Freedom Of Expression: An Impression Of It’s Theory And The Limits To Freedom
Written by Team Farallon | January 24, 2019
This article revisits some of the theoretical underpinnings for the freedom of expression. By attempting to examine those theories, the grounds for the demarcation of permissible and impermissible expressions and therefore the limits to restricting that freedom will be examined together with the recommendation of reforms to Singapore’s libel law.
1. This article seeks to rehearse the theoretical underpinnings of the right to free expression. There are of course those commentators who have attacked those theories espoused in this article, but this writer does not rehearse those counter-arguments in this article. The writer assumes that it is absolute truth that freedom of expression is a fundamental requirement for human life, including the society to which one must belong in.
- As the justifications for free expression, or so to speak, revolve around (the rationale for free expression) the absolute truth, viz, that free expression is a fundamental requirement, so too should the limits to free expression be set by the state. As the British Law Lords put it:
““Free” in itself is vague and indeterminate. It must take its colour from its context. Compare for instance, its use in free speech, free love, free dinner, free trade. Free speech does not mean free speech: it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth. It means governed by law.”
B. The Theories for free expression
- The three most discernible theories for the need for free expression were canvassed in Freedom of Speech, Eric Barendt. Eric Barendt described the three theories in the following ways:
“Historically the most durable argument for a free speech principle has been based on the importance of open discussion to the discovery of truth. If restrictions of speech are tolerated, society may prevent the ascertainment and publication of true facts and accurate judgments. The case is particularly associated with John Stuart Mill, but it was also made two centuries earlier by Milton, and it has played some part in theorizing of American judges.” (the “Mill Theory”)
“A second major theory of free speech sees it as an integral aspect of each individual’s right to self-development and fulfilment. Restrictions on what a man is allowed to say and write or (on some formulations of the theory) to hear or read, inhibit the growth of his personality.”(the “Self-fulfilment Theory”)
“A representative judicial view is this extract from Brandeis J’s judgment in Whitney v California 274 US 357 (1927) at 375:
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary…They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth….that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American people.” (the “Democratic Theory”)
- Eric Barendt also puts forth the countervailing arguments to each of the three theories. Some of it is based on the legislation of Europe and the United States. If one takes the view that one cannot derive an “ought” from an “is”, then arguments which are therefore based on the apparent correctness of legislation or case law, whilst tentatively reflective of the wisdom of the past cannot stand infallibly for the correctness of what should be the position in the future or even, of the past. This may be said of an ideology, such as Marxism or Facisism.
- This article shall assume that the three theories above are the correct lynchpins for the justification to free expression. The remainder of this article will set out, first, an exposition of the three theories (Part C), second, a review of the importance of role of the three theories in our case law (Part D), particularly in relation to free speech in the media, and third, a case for reform of Singapore media law (Part E).
- To the extent that ideas need to be grasped and understood to the human mind, and that all men are not universi capax, in the sense that they cannot be said to be omniscient, there are reasons why men may always fall in error. Some men due to mental incapacity, in more senses of the word than merely psycho-physical and which might include, a lack of study, cannot grasp all concepts. Other reasons may be that even the brightest and wisest of men may persecute a truth which has not found its day, indeed, thereby putting back its growth, study and dissemination of that truth for centuries because of the majority against the minority view. Historically, some of the leading intellectuals, who have had as much reason as any other person to be revered and contributed to human civilization, were put down, such as Socrates and Jesus.
- There are two reasons why countervailing views ought to be given their most forceful advocacy; first, because then, two countervailing views will “clash”, and by that competition, new truths may be born and platitudes vanquished. Second, even where a new truth cannot be found, by the victor of one over the other, the victorious truth is re-affirmed on each occasion, and the reasons for its success are rehearsed and given life.
- Truth may not be limited to statements, but shall include any expression in any form which is meant to convey a state of reality or thought, historical or predictive. To take some examples, a statement as to future conduct of the commodity market, whilst it may not be true in the present, may be true in the mind of speaker as being an opinion actually held. A second example, which is more central to this article is where individual preferences and lifestyles which should fall within the domain of privacy ought to be the subject to public debate or rebuke. An example is homosexuality.
- Notwithstanding, there are some limitations to Mill’s theory. First, as stated in paragraph 6, there will always be men who lack the capacity to grasp or participate in this process of seeking the truth. Second, a truth may not always be relevant to it’s time or society, and in that sense, it may be called dimensional truth. A greater part of the humanities, morality, ethics, art, culture form this corpus of our study and development. Third, there may always be the Devil’s Advocate, in the sense that, some men may wish to propagate views which they do not hold with any conviction or genuine belief. This may be the case with some lobbyists.
(ii) Self-Fulfilment Theory
- The Self-fulfilment theory recognizes that the defining characteristic of human life is the ability to express oneself. It is not simply an ability per se, but a necessity. As the adage goes, “No man is an island”. Indeed, he is not an island in respect of material or scientific advancement, but in terms of his mental development and therefore personal growth. A large aspect of this theory would appear to fall within the realm of psychology. However it is important to note that so far as political theory is concerned, this writer does not believe that any theory is correct unless it recognizes the central role which free expression plays in the self-fulfilment of the individual.
