1 HC/OC 556 of 2024 (“OC 556”) is an action by the Appellant, Twitter Asia Pacific Pte Ltd, a Singapore-incorporated subsidiary of X Corp. (“X Corp”), against the Respondent, Media Matters for America, for defamation and malicious falsehood. Both X Corp and Media Matters are based in the United States (“US”).

2 The Appellant’s claims arise from an article published on the Respondent’s website which alleged that the X platform, a social media platform owned and operated by X Corp, had been placing advertisements for reputable companies like Apple and IBM alongside pro-Nazi content. The Respondent’s article, and the response by X Corp Chairman, Mr Elon Musk (“Mr Musk”), attracted widespread media attention. In addition to OC 556 in Singapore, X Corp has commenced proceedings against the Respondent in the US (specifically, in the US District Court for the Northern District of Texas, Fort Worth Division (the “Texas Court”)). Another X Corp subsidiary has also started litigation against the Respondent in Ireland. All three suits arise from the same article.

3 In HC/SUM 3344/2024 (“SUM 3344”), the learned Assistant Registrar (“AR”) granted the Respondent’s application to set aside the order granting the Appellant permission to serve the claim outside of Singapore. This is the Appellant’s appeal against the AR’s decision.

4 Having considered parties’ submissions and the evidence before me, I dismiss the appeal. These are my reasons.

5 The Appellant is a Singapore-incorporated company and a subsidiary of X Corp, a corporation currently based in Nevada. X Corp owns and operates the social media platform X (formerly known as Twitter). The Appellant and X Corp are part of the X group of companies (“X Group”), which also include X Corp’s subsidiaries in other jurisdictions such as Ireland and the United Kingdom. The Appellant is the representative of the X Group in the Asia-Pacific region and the legal entity through which the X Group contracts with advertising clients in the region to place advertisements on the X platform.

6 The Respondent is a web-based, not-for-profit organisation incorporated in the District of Columbia and based in Washington, D.C., where it maintains its sole physical office. The Respondent is a research and information centre dedicated to comprehensively monitoring, analysing, and correcting misinformation in the US media.

7 On 16 November 2023, the Respondent published an article on its website (the “Webpage”) titled: “As Musk endorses antisemitic conspiracy theory, X has been placing ads for Apple, Bravo, IBM, Oracle and Xfinity next to pro-Nazi content” (the “Article”). The Article’s by-line read: “CEO Linda Yaccarino previously claimed that brands are ‘protected from the risk of being next to’ toxic posts”. The Article was written by Mr Eric Hananoki (“Mr Hananoki”), a Senior Investigative Reporter employed by the Respondent.

8 For completeness and ease of reference, I set out the text of the Article in full, with the alleged defamatory statements marked in bold:

9 On the same day and shortly after the publication of the Article, Mr Hananoki posted a hyperlink to the Article on his public personal page on the X platform (the “X Post”). In the X Post, Mr Hananoki also repeated portions of the Article by stating the following:

10 I have noted that apart from OC 556, other X Group entities have also commenced proceedings against the Respondent, Mr Hananoki and their associated parties in other jurisdictions. I set out the details of these proceedings, insofar as they are relevant for present purposes, below.

11 On 20 November 2023, X Corp commenced proceedings against the Respondent and Mr Hananoki in the Texas Court for tortious interference with contract, business disparagement and interference with prospective economic advantage (the “Texas Proceedings”). ¹ Mr Angelo Carusone, the Respondent’s President and CEO, was subsequently added as a defendant (I refer to the Respondent, Mr Hananoki and Mr Carusone collectively as the “Media Matters Parties”).

12 On 6 March 2025, the Media Matters Parties filed a motion to transfer the Texas Proceedings to the Northern District of California on the basis of a mandatory forum-selection clause in X Corp’s “X Terms of Service” in favour of “federal or state courts located in San Francisco County, California, United States”, ² but this motion was denied on 2 May 2025. ³ On 20 May 2025, the Media Matters Parties filed a petition for a writ of mandamus with the US Court of Appeals for the Fifth Circuit appealing against the denial of the motion to transfer. This appeal was granted in part, and a limited remand was issued for the Texas Court to conduct a more complete venue analysis.

13 On 16 September 2025, the Texas Court again denied the transfer motion and ordered that the trial in the Texas Proceedings be scheduled to commence on 26 October 2026. ⁴

14 Pursuant to the Texas Court’s Revised Scheduling Order dated 23 April 2026, fact discovery is now to be completed by 6 November 2026 and the trial is scheduled to commence on 29 March 2027. ⁵ More than 60 rounds of documents have been produced in the Texas Proceedings thus far, comprising more than 400,000 documents. ⁶ As at 28 May 2026, X Corp has taken one deposition, the Media Matters Parties have taken five depositions, and two further depositions are expected to take place. ⁷ All of the witnesses to be deposed are located in the US.

15 On 10 March 2025, the Media Matters Parties filed their complaint against X Corp, Twitter International Unlimited Co. (an X Group entity incorporated in Ireland) and the Appellant (collectively, the “X Parties”) in a federal court sitting in California (the “California Court”), seeking, among others, an injunction to stop the X Parties from prosecuting proceedings in Singapore and Ireland, and to stop X Corp (whether directly or through its subsidiaries) from prosecuting or initiating litigation against the Respondent in jurisdictions outside of the US (the “California Proceedings”). ⁸

16 On 10 April 2025, the California Court partially granted the Media Matters Parties’ application for a preliminary injunction against the X Parties. The X Parties filed an appeal against this ruling on 14 April 2025 to the US Court of Appeals for the Ninth Circuit. After a number of interlocutory motions, the preliminary injunction was vacated and the case was remanded to the California Court for further proceedings.

17 On 12 March 2026, the parties to the California Proceedings came to an agreement and filed a Joint Stipulation of Dismissal which stated that “[the Media Matters Parties] hereby dismiss their claims in the [California Proceedings] against the [X Parties] with prejudice. […] This dismissal is without prejudice to [the Media Matters Parties] seeking relief for any future lawsuits filed by X. Corp. and/or related entities against Media Matters for America and/or its employees.” ⁹

18 As a result of the Media Matters Parties’ decision not to proceed with the California Proceedings, they are no longer relevant to the forum non conveniens analysis (at [173]–[200] below).

19 On 6 December 2023, Twitter International Unlimited Co. (now known as X Internet Unlimited Co.), an X Group entity incorporated in Ireland, commenced proceedings against the Respondent in the Irish High Court (“Irish Court”) for defamation and malicious falsehood (the “Irish Proceedings”). ¹⁰

20 On 7 May 2025, following an agreement between the Respondent and X Internet Unlimited Co. to adjourn the Irish Proceedings in light of the preliminary injunction granted by the California Court, the Irish Court granted the Respondent’s application to adjourn the Irish Proceedings indefinitely, with liberty to either party to re-enter on one week’s notice. ¹¹ Parties indicated at the hearings on 1 April 2026 and 25 May 2026 that the Irish Proceedings have recommenced but are currently “at the jurisdictional stage”. ¹²

21 As numerous interlocutory applications have been filed in this action, I do not intend to canvas the entire procedural history of the matter in detail. I will instead focus on the key milestones in the case.

22 The Appellant filed its Originating Claim in OC 556 on 23 July 2024. As the Respondent is incorporated in the District of Columbia, the Appellant applied on 25 July 2024 for permission of court to serve the cause papers on the Respondent in HC/SUM 2084/2024. This was granted on 26 July 2024, and the Appellant confirmed that service was effected on 27 August 2024 (Washington time) or 28 August 2024 (Singapore time).

23 The Respondent filed its Notice of Intention to Contest on 17 September 2024, and its Defence to challenge this Court’s jurisdiction to hear the action on 2 October 2024, on the grounds that the Appellant had not satisfied the requirements under O 8 r 1 of the Rules of Court 2021 (“ROC 2021”), and that Singapore is forum non conveniens.

24 On 15 November 2024, the Respondent filed SUM 3344. Pursuant to various applications, numerous rounds of factual affidavits were filed along with expert affidavits on US law.

25 SUM 3344 was heard by the AR below on 14 April 2025 and 9 May 2025. Further affidavits were exchanged between parties after these hearings to update the court on the status of the parallel proceedings in other jurisdictions. The AR rendered his decision on 24 October 2025, and the Appellant filed the present appeal on 7 November 2025.

26 Both parties then indicated that they wished to file additional affidavits. The Appellant’s further affidavit was to clarify a factual discrepancy that had arisen at the hearing before the AR, while the Respondent’s further affidavit was to update the court on the developments in the Texas Proceedings. I heard and allowed HC/SUM 137/2026 (“SUM 137”) and HC/SUM 135/2026, being their respective applications to file further affidavits in these proceedings, on 20 January 2026.

27 The appeal came up for hearing before me on 1 April 2026 and 25 May 2026. In the interim, further affidavits were filed with permission by the Appellant (to address a discrepancy in the Appellant’s invoices that was uncovered in the course of submissions on 1 April 2026) and the Respondent (to update the Court on the latest developments in the Texas Proceedings).

28 In his decision on 24 October 2025, the AR allowed the Respondent’s application to set aside permission for service out of Singapore for the following reasons:

(a) the Appellant had shown a good arguable case of sufficient nexus to Singapore under paragraph 63(3)(f)(i) of the Supreme Court Practice Directions 2021 (“Practice Directions”) for both its claims in defamation and malicious falsehood, and under paragraph 63(3)(f)(ii) of the Practice Directions for the claim in defamation only;

(b) there was a serious issue to be tried as to the publication of the Offending Statements in Singapore, the falsity of the Offending Statements and whether they were made with malice, ¹³ but not as to whether the Offending Statements referred to the Appellant; ¹⁴ and

(c) Singapore was, in any case, forum non conveniens.

