District Court of Singapore

Hunger Busters Pte Ltd v Jonathan Cheok Wei Zheng
[2020] SGDC 129

Tort – Defamation – Defamatory statements

Tort – Defamation – Damages

29 May 2020

District Judge Tan May Tee:

Introduction

1 This is a defamation claim by the plaintiff arising from publications made by the defendant on his Facebook and Instagram accounts on 15 February 2018.

Background

Original Orchard Emerald Beef Noodles (“OOEBN”)

2 The plaintiff is a food and beverage company incorporated on 19 July 2017^{[note: 1]}. Since February 2018, it has been running a restaurant called “The Beef Station” at 2 Tai Thong Crescent #01-05 The Venue Shoppes, Singapore 347836. Its sole director and shareholder is Lim Ying Kiat, Jared (“Jared Lim” or “Jared” as referred to by both parties in their respective submissions).

3 Prior to “The Beef Station”, the plaintiff operated as the franchisee of the Original Orchard Emerald Beef Noodles (“OOEBN”) at the same location. This was pursuant to a Memorandum of Understanding (“MOU”) dated 22 June 2017^{[note: 2]} signed by Jared Lim and one Cheok Wei Sheng, Gabriel (“Gabriel”), the defendant’s younger brother.

4 OOEBN is a family business selling Hainanese-style beef noodles. It was founded by Cheok Eng Ann aka George Cheok (“George”), the patriarch of the family, who first started selling his brand of Hainanese beef noodles in 1997 in the food court of the now-defunct Orchard Emerald shopping mall. George had developed his own recipe for the beef noodles which was regarded a trade secret. The stall moved to Margaret Drive sometime between 2008 and 2010 and George named it “Orchard Emerald Beef Noodles”. In 2010, the stall moved again, this time to Holland Drive, and from then it was called “Original Orchard Emerald Beef Noodles.”^{[note: 3]}

5 At the material time, Gabriel was a professional golfer. Sometime in 2013 or 2014, he got to know Jared Lim, who was also a professional golfer, and they became friends. Jared had previously owned a pub which had closed down. Gabriel mentioned to Jared that his father owned and ran OOEBN. Sometime in May 2017, Jared informed Gabriel that he was interested in taking a franchise of OOEBN. There was no OOEBN stall in operation at that time as George was then taking a break^{[note: 4]}.

6 When Gabriel informed his father of Jared’s proposal, George was initially not interested as he did not want to share his recipe with anyone. He changed his mind a few days later after being persuaded by Gabriel that Jared was keen about the proposed franchise. A proper sampling of the noodles was arranged for Jared and his family at the Cheoks’ residence upon agreement that the franchise fee would be $25,000 plus monthly royalties at 20% of the sales generated^{[note: 5]}.

7 After tasting the beef noodles cooked by George with his OOEBN recipe on 4 June 2017, Jared confirmed that he wanted to proceed with the franchise.

8 At that time, the OOEBN business was registered as a partnership^{[note: 6]} comprising George and Gabriel as its partners. The MOU for the franchise was then drawn up and signed by Jared and Gabriel qua partner of OOEBN. OOEBN was subsequently incorporated from the partnership in December 2017 with George, Gabriel and the defendant as directors of the incorporated entity, Original Orchard Emerald Beef Noodles Pte Ltd^{[note: 7]}.

Franchise agreement

9 This was OOEBN’s first franchise agreement, and the terms were set out in the one-page MOU which comprised eight clauses, inter alia as follows:

1) The franchise fee is S$25,000.00 for using Original Orchard Emerald Beef Noodles to be paid to us upon signing of your tenancy agreement.

2) The Royalty fee of 15% on monthly total gross sales of this outlet.

…

4) We will assist you in setting up the shop and source for the required kitchen and counter equipment/appliances/utensils, point-of-sales system and signboard.

5) We will teach and train you to prepare and cook the beef noodles to the quality standard of Original Orchard Emerald Beef Noodles.

…

8) You will comply with Original Orchard Emerald Beef Noodles brand and outlook of the outlet.

As agreed, we will base on this Memorandum of Understanding as the guidelines to carry out this business partnership in good faith and with respect, honour and integrity.

We look forward to our successful partnership in this first franchise and to our future expansion together.

10 Sometime between June and November 2017, Gabriel sent to the plaintiff a document titled, “STANDARD PROCEDURES TO BE OBSERVED BY FRANCHISEE”^{[note: 8]}. It contained a termination clause which allowed either party to terminate the franchise agreement by giving one month’s notice.

Operation of the franchise and termination

11 In August 2017, the plaintiff paid the franchise fee of $25,000 to OOEBN. It also signed a lease agreement with City Developments Ltd to lease the shop unit at 2 Tai Thong Crescent #01-05 (“the premises”) and proceeded to carry out renovation and fitting works to comply with guidelines imposed by the authorities. It was only at the end of October 2017 that the plaintiff was ready to begin operations at the premises^{[note: 9]}.

12 George and Gabriel assisted Jared with advice and instructions on setting up the shop, the kitchen and the business. George also taught Jared how to prepare OOEBN beef noodles using pre-packed sachets of herbs which the plaintiff bought from OOEBN. A copy of OOEBN’s recipe, cooking procedures and supplier details was also provided.^{[note: 10]}

13 Unfortunately, the business did badly. With poor sales and dismal prospects, the plaintiff appealed to OOEBN to vary the terms of the MOU such that payment of the monthly royalties be computed on net profits, and be waived on months when there were no profits. This was at a meeting held on 22 November 2017 at the premises. It was attended by Jared and his parents representing the plaintiff and George and Gabriel representing OOEBN^{[note: 11]}.

