE saga) our society has affirmed that it embraces diversity and inclusiveness. As such, we need to repeal s377A. Not to do so is not to honour our founding fathers’ vision and the new Singaporean dream. 

DEFAMATION

Definition

Defamation can be defined as the publication of defamatory statement about a person to a 3rd party. A statement is defamatory if it:

1. tends to lower him in the estimation of right-thinking members of society, generally;

2. exposes him to public hatred, contempt, or ridicule; or

3. causes him to be shunned or avoided.

Inherent in this definition is that defamation is dependent on the values of a society. As such, what is defamatory in one society may not be defamatory in another. Also, what is defamatory a 100 years ago, may no longer be defamatory now. Being raped or seduced by a mad monk, Rasputin, is a good example.

What does Defamation Protect?

It is, therefore, clear that defamation protects a person’s reputation. However, if the statement is true, the subject has no case, regardless of how defamatory the statement is.

Therefore, defamation protects an individual against the casting of false slurs or aspersions.

Standards

As what is defamatory is judged against society’s values, what was defamatory 10 years ago, in Singapore, may no longer be defamatory today. Sexual orientation would be one.

Not only is there an outcry against any allusion to Dr Wijeysingha sexual preference by Vivian, the voters of Holland Village-Bukit Timah, where the two were pitched against each other as anchors for their team, gave Dr Wijeysingha a resounding 39.9% approval. This is Dr Wijeysingha first election campaign. For an unknown rookie standing against a Minister, the 39.9% of the valid votes is an amazing feat. One has also got to consider Singaporean politics, not to mention that the constituency is supposed to be pro-PAP, as it is an upper middle income district, people who benefited from PAP’s rule and would vote for the status quo.

This is proof that Singaporeans, except for a small minority, no longer care about a person’s sexual orientation. A person is judged purely on his merits.

Therefore, criticising a certain MP for looking or behaving like a loveless dyke may no longer be actionable. However, it may be rude. Besides, why would any of you, genteel readers, want to insult or offend your lesbian friends (assuming you a gay man or straight reader).

On the more constructive side no public personality needs worry about “coming-out” any longer.

PRIVACY

What does Privacy Protect?

Unlike defamation, privacy protects an individual against prying eyes. The information published is always true.

However, because it is obtained in a manner which invades a person’s privacy, its publication may be stopped by an order of court, if discovered in time. Such an order is called “interlocutory injunction”.

An interlocutory injunction is often more important in an infringement of privacy case than a defamation. This is because a person’s reputation can be remedied by a rectification statement. Once personal information is published, there is no way it can be pulled back. This is why such pre-trial injunctions are more often granted when privacy, rather than defamation, is in question.

Definition of Privacy

I would like to define privacy as an action carried out by an individual in a public or semi public space. Nevertheless, this person would still have a reasonable expectation of privacy. An example would be retreating to a secluded corner of a restaurant, shielded by plants. The German court has held that Princess Caroline of Monaco’s privacy was breached when she was so photographed.

Governments, companies and other institutions do not have privacy. They have confidential information.

Privacy

Unlike defamation which ring-fences freedom of expression in most human rights documents, privacy is a separate good. Therefore, the two are often balanced against each other. Whether or not the court will grant any relief is dependent on the types of information and the status of the individual involved.

Free speech advocates will inform you that freedom of expression is instrumental in a democracy for the revelation of truths, the proper functioning of government and participation in the affairs of the state. As such, some information is being classified as more important because of this role.

Information relating to the governing of the state will be on top of the list. The courts tend to be pro-free speech when such information is in question. Conversely, when it is about the lifestyle of some starlets which hardly contributes towards the development of the democracy, the courts tend to restrain their publication. It may be different if the sex is between a minister and an appointed secretary.

It is a pity that in Naomi Campbell v MGN, the landmark case on privacy, the supermodel conceded that her denial of drug taking to the press has prejudiced her rights to claim privacy for this aspect of her life.

In an earlier case involving a presenter for a long running variety show, “Top of the Pops”, Theakson vs Mirror Group Newspapers, the court held against the plaintiff, Theakson. The High Court of England allowed the press to publish information that he has been to a brothel but not photographs of the incident. The justification is that celebrities who cultivate a clean public image cannot complain when the contrary is unveiled. This follows a line of other cases based on similar reasoning. There is public interest informing the public the truth. The courts think that public figures have a duty to their fans and supporters.