- In addition to Extract C, a further exposition of the Democratic Theory may be extracted from British Government and the Constitution, 6th Edition, Turpin and Tomkins, page 773. The editors say:
“A principal justification of freedom of expression is its contribution to the buttressing of democracy, and we shall consider it mainly from this perspective. It is believed that democracy is most secure, responsive and efficient – most likely to realize the high hopes place in it – if there is a free exchange of information and opinions and free to criticize those who exercise governing power.”
- The principle is sufficiently entrenched so that, at least in the United Kingdom, no local authority or organ of government (as distinguished from a specific person or member) has the locus standi to sue for defamation. In Singapore, it seems that no organ (as opposed to an individual member) of the government has successfully sued for defamation.
- In the United Kingdom and the United States, freedom of the press has played an important role in keeping checks and balances against the government. In Singapore, the same may be said about the role of the media although of course, there is a penumbra as to whether this is the correct role of the media. Only this year, several pronouncements were made by senior members of government which appeared to limit the role of our media in this respect.
- Whilst there is a strong argument for freedom of expression, there are also instances when free expression has been curtailed. Hence, to take a few examples:
- Where the reputation or standing of the Court is maligned, Section 7(1) of the Supreme Court of Judicature Act gives the legislative power to punish. Indeed, the power is constitutionally entrenched under Art 14(2)(a) of the Singapore Constitution;
- Where the reputation of an individual or a trading corporation is maligned, there is a right of action under the common law tort of defamation;
- Where there is broadly speaking information which is within the government’s domain, such information may be protected from disclosure under the Official Secrets Act on pain of imprisonment;
- Where there is a claim to a right akin to a remedy for breach of privacy; and
- Information protected by confidentiality whether in contract or equity.
- On the other hand, with respect to statements which are made that affect the reputation of persons, there are defences of justification, fair comment, qualified privilege and absolute privilege to claims in defamation.
- The Courts take a balancing exercise with respect to the limits of free expression when there are competing interests protected by confidence. “In principle, any demonstrated harm resulting from breach of confidentiality should be balanced against the public interest in freedom of expression”.
- The central point in this article is merely to flag up one observation in our case law when freedom of expression was at stake. That is: there is perhaps a dearth of theorizing in our case law. Whilst one may take the view that theorizing is quite unnecessary, lofty, and impractical, this writer is of the other view, that good legal reasoning requires a calculated and thoughtful dose of theorizing.
- In much of the case law, the Courts have not been prepared to provide its own exposition on its brand of jurisprudence when it was most required. An approach adopted by the defendants in some of the cases, perhaps “mistakenly”, was to amalgamate the question of its truth and whether it tarnished the reputation of a political leader. Whilst justification is a defence to defamation, the defendant was not able to provide the necessary evidence to support his allegation and was therefore held liable. This gives rise to another constitutional question; which is whether a Court ought to be more inquisitorial or whether there are sufficient checks from outside of the judiciary? Ought there to be an elected ombudsman or select committee of parliament that has the necessary power to investigate such allegations? “truth” may produce different results. In one case, the Singapore Court admitted evidence of an agent provocateur who had enticed a lawyer to accept unlawful commissions in his offices, and which was video recorded. Quite aside from the various arguments by the defence, there were clearly no grounds for withholding the admissibility of the evidence save for the fact that it had been deliberately and illegally procured. It is an example where the publication and admissibility of “truth” had to prevail over counter arguments about fair play.
- Take a second example, this time of when “truth” does not prevail over values. The case of the publication of nude pictures of a Malaysian politician, Elizabeth Wong, on the internet prompted her resignation. If there was ever any justification for a person not to be punished, but on the contrary, to be compensated by society for such an outrage, this would be it. To take an extreme but poignant view of how this may be unusual is that some people feel there is nothing to be embarrassed about in having pictures taken of their bodies in the nude and published for free. As human beings we are endowed with bodies, and the question is how the law deals with whether it should be a matter of secret how one’s bare body appears. Of course there is a certain element of public morality, and arguments of depravity and corruption of public morals, but two points arise from that. First, if there is a case made out under the law against the depravity of public morals, the publisher should be punished. Second, the victim should not be punished but should be compensated. However, it appeared that the position was on its head as the victim resigned and the publisher, to the time of writing this article was not brought to book under any law. Shortly after, the Singapore newspapers followed up with an expose on Elizabeth Wong’s lifestyle and personality, publishing information about how she was a chain smoker and played the piano and kept late nights.
- When one considers the examples stated in paragraphs 20 and 21 above; then it appears that “truth” is not the paramount consideration in relation to the limits on freedom of expression.