14 Gabriel described the meeting as being “very unpleasant”^{[note: 12]}. Apparently, tempers flared and, as recounted by the defendant, there was “a lot of shouting”^{[note: 13]}. Jared also objected to OOEBN opening up its own stall at another location. Eventually, the parties agreed to waive the requirement for the plaintiff to pay monthly royalties of 15% of total gross sales for the first three months of the plaintiff’s operations, ie from November 2017 to January 2018, and for the plaintiff to be allowed to sell other food items not on the OOEBN menu. An addendum to the MOU was drawn up and signed by Jared and Gabriel.^{[note: 14]}

15 When the plaintiff’s business did not improve in December 2017, Jared requested that the plaintiff be allowed to add more items to its menu to attract more customers. OOEBN, however, did not agree as it wanted the franchise to sell beef noodles exclusively^{[note: 15]}.

16 As the plaintiff continued to lose money, Jared decided to terminate the franchise agreement. On 1 January 2018, he sent a WhatsApp message^{[note: 16]} to Gabriel giving one month’s notice as required under the Standard Procedures issued by OOEBN. The termination was confirmed by an email sent on 3 January 2018 in which he also notified that with effect from 1 February 2018, the plaintiff would no longer be using the OOEBN name^{[note: 17]}.

17 In February 2018, the plaintiff started “The Beef Station” after making some changes to the façade of its premises and removing the OOEBN name and logo. Its menu offerings included various beef items as well as Hainanese-style beef noodles^{[note: 18]}.

18 George was upset that the franchise business was terminated after only a mere three months. He was also aggrieved to learn that Hainanese-style beef noodles continued to be sold at the plaintiff’s premises as he believed that Jared was using the OOEBN recipe albeit with some tweaks under his new brand, The Beef Station^{[note: 19]}.

OOEBN’s announcements of its resumption of business

19 On 31 January 2018, George posted on his Facebook page the following message^{[note: 20]}:

Dear Customers, ORIGINAL ORCHARD EMERALD BEEF NOODLES will be opening on 19th February 2018 at Blk 46 Holland Drive Coffee Shop. We are back at this same Coffee Shop again and looking forward to serve you with our authentic OOEBN Original Beef Noodles. Thank you and looking forward to your support. Please be informed that Original Orchard Emerald Beef Noodles franchise outlet at the Venue, Tai Thong Crescent has been officially terminated and Original Orchard Emerald Beef Noodles will no longer represented at this outlet. We welcome you to our new stall.

20 A further post was made by George on 2 February 2018^{[note: 21]} on his Facebook page which identified the plaintiff as OOEBN’s franchisee. It stated as follows:

Dear OOEBN Customers, We would like to take this opportunity to inform you that after we have terminated the franchise agreement with the franchisee it’s regrettable that the franchisee still continues to sell beef noodles at the Venue. Pleased beware that it’s not Original Orchard Emerald Beef Noodles which no longer represented by the franchisee at the Venue, Tai Thong Crescent as of 31st January 2018, the franchisee Hunger Busters Pte Ltd is no longer associated with OOEBN Pte Ltd as of this date. The beef noodles sell by them at the Venue is not our Authentic Original Orchard Emerald Beef Noodles and we as Master Franchisor are not responsible for the standard and quality of their beef noodles.

The defamatory posts

21 On 15 February 2018, the defendant made the following post^{[note: 22]} on his personal Facebook page:

Do not settle for the fake, pretentious, BEEF NOODLE imitations and copies out there! There is only one ORIGINAL ORCHARD EMERALD BEEF NOODLES that my Dad has worked so hard to build since the Orchard Emerald Shopping Mall days in 1997, with his own bare hands. Dear family and friends, despite the recent tragic franchise news over the (Macpherson/Tai Thong outlet) which I'm sure you all have heard about, we have TERMINATED our brand at that location. As the vendors have since rebranded and are unscrupulously continuing to sell my Dad's beef noodle recipe, we are opening our brand NEW outlet in the Holland V area. I promise I will take matters into my own hands and as people seek to destroy and bring down my father's brand... I, will NOT let our family’s recipe be stolen without any justice. #modernday #socialjusticewarrior Come down from the 19th February to Blk 46 Holland Drive for that good ol’ nostalgic Hainanese beef noodle taste! A huge “Thank You” to those who said you were coming, my family and I really appreciate the support, we’ll see y’all there Monday! In the meantime, GONG XI FA CAI & HUAT AH! #OOEBN #beefnoodles

22 The defendant’s post garnered 52 “likes”, received 17 comments from nine different users and was shared by seven users^{[note: 23]}. It also appeared from the edit history of the post that the defendant had edited the original phrasing several times to include the word “unscrupulously” in the final version^{[note: 24]}.

23 The same post was also published on the defendant’s other Facebook account under “cheokboardstudios” as well as on the Instagram page of “cheokboardstudios”. This meant that a total of three publications were made by the defendant, with identical content^{[note: 25]}.

24 The posts remained on the defendant’s Facebook and Instagram pages under “cheokboardstudios” until they were taken down by the defendant on 2 March 2018^{[note: 26]}. This was after the plaintiff’s solicitors had sent him a letter of demand on 27 February 2018 and he had sought legal advice^{[note: 27]}. The writ of summons in this action was issued on 23 March 2018.

Plaintiff’s claim

25 In its statement of claim, the plaintiff pleaded that the words used by the defendant in his posts of 15 February 2018, in their natural and ordinary meaning meant, and were understood to mean, that:

(a) the plaintiff has no integrity in that it was selling fake beef noodles;

(b) the plaintiff had deceived members of the public into believing that the noodles that it was selling contain the beef noodle recipe belonging to OOEBN;

(c) the plaintiff was out to destroy OOEBN; and

(d) the plaintiff had committed theft.