29 On [28(a)] above, the AR considered that the Appellant had furnished sufficient direct evidence as to the publication of the Offending Statements in Singapore. Mr Foo Sie Seng Winston (“Mr Foo”), a director of the Appellant, had stated on affidavit that at least 183 users based in Singapore had clicked on the Webpage from the X platform to access the Article 54 times, and at least 7,455 users based in Singapore had interacted with Mr Hananoki’s X Post. ¹⁵ As for damage suffered in Singapore, the AR found that evidence of this was required for the claim in malicious falsehood but not for defamation, as reputational damage is presumed from publication. ¹⁶ The AR concluded that the Appellant had failed to prove special damage in Singapore as there was no evidence that its invoices were not paid or that it had lost any advertising revenue on account of the Article. ¹⁷

30 On [28(b)] above, the AR accepted that there was a serious question to be tried on the merits as to whether the Offending Statements were false and/or maliciously made. However, he found no reference to the Appellant in the Article. The Offending Statements referred specifically to the placing of advertisements on the X Platform next to objectionable content (ie, deciding the actual location of the advertisements to the user). On the Appellant’s own case, it had no role in making such decisions. ¹⁸ There was therefore a lack of overlap between the Appellant’s activities and the mode of business or activities referred to in the Article. ¹⁹

31 On [28(c)] above, after considering the relevant connecting factors, the AR concluded that, in light of the pending proceedings in the US and the substantial overlap in the issues to be determined, Singapore was forum non conveniens as the relevant US court(s) were more appropriate to try the Appellant’s claims. ²⁰

32 The Appellant sought to affirm the AR’s findings that there is a good arguable case that the Offending Statements had been published in Singapore, that the Appellant had suffered damage to its reputation in Singapore (for the defamation claim), and that there was a serious question to be tried as to whether the Offending Statements were falsely and maliciously made and defamatory of the Appellant. However, the Appellant argued that the AR had erred in finding that: (a) the Offending Statements did not refer to the Appellant; (b) the Appellant had failed to show that special damage was suffered in Singapore for the tort of malicious falsehood; and (c) Singapore was forum non conveniens.

33 The Respondent contended that the AR’s decision should be affirmed for four key reasons: (a) there was no publication and/or republication of the Offending Statements in Singapore; (b) the Appellant did not suffer damage in Singapore; (c) the Offending Statements did not refer to the Appellant; and (d) Singapore was forum non conveniens.

34 The issues to be determined in this appeal are therefore:

35 Before turning to the substantive issues in this appeal, I deal with a preliminary point of law on the approach to determine if a claimant has shown a good arguable case that its claims have a sufficient nexus to Singapore.

36 In civil cases where a defendant is not located in Singapore, this court has jurisdiction to hear the matter if the defendant is served with the originating claim in the circumstances authorised by and in the manner prescribed by ROC 2021: s 16(1)(a)(ii) of the Supreme Court of Judicature Act 1969.

37 Under O 8 r 1(2) of ROC 2021, a claimant seeking approval to serve an originating process out of Singapore must demonstrate why the Singapore court has jurisdiction or is the appropriate court to hear the action. Paragraph 63(2) of the Practice Directions states that for the purpose of showing why the Singapore court is the appropriate court to hear the action, the claimant must show that: (a) there is a good arguable case that there is sufficient nexus to Singapore; (b) Singapore is the forum conveniens; and (c) there is a serious question to be tried on the merits of the claim.

38 Paragraph 63(3) of the Practice Directions further provides that a claimant may, for the purposes of demonstrating a sufficient nexus to Singapore, refer to a list of non-exhaustive factors, including that the claim is: (a) founded on a tort, wherever committed, which is constituted, at least in part, by an act or omission occurring in Singapore (paragraph 63(3)(f)(i) of the Practice Directions); or (b) wholly or partly founded on, or is for the recovery of damages in respect of, damage suffered in Singapore caused by a tortious act or omission wherever occurring (paragraph 63(3)(f)(ii) of the Practice Directions). These were the specific factors that the Appellant relied on.

39 The Appellant’s case was that: (a) paragraph 63(3)(f)(i) was established as publication is an element of its claims in both defamation and malicious falsehood, and the Offending Statements were published in Singapore; and (b) paragraph 63(3)(f)(ii) was made out as the Appellant had suffered damage to its reputation in Singapore (as a result of publication in Singapore) and also special damage in Singapore (as the Appellant’s clients had withdrawn their advertising campaigns on the X platform as a result of the Offending Statements).

40 The AR below proceeded on the basis that the Appellant only needed to make out a good arguable case that the specific factors listed in the Practice Directions (ie, publication or damage) were established, and the rest of the elements of its claims could be made out based on the lower standard of a serious question to be tried. ²¹ In my opinion, the AR fell into error here.

41 I start by laying out the difference between the two tests. A “good arguable case” requires more than a prima facie case or a prospect of success. Although it does not require the claimant to make out its claim to the standard of a balance of probabilities given the limits inherent in the stage at which the application is being heard, the claimant must have “the better of the argument, on the evidence before the court” [emphasis in original]: Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (“Vinmar Overseas”) at [45]. In contrast, a “serious question to be tried” is a lower standard of proof than a “good arguable case”: Shen Sophie v Xia Wei Ping [2023] 3 SLR 1092 (“Shen Sophie”) at [99]. A serious question to be tried can be established as long as the court is satisfied that the proposed claim is not clearly unsustainable: Wang Aifeng v Sunmax Global Capital Fund 1 Pte Ltd [2023] 3 SLR 1604 at [40].

42 The legal position based on the authorities pre-dating ROC 2021 was that if a claimant sought leave to serve out of jurisdiction under Order 11 of the Rules of Court 2014 based on a jurisdictional gateway that engaged the merits of the claim (such as the factors relied on by the Appellant in this case), the claimant had to satisfy the court of the existence of its cause of action to the standard of a “good arguable case”. In other words, the claimant had to make out a good arguable case that all the necessary elements of his pleaded cause of action were established, not just the specific factor it was relying on as a jurisdictional gateway.

43  This was made clear by the Court of Appeal in Bradley Lomas Electrolok Ltd v Colt Ventilation East Asia Pte Ltd [1999] 3 SLR(R) 1156 (“Bradley Lomas”) at [19]:

44 As the Court of Appeal in Bradley Lomas noted, if a claimant successfully established the existence of a viable cause of action by proving all the necessary elements of its claim to the higher threshold of a “good arguable case”, there would then be no need for the court to go into the question of whether the claimant had also established a serious question to be tried on the merits of its claims.

45 In my view, the same approach would have applied to O 11 r 1(f)(ii) of the Rules of Court 2014, the predecessor to paragraph 63(3)(f)(ii) of the Practice Directions. This limb also engaged the merits of the claim as it required the claimant to show that the damage suffered in Singapore was caused by a tortious act or omission: IM Skaugen SE v MAN Diesel & Turbo SE [2018] SGHC 123 at [38]. Although the focus of this limb was on the damage suffered by the claimant, the requirement that the damage must have been caused by a “tortious act or omission” necessarily hinged on a tort having been committed in the first place, and this would require an examination of the merits of the claim.

46 While the ROC 2021 has since revised and simplified the rules on service outside of Singapore, there is nothing to suggest that the amendments were intended to change this fundamental approach, which continues to make good sense as a matter of principle and policy. The ultimate focus of O 8 r 1 of ROC 2021 remains to ensure that service out of Singapore is only allowed where a claimant has established that the Singapore court is the appropriate court to hear the action. The need to establish a nexus with Singapore serves to prevent the unwarranted extension of the jurisdiction of this court beyond the territorial limits of the country: Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 (“Review Publishing (HC)”) at [23].

47 I am aware that a claimant no longer needs to show that its claims fall under at least one of the enumerated jurisdictional gateways, as the inquiry under O 8 r 1 is now a broader and more flexible one. I also accept that the present jurisdictional gateways are now found in the Practice Directions instead of the Rules of Court. Nevertheless, I do not find that this changes the underlying principles. A claimant who relies on a tortious cause of action founded on an act or omission occurring in Singapore, or damage suffered in Singapore that is caused by a tortious act or omission, to make out a sufficient nexus to Singapore must logically also establish the existence of its tortious cause of action to the same standard of proof. If there is no good arguable case that there is a viable cause of action in tort to begin with, then the jurisdictional gateways relied on by the claimant are simply not established. There would consequently be no reason for the Singapore court to even consider exercising its jurisdiction to hear the action.

48 Although the parties’ submissions adopted the same approach as that taken by the AR below, ²² counsel readily accepted that this was erroneous in light of the authorities above. ²³ It follows from this that for the Appellant to establish that its claims in defamation and malicious falsehood each had a sufficient nexus to Singapore because of publication or damage in Singapore, the Appellant had to establish all the elements of its causes of action in defamation and malicious falsehood to the level of a “good arguable case”.

49 To make out a viable claim in defamation, the Appellant had to show a good arguable case that: (a) the statement was defamatory in nature, in that it lowered the Appellant in the estimation of right-thinking members of society generally, caused the Appellant to be shunned or avoided, or exposed the Appellant to hatred, contempt or ridicule; (b) the defamatory statement referred to the Appellant; and (c) the statement was published: Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 at [35]–[36]; Yan Jun v Attorney-General [2015] 1 SLR 752 at [106].

50 To establish a case in malicious falsehood, the Appellant had to show a good arguable case that: (a) the Respondent published to third parties words which are false; (b) the words referred to the Appellant, its property or its business; (c) the words were published maliciously; and (d) special damage followed as a direct and natural result of the publication: Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 (“Low Tuck Kwong”) at [64] and [102]; WBG Network (Singapore) Pte Ltd v Meridian Life International Pte Ltd [2008] 4 SLR(R) 727 (“WBG Network”) at [68].

51 I now turn to consider each of the substantive issues arising in this appeal.

52 To establish the existence of its pleaded causes of action, the Appellant had to make out a good arguable case that the Offending Statements were defamatory in nature (for its claim in defamation), and that they were false and maliciously made (for its claim in malicious falsehood). The AR below had found that the Appellant had successfully established these elements to the standard of a “serious question to be tried”. ²⁴

53 The Appellant argued that despite the error in the standard of proof, the AR had correctly held that the Offending Statements could not be characterised as mere “neutral observations” because they carried the following pleaded meanings: ²⁵

(a) That the Appellant intentionally placed its major clients’ advertisements next to antisemitic and/or racist content on the X platform: (i) in support of Mr Musk’s alleged “descent into white nationalist and antisemitic conspiracy theories”, and/or (ii) to exploit the antisemitic and/or racist content for the Appellant’s own financial gain, and/or (iii) to boost and/or promote the reach of the antisemitic and/or racist content;

(b) That the Appellant recklessly or negligently placed its major clients’ advertisements next to antisemitic and/or racist content on the X platform;

(c) That the Appellant does not have adequate content moderation controls in place, which resulted in its major clients’ advertisements appearing next to antisemitic and/or racist content on the X platform;

(d) That the Appellant endorses and/or encourages antisemitic and/or racist content; and/or

(e) That the Appellant is indifferent towards antisemitic and racist ideology.

