In Ng Koo Kay Benedit v Zim Integrated Shipping Service [2010] SGHC 47, Justic Lai Siu Chiu nicely summarized the evidentiary requirements to prove a claim of defamation arising from statements published on a website and via email.
The fact that a defamatory statement is published on a website does not per se lead to the conclusion that there has been substantial publication of the defamatory statement. In fact in the above case, the judge did not find that there was substantial publication. The court may draw an inference of publication but in the end, the burden of proof is on the plaintiff to prove publication.
Interestingly, there a challenge by the defendant that the plaintiff had failed to prove that the spreadsheet list of recipients of the alleged defamatory email was a “computer output” under s 35 of the Evidence Act. As I was reading this I was getting fearful that any electronic document produced in court would require “a certificate from the person responsible for the operation or management of the computer” per s 36 of the Evidence Act.
The judge rightly, in my opinion, agreed with the House of Lords in R v Shepherd [1993] AC 380 that it was “possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.”
Further, there was no allegation that the computer in question was malfunctioning or that the list of recipients was inaccurate. The judge found that substantial publication via email had taken place on the basis that there were 1,776 names listed and it was more than likely that not an insubstantial number of persons would have downloaded and read the email.
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