26 To support its assertion that the defendant’s posts referred, and were understood to refer, to the plaintiff, the plaintiff relied on how George and the defendant had tagged each other’s Facebook accounts and pages. The effect of the tagging was such that any “friend” or follower of the defendant’s Facebook page would be linked to George’s posts on his Facebook page dated 31 January 2018 and 2 February 2018. By following the links, the defendant’s “friend” or follower would have access to George’s posts which had expressly mentioned OOEBN’s franchise outlet at the Venue, Tai Thong Crescent, and identified the plaintiff’s name as the franchisee operating at the Tai Thong outlet. As such, any “friend” or follower of the defendant’s Facebook page would be aware of the plaintiff's identity. George had also shared the defendant’s post on his own Facebook account by republishing it.

27 The plaintiff had also referred to an earlier post made by the defendant on 9 February 2018 on his Facebook and Instagram accounts in which he had given an analogy of a company being the franchisee of a famous hamburger chain which subsequently terminates the franchise after three months but continues to sell the exact same items as the franchisor under a new brand and logo such as “The Burger Station”. The defendant had concluded that post with questions to his readers thus:

“In this context, what do you think McDonald’s would do? Or what do you guys think about it? This type of thing, can meh?”

28 In response to the post on his Instagram account, a follower of his account with the name “jazephua” had posted this comment:

“Pure fk up. If there’s plagiarism for food, they totally copied it and did it even worst.

#Donteatbeefnoodlefrombeefstation”

29 The defendant had replied in Chinese to agree^{[note: 28]} and to thank “jazephua”.

30 The plaintiff averred that its credit and reputation had been injured by the defendant’s posts, and that it had been brought into public scandal, odium and contempt.

31 The plaintiff further pleaded that the defendant had acted in malice as he had inter alia:

(a) taken no steps to find out if the plaintiff was still using OOEBN’s recipe in its business prior to posting the defamatory words;

(b) posted the words on at least three social media platforms with a view to publishing the defamatory words to as wide an audience as possible. The postings were also designed to deter the current and potential customers of the plaintiff which had further compounded the damage and hurt to the plaintiff’s reputation; and

(c) made unjustifiable attacks on the plaintiff by the use of words such as “unscrupulous” and “stolen”.

32 In support of its claim for exemplary and/or aggravated damages, the plaintiff sought to rely on the following matters:

(a) The defamatory words were published on numerous social media platforms, and in a sensational manner.

(b) The defendant knew or ought to have known that the allegations made were untrue.

(c) The defendant published the words with the knowledge that they were libellous, and with a dominant motive to cause hurt to the reputation of the plaintiff.

(d) The defendant had gone on to reply to various people reading the defamatory words and has further compounded the hurt to the reputation of the plaintiff.

Defence

33 The defendant does not deny that the posts complained of by the plaintiff were made by him on 15 February 2018. He denies, however, that they were false or malicious, or that the words bear the defamatory meanings attributed to them by the plaintiff.

34 He also denies that the words in the posts contain any identification of the plaintiff. There was no express mention of the plaintiff by name. Further, there was more than one business selling beef noodles in the Macpherson/Tai Thong area. In addition, most followers of the defendant’s Facebook and Instagram accounts would have no knowledge that the plaintiff used to be OOEBN’s franchisee, and therefore would not think that the word “vendors” in the defendant’s posts referred to the plaintiff.

35 As for the other posts referred to by the plaintiff, they were separate and independent publications, and a reader of the defendant’s posts cannot be taken to have also read the other posts so as to be able to identify the plaintiff.

36 While the defendant has included the defences of justification as well as fair comment in his pleaded Defence, they appear to have been abandoned altogether in his closing submissions, and were not listed as issues that the court has to deal with. References will be made to them briefly later in this judgment for completeness.

Issues

37 The issues arising out of the plaintiff’s claim are:

(a) whether the defendant’s posts of 15 February 2018 are defamatory of the plaintiff; and

(b) if the defendant’s posts of 15 February 2018 are defamatory of the plaintiff, what should be the quantum of damages to be awarded.

38 In relation to the first issue, the following sub-issues have to be considered:

(a) whether the defendant’s posts refer to the plaintiff; and

(b) what is the natural and ordinary meaning of the words used in the defendant’s posts.

39 In relation to the second main issue, the court also has to consider the types of damages that the plaintiff, being a corporate personality, would be entitled to, in particular aggravated damages as claimed.

40 A further issue that the defendant has raised in his submissions is whether the plaintiff’s claim ought to be dismissed under the so-called “Jameel doctrine” as laid down in the English case of Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 (“Jameel”). Jameel stands for the proposition that a claim which discloses no real and substantial tort is liable to be struck out for being an abuse of process of the court. It was suggested that the doctrine could apply in the situation where a statement was published to only a limited number of readers whereby it could then be said that no real and substantial tort had been committed.

Whether the defendant’s posts of 15 February 2018 are defamatory of the plaintiff

Applicable law

41 It is trite that for an action in defamation to succeed, three conditions must be fulfilled:

(a) the statement made by the defendant must bear a defamatory meaning;

(b) the statement must refer to the plaintiff; and

(c) the statement must have been published to a third party.

42 The third condition is not in issue here since the defendant has admitted to the publication of the posts on 15 February 2018^{[note: 29]}.