These statements were not only defamatory but also false and malicious, as Mr Hananoki had deliberately engineered the appearance of these advertisements next to the objectionable content through an elaborate scheme designed to “game” the X platform’s algorithm and bypass its content controls, all whilst giving the impression that the Article’s findings represented the authentic experience of an average user of the X platform.

54 The Respondent’s counsel did not seriously press this point before me, save to refer me to her written submissions filed in the court below. ²⁶ The Respondent’s position before the AR was that the Offending Statements were simply observations of fact which the Appellant did not dispute, ie, that Mr Hananoki did find advertisements for major corporations next to extremist content. ²⁷ According to the Respondent, the Article did not go on to speculate that the placement of the advertisements next to such content was intentional, nor did it suggest that the Respondent or Mr Hananoki had “organically discovered” these advertisements. ²⁸

55 While I have earlier found that the AR fell into error in assessing these elements (which went to the existence of the Appellant’s causes of action in defamation and malicious falsehood) to the lower standard of a “serious question to be tried”, the AR’s conclusions on the merits of these issues cannot be faulted. Even when tested to the requisite standard of a “good arguable case”, I agree with the Appellant that there is a good arguable case that: (a) the Offending Statements bore at least one or more of the pleaded defamatory meanings; and (b) they were falsely and maliciously made.

56 I pause to note that the applicable law is another preliminary question which must be answered before determining whether the Appellant has made out a good arguable case.

57 Although Singapore law may not be the lex loci delicti for both claims in defamation and malicious falsehood (a point I discuss in greater detail below), the Appellant must satisfy the double actionability rule for its tortious claims to be actionable in Singapore: Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (“Rickshaw Investments”) at [53]. In other words, regardless of where the place of the torts may be, the Appellant must establish that the alleged wrongs are actionable under Singapore law as the law of the forum (subject to a flexible exception). Parties also approached the merits of the claims before me on the basis of Singapore law principles. I thus deal with parties’ arguments based on Singapore law below, notwithstanding that they may or may not make out a good arguable case under a foreign lex loci delicti.

58 In determining the natural and ordinary meaning of the words for a potential claim in defamation, the court will decide what meaning the words would convey to an ordinary reasonable person, not unduly suspicious or avid for scandal, using his general knowledge and common sense. The natural and ordinary meaning of the words is not confined to their literal or strict meaning, but includes inferences or implications that the ordinary reasonable person might draw from those words in light of his or her general knowledge, common sense and experience: Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52 (“Review Publishing (CA)”) at [27]–[31]. Importantly, the words are not to be read in isolation but must be construed in the context of the Article as a whole: Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR(R) 465 at [53]–[54].

59 The most relevant extracts from the Respondent’s Article are reproduced again here:

60 In my view, the Respondent could not seriously contend that the Offending Statements, read in context, amounted to nothing more than neutral, factual observations.

61 The title of the Article drew a deliberate association between the placement of the advertisements next to pro-Nazi content, and Mr Musk’s alleged endorsement of antisemitic conspiracy theory. This link was also directly made by Offending Statement 1, which read: “As X owner Elon Musk continues his descent into white nationalist and antisemitic conspiracy theories, his social medial platform has been placing ads for major brands like Apple, Bravo (NBCUniversal), IBM, Oracle, and Xfinity (Comcast) next to content that touts Adolf Hitler and his Nazi party.” [emphases added in bold, italics and underline]

62 These were not two seemingly unconnected observations. I accept that the Offending Statement did not directly assert that Mr Musk had caused the X platform to present the advertisements next to the objectionable material to support his own political views. Nevertheless, insinuation may be as defamatory as an explicit statement and even more mischievous: Gatley on Libel and Slander (Richard Parkes KC & Godwin Busuttil joint eds) (Sweet & Maxwell, 13th Ed, 2022) (“Gatley”) at para 3-018. Presented in this manner, the ordinary reasonable reader would inevitably draw the inference that the placement of the advertisements next to such content by Mr Musk’s social media platform was intentional and designed to further his alleged extremist views.

63 The Respondent’s contention that the Article never speculated that the placement of the advertisements next to such content was intentional is clearly untenable. The plain and literal meaning of the word “placing” is “[t]o determine or fix the place of; to assign a place to”: “place (v.), sense 3.a” in Oxford English Dictionary (Oxford University Press, 2026). This connotes deliberate, as opposed to accidental, action. Coupled with the reference to Mr Musk’s alleged endorsement of antisemitic theory and the reference to the X platform as “his social media platform”, the unmistakeable inference that the ordinary reasonable reader will draw is that the placement of the advertisements in this manner was by design and influenced by the views of Mr Musk, who owned the X platform. If the Appellant was implicated in such conduct by the Article (an issue I will address later), these statements would, by any measure, have injured the Appellant’s reputation by lowering it in the estimation of right-thinking members of society generally: see Gatley at para 2-012.

64 Offending Statement 2, read on its own, could be characterised as a more factual statement, in that it simply stated: “We recently found ads for Apple, Bravo, Oracle, Xfinity, and IBM next to posts that tout Hitler and his Nazi Party on X.” Insofar as this was a statement that the screenshots featured in the Article were authentic (in the sense that they were not doctored images), the Appellant did not dispute this.

65 However, I agree with the Appellant that the use of the word “found”, read in the context of the Article as a whole (including Offending Statement 1), would lead an ordinary reasonable reader to understand the statement not simply as a factual observation that the Respondent had seen these advertisements next to the objectionable content, but also a clear implication that the Respondent had just happened to come across the advertisements presented in this manner. ²⁹ This is reinforced by the preceding paragraph, which states that “[d]uring all of this Musk-induced chaos, corporate advertisements have also been appearing on pro-Hitler, Holocaust denial, white nationalist, pro-violence, and neo-Nazi accounts” [emphases added]. Put simply, the impression conveyed to an ordinary reasonable reader would be that the Respondent did not play any role in orchestrating the placement of these advertisements, as the words used suggested that their appearance reflected the authentic experience of an average user of the X platform. This would have been understood as evidence to support the Article’s central thesis: that Mr Musk had influenced the X Group to intentionally place advertisements by major brands next to pro-Nazi content on the X platform, as part of his own political agenda.

66 It is also significant that Ms Linda Yaccarino’s (“Ms Yaccarino”) statement that “brands are ‘protected from the risk of being next to toxic posts’ on the platform” appeared no less than three times in the same Article. By repeatedly juxtaposing the title of the Article and the Offending Statements against the remarks by Ms Yaccarino, X Corp’s then-CEO, I agree with the Appellant that an ordinary reasonable reader would also have taken the Respondent’s words as suggesting that, contrary to Ms Yaccarino’s assurances, the X Platform’s content moderation controls were either inadequate or intentionally allowing such advertisement placements as a result of Mr Musk’s views.

67 Insofar as the Appellant’s claim in malicious falsehood was concerned, the Appellant had to establish a good arguable case that the statements were both false and maliciously made. In support of this, the Appellant pleaded that in order to manipulate the placement of the advertisements in the manner presented in the Article, the Respondent’s employees (including but not limited to Mr Hananoki) had set up and utilised a separate account (an “Alternate Account”) which exclusively followed a subset of X platform users falling into two categories: (a) those known to produce extreme, fringe content; and (b) the X Group’s major advertising clients. To ensure that only a limited type of content would be featured in the Alternate Account’s feed, the Alternate Account only followed 30 X users (as opposed to the average number of accounts followed by a typical active X user, which was 219 X users). According to the Appellant, the Respondent also repeatedly scrolled and refreshed the selected feed on the Alternate Account to generate 13 to 15 times more advertisements per hour than those viewed by an average X platform user. ³⁰ In this way, the Respondent managed to bypass the X platform’s content moderation mechanism and “game” the algorithm into generating the placement of the advertisements next to extremist content, which it then reported as news. ³¹

68 Importantly, the Respondent did not dispute these assertions before me. While I accept that these proceedings are only at an interlocutory stage, if these claims are established at trial, the Respondent would have engaged in an elaborate campaign to present a contrived user experience (which it had deliberately orchestrated) as an authentic one, with the express purpose of calling into question the legitimacy of the X platform as a viable advertising avenue for mainstream companies. The Respondent would have done so knowing that the imputations in its Article were false, and that they would lead advertisers to pull out of the X platform. The latter point was made clear in the Respondent’s Article itself, which repeatedly juxtaposed the sting of the Offending Statements against Ms Yaccarino’s comments that brands were “protected”, and which the Respondent itself observed were made to “bring advertisers back to the platform by claiming it’s safe for business”.

69 It bears noting that malice, in the context of the tort of malicious falsehood, may be made out even if the maker of the statement honestly believed in its truth, if the statement was published “for the purpose of doing harm” and it transpired that the statement was false: Wilts United Dairies v Thomas Robinson Sons and Company Ltd [1957] RPC 220 at 237. In my view, the Appellant has made out a good arguable case that the Offending Statements were false and maliciously made in a calculated attempt to cause pecuniary loss to the X Group.

70 I next address the issue of whether the Appellant has made out a good arguable case that the Offending Statements referred to the Appellant (for defamation) and/or its business (for malicious falsehood).

71 It is axiomatic that for a claim in defamation to succeed, the words complained of should be published “of the plaintiff”: Knupffer v London Express Newspaper Ltd [1944] AC 116 at 120 (“Knupffer”). There is no cause of action unless the words refer to and reflect on the claimant: Gatley at para 8-001. As for a claim for malicious falsehood, a claimant must be able to show that the words which are false “refer to the claimant or his property or his business”: WBG Network at [68(b)].

72 This was, to my mind, a threshold issue. If the Appellant failed to establish the necessary reference, it could have no claim whether in defamation or malicious falsehood, and it would have failed to make out a good arguable case that it had any tortious claim, let alone one with a sufficient nexus to Singapore. There would then be no need for the court to even consider whether the elements of publication or damage in Singapore were made out.

