Double Actionability Rule in Case of Defamation and Malicious Falsehood in Singapore A. Double Actionability Rule a.

General concept of Double Actionability Rule in Common Law system Double actionability rule is a doctrine of private international law which holds that an action for an alleged tort committed in a foreign jurisdiction can be successful in a domestic court only if it would be actionable under both the laws of the home jurisdiction and the foreign jurisdiction. In other words, such principle requires the plaintiff to show that such act can be actionably under the law of the civil case is being brought (lex fori) and also the law where the action is committed (lex loci delicti). History and Development of Double Actionability Rule Long before this Double Actionability Rule is established, an action tort could be actionable at the place where such tort is committed, as seen from the case of The Halley1. In this old case, the defendants, while navigating Belgian waters, were compelled by Belgian law to employ a pilot, whose negligence caused damage to the plaintiffs. The defendants were vicariously liable for the acts of their compulsory pilot by lex loci delicti but not the lex fori. Selwyn LJ, delivering the judgment of the Privy Council, sitting on appeal from the High Court of Admirability, dismissed the action because the defendant was not liable under English law. The double actionability rule itself was firstly introduced in English court of law by Phillips v. Eyre in 1870, and later developed by Chaplin v Boys (1971). Phillip v Eyre Phillip v Eyre2 was the first case which demonstrated the relevance of the lex loci delicti in addition to the lex fori which is lead to the establishment of the double actionability rule. In this case, the action was for assault and false imprisonment committed in Jamaica. These torts were recognized in both England and Jamaica, but a statute had
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(1868) LR 2 PC 193. (1870) LR 6 QB 1.

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been passed in Jamaica that had retrospectively validated the defendants acts. Willes J (the judge) dismissed the plaintiffs claim because, although the requirements of English tort law had been met, the defendants acts were justifiable by Jamaican law. His Lordship said: As a general rule, in order a found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such character that it would have been actionable if committed in England; Secondly the act must not have been justifiable by the law of the place where it was done. Thus, it could be said that in Phillip v Eyre the Honorable Judges concluded that an act is done in foreign country is a tort and actionable as such only if it is both actionable as a tort according to English law (first limb) and not justifiable according to the law where the act was done (second limb). Chaplin v Boys In 1971, the House of Lords had to interpret the Phillip v Eyres judgment. In Chaplin v Boys3 the plaintiff and defendant, both British military servicemen posted to Malta, were involved in a road accident in Malta caused by the negligence of the defendant. The plaintiff could see the defendant in tort by the laws of both England and Malta. However, although under English law the plaintiff could recover damages for pain and suffering and loss of future earnings, such head of damages is not recoverable under Maltese law. The question before the House of Lords was whether the plaintiff could claim these head of damages. At the end, it was unanimously held that he should be awarded damages for pain and suffering (even it does not recognized by Maltese Law). The reasoning on why the plaintiff should be awarded varied considerably. On the question whether the issue of recovery for pain and suffering was substantive or procedural issue, the court by a majority of three to two decided that it was substantive. On the question whether the two limbs of the rule in Phillip v Eyre were jurisdictional or choice of law propositions, the court was unanimous that they were choice of law propositions. On the question whether the second limb contemplated that criminal liability in the place of the act was
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[1971] AC 356.

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sufficient to establish actionability as a tort if the actionable by the law of forum, a majority of four to one agreed it did not contemplate criminal liability as being sufficient. However, there was no ratio on what the second limb of the rule in Phillip v Eyre required as positive elements of liability. Lord Donovan thought that as long as there was some civil liability under the law where the act was done, the act should be actionable as a tort if it was actionable according to the law of the forum. Lord Hodson and Lord Wilberforce 4 shared the view that there must be actionability of the same kind under the law where the act was done. 5 On the question whether there was an exception to the double actionability rule, Lord Hodson thought that the rule in Phillip v Eyre was only general rule. He would be prepared to dispense with the requirement of actionability of the same kind under the law where the act was done if the occurrence in question and the parties were most closely and significantly connected to the forum. Lord Wilberforce expressed the view that on a particular issue, particularly one that delimited, negative or qualified the liability, the court might refuse to apply the second limb if the interests of the place where the act was done would not be undermined or seriously impaired by the refusal to do so.6 Reform of Double Actionability Rule in UK, Australia and Canada In its development, the application of double actionability rule has been rejected in Australia and Canada in favour of an exclusive law where the act was done. In 1994, the Supreme Court of Canada in Jensen v Tolofson7 rejected the double actionability rule. In 2002, the Australian High Court in Regie National des Usines Renault SA v Zhang8 also rejected the double actionability rule. Much earlier, in 1990, the Law Commission of England had concluded that there was neither reason in justice nor on principle to retain the requirement of actionability in accordance with the law of the forum when it made recommendations to repeal the double
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Lord Donovan, Lord Hodson and Lord Wilberforce are the Honorable Judges in the Chaplin v Boys case. Jimmy Yim SC and others, Reform of the Choice of Law Rule Relating to Torts, A Report of the Law Reform Committee of the Singapore Academy of Law, 31 March 2003, par. 5-8 pg. 2. Ibid par. 9 pg 2. [1994] 3 SCR 1022. (2002) 187 ALR 1.