43 As to what would qualify as a defamatory statement, the High Court in Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 741 (“Golden Season”), a case which also dealt with inter alia defamatory Facebook posts, had endorsed at [36] the succinct summary in Gary Chan Kok Yew & Lee Pay Woan, The Law of Torts in Singapore (Academy Publishing, 2011) at para 12.014: A statement is considered to be defamatory if it:

(a) lowers the plaintiff in the estimation of right-thinking members of society generally;

(b) causes the plaintiff to be shunned or avoided; or

(c) exposes the plaintiff to hatred, contempt or ridicule.

44 A statement can be defamatory based on the natural and ordinary meaning of the words used or by way of an innuendo. In the present case, the plaintiff relies only on the natural and ordinary meaning of the words in the defendant’s posts^{[note: 30]}.

45 As articulated in Chan Cheng Wah Bernard v Koh Sin Chong Freddie [2012] 1 SLR 506 (“Chan Cheng Wah Bernard”) at [18] (referred to in Golden Season at [37]), the general principles applicable to the construction of words based on their natural and ordinary meanings are as follows:

(a) the natural and ordinary meaning of a word is that which is conveyed to an ordinary reasonable person;

(b) as the test is objective, the meaning which the defendant intended to convey is irrelevant;

(c) the ordinary reasonable reader is not avid for scandal but can read between the lines and draw inferences;

(d) where there are a number of possible interpretations, some of which may be non-defamatory, such a reader will not seize on only the defamatory one;

(e) the ordinary reasonable reader is treated as having read the publication as a whole in determining its meaning, thus “the bane and the antidote must be taken together”; and

(f) the ordinary reasonable reader will take note of the circumstances and manner of the publication.

46 Further, at [38] of Golden Season, the High Court explained that:

Apart from establishing that the statement is defamatory, it must also be shown that it is the plaintiff who has been defamed by the publication of the statement. There is no need for the plaintiff to be named, but it must be shown that the words would be understood by ordinary people to refer to the plaintiff. The act of publication and reference to the plaintiff are key elements of the tort.

Natural and ordinary meaning

47 The plaintiff’s case is that an ordinary reasonable person would understand the defendant’s posts to mean that the plaintiff lacked integrity as it had deceived members of the public into believing that the noodles it was selling was OOEBN beef noodles, that the plaintiff had committed theft and was out to destroy OOEBN.

48 In the defendant’s closing submissions (“DCS”), he had urged the court to consider the holding in the English case of Stocker v Stocker [2019] UKSC 17; [2019] 2 WLR 1033 (“Stocker”) for the proposition that “statements published on social media ought to be interpreted in a less exacting and sterile manner” as what he perceived the plaintiff had sought to do in its pleaded case^{[note: 31]}.

49 In Stocker, also a case concerning Facebook posts, the claimant had sued his ex-wife for libel after she posted a message that he had “tried to strangle her” in a series of exchanges that she had had with the claimant’s new girlfriend whom she had befriended. The lower courts had interpreted the post by referring to dictionary definitions and held that the words were defamatory as they implied that the claimant had tried to kill her. The UK Supreme Court unanimously overturned the decision of the High Court and the Court of Appeal, holding that an ordinary reader of the post would have interpreted it to mean that the claimant had grasped her by the throat and applied force to her neck; and in light of this, her defence of justification succeeded. The Supreme Court opined that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words, and that the court should be particularly conscious of the context in which a statement is made. The fact that this was a Facebook post was critical and it was necessary for the judge to keep in mind the way in which such postings are made and read. In particular, it had to be borne in mind that this was a casual medium in the nature of a conversation rather than a carefully chosen expression and that people scroll through Facebook quickly such that their reaction to posts is “impressionistic and fleeting”.

50 In my view, the UK Supreme Court’s ruling in Stocker is really no more than an application of the guidelines pronounced by our Court of Appeal in Chan Cheng Wah Bernard wherein it had been emphasised that the circumstances and manner of publication are to be considered in determining the natural and ordinary meaning of the words used. Of particular significance, at [19] of Chan Cheng Wah Bernard, it was highlighted that the class of reader is relevant in determining the scope of possible meanings of a publication.

51 In the context of the defendant’s posts it can be expected that the class of reader we are concerned with, ie the hypothetical reasonable reader, would be a Facebook and Instagram user who is likely to be a “friend” or a follower of the defendant’s postings. The natural and ordinary meanings ought to be determined from the standpoint of such a reader.

52 Reading the defendant’s posts, even in a casual manner without any close analysis, one can hardly deny that the words used, namely “fake, pretentious, … imitations and copies”, “unscrupulously”, “destroy” and “stolen”, all convey a sense of wrongdoing or at the very least, unethical behaviour. Similar to the sentiment expressed in Golden Season at [44], I would regard these words in the defendant’s posts as suggesting some form of dishonesty (as in the case of “stolen”) or some form of business misconduct (as in the case of “unscrupulously”). Accordingly, I find that the defendant’s posts are defamatory. The imputation of unethical or dishonest conduct in the words used would undoubtedly have an adverse effect on the reputation of the person that the accusation is levelled against.

53 In fact, the defendant himself while denying that the posts carried any defamatory imputation, had pleaded^{[note: 32]} in his defence of justification that the words in their natural and ordinary meanings meant or were understood to mean that the plaintiff was unethical and dishonest inter alia by continuing to use the OOEBN recipe and harming the OOEBN brand after terminating the franchise agreement. The submission^{[note: 33]} made by his counsel that “the only interpretation of the words “unscrupulously”, “seek to destroy and bring down” and “stolen” in the post should, therefore, be nothing more than that the franchise agreement ended on less than amicable terms” seems, to me, rather disingenuous.