73 Although the Article did not specifically identify the Appellant, it referred to advertisements placed on “X”, which was described as “[Mr Musk’s] social media platform”. The Appellant argued that a reasonable reader (and in particular, an advertiser which had historically contracted with the Appellant) would have understood the Article and the Offending Statements as referring to the X platform and the Appellant, which was the client-facing entity of the X Group in the region and the company which advertisers dealt with to put their advertisements on the X platform. ³² Further, the Offending Statements attacked the quality of the X platform and its content moderation controls. By impugning the manner in which the X platform conducted its advertising business, objective reasonable readers (including the Appellant’s advertising clients) would understand the allegations being made about the X platform as being directed against the Appellant as well. ³³

74 The Respondent countered that there could be no reference to the Appellant given that the Article only implicated the placement of the advertisements on the X platform, in the sense of deciding on the actual location where the advertisements appeared to X users (I use the terms “placing” and “placement” of advertisements in this specific sense in the rest of this Judgment). ³⁴ As the Appellant conceded that it did not play any role in the placement of advertisements as its business was simply to sell advertising space on the X platform, ³⁵ the ordinary reasonable reader would not have ascribed anything to the Appellant from the Offending Statements. The Appellant’s clients would also have been aware that the Appellant played no role in the placement of advertisements on the X platform. ³⁶ As there was no overlap between the business activity that is implicated and the Appellant’s actual business activity, the words could not be understood as referring to the Appellant. ³⁷

75 Where a claimant is not named in the offending material, the court considers whether an objective, reasonable reader, being aware of the relevant circumstances and any special facts, would reasonably understand the claimant to be referred to by the offending words: Review Publishing (CA) at [49]. The test is whether the words are such as would reasonably lead persons “acquainted with” the claimant to believe that he or she was the person referred to: Knupffer at 121; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245–1246. In other words, the court imputes to the hypothetical reader some degree of knowledge about the claimant which need not be found in the offending material: Dyson Technology Ltd v Channel Four Television Corp [2023] 4 WLR 67 (“Dyson Technology”) at [37].

76 At the outset, it is important to emphasise that it was not the Appellant’s case that the necessary reference was made out simply because the Respondent’s Article was directed at the X Group, and the Appellant was one of the entities in the X Group. This must be correct.

77 The fact that a corporate group may be identifiable in a statement does not necessarily mean that every entity in a group is necessarily implicated. Where a publication relates to a business with a complex corporate structure, care should be taken to bring the claim in the name of a company which (a) would be identified by reasonable readers as the subject of the allegations; and (b) is apt to suffer damage to its own trading reputation as a result of the publication: Qingdao Bohai Construction Group Co, Ltd v Goh Teck Beng [2016] 4 SLR 977 (“Qingdao Bohai”) at [58], citing Brian Neill et al, Duncan and Neill on Defamation (LexisNexis, 3rd Ed, 2009) at para 10.02.

78 In assessing whether the necessary reference to the specific claimant is made out, much will depend on the substance of the allegations, the context in which they were made, how the entities in the group operated and, importantly, what persons acquainted with the group entities would have known and how they would have understood the statements: see for eg, Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 (“Palace Films”) at [18]–[24]; Craftsman Homes Australia Pty Limited v TCN Channel Nine Pty Limited [2003] NSWSC 124 at [26]–[31]; Elite Model Management Corp British Broadcasting Corp [2001] All ER (D) 334 (“Elite Model”) at [9]–[20].

79 The Appellant’s case was that an objective, reasonable reader (in particular, an advertiser) would have understood the Offending Statements as referring to the Appellant and its business for two reasons: first, because this advertiser would have historically contracted with the Appellant to purchase advertising space on the X platform; and second, because the statements impugned the manner in which the X platform conducted its advertising business, and advertising on the X platform was the Appellant’s entire business enterprise. ³⁸

80 The AR below found that the Appellant had failed to establish the necessary reference because the Appellant’s own case was that it did not play any role in the operation of the X platform. ³⁹ Hence, the Appellant could not have had anything to do with the placement of the advertisements next to antisemitic content. ⁴⁰

81 With respect, I take the view that the AR fell into error here as he appeared to have ascribed perfect knowledge to the hypothetical ordinary reasonable reader. While the extensive evidence placed before the court today makes clear that the Appellant in fact plays no role in operating the X platform, there is insufficient evidence before me to suggest that an objective, reasonable advertiser who was acquainted with the Appellant and who may have previously contracted with the Appellant would have had this level of knowledge of the Appellant’s role vis-à-vis the operation of the X platform at the time of publication.

82 The reasonable reader may be acquainted with the claimant and its business, but that does not assume that those persons who read the words know all the circumstances or the full details about the claimant: David Syme & Co v Canavan (1918) 25 CLR 234 at 238 (cited in Gatley at para 8-002); Dyson Technology at [47]. Indeed, it would be unreasonable to ascribe to the hypothetical reasonable reader a complete and perfect understanding of how the Appellant’s business operates, especially with the benefit of hindsight.

83 The Respondent pointed out that the Appellant’s own Master Services Agreement with its clients at Clause 1 incorporates the separate “terms and conditions, if any, of the Programs in which [the clients] participate”. ⁴¹ In particular, “TWITTER ADS PROGRAM T&Cs” at paragraph 2 states: ⁴²

84 However, the fact that a reasonable advertiser may have been put on notice that the Appellant may not own or operate the X platform is different from saying that a reasonable advertiser knew or must have known that the Appellant had nothing to do with operating the X platform. The clause is a disclaimer rather than a conclusive statement of fact.

85 In my view, a reasonable advertiser reading the Article and the Offending Statements would know that the Appellant was affiliated to the X Group and responsible for selling advertising space on the X platform. Given that the Offending Statements directly impugned the placement of advertisements on the X platform and the Appellant’s core business was precisely to sell advertising on the X platform, a reasonable advertiser – even one with knowledge of the clause above – could reasonably understand the Respondent’s Article to be referring to the Appellant and its business.

86 I agree with the Appellant that the cases of Bawang International (Group) Holding Ltd v Next Magazine Publishing Ltd [2016] HKEC 1145 (“Bawang International”) and Sin Heak Hin Pte Ltd v Yuasa Battery Singapore Co Pte Ltd [1995] 3 SLR(R) 123 (“Sin Heak Hin”) are instructive.

87 In Bawang International, two plaintiffs claimed for defamation and malicious falsehood against the defendant publisher in respect of an article published in the defendant’s magazine about the presence of a carcinogenic substance known as 1,4-dioxane in the plaintiffs’ shampoos. The first plaintiff, which was the ultimate holding company of the BaWang Group of companies, was named in the defendant’s article. However, the second plaintiff, a wholly-owned subsidiary of the first plaintiff, was not. The Hong Kong High Court nevertheless found that there was sufficient reference to the second plaintiff as a reasonable reader should have understood that the BaWang businesses in Hong Kong and mainland China were actually operated through subsidiaries, and the defendant’s attack on the quality of BaWang’s shampoo products would have led reasonable readers to understand the allegations as being directed not only against the holding company (the first plaintiff) but also the other subsidiaries in the group which were responsible for the manufacturing and marketing of BaWang shampoo products in Hong Kong (which included the second plaintiff): Bawang International at [72]).

88 In Sin Heak Hin, the two plaintiffs were in the business of dealing with automotive batteries and other motor vehicle accessories. The defendant was the Singapore-incorporated subsidiary of Yuasa Battery Co Ltd of Japan and carried on business as a manufacturer and supplier of automotive batteries bearing the name “Yuasa Pafecta” under licence from Yuasa Japan. After receiving information that Yuasa batteries manufactured in China were going to be imported and sold in Singapore, the defendant issued a circular to all its dealers stating that Yuasa Japan did not have a manufacturing facility in China and any “Yuasa” brand batteries in the Singapore market which purported to be manufactured in China were imitations. The batteries imported by the plaintiffs were in fact parallel imports, so the statement of inauthenticity was untrue. The plaintiffs successfully sued the defendant for defamation. Although the circular did not specifically identify the first plaintiff as the importer of the alleged imitations (Sin Heak Hin at [26]), Prakash J (as she then was) held that it was apparent from the evidence that dealers in the Singapore battery market were aware that both plaintiffs were in the process of importing Yuasa brand batteries from China for sale in Singapore. Accordingly, the natural and ordinary meaning of the defendant’s circular was that the Yuasa brand batteries imported by both plaintiffs were imitations and that the importers of those batteries (whom the recipients of the circular would have identified as the plaintiffs) were wrongfully holding them out to the Singaporean public as being authentic: Sin Heak Hin at [28].

89 These cases lend support to my conclusion that the necessary reference to the Appellant and its business was made in the Article. The Article would have been understood by a reasonable reader as an attack on the X platform’s advertising practices. Just as the hypothetical reasonable reader in Bawang International would have known that the business of the BaWang group was operated through subsidiaries and interpreted an attack on the quality of the group’s products as an attack on the subsidiaries involved in the manufacturing and marketing of the product, a reasonable advertiser reading the Article would similarly have known that the X platform (which was the “product” in question) was operated by a large corporate group and understood the Respondent’s attack on the X platform’s advertising practices as an attack on the X Group entities involved in advertising on the X platform. Further, just as the dealers in Sin Heak Hin would have been aware that the statements in the circular referred to the plaintiffs because they were aware that the plaintiffs were importing the Yuasa batteries into Singapore, the Appellant’s advertising clients would have read the Article as referring to the Appellant and its business, as they would have been aware that the Appellant was in charge of selling advertising on the X platform.

90 The AR found that these authorities did not assist the Appellant because unlike the claimants in those cases, there was no overlap between the business activity implicated in the Respondent’s Article and the Appellant’s business activity. This was because, according to the AR, the business activity impugned in the Respondent’s Article was the placement of advertisements next to antisemitic content, but the Appellant’s business activity was only about selling advertising space without any role in deciding on the placement of the advertisements.

91 In my assessment, the AR took an unnecessarily narrow view of what “business activity” entailed in this context. I accept that the Respondent’s Article and the Offending Statements specifically attacked the placement of advertisements on the X platform, and that the Appellant had no control in deciding the precise location of its clients’ advertisements on the platform. But the entire thrust of the Article and the Offending Statements was to call into question the legitimacy and viability of advertising on the X platform.