Close analysis of such decisions reveal that the courts are unclear on whether it is the fact of concealment which the judges are against or the damage to the fans caused by the wrong image projected. It cannot be the latter. This is because there can be no damage until the truth is revealed by the press. It is the act of publication rather than image projection that is causing the damage.

I proffer that the values of the judges have influenced their decisions, like in many other cases. In actual fact, the judges disapprove of the hypocrisy of these public figures. This seem to be the very same sentiments many netizens showed.

Dr Balakrishnan, as an individual has a right to free speech, as much as the press. In the words of J Ousely in Theakson v Mirror Group Newspapers, who had to have regard to:

“the freedom of expression not just of the Sunday People (the newspapers), but also the prostitute who too had information of a journalistic nature which she wished to impart.”

Had Dr Vincent Wijeysingha been anti-repeal of s377A or anti-gay, there would have been arguments for “outing” him. Freedom of speech will be on the side of Vivian Balakrishnan. However, this is not the case.

There seems to be a parallel between this Dr Vincent Wijeysingha attending a forum on s377A in his personal capacity and Australian Minister for Transport and Roads, David Campbell, frequenting a gay sauna. The Australian and Communications and Media Authority held that information relating to a person’s sexual preference and activities would be considered personal and private. Footage of the minister attending a venue offering sexual services outside of office hours would be considered private by most Australians. Whilst a sauna is to satisfy physical needs, forums satisfy intellectual needs. By alluding to Dr Wijeysingha’s sexuality, Vivian Balakrishnan could be considered to have breached Dr Wijeysingha’s privacy.

Vivian Balakrishnan in his written statement released on Monday, 25 April 2011, tried to draw the line between Dr Wijeysingha’s personal and public life when he wrote:

“The issue is not Wijeysinha’s sexual orientation. That is a matter for him.”

This statement was co-signed by the rest of his team. It includes Christopher de Souza who spoke against the repeal during the Parliamentary debate in 2007.

In stating this, Vivian Balakrishnan differentiated between what is “in the public’s interest” and what “the public is interested to know”. Anyone who has ever read a tabloid will be able to tell you that what is usually of little “public interest” but “interesting to the public” is the sex life of public figures.

Vivian Balakrishnan is correct to distinguish between Dr Wijeysingha’s sexual orientation and his political agenda. It is definitely in the public’s interest to know an election candidate’s political position. Therefore, Balakrishnan could be said to have a strong public interest argument once he makes this distinction.

What emerges is that Dr Balakrishnan does not seem to have a problem with a gay being his colleague in Parliament. His position on the repeal of s377A is less clear. As for the majority of the public, it is clear that they are not interested in the private life of Dr Wijeysingha.

CONSITUTIONAL AMENDMENTS REQUIRED

It is now clear that Singaporeans, in general, makes a distinction between the private and public life of a person, at the workplace. This includes parliament. Therefore, we can say that Singapore is ready for an openly gay MP, now. He will be judged on his merits and not sexuality.

As a lawyer, I have one big problem with this.

S377A carries a maximum sentence of 2 years. Article 45(1)(e), Constitution of Singapore, disqualifies someone who has been in prison for more than a year. The Constitution is the supreme law of the land. It is also a living document. Like universal suffrage in America, it should be interpreted with the times.

To solve this problem, we will have to repeal s377A.

Or would amending the Constitution be the easier route to take?

I have a compulsory licensing paper for a BioEthics workshop, which will take place at the end of June. Therefore, I will not be writing for June. For July, I would like to discuss about workplace equality issues. It will be interesting if you can send in questions relating to discriminatory practices at the workplace. 

Until then, remember, most Singaporeans think it is fine to be gay and it does not reflect your working abilities. Therefore, choose one colleague to say that you are proud of who you are. 

Bon Courage!

George Hwang

The Lawyer Is In is a monthly column. In the columns, George Hwang will answer questions posed by readers on subjects such as personal and civil rights, workplace issues, discrimination, immigration, sexuality, lasting power of attorney and estate planning. To submit a question, email editor@fridae.com. Responses will be made by placing your question (without identifying you) in an upcoming column, and answering it there. We regret that questions cannot be answered privately.