54 The defendant’s posts clearly convey the message to readers that his father is the rightful owner of the OOEBN brand, that they have terminated their franchise at the Macpherson/Tai Thong outlet, but the owners of the outlet (vendors) wrongfully continue to sell the OOEBN recipe of beef noodles under a different brand. Even on an impressionistic level, the words used in the posts imply that some form of wrongdoing had occurred in the business. It can hardly be disputed that the negative impression evoked by the suggestion of wrongdoing would render a defamatory meaning to the defendant’s posts.

Reference to the plaintiff

55 The main plank of the defendant’s case in contesting liability is that the defamatory posts do not identify the plaintiff, and hence, the plaintiff’s case ought to be dismissed. The submissions made can be summarised as follows:

(a) The plaintiff is not identified in the posts by either its incorporated name, “Hunger Busters Pte Ltd”, or its trading name, “The Beef Station”.

(b) It is not proven that readers of the posts would know the extrinsic facts in order to identify the plaintiff as the former franchisee of OOEBN. The defendant’s vague mention of “Macpherson/Tai Thong outlet” does not refer with absolute certainty to the plaintiff’s business as there were at least two stalls selling Hainanese-style beef noodles in the vicinity of Tai Thong Crescent at the material time.

(c) Applying the holding in Golden Season, it is impermissible for the plaintiff to refer to the separate posts made by the defendant on 9 February 2018 and those by George on 31 January 2018 and 2 February 2018. These were separate publications, and there is no direct evidence that a person who read the defendant’s 15 February post would definitely also have read one or more of the separate publications.

(d) The way that Facebook is commonly used does not support the plaintiff’s contention that readers who had seen the defendant’s post of 15 February 2018 would also have seen the separate posts made by him and/or his father.

(e) The plaintiff’s own witness, Jared, was unable to give evidence as to how many people had read the defendant’s posts as well as the separate posts made by him and/or his father.

56 I disagree with the defendant’s submissions on this issue. The legal position is clear. No express identification of the plaintiff is required so long as the words would be understood by ordinary people to refer to the plaintiff, see Golden Season at [38]. Gatley on Libel and Slander (11th Edition, Sweet & Maxwell 2008) at para 7.3 put it succinctly thus:

“… where a statement is capable of referring to a plaintiff, “the question is not whether anyone did identify the claimant but whether persons who were acquainted with the claimant could identify him from the words used.”

As applied and articulated in Golden Season at [47], “[u]ltimately, the question before the court is whether based on the Facebook posts, a reasonable person could identify the Plaintiffs.” Specifically, in relation to a body corporate, Gatley (supra) at para 7.2 explains further that “… a corporation may be defamed and its business damaged even though the persons to whom the words are published have no idea of its formal legal name.”

57 While the defendant’s posts did not mention the plaintiff by its corporate or trading name, it is reasonably clear that the imputation of wrongdoing is against the former franchisee of OOEBN located at Macpherson/Tai Thong. The post made by George on 2 February 2018 provides the link to its formal identity by his express mention of “the Venue, Tai Thong Crescent” and “the franchisee Hunger Busters Pte Ltd” should anyone wish to have that information.

58 The defendant sought to argue that because of how Facebook users interact with their various pages and profiles, it would be unlikely that users would view both the defendant’s post on 15 February 2018 and George’s post on 2 February 2018 at one sitting. I would, however, regard this as pure conjecture. In my view, an ordinary reasonable Facebook user who had read the defendant’s post accusing his father’s former franchisee of misconduct and sharp practices would have his/her interest sufficiently piqued to go further and check out what George’s post might reveal about the erstwhile franchisee and in particular, its identity. The way that the posts had been tagged posed no difficulties for this to be done.

59 From the evidence of the defendant himself, his father’s post would be visible upon scrolling down from his defamatory post of 15 February 2018. See excerpt below^{[note: 34]}:

Q Again, this is your father’s post, 2nd February 2018, you were tagged, together with 62 others?

A Yah.

Q And the relevant portion I’ll read to you is, “By the franchisee at venue Tai Thong Crescent, as of 31st January 2018, the franchisee, Hunger Busters Private Limited, is no longer associated with OOEBN as of this date.” Now, my question to you is, similar to my earlier question, if I access your Facebook after 2nd February 2018, and I scroll down, I would be able to read this post, correct?

A If I was tagged in it, yes.

Q Yes. And you are tagged, right?

A I am tagged.

…

Q Okay. Thank you. Now, your father’s post tagged you and 62 other persons---the 2nd February post. Now, would you agree with me that people---the 62 other people reading your father’s post, would be aware that the Plaintiff is the franchisee of Tai Thong?

A No.

Q And---

A Because they would have to know the situation if they---

Q No. Very simple, if they read your father’s post, 2nd February 2018, it mentions, “Our franchisee, Hunger Busters Private Limited”. 62 other people who read your father’s post would be aware that the Plaintiff is the franchisee? It’s there, right? It’s---

A From the post.

Q Yes, it’s clear, right?

A Yes.

60 The plaintiff had also referred to the defendant’s posts made on 9 February 2018 to draw the nexus between the plaintiff’s trading name, The Beef Station, to the franchisee mentioned in the defamatory post. The defendant had accepted^{[note: 35]} that his friends who interacted with his post could identify the plaintiff. One of them had in fact concluded his response to the defendant’s post on Instagram with a hashtag specifically identifying The Beef Station: #Donteatbeefnoodlefrombeefstation”^{[note: 36]}. While I note that this was on a different social media platform, Instagram, the link that that the reader could make to The Beef Station illustrates how the identity of the plaintiff could be easily ascertained.