92 This was not a case in which the claimant’s business activity had absolutely no connection, or only a peripheral connection, to the allegations being made: cf, Palace Films, where the claimant company was completely uninvolved in the film distribution business discussed in the allegedly defamatory articles; and Craftsman Homes, where the subject matter of the offending programme was about poor building work and the first plaintiff was a franchisor that did no building work. On the contrary, from the perspective of the ordinary reasonable advertiser who was acquainted with the Appellant, the X platform was the central (and indeed sole) product of the Appellant, and advertising on the X platform was the core business of the Appellant. In the circumstances, it would be entirely reasonable for the ordinary reasonable advertiser to interpret the Offending Statements as implicating the Appellant and its business as well.

93 I would add that the UK Court of Appeal in Dyson Technology also explicitly cautioned against taking an unduly narrow analysis in the context of large, international corporate groups. Dyson Technology concerned defamation proceedings brought by Sir James Dyson, Dyson Technology Ltd and Dyson Ltd against the broadcasters of a news report which alleged abuse and exploitation of employees at a Malaysian factory run by a company called ATA, where Dyson appliances were manufactured. At first instance, the court had found as a preliminary issue that the broadcast did not refer to Dyson Technology Ltd and Dyson Ltd as they (unlike Sir James Dyson) were not specifically named in the report, and there was no evidence that they were responsible for oversight of the contractual relationship with ATA.

94 In overturning the judge’s decision on appeal, the UK Court of Appeal made the following points at [53]–[56]:

95 Similarly in the present case, while the Offending Statements were specifically about the placement of advertisements next to extremist content on the X platform, the overall theme of the Article was to attack the viability of advertising on the X platform. A hypothetical reasonable reader acquainted with the Appellant would not undertake such an “unduly refined analysis” as to consider that the Appellant was only implicated if it was in fact the entity specifically responsible for the placement of advertisements on the X platform.

96 I accept that there was other material in the report in Dyson Technology which also pointed to Dyson Technology Ltd and Dyson Ltd. Nevertheless, the case serves as authority for the proposition that an unduly narrow perspective should not be taken when one considers whether the necessary reference to a claimant is made out.

97 The court took a similarly broad approach in Elite Model, which concerned a television programme that alleged that young models managed by Elite Model Management Milano S.r.l. (“Elite Milan”) were being exploited by Elite Milan’s senior executives. The three claimants in the libel case were the Elite modelling agencies based in New York and London as well as a Swiss-based company within the Elite group which was responsible for organising the Elite Model Look modelling contest worldwide.

98 In finding that there was an arguable case that the programme contained a reference to the claimants even though it focused entirely on the conduct of senior executives in Elite Milan, Eady J noted that the New York and London agencies could potentially be “mother agencies” identifiable to some viewers as having failed to protect the models for whom they are partially responsible while in Milan (Elite Model at [18]). As for the Swiss-based company that was responsible for the modelling contest, while it was not involved in model management per se, the court found it possible that some viewers would have inferred that it was responsible for some of the alleged failures to ensure the safety and security of the contestants (Elite Model at [26]). Thus, a claimant could maintain a libel action even in circumstances where it was not involved in the exact same business activity that was directly impugned but a related one.

99 I deal finally with the case of Sikhs for Justice v Lord Raminder Singh Ranger [2025] EWHC 2210 (KB) (“Sikhs for Justice”), which the Respondent cited ostensibly for the principle that where an allegedly defamatory article only referred to the parent company (ie, X Corp in this case) and not its subsidiary (ie, the Appellant), the reasonable reader would understand the article to refer only to the parent company. However, a careful reading of the judgment makes clear that it does not stand for any such proposition.

100 The offending material in that case was an article published in the Pakistan Daily in which the defendant questioned the faith and funding sources of the group Sikhs for Justice, which was described as “a US-based secessionist group” (which I will refer to as “SFJ US”). The article also discussed a referendum campaign for the establishment of an independent homeland for the Sikhs of India, which was organised by the United Kingdom branch of SFJ US (referred to as “SFJ UK”), although SFJ UK was never identified or otherwise referred to in the article.

101 While it is true that Mr Justice Jay found that SFJ UK could not maintain its claim in defamation, this was not because SFJ UK was not identified in the article while SFJ US was. Rather, it was because the court found that it was “not possible without straining language beyond its permissible bounds to conclude that the article is referring to more than one entity”: Sikhs for Justice at [29]. For SFJ UK to succeed in its claim, it had to establish that the article was only referring to SFJ UK, but that was clearly untenable having regard to the language of the article and the relevant context. In other words, the court’s finding in Sikhs for Justice was based entirely on the construction of the article as being capable of referring only to a single entity, which in that context could only be SFJ US.

102 That is entirely distinguishable from the present case. The Article did not make any allegations against any specific entity in the X Group or even identify any particular company in the X Group. Instead, the Article denounced how advertising was presented on the X platform, which would necessarily have implicated those entities in the X Group which were responsible for, or involved in, advertising on the X platform.

103 This was one of the specific factors the Appellant relied on to demonstrate that its claims had a sufficient nexus to Singapore. ⁴³ As noted earlier, paragraph 63(3)(f)(i) of the Practice Directions provides that one of the ways in which the requisite nexus can be made out is if the claim is founded on a tort, wherever committed, which is constituted, at least in part, by an act or omission occurring in Singapore. As publication is a crucial element of a claim in both defamation and malicious falsehood, establishing a good arguable case of publication of the Offending Statements in Singapore would allow the Appellant to demonstrate that its claims had a sufficient nexus to Singapore.

104 It is well-established that publication is a bilateral act with two components: (a) the act of making the material available to a third party in a comprehensible form (the “first component”); and (b) the receipt of that information by a third party in such a way that it is understood (the “second component”): Qingdao Bohai at [35]. For material that is published on the Internet, the mere act of uploading or posting the material on a website alone is insufficient to establish publication as that only relates to the first component of publication but not the second. The critical component of publication for a claim in defamation is the second component, as defamation protects a person’s reputation and that can only be damaged when the material was communicated to a third party, ie, accessed and downloaded in a comprehensible form: Qingdao Bohai at [38]–[41].

105 In this case, the Appellant relied on both direct and indirect evidence to make out the second component of publication in Singapore. Insofar as direct evidence was concerned, the Appellant’s director, Mr Foo, had stated the following in his affidavit filed in support of the Appellant’s application for permission to serve the claim outside of Singapore: ⁴⁴

106 No supporting evidence (such as the underlying user data or a report from the X Group) was adduced to support this assertion, nor did Mr Foo provide any further details to explain how he had arrived at this conclusion.

107 At the hearing before the AR below, the Respondent pointed to a discrepancy in the figures: if, according to Mr Foo, at least 183 Singapore users had clicked on the webpage, why was the Article only accessed 54 times? ⁴⁵ The Appellant clarified in Mr Foo’s subsequent affidavit that, ⁴⁶ “based on the X Group’s review of its user data”, a hyperlink to the Respondent’s webpage containing the Article “had appeared on the X Platform interface at least 183 times to users in Singapore”, and at least 54 users in Singapore clicked on the hyperlink to access the webpage. ⁴⁷ This was the full extent of the Appellant’s direct evidence of publication in Singapore.

108 Alternatively, the Appellant invited me to draw an inference of publication in Singapore from the following facts: ⁴⁸

(a) Various local news outlets such as The Straits Times, Business Times, Channel News Asia and Today Online had published news articles about the Respondent’s Article and Mr Musk’s response. Some employees of these Singapore news outlets would have downloaded and accessed the Article in order to publish these articles.

(b) An email dated 16 November 2023 from EightBar Collective, an advertising agency representing IBM, contained a hyperlink to the Article. Some EightBar Collective employees would have downloaded and accessed the Article in Singapore before writing that email.

109 The Respondent contended that there was insufficient evidence to make out publication in Singapore, and the only evidence of publication was in the US. ⁴⁹ With regard to Mr Foo’s evidence that at least 54 users in Singapore had accessed the Article, this was a bare assertion that was unsupported by any evidence or explanation as to how this information was derived. Furthermore, the fact that users based in Singapore may have interacted with Mr Hananoki’s X Post (which contained a hyperlink to the Article) did not necessarily mean that they must have accessed and downloaded the Article linked in the post. Mr Foo’s affidavit did not even explain what an “interaction” meant and how the X Group had derived this data. ⁵⁰

110 The facts relied on by the Appellant were also insufficient for the court to infer publication in Singapore as:

(a) All the articles featured by the Singapore news outlets were syndicated, ie, they were not written by reporters from The Straits Times, Business Times, Channel News Asia or Today Online. There was therefore no basis for the court to infer that some employees of these local news outlets would have downloaded and accessed the Article in Singapore in order to publish these articles. ⁵¹

(b) The email from EightBar Collective containing the hyperlink to the Article was sent by its New York office. The Appellant could point to no other evidence to suggest that the Article must have been downloaded and accessed by some EightBar Collective employees in Singapore. ⁵²

111 The Respondent also raised a new argument before me on appeal. Relying on the “separate tort thesis”, which posits that each publication of offending material amounts to a separate cause of action, the Respondent argued that even if the Appellant had made out a good arguable case of publication to 54 users in Singapore, the Appellant could not rely on publication to these 54 anonymous users to ground its claim for special damages of US$26,650,938 (the amount of revenue loss the Appellant claimed it suffered as a result of the pause in advertising by Apple and IBM). ⁵³ Taking a novel formulation of the “separate tort thesis”, the Respondent suggested at the appeal hearing that the Appellant needed to make out a good arguable case that the Article was published to Apple and IBM before it could make out its claim for such damages. ⁵⁴

112 I first address the Respondent’s contention that the Appellant had to show evidence of publication to Apple and IBM to “ground” its claim for special damages.

113 To my mind, this represented a misconception of the “separate tort thesis” as it conflated the separate elements of publication and damage. While the “separate tort thesis” provides that each publication is a separate cause of action, and there is authority for the proposition that this applies to both claims for defamation and malicious falsehood (Maag, Daniel v Lalit Kumar Modi [2025] 3 SLR 1093 (“Daniel Maag”) at [72]), it does not follow from this that a claimant must establish publication to specific third parties before it can mount a claim for special damages. The element of publication for both causes of action only requires that the offending material be published to third parties. The cause of action is complete once this is made out and the other elements of the torts (see [49]–[50] above) are satisfied. Whether a claimant can claim any special damages it has pleaded depends on whether it is able to successfully prove that these damages flowed as a direct and natural result of the publication: Low Tuck Kwong at [108]. This is a separate inquiry and is not necessarily dependent on the publication having been made specifically to those parties who were responsible in one way or another for the losses that were claimed as special damages.