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actionability rule.9 Such recommendations were adopted and the new tort choice of law rules is the statutory rule contained in Part III of the Private International Law (Miscellaneous Provisions) Act of 1995. That rule provides that in all tortuous actions, except defamation and malicious falsehood, the applicable law is only the law of the place of the tort (lex loci delicti) subject to a flexible exception. In the case of international only, UK and Canada have choosen to retain the flexible exception. The courts are directed to apply the law of another country if from a comparison of the significance of the relevant factors connecting the tort to the place of the tort and that country, it is more appropriate to apply the law of that country. In contrast, in Regie National des Usines Renault SA v Zhang a vast majority of the Australian High Court rejected the flexible exception. In their opinion, the fact that the applicable law is the law where the act was done is necessarily subject to public policy and the public requirement would appear to be an adequate response to any need for flexibility. In the latest case on the subject Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5)10 the question was whether there is sufficient flexibility in the double actionability rule to enable this aspect of the lex loci delicti to be excluded and the question of IACs title to the aircraft to be decided exclusively by the lex fori. The court held that there was such flexibility when it would be contrary to English public policy to apply the law where the act was done. As legal consequences, the court then applied the public policy defence as part of the flexible exception. b. Recognition of Double Actionability Rules in Singapore Singapore applies the double actionability rule derived from Phillips v. Eyre (1870) LR 6 QB for wrongs committed abroad (Parno v SC Marine Pte Ltd [1999] 4 SLR 579). Thus, the plaintiff can sue in Singapore for a wrong committed overseas if (1) the wrong is actionable as a tort by the law of the forum (i.e. Singapore) if the tort had been committed in the forum; and (2) the wrong gives rise to civil liability by the law of the place where the tort is committed. However, in an exceptional case, the court may
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Law Commission Report No. 193 (1990) [2002] 2 WLR 1353.

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apply the law of the forum to the exclusion of the law of the place of the wrong, or it may apply the law of the place of the wrong to the exclusion of the law of the forum, in respect of specific issues or the entire cause of action. Where the tort is committed is not always easy to determine, but the court would look back at the series of events constituting the tort and ask itself where in substance the tort had occurred. B. Double Actionability Rule in Defamation and Malicious Falsehood in Singapore The Double Actionability Insofar as the publication and republication in Indonesia is concerned, it is common ground that the double actionability rule would have to be satisfied. The relevant place of commission of a libel or malicious falsehood is the country in which the cause of action is made out. In the case of defamation, it would be where the offending statement was published.11 In the case of malicious falsehood, it would be where the false publication was made and where the consequent damage is suffered.12 For the publication and republication of the Offending Words in Indonesia to be actionable in Singapore, the alleged wrong must be actionable not only under the law of the forum (the lex fori) but also under the law of the place where the wrong was in fact committed (the lex loci delicti).13 Defamatory Meaning of the Offending Words (Defamation) / Malicious Falsehood under Singapore law Under Singapore law, whether words are defamatory depends on whether they tend to lower the [appellants] in the estimation of right-thinking members of society generally;14 impute any dishonourable or discreditable conduct or motives or a lack of integrity.15

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Dicey, Morris and Collins on the Conflict of Laws (14th Edition, Vol 2, 2006) at [35-141]; and Halsburys Laws of Singapore at [75.378] which states that the place of the tort is where, in substance, the cause of action arose. WBG Network (Singapore) Pte Ltd v Meridien Life International Pte Ltd [2008] SGHC 114 at [68] sets out the elements of the tort of malicious falsehood. Rickshaw Investments Ltd and another v Nicolai Baron von Uexbull [2006] SGCA 39 at para [53]. Aaron Anne Joseph v Cheong Yi Seng [1996] 1 SLR 258 at [51] Jeyaretnam JB v Goh Chok Tong [1984] SGCA 19 at page 3 (3rd paragraph)

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Under Singapore law, the Defendant will be liable for malicious falsehood if it can be proved that (i) the Defendant published the Offending Words, and that the Offending Words were false; (ii) that the words refer to the Plaintiff or his property or business; (iii) that they were published maliciously; and (iv) that special damage flowed as a direct and natural result16 (this does not apply where words are calculated to cause pecuniary damage).17 Malice is made out if the Defendant knew that he was spreading a lie and/or he was reckless as to the truth/ falsity of the Offending Statements.18 Damages/ Relief for Defamation and Malicious Falsehod According to the double actionablity rule, in order for the Plaintiff to claim particular substantive heads of damage in Singapore, such heads of damage must also be available to the Plaintiff in Indonesia. The quantum of damages, being purely procedural, would be decided by the law of the forum (Singapore).19 Under Singapore law, once the statements are found to be defamatory and publication to third persons is established, damage to the Plaintiffs reputation is presumed.20 Further, special damages (including business losses/ pecuniary losses) can also be awarded for a claim in defamation. 21 The Plaintiff is also entitled to make claim for aggravated damages.22 For malicious falsehood, the Plaintiff will be able to recover damages which represent the loss which he is likely to suffered, as the direct and natural consequence of the falsehood.23

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WBG Network (Singapore) Pte Ltd v Meridien Life International Pte Ltd [2008] SGHC 114 at [68] sets out the elements of the tort of malicious falsehood. Section 6 (1) of the Defamation Act (Cap 75) Hytech Builders Pte Ltd v Goh Teng Poh Karen [2008] 3 SLR 236 at [35], [38] and [39]. Dicey, Morris and Collins on the Conflict of Laws (14th Ed, 2006) at pages 1919-1923 [35-053] Arul Chandran v Chew Chin Aik Victor JP [2001] 1 SLR (R) 86 at [54] Carter-Ruck on Libel and Privacy (6th edition, 2010) pages 510-513. Carter-Ruck on Libel and Privacy (6th edition, 2010) pages 497-500. WBG Network (Singapore) Pte Ltd v Meridien Life International Pte Ltd [2008] SGHC 114 at [68]

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