61 In addition to the defendant’s evidence, his brother, Gabriel, had agreed^{[note: 37]} on the witness stand that reading the defamatory post, the “Tai Thong outlet” stated therein must mean the plaintiff. Further, Jared himself had customers and friends with the defendant who had the defendant as a Facebook “friend” and who had asked him about the defamatory post^{[note: 38]}.

62 On my overall assessment of the evidence as outlined above, I find that an ordinary reasonable reader of the defendant’s posts would be able to identify the plaintiff as the allegedly unscrupulous franchisee.

63 Accordingly, as all three conditions of a defamation action are fulfilled, the defendant’s liability is established.

The defendant’s reliance on the “Jameel” doctrine

64 As a further plank to circumvent liability, the defendant argues^{[note: 39]} that even if the plaintiff is able to prove that the posts bear a defamatory meaning and that they refer to the plaintiff, the claim should nonetheless be dismissed under the principle laid down in Jameel.

65 The facts in Jameel are these: a foreign claimant sued the publisher of an American newspaper in England for defamation allegedly arising from an article posted on an internet website in the USA. The article included a list purportedly naming the claimant as one of the sponsors of Al-Qaeda. The defendant managed to show that only five persons in the jurisdiction had accessed the website and that of these, three were members of the claimant’s camp while the other two did not know the claimant at all and had no recollection about reading the article. The English Court of Appeal, in interlocutory proceedings brought under the UK Civil Procedure Rules, struck out the claimant’s action on the ground that there was no “real and substantial tort” committed against the claimant within the jurisdiction, and, as such, it would be an abuse of process for the claimant to be allowed to proceed with his claim. The Court of Appeal (per Lord Phillips of Worth Matravers MR) had observed (at [69]–[70]) clearly with the overriding objective of the Civil Procedure Rules in mind, thus:

69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.

70 If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. …

66 Jameel was considered by our Court of Appeal in Yan Jun v AG [2015] 1 SLR 752 (“Yan Jun”). While the Court of Appeal had endorsed the Jameel principle, it ought to be highlighted, however, that the Court had cautioned (at [118]) as follows:

It is also pertinent to note that since Jameel was decided under a set of procedural rules which are fundamentally different from those in Singapore … and because it entails – in part, at least – the (potentially far reaching) proposition that an action may be struck out on the basis that the publication of the defamatory material is limited, or the amount claimed as damages is de minimis, the principle enunciated in that case should be approached with the necessary circumspection by the Singapore courts. In this regard, we find the following observations of the learned authors of Gatley (at para 6.2) to be instructive:

However, the question whether there has been a real and substantial tort cannot “depend upon a numbers game”, with the court fixing an arbitrary minimum according to the facts of the case” and the Jameel jurisdiction should not be pushed too far. It does not mean that any sort of mass production is always necessary for a successful suit, otherwise claims for slander (which sometimes lead to substantial awards of general damages) would largely disappear. It is not difficult to conceive of claims for slanders or libels with limited circulation which would cause the claimant great embarrassment or distress or which might blight his financial prospects.

67 The defendant had also cited the High Court decision of Qingdao Bohai Construction Group Co Ltd v Goh Teck Beng [2016] 4 SLR 977 (“Qingdao”) presumably as an illustration of the application of Jameel at trial as an analogy to the present case. In Qingdao, the court had found no evidence that the defendants were the ones who had posted the defamatory material on the stipulated foreign websites, and made a finding that only one third party reader had accessed the libellous publication in Singapore. It was stated there obiter by the court that the Jameel doctrine could serve as an additional ground to dismiss the action since it could be said that no real and substantial tort had been committed in the jurisdiction.

68 The defendant, in his submissions premised on Jameel whereby he invites the court to consider, on his analysis of the evidence, that at most three persons had read both the defamatory post and George’s post, and hence, the plaintiff was defamed in the eyes of only three persons, appears to be playing the “numbers game” that the Court of Appeal in Yan Jun had cautioned against. In any case, I respectfully disagree with his conclusion that no real and substantial tort has been committed and his analysis of the evidence.

69 As shown on the screenshot exhibited in Jared’s AEIC^{[note: 40]}, the post on the defendant’s personal Facebook page had garnered 52 likes and was shared by seven users. Those numbers are not the entire extent of the publication, however, since, as observed in Golden Season at [55], “… every time an individual displays or views a Facebook post on his computer (or his device), it counts as a separate publication.” On the anticipated argument that this post per se does not identify the plaintiff, it bears reiterating that the issue is not whether anyone did identify the plaintiff but whether persons who were acquainted with the plaintiff could make that identification.

70 Expanding further on the extent of publication, the same post had been published on the defendant’s other Facebook page, “cheokboardstudios” as well as his Instagram account. The posts had remained on those platforms until the defendant removed them on 2 March 2018. Considering the manner of the publication and the different reaches of his social media platforms, it is rather fallacious for the defendant to argue at this stage of the proceedings that no real and substantial tort has been committed. This is not a de minimis case like Qingdao or Jameel.

The defendant’s defences of justification and fair comment

71 In his pleading, the defendant had raised justification and fair comment as defences. Both defences have not been alluded to in his closing submissions. In any event, based on his evidence in cross-examination, both defences would fail.

72 For the justification defence, in so far as terminating the franchise was concerned, the defendant had admitted that the plaintiff was not in breach of contract. It had properly exercised its contractual right to terminate the franchise agreement. On the allegation of the plaintiff selling “fake” OOEBN beef noodles, he also admitted that he had not taken any measures such as actually trying the plaintiff’s noodles to ascertain that the plaintiff was still using his father’s OOEBN recipe before making the defamatory posts.