114 Having said that, I agree with the Respondent that the Appellant’s case fell short of establishing a good arguable case of publication in Singapore.

115 While a good arguable case does not require a claimant to make out its case on the balance of probabilities, the claimant must do more than establish a prima facie case; it must have the better of the argument: Vinmar Overseas at [45]. The fact that a court hearing an application for leave will not attempt to try disputes of fact on affidavit does not mean that a claimant can simply rely on bare assertions to be made good later, as it still bears the burden of proof at the inter partes stage: Shen Sophie at [83]. Indeed, a claimant who relies on bare assertions to make out its case on a disputed issue of fact runs the risk that, having regard to the surrounding facts and evidence, a court may find that its evidence is so incomplete or lacking that it does not in fact have the better of the argument. That was exactly the case for the Appellant here.

116 Dealing first with Mr Foo’s direct evidence that the X Group’s review of its user data showed that 54 users in Singapore clicked on the hyperlink in the X Post to access the Article in the six-month period following its publication, I agree with the Respondent that the AR erred in accepting this as sufficient evidence of publication in Singapore.

117 As I have noted earlier, Mr Foo’s first affidavit dealing with this issue was vague and somewhat misleading. His initial evidence suggested that the X Group’s data indicated that the Article was published to at least 183 users in Singapore since he stated unequivocally that “at least 183 users based in Singapore […] had clicked on the Webpage” [emphasis added]. ⁵⁵ Confronted with the inconsistency between this number and his statement that the Article was accessed 54 times, Mr Foo then had to explain in his further affidavit that what he meant was that the hyperlink appeared to at least 183 times to users in Singapore. ⁵⁶

118 It is self-evident that this clarification substantially changed the complexion of his evidence on this point. The appearance of a hyperlink to a particular number of users does not inexorably lead to the conclusion that the same number of users must have clicked on the hyperlink to access the Article. Just as there is no presumption that Internet material that is made available to users in Singapore has been published in Singapore (Qingdao Bohai at [136]–[137]), this court cannot presume, from the “appearance” of a hyperlink, that someone must have clicked on the hyperlink to access the material. Mr Foo’s first affidavit had elided the first and second components of publication.

119 Leaving aside this discrepancy, there are other fundamental concerns with Mr Foo’s evidence on publication in Singapore. Nowhere in his affidavits did Mr Foo make any effort to explain the source of the user data he had relied on (beyond simply stating that it was from the X Group), how this data was derived, his own role in the Appellant and his technical competencies, and the steps he took to verify that this data was accurate. It was not even clear whether Mr Foo had reviewed and verified the raw data such that his evidence was based on his personal knowledge, or whether he had simply accepted the findings presented to him by an unidentified entity in the X Group as being true to the best of his knowledge, information and belief. All of this would be highly relevant for the court to decide whether his evidence was sufficient to discharge the Appellant’s burden of showing a “good arguable case”. Despite the fact that Mr Foo was given the opportunity to adduce further evidence on appeal to clarify his evidence on the X Group’s review of its user data in SUM 137, he did not address these important gaps.

120 My concerns were compounded by the complete lack of documentary evidence or other material to support Mr Foo’s assertions. Mr Foo’s evidence on this point amounted to nothing more than a bare assertion. Counsel for the Appellant argued that it would be unreasonable to require the Appellant to adduce third party evidence at the leave stage, the implication being that this court should consider any such supporting material “third party evidence” as it would have to come from some other entity in the X Group.

121 What is clear is that the burden is on the Appellant to make out a good arguable case of publication in Singapore: Qingdao Bohai at [38]. In cases where it has relied on certain data to make specific assertions of fact, it is incumbent on the Appellant to present sufficient evidence of the said data to discharge this burden, rather than just rely on bare conclusions. In any case, counsel could not credibly suggest that this was third party evidence in the sense that it was not in the Appellant’s control or that the Appellant would have been put to additional expense or inconvenience to obtain this information.

122 First and foremost, the data must have been in the Appellant’s possession, since it was the Appellant’s case that it had relied on this data to arrive at the conclusions stated in Mr Foo’s affidavits, which he had affirmed were true to the best of his knowledge, information and belief. ⁵⁷ Even if the data was not (or was no longer) in the Appellant’s possession, counsel had taken pains to emphasise repeatedly (in the context of the forum conveniens analysis) that the Appellant was a member of the X Group and witnesses from other entities in the X Group would be forthcoming when it came to giving evidence in support of the Appellant’s case in Singapore. There was therefore no reason why the Appellant would have encountered any difficulty obtaining this supporting information and presenting it to the court.

123 The Appellant suggested that there was no reason for the court to disbelieve Mr Foo’s evidence. But this required two separate leaps of faith: (a) faith in Mr Foo’s personal knowledge of the matters he had deposed to; and (b) faith in the reliability of the X Group’s data itself. On (a), there was simply no basis for me to find that Mr Foo was in any position to provide credible evidence on this point. There was no evidence on affidavit, aside from stating his occupation as “Director of the [Appellant]”, as to Mr Foo’s role and technical competence, how he came to be satisfied that the information was true and accurate, or that he had even seen the underlying data. As for (b), the absence of any supporting evidence to substantiate the assertion prejudiced the Respondent’s ability to challenge the reliability of the information generated by the X Group, since there was no meaningful data by which the Respondent could test Mr Foo’s conclusions.

124 That the X Group’s systems are not infallible was made clear by the invoices which the Appellant adduced in these proceedings. In support of its case that it had previously earned substantial advertising revenue from clients like IBM and Apple prior to the publication of the Article, Mr Foo exhibited copies of the relevant invoices issued by the Appellant to the advertising agencies of IBM and Apple from October to November 2023 (just before the Respondent’s Article was published). ⁵⁸ However, the Respondent pointed out at the appeal hearing that, contrary to Mr Foo’s evidence, the invoices that were exhibited (which were, on their face, dated October and November 2023) could not have been issued by the Appellant in 2023 because the remittance details stated in each of the invoices indicated that the amounts due were payable to the account name: “X Asia Pacific Internet Pte Ltd”. The Appellant only changed its name to X Asia Pacific Internet Pte Ltd on 14 April 2025. ⁵⁹

125 Faced with yet another discrepancy in his evidence, Mr Foo filed a further affidavit shortly after the appeal hearing to explain that the invoices he had exhibited were actually invoices regenerated by the Appellant’s “enterprise system”, which “generates a large volume of such invoices by automatically drawing on various underlying data sources”. ⁶⁰ This was the reason why these invoices from 2023 reflected the Appellant’s name in 2025.

126 For present purposes, it is unnecessary for me to consider whether this explanation should be accepted. What this goes to show is that the X Group’s systems may generate erroneous or misleading information that Mr Foo himself is not aware of. In the absence of more detailed explanations as to how the X Group had generated and reviewed its user data to arrive at the conclusions Mr Foo made, and what that data actually stated, it would not be safe for the court to rely solely on the Appellant’s bare assertions to make out a case for publication in Singapore.

127 The same concerns apply to the Appellant’s reliance on Mr Foo’s assertion that at least 7,455 users based in Singapore had interacted with Mr Hananoki’s X Post, which contained a hyperlink to the Article. Moreover, the Appellant did not explain what the X Group’s data counted as an “interaction” (ie, whether a simple reaction or repost would constitute an interaction, or whether its metrics required a user to also click on the hyperlink to the Article in the post before this was counted as an interaction). The Appellant’s written submissions on appeal suggested the former, since the Appellant invited me to infer from the 7,455 interactions that a portion of these Singapore-based users would have accessed and read the Article in Singapore. But there was simply no basis for me to draw the inference the Appellant sought. Just as there is no presumption that online material made available to users in Singapore must have been published in Singapore, there is also no reason to presume that users who interacted with a post (in the sense of reacting to or reposting it) must have accessed a link that appeared in the same post since they could equally have been reacting to the post itself.

128 Before turning to consider Appellant’s indirect evidence of publication in Singapore, it is useful to keep in mind the relevant background and context of the Article. The Respondent is Media Matters for America, a US-based non-profit that focuses on monitoring, analysing and correcting misinformation in the US media. ⁶¹ The Appellant did not seriously dispute that the Respondent’s articles are primarily designed for a US audience, and there is no assertion that the subject Article containing the Offending Statements was any different. While this does not preclude the possibility of publication in Singapore since a sufficiently newsworthy piece on a US-focused website may well attract international attention, including attention from persons in Singapore, the observations of the Court in Qingdao Bohai at [137] would apply with similar force in the present case. In this context, the Appellant ought to have set out a sufficiently cogent substratum of fact to support the inference that the Offending Statements must have been published in Singapore.

129 The Appellant relied on two material facts to infer publication in Singapore. First, as The Straits Times and other Singapore news outlets had published articles about the Article and Mr Musk’s response, the Appellant argued that it could be inferred that some reporters of these Singapore news outlets must have downloaded and accessed the Article in Singapore. On this point, I agree with the AR that it would not be safe to draw such an inference.

130 The Straits Times article was attributed to Reuters and indicated that the story was reported from New York. ⁶² The Business Times article was also syndicated and attributed to AFP. ⁶³ Although the articles in Today and Channel News Asia did not explicitly suggest a syndicated source, they were clearly reproduced from the same Reuters piece, as their contents were word-for-word identical to the article published in The Straits Times. ⁶⁴ The Today article included the additional information that the news story was reported by two reporters in Bengaluru. ⁶⁵ Without any indication that the contents of any of these news articles were written by any members of the Singapore press, there is no basis for me to infer from the publication of these articles that some reporters in Singapore must have read the originating Article published by the Respondent.