- This article argues that Mill’s Theory must be the starting point in any free and open expression. For example, if a person wilfully tells a lie, then he has no answer at law under any of the three theories. Indeed, the recognition of Mill’s Theory is found in the defence of justification to defamation. But as one moves further from truth alone as the main theory towards the justification embodied in the Self-Fulfilment Theory, then there is both a different berth for expression and a correspondingly different berth for restriction. Take the example of the furore over the caricatures of the Prophet Mohammed which originated from Europe. Such expressions have hardly any “truth” or indeed if there had been a perfect portrait, would it have done considerably in improving the lives of men? Of course, one is looking at it again strictly in the Millian sense of truth being of utility and benefit to men as a whole. The counter view is that the publisher is expressing his view and is therefore self-fulfilled. But this is an example of the weakness in the Self Fulfilment theory, that one man’s medicine may be another man’s poison.
- Nevertheless, Mill was correct, in that the other two theories are predicated upon expressions of the truth, or what is believed to be true. There is no self-fulfilment which is based on expressing ideas that are not truly believed, nor the proper development of a good personality. Furthermore, governance and democracy cannot be enhanced by arguments which are not honestly held or based on fact. Indeed the contrary may be said, for expressions of untruths, which prevail will lead society and the end-product of democracy into error.
- Notwithstanding, are there any contrary arguments where truth is not alone in determining whether publication should be made? One may consider the spectrum of information which is recognized by law to be protected from publication. On one end of the spectrum, there is confidentiality, such as medical records, solicitor-client privilege or other communications of a confidential nature and protected in equity or contract or information protected under the Official Secrets Act which impinges on the freedom of speech.
- On the other hand, there is a disclosure based system offers for securities, Between the two ends lies a range of other information, such as the newspaper article referred to in paragraph 21 above, where there is neither any clear value in the truth of the information published but no legal grounds for restricting that information from being published. It is this ground which will need to be explored below.
- It is further submitted that two factors which are harmonious with the three theories might arise in determining the limits of free expression: first, whether there is any public interest in receiving that information; second, whether that information tends towards the truth.
- This part of this article focuses only on “traditional” media in Singapore. “Newspaper” as defined under the Newspapers and Printing Presses Act (Cap 206)(the “Act”):
“means any publication containing news, intelligence, reports of occurrences, or any remarks, observations of comments, in relation to such news, intelligence, reports of occurrences, or to any other matter of public interest, printed in any language and published for sale or free distribution at regular intervals or otherwise, but does not include any publication by or for the Government.”
- Two points should be noted about the Act.
- First, it does not contain any provisions as to what may be published in the newspaper. The Act essentially governs the Newspaper Company (as defined in the Act) but not the quality or scope of the publications.
- Second, there is nothing in the Act concerning the need for accuracy or impartiality of those remarks, observations or comments in relation to news, intelligence, reports of occurrences or any other matter of public interest.
- As an example of the disparity in standards of publications, the contents of a prospectus offering securities to the public must satisfy a reasonable standard test in order for certain persons to the offering to establish a defence for false or misleading statements. All material information which is considered relevant to the offer has to be set out in the prospectus as prescribed by regulations. A newspaper on the other hand may publish information and predictions which do not hold true without liability save for the general law. There is a restriction on liability for negligent mis-statements in newspapers because of the rule against recovery for pure economic loss.
- As a result of these two factors, there is in this writer’s view, scope for erroneous and harmful publications which are not necessarily restricted by the law nor justified by freedom of speech.
- “Failure” of the media, if there could be a mission, may arise in a number of combinations: (1) failure to report truths which are of public interest (2) reporting truths which are not of public interest (3) publication of matters which are untrue, inaccurate or misleading (4) publication of matters in a slanted or partial manner. By themselves these instances will not engage any limitation by the general law, which as is submitted in this article, this is the case for reform of the media law.
- A lawyer in Singapore would be pressed to find any law specifically dealing with the freedom of the contents of the publications by the press. That is probably because there is very little in this area of law. The exigency of regulation is encapsulated in the following extract from the Media Development Authority’s website:
“Local Publications, including magazines and newspapers are not pre-vetted. Complaints against a publication will be investigated by the MDA with the help of its citizen consultative committees.”
- This writer suggests the following reforms:
- There should be entrenched in the constitution the right of privacy. One example of such a right of privacy is set out in the United Kingdom’s Schedule 1 of the Human Rights Act 1998 incorporating the European Convention of Human Rights.
- There should be a statutory prescription that all publications in a newspaper shall be restricted to reporting all factual occurrences which are of public interest and which are reasonably known to the media. Public Interest should be defined. The definition should state that it includes and excludes any matter which by the common law or the Courts regard or have the power to regard, as being of public interest.
- All remarks, observations and comments that are published must be made by persons who have been vetted or screened for independence and the proper qualifications to make them (namely, a “Veracity trail”).
- Where there is likely to be reliance on the public as to the information published, such as a prediction of a share price, the newspaper must undertake due diligence (namely, a “Diligence trail”) and state the grounds for that opinion.
- The Diligence trail and Veracity trail may be satisfied by the publication in the same report or remarks, observations and comments or information given by persons of contrary views.
- It is the writer’s view that those who write for the media will not be unduly burdened by the above reforms. These proposed reforms will set a standard of writing in the media which will see that those who fought for freedom of expression will be vindicated and yet ensure that there is some coherence in the principles of news reporting,