73 For a successful plea of fair comment, the defendant would have to prove four elements namely (see Golden Season at [93]):

(a) the words complained of are comments, though they may consist of or include inferences of facts;

(b) the comment is on a matter of public interest;

(c) the comment is based on facts; and

(d) the comment is one which a fair-minded person can honestly make on the facts proved.

74 Reading the statements in the defendant’s posts, it seems to me they contain assertions of fact rather than comment. During cross-examination, the defendant also had difficulties distinguishing which statements were comment and which were facts. He would not be able to satisfy the four elements required for a defence of fair comment.

What should be the nature / quantum of damages to be awarded

Nature of damages

75 In its statement of claim, the plaintiff had alluded to various facts to substantiate a claim for aggravated and/or exemplary damages. However, it is now settled law that a corporate entity is not entitled to recover aggravated damages (see ATU & Ors v ATY [2015] 4 SLR 1159 at [55] to [60]). This is because the essence of an award of aggravated damages in libel is to provide a claimant with compensation (“solatium”) for injury caused to his/her feelings, and a corporate plaintiff cannot be injured in its feelings unlike a human being (see Golden Season at [136], [137]).

76 As for exemplary damages, this is punitive or deterrent in nature and should only be awarded in exceptional circumstances. In Golden Season, the High Court explained at [146] that:

“… they are only recoverable “where compensatory damages after taking account all the circumstances of aggravation, remain an insufficient punishment” – see Clerk and Lindsell on Torts (Michael A Jones gen ed) (Sweet & Maxwell, 20th Ed, 2010) at para 22-231. Important factors include proof that the defendant at the time of publication was aware that he was committing the tort (or was acting recklessly) and still proceeded because of his hope of material gain …”

77 As a corporate plaintiff, special damages for loss of business and goodwill could be awarded but this must be pleaded and proved. The plaintiff has done neither in this case. In fact, the sales figures that were adduced in Jared’s AEIC^{[note: 41]} showed an improvement in the months after the publication of the defamatory posts. The expenses incurred for advertisements taken out allegedly to rehabilitate its business were shown (during Jared’s cross-examination) not to have any correlation to the defamatory posts^{[note: 42]}.

78 Consequently, the plaintiff is only entitled to general damages for injury caused to its business reputation.

Quantum of damages

79 In the assessment of quantum, the factors to be considered, as helpfully stated at Golden Season at [140] with reference to para 9.5 of Gatley on Libel and Slander, include:

… the conduct of the claimant, his credibility, his position and standing and the subjective impact that the libel has had on him, the nature of the libel, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict.

The dicta of the Court of Appeal in Lee Hsien Loong v Singapore Democratic Party [2009] 1 SLR(R) 642 at [73] cited below is instructive as to the determination of the amount:

… the size of the award has to be an amount that represents a fair and reasonable sum commensurate with or proportionate to the damage which the plaintiff has suffered to his reputation, standing and good name. It will also have to be a sum that sufficiently vindicates his reputation (see Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1071, per Lord Hailsham of St Marylebone LC). To this end, the court will look at the corpus of past awards for comparison or guidance. Broadly appropriate comparable cases can, if used with discretion, provide some guidance on the appropriate amount of damages to award in a particular case.

80 The defendant had submitted that the plaintiff should be awarded a nominal or a minimal amount of damages at $5,000 because:

(a) The plaintiff did not have much of a reputation to begin with. The plaintiff started trading under “The Beef Station” brand only sometime in February 2018. In this short period of time, the plaintiff was unlikely to have accrued a significant amount of goodwill and reputation.

(b) The publication was mostly to persons favourable to the defendant’s and his family’s cause.

(c) The plaintiff has not adduced evidence to support any claim of its reputation and goodwill having been adversely affected.

(d) Publication was limited as the defendant removed the posts on 2 March 2018 after receiving the letter of demand from the plaintiff’s solicitors.

81 The plaintiff submitted that the award of damages should be no less than $50,000 on the following grounds:

(a) The conduct of the defendant was egregious – he had used harsh words such as “unscrupulous” and “stolen”; and he had taken no steps to ascertain if the plaintiff was using the OOEBN recipe.

(b) The defendant had made the posts on various platforms, thus ensuring that the defamatory message was published widely. To-date, the post remains visible to any visitor of his personal Facebook profile, including all Facebook users listed as the defendant’s “friends”.

(c) As for the posts made on the defendant’s Facebook and Instagram accounts under “cheokboardstudios” which were removed after the plaintiff’s letter of demand was sent, given the defendant’s wide social media following, it is impossible to determine how many people would have seen the posts before they were taken down.

(d) The defendant had ample opportunity to offer an apology to the plaintiff but has obstinately refused to do so.

82 While the defamatory posts did contain strong language^{[note: 43]} (in particular “unscrupulous” and “stolen”) implicating the plaintiff, ultimately the size of the award has to be proportionate to the damage which the plaintiff has suffered to its reputation and goodwill. A relevant factor to consider is that the plaintiff’s business under “The Beef Station” name had been in operation for less than a month when the defamatory posts were published. The goodwill that it might have acquired as at that date would be quite insignificant. Further, from the evidence adduced, it did not in fact suffer any loss in business.

83 As a mitigatory factor, the defendant had removed the defamatory posts from two of the platforms that he had used (Facebook and Instagram accounts under “cheokboardstudios”) just 15 days after the publication. However, it appears that the defamatory post remains on his personal Facebook page, as submitted by counsel for the plaintiff^{[note: 44]}, and is visible to the defendant’s “friends”. It should be noted that Jared had specifically attested to this in his AEIC^{[note: 45]} and it was unchallenged in cross-examination. Hence, the court would have to find that the defamatory post remains on the defendant’s personal Facebook page. Any mitigating effect by the earlier removal of the posts on the other channels would be significantly reduced.