131 The Appellant also raised a secondary argument that these Singapore news articles had republished the Offending Statements. Having regard to the contents of the said articles, I agree with the Respondent that they did not amount to a republication of the Offending Statements. First, the only references to the Respondent’s Article were essentially restatements of Offending Statement 2, viz, that the Respondent had found advertisements from IBM, Apple and others placed alongside content promoting Adolf Hitler and the Nazi Party. Read on its own and shorn from the context of the rest of the Article, this statement did not necessarily carry the same defamatory meaning that it did in the Respondent’s original publication. More importantly, the articles also carried the responses from X Corp and Mr Musk to the Respondent’s publication, including the assertion that the Respondent had created an alternative account designed to “misinform advertisers” about their posts. Even if the statement alone would have been considered defamatory when considered in a vacuum, reading this in context and together with the responses would have effectively neutralised the sting of any defamatory meaning: Terrence Fernandez v Lim Shao Ying Genevieve [2020] SGHC 278 at [40]; Gatley at para 3-031.

132 The final prong of the Appellant’s case for inferring publication in Singapore rested on the 16 November 2023 email from IBM’s advertising agency EightBar Collective, which contained a hyperlink to the Article. Unfortunately, the Appellant’s case on this was even more tenuous, because the actual email which the Appellant relied on was clearly sent from EightBar Collective’s New York office. ⁶⁶ When this was pointed out to counsel for the Appellant during the appeal hearing, he sought to rely on another “related email thread” to argue that there must have been an employee from EightBar Collective in Singapore who would have seen the Article before they gave instructions to cease advertising on the X platform.

133 However, the “related email thread” contained no discussion about the Article, let alone a hyperlink to the Article itself. While the email chain did contain an email from an EightBar Collective employee, all it stated was that IBM was pausing advertising on the X platform due to the “brand safety concern”. This was a reference to the X Group’s earlier email in the same chain, highlighting “brand safety news around X which you might be aware of”. Although the email from Ms Amanda Soh (who signed off as “Client Partner”) dated 20 November 2023 reproduced a statement that “X opposes all forms of discrimination including anti semitism [sic]” and the “product team is currently investigating the allegations made by Media Matters […] which takes some time”, there was no hyperlink to the Article itself, and only a link to what appeared to be Ms Yaccarino’s public post. ⁶⁷ More critically, the EightBar Collective employee corresponding with Ms Soh did not make reference to the Article itself. It would be a leap for the court to infer from these vague allusions that someone from EightBar Collective in Singapore must have read the source Article before sending that email.

134 Even if I was prepared to draw such a far-fetched inference, I would add that the Appellant failed to provide any evidence to suggest that any of the EightBar Collective employees in this email chain were even located in Singapore. In fact, the Respondent pointed out that Mr Salim Pathan, the EightBar Collective employee whom counsel for the Appellant suggested (as evidence from the Bar) was based in Singapore, ⁶⁸ appeared to be based in the UK, based on the contact phone number listed in the Insertion Orders exhibited by the Appellant. ⁶⁹

135 In sum, I find that the Appellant has not presented sufficient direct or indirect evidence to make out a good arguable case that the Offending Statements were published in Singapore. This has implications beyond the narrow confines of paragraph 63(3)(f)(i) of the Practice Directions. Establishing where publication took place is also critical for locating the place of the torts, which will be important for the purposes of the forum conveniens discussion below.

136 My finding that the Appellant had failed to establish publication in Singapore left its case for a sufficient nexus to Singapore hinging on paragraph 63(3)(f)(ii) of the Practice Directions, which applies where the claim is wholly or partly founded on, or is for the recovery of damages in respect of, damage suffered in Singapore caused by a tortious act or omission wherever occurring.

137 The Appellant’s claim for recovery of general damages in respect of its claim for defamation was premised on its case for publication in Singapore, as reputational damage in Singapore would follow from any such publication. ⁷⁰ In addition, the Appellant also claimed to have suffered special damages in the form of lost advertising revenue from major clients. ⁷¹ As the X Group’s contracting party for advertising in the Asia-Pacific region, clients contracted with and paid the Appellant for the purchase of advertising space on the X platform. As these contracts were either paused or cancelled as a direct result of the Respondent’s publication of the Offending Statements, the Appellant had suffered a loss of the advertising revenue which it would have earned but for the Respondent’s actions. ⁷² This damage, which the Appellant quantified in its Statement of Claim to be US$12,935,231 (as at 15 May 2024, ⁷³ and later revised to US$26,650,938 as at 9 December 2024), ⁷⁴ was suffered in Singapore as the Appellant was a Singapore-incorporated company and the advertising revenue would have been paid into the Appellant’s Singapore bank account. ⁷⁵

138 The Respondent contended that the Appellant could not claim any reputational damage suffered in Singapore as there was no publication in Singapore. ⁷⁶ As for the claim for special damages, the Respondent argued that there was no meaningful evidence of such damage being suffered in Singapore as: (a) there was no evidence that invoices to Singapore advertisers were unpaid or cancelled; (b) the invoice totals suggested that the amounts invoiced to at least one advertising agency in Singapore (OMD Singapore, the advertising agency for Apple Marcom SEA) actually increased in November 2023; and (c) the available evidence suggested that the pause in advertising was directed from Apple and IBM’s US headquarters. ⁷⁷

139 Given my earlier finding that the Appellant has failed to make out a good arguable case of publication in Singapore, it follows that the Appellant cannot rely on publication in Singapore to establish reputational damage in Singapore. However, I am satisfied that the Appellant has made out a good arguable case of special damages suffered in Singapore.

140 Dealing first with the Appellant’s evidence that it had contracted with agencies representing clients such as Apple and IBM for the purchase of advertising space on the X platform, I had at [124]–[125] above alluded to an irregularity in the client invoices which the Appellant produced. Having considered Mr Foo’s belated explanation and his production of the original 2023 invoices reflecting the correct account payee name, ⁷⁸ I am prepared to accept that nothing turns on the discrepancy in the account name in the invoices that were previously adduced. The original 2023 invoices substantiate the Appellant’s contention that, prior to the publication of the Respondent’s Article, clients such as Apple and IBM had been placing substantial advertising orders with the Appellant.

141 This then was the state of the evidence before me:

(a) The Appellant is a Singapore-incorporated company.

(b) The Appellant is the entity through which the X Group contracts with advertising clients in the Asia-Pacific region to place advertisements on the X platform.

(c) Clients, including agencies representing Apple and IBM, had executed contracts with the Appellant for advertising on the X platform prior to the publication of the Article.

(d) Payments from these clients would have been made to the Appellant’s Singapore bank account.

142 The Respondent did not seriously dispute that there was sufficient evidence to show that Apple and IBM had directed a global pause in advertising on the X platform shortly after the Article was published. In fact, the Respondent itself highlighted in its updates to the Article on 16 and 17 November 2023 that IBM and Apple had announced that they had paused all their advertising on the X platform. ⁷⁹ Regardless of whether these instructions came from their global headquarters in the US or some other place, the Respondent cannot deny that the complete pause of advertising on the X platform would have affected the Asia-Pacific region, which would in turn have impacted the Appellant’s advertising revenue in Singapore. The starting position is that, in the absence of contrary evidence, it can be assumed that the damage is suffered where a corporate entity is incorporated: MAN Diesel & Turbe SE v IM Skaugen SE [2020] 1 SLR 327 (“IM Skaugen (CA)”) at [78].

143 The AR found against the Appellant on this point as he noted that there was limited evidence of any contract with advertising clients in Singapore, and no evidence that invoices issued to entities located in Singapore had been unpaid. With respect, this misses the point. It is not necessary for the Appellant to show that it had lost clients in Singapore. If there was indeed a pause in global advertising which affected the Asia-Pacific region, then regardless of where those clients may have been located, any loss would have been suffered by the Appellant in Singapore, since the Appellant was a Singapore-incorporated company that was in charge of booking advertising revenues for the region, and payment under the relevant invoices would have been made to the Appellant’s account in Singapore.

144 As for the AR’s point that there was no evidence to suggest that any of the issued invoices were unpaid, this misapprehended the entire thrust of the Appellant’s case. The Appellant’s claim was not that any previously issued invoices went unpaid, but that it had lost the chance to earn future advertising revenue because the Respondent’s publication had caused major clients to pause or cancel their advertising on the X platform. The fact that invoices issued in October and November 2023 were paid does not detract from this.

145 The Respondent’s suggestion that there was no loss of revenue because the November 2023 invoice for OMD Singapore recorded a higher amount than the invoice for October 2023 is also neither here nor there. The Respondent’s Article was published on 16 November 2023, when half the month of November (and the requisite advertising for that period) had already elapsed. The slight increase in invoice amount does not necessarily mean that the Appellant did not suffer any loss in future advertising revenue following publication.

146 In truth, the gravamen of the Respondent’s complaint was that the Appellant had failed to provide sufficient evidence of the extent of the special damages it claimed, or that such damages were in fact a direct and natural result of the publication of the Offending Statements (and not due to other reasons). These are matters of evidence going to causation which are best left for trial. For present purposes, given the timing of the global pause in advertising and the evidence showing that these same clients had been placing substantial advertising orders with the Appellant shortly before the publication of the Article, I am satisfied that the Appellant has made out a good arguable case that it had suffered damage in Singapore arising from its potential claims in defamation and malicious falsehood. This is sufficient for the Appellant to demonstrate that its claims have a sufficient nexus to Singapore.

147 The next step in the inquiry is for the Appellant, as the claimant seeking permission to serve the claim outside Singapore, to demonstrate that Singapore is the proper forum for its claims: Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 at [71]–[76].

148 By the time the appeal was heard, the Respondent’s proceedings against the X Parties in the California Court had been discontinued while the X Group’s proceedings in Ireland had resumed but remained at the jurisdictional stage. X Corp’s action in the Texas Court is the only parallel proceeding that is progressing towards trial, which has been scheduled in March 2027.