84 In terms of past awards as guidance, the following tabulation provides what I would regard as the appropriate and comparable cases where awards were made to corporate plaintiffs. I have not included the cases cited in the plaintiff’s Closing Submissions as there was inadequate information given with regard to the corporate plaintiffs while the cases cited by the defendant were not comparable and thus not relevant.

Case	Facts	Award
Golden Season Pte Ltd & Ors v Kairos Singapore Holdings Pte Ltd & Anor [2015] 2 SLR 751	The defamation was in the form of a Facebook post and an email chain to individuals in a non-governmental organisation. The imputation was that the plaintiff had engaged in some malpractice and business misconduct with a clear suggestion of copyright infringement. The plaintiff was noted to be a 30-year old company of some repute and known involvement in charity work.	$15,000
ATU & Ors v ATY [2015] 4 SLR 1159	The defamation was in the form of emails sent by the defendant to various parties alleging that sexual abuse had taken place at the campus of a school run by the first plaintiff. The first plaintiff was noted to be a relatively well-known private non-profit international school serving the expatriate community in Jakarta. It was likely that the circulation of the defamatory statements had a substantial impact on its business reputation. The defendant did not participate in the proceedings, and the damages were assessed pursuant to a default interlocutory judgment.	$30,000
TJ System (S) Pte Ltd and Ors v Ngow Kheong Shen (No 2) [2003] SGHC 217	The first plaintiff's business was in the supply of security systems. Its customers included government agencies, shopping malls and condominiums. The defamation was in the form of an email sent by the defendant, who worked for a competitor, to 15 persons carrying the imputation that the first plaintiff and its officers were facing imminent prosecution for corruption and bribery.	$25,000

85 Taking into account the relative infancy of the plaintiff’s business, and comparing its standing with that of the corporate plaintiffs in each of the cases above, and in particular Golden Season, I award $10,000 to the plaintiff for the injury done to its reputation.

Conclusion

86 In conclusion,

(a) the defendant is found liable in defamation in respect of the posts which he made on his Facebook and Instagram accounts on 15 February 2018; and

(b) the plaintiff is awarded damages in the sum of $10,000.

87 The plaintiff had also claimed an injunction as one of the prayers in its statement of claim. As no submissions were made on the necessity of this remedy, it must be taken that the plaintiff is no longer pursuing it.

88 I shall hear parties on the issue of costs. Parties are directed to file their submissions on costs, limited to ten pages each, within 14 days from the date of this judgment.[Context] [Hide Context]

^{[note: 1]}Agreed Bundle of Documents (“ABD”) pages 62 to 64 [“ABD at pp 62–64”]

^{[note: 2]}ABD at p 1

^{[note: 3]}Bundle of Affidavits of Evidence-in-chief (“BOA”) at p 120, para 5

^{[note: 4]}BOA at p 132 paras 6–7

^{[note: 5]}BOA at p 133 paras 8–10

^{[note: 6]}ABD at pp 69–70

^{[note: 7]}ABD at pp 66–68

^{[note: 8]}ABD at p 2; BOA at p 134 para 12

^{[note: 9]}BOA at p 4 paras 13–14

^{[note: 10]}BOA at p 5 para 16 and p 134 para 13

^{[note: 11]}BOA at pp 5–6 paras 17–19, p 135 para 15

^{[note: 12]}BOA at pp 135–136, paras 16–17

^{[note: 13]}Notes of Evidence (“NE”), 15 November 2019, p 70/5–12

^{[note: 14]}BOA at p 6 para 19; ABD at p 528

^{[note: 15]}BOA at p 6 para 20

^{[note: 16]}ABD at p 498

^{[note: 17]}ABD at pp 529–530

^{[note: 18]}BOA at pp 8–9 paras 25–29

^{[note: 19]}BOA at pp 123–124 para 19

^{[note: 20]}ABD at pp 10–12

^{[note: 21]}ABD at pp 13–15

^{[note: 22]}ABD at pp 26–27A

^{[note: 23]}BOA at p 14 paras 43–44

^{[note: 24]}ABD at p 28

^{[note: 25]}NE, 15 November 2019, 61/8–17

^{[note: 26]}BOA at p 14 paras 45–46

^{[note: 27]}NE, 15 November 2019, 61/28–62/24

^{[note: 28]}NE, 15 November 2019, 52/24-25

^{[note: 29]}Paras 16 and 17 of Defence (Amendment No. 1)

^{[note: 30]}Para 12 of Statement of Claim

^{[note: 31]}DCS at paras 68–77

^{[note: 32]}Defence (Amendment No. 1) paras 20.1 to 20.4

^{[note: 33]}DCS at para 74

^{[note: 34]}NE 15 November 2019 p 49/23–50/2; 51/2–17

^{[note: 35]}NE 15 November 2019 52/10–53/22

^{[note: 36]}ABD at p 21

^{[note: 37]}NE 15 November 2019, 103/10–17

^{[note: 38]}BOA at pp 14–15, para 48

^{[note: 39]}DCS at paras 78–89

^{[note: 40]}BOA at p 53

^{[note: 41]}BOA at p 65

^{[note: 42]}NE 15 November 2019 26/18 to 27/32

^{[note: 43]}NE 15 November 2019, 60/27-29

^{[note: 44]}Plaintiff’s Reply Submissions (“PRS”) paras 101–103

^{[note: 45]}BOA at p 15, para 52