149 The Appellant disputed the AR’s finding that the US was the more appropriate forum to adjudicate the dispute, as the Appellant contended that the relevant connecting factors pointed towards Singapore as the forum conveniens. First, Singapore was the place with the closest connection to the relevant events and transactions, as the Offending Statements had been published in Singapore and the Appellant had suffered damage in Singapore. ⁸⁰ Second, Singapore law was the applicable law governing the Appellant’s claims, as the place of commission of the torts of defamation and malicious falsehood was the place of publication, which was Singapore. ⁸¹ Third, the location of the parties was a neutral factor as the Appellant is located in Singapore while the Respondent is located in the US. ⁸² Fourth, the availability of witnesses pointed towards Singapore, the key consideration being the compellability of third-party witnesses such as the advertising agencies that the Appellant contracted with (OMD Singapore Pte Ltd and Mindshare Singapore), which were based in Singapore. In this regard, employees of other entities in the X Group which actually operated the X platform should not be considered third party witnesses as “the relevant employees of the X Group are in the control and employ of entities related to the [Appellant], and are therefore not subject to the usual concerns regarding the availability of third party witnesses”. ⁸³ Finally, the ongoing Texas Proceedings did not point away from Singapore being the forum conveniens: while the underlying factual matrix was the same and there were admittedly overlapping issues, the Appellant was not a party to the Texas proceedings. OC 556 was the only legal proceeding brought by the Appellant to recover loss and damage suffered in Singapore. ⁸⁴

150 The Respondent sought to affirm the AR’s finding that the courts in the US were clearly and distinctly the more appropriate fora to adjudicate the Appellant’s claims. ⁸⁵ The place of the tort is prima facie the natural forum, and the place where, in substance, the Appellant’s causes of action arose was the US. ⁸⁶ This was where the Offending Statements were published and where the Respondent and Mr Hananoki had (according to the Appellant) conceptualised and implemented their plan to contrive the strategic placement of the advertisements. US law was therefore the lex loci delicti. ⁸⁷ As the X Group was based in the US, the Respondent was located in the US, and the decisions to pause advertising by Apple and IBM were taken by their global headquarters in the US, the majority of the relevant witnesses and evidence was also located in the US, making resolution in the US courts more convenient and cost-effective. ⁸⁸ Finally, there was a multiplicity of proceedings and substantial overlap between the issues in the Texas Proceedings and the Singapore claims. ⁸⁹ Both actions were part of the X Group’s global litigation campaign against the same defendant, predicated on the same Article and the same alleged effect on the same advertisers. ⁹⁰

151 The starting point of the forum non conveniens analysis is the first stage of the test set out in Spiliada Maritime Corporation v Cansulex Ltd [1981] AC 460 (“Spiliada”). At this stage, the court considers whether there is another available forum which is clearly or distinctly more appropriate than Singapore. In answering the question, the court looks to those connections that have “the most relevant and substantial associations with the dispute”, with the ultimate objective of identifying a jurisdiction where the case may be tried more suitably for the interests of all parties and for the ends of justice: Rappo, Tania v Accent Delight International Ltd [2017] 2 SLR 265 (“Tania Rappo”) at [70]–[72].

152 Parties were in agreement that the AR had correctly identified the relevant connecting factors in this case as follows:

(a) the place of the torts;

(b) the governing law of the dispute;

(c) the location of the parties;

(d) the availability of witnesses and documents;

(e) the existence of proceedings elsewhere; and

(f) the overall shape of the litigation.

153 I take each of these in turn, bearing in mind that in light of my findings above, the search is for the appropriate forum to try the Appellant’s claims for defamation and malicious falsehood in respect of an article that was researched, written and published from the US concerning a social media platform that is operated in the US, but which caused the Appellant to suffer damage in Singapore.

154 The place of the tort is prima facie the natural forum for the dispute: Chan Chin Cheung v Chan Fatt Cheung [2010] 1 SLR 1192 at [31]. For a claim in defamation, it is well-established that the place of the tort is the place in which the defamatory statements were published (ie, where the second component of publication takes place), as that is where the damage to the claimant’s reputation is suffered: Qingdao Bohai at [39].

155 The position with respect to a claim in malicious falsehood is less clear-cut. While I can see some merit to the Appellant’s contention that the place of the tort of malicious falsehood should also be the place of publication given the similarities between both causes of action, I do not think that the place of the tort for malicious falsehood necessarily follows that for defamation.

156 Going back to first principles, a claim in defamation exists to vindicate damage to the claimant’s reputation. The cause of action is complete once publication of the offending statement is established as reputational damage is presumed to flow from publication and the claimant need not establish actual loss or damage to their reputation: Foo Diana v Woo Mui Chan [2025] 4 SLR 95 at [19]. It follows from this that the place where the substance of the tort arose must be the place in which the offending statements were published, as that is where the damage to the claimant’s reputation is suffered.

157 In contrast, the tort of malicious falsehood is of an entirely different character and seeks to protect a different interest from the tort of defamation: Low Tuck Kwong at [99] and [104]. The tort of malicious falsehood arises where a defendant publishes words which may not be defamatory but are false, which he knows or ought to know would cause special damage to the plaintiff, and he does so intending that such damage should follow or is recklessly indifferent as to whether such damage would follow or not: Low Tuck Kwong at [104], citing W Black Odgers and Rober Ritson, A Digest of the Law of Libel and Slander and of Actions on the Case for Words Causing Damage (Stevens and Sons, Limited, 6th Ed, 1929) at p 66.

158 It has been said that the “true legal aspect” of the tort may be described as being an “[action] for unlawfully causing damage”; and it is for this reason that “damage is the gist of the action”: Low Tuck Kwong at [104], citing The Royal Baking Powder Company v Wright, Crossley & Co (1901) 18 RPC 95 at 104. Thus, unlike defamation, the cause of action is not complete upon publication of the offending statements, as proof of special damage is still required for a claim of malicious falsehood to be made out (unless the conditions in s 6(1) of the Defamation Act 1957 are satisfied).

159 The general test to determine the place of a tort is to “look at the events constituting the tort and ask where, in substance, the cause of action arose” (the “Substance Test”): JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391 at [90]. Since damage lies at the heart of the tort of malicious falsehood, the Substance Test would generally point to the place where the damage is suffered as the place of the tort.

160 This is supported by the judgment of the Queen’s Bench in Qatar Airways Group QCSC v Middle East News FZ LLC [2020] EWHC 2975 (QB) (“Qatar Airways”). In this case, the claimant, the owner and operator of Qatar’s flag carrier, filed a claim against the defendants in respect of a video produced and broadcasted by the Arabic news channel Al Arabiya concerning the economic blockade imposed on Qatar by its neighbouring states in June 2017. The video alleged that even though flights operated by Qatar Airways in the Middle East could pass along permitted air corridors, there was a real danger that these flights might still legitimately (under international law) be shot down or forced down by threat of force. The video understandably raised concerns about the safety of Qatar Airways’ flights in the region, and the claimant alleged that it suffered large-scale losses worldwide, including in the UK.

161 In considering the applicable law to the claimant’s main claim, which was for malicious falsehood, Saini J noted at [378]:

162 The above extract suggests that for a claim in malicious falsehood, the applicable law, which follows the place of the tort, will generally be the law of the place where the loss was suffered.

163 There is however one exception which Saini J alluded to, and that arises from the distinction between cases where s 3 of the UK Defamation Act 1952 (in pari materia to s 6(1) of our Defamation Act 1957) is relied on and where it is not. Where actual special pecuniary loss is claimed, the cause of action for malicious falsehood is not completed by publication but by the consequential loss. Where s 3 of the UK Defamation Act 1952 is relied on, however, the cause of action is completed by publication: Qatar Airways at [322].

164 Section 6(1) of the Defamation Act 1957 provides:

165 This suggests that where recourse is had to the statutory provision to complete the cause of action, the place of the tort would be the place of publication as proof of special damage is unnecessary in that context. This makes good sense, as the tort in these circumstances is complete at the point of publication. Applying the Substance Test to this scenario, the place of publication would naturally be the place of the tort. In all other cases, however, as the tort of malicious falsehood is only completed by the consequential loss, the place of the tort would most likely be the place where the loss is suffered.

166 In the present case, the Appellant has pleaded special damages and not relied on s 6(1) of the Defamation Act 1957 to make out its claim in malicious falsehood. Given my earlier findings that the Appellant has failed to make out a good arguable case of publication in Singapore but has successfully established special damage suffered in Singapore, it would appear that the place of the tort pulls in different directions for the Appellant’s separate claims in defamation and malicious falsehood. While the place of the tort for the purposes of the claim for defamation is the US as the place of publication, the place of the tort for the claim in malicious falsehood is likely to be Singapore.

167 This was also a neutral factor, as the lex loci delicti of the Appellant’s two different claims in tort similarly point in separate directions. The lex loci delicti for the claim in defamation was US law as the place of publication, while the governing law for the claim in malicious falsehood was Singapore law as the place where special damage was suffered.

168 The AR had found that this connecting factor pointed to the US, as the Respondent and X Corp are based in the US, the X Group is headquartered in the US, and the Appellant, despite being a Singapore-incorporated entity, is also “ordinarily resident” in the US. It appears that in arriving at this conclusion, the AR was persuaded by the Respondent’s argument that, despite being incorporated in Singapore and having a place of business and bank account in Singapore, “the central management, command and control of the [Appellant] is exercised from the United States”. ⁹¹

169 It is not clear to me if the introduction of concepts such as “ordinary residence” are useful in the present context. While “[t]he residency of a company is where the central management and command or control of the company is exercised” (Cheong Jun Yoong v Three Arrows Capital Ltd [2024] 4 SLR 907 at [43]), locating a company’s “central management” may not always be straightforward, especially when dealing with subsidiaries which are part of large multi-national groups. The AR did not explain how he came to conclude that the Appellant’s central management, command and control was exercised from the US. If the sole basis for this finding was that the Appellant is a wholly-owned subsidiary of X Corp, this would suggest that all subsidiaries are ordinarily resident in the place of the parent company’s headquarters since that would be where “central management, command or control” is exercised. This cannot be correct, as it would undermine the fundamental precept that each company is a separate legal entity. Ultimately, each case must be analysed on its facts. In situations such as the present, it is entirely possible that the central management of the Appellant is exercised partly in Singapore (by the Appellant’s board or management personnel) and partly by its parent company in the US.

170 Rather than entirely disregarding the Appellant’s place of incorporation and place of business, I find it more appropriate to conclude in the absence of contradictory evidence that the Appellant is located in Singapore, but hold that its geographical location is not a particularly strong factor in this context. At the end of the day, identifying the location of the parties for the purpose of the forum conveniens analysis is not an end in itself, but rather a means of identifying where the dispute should more appropriately be heard in the interests of justice. While the location of the parties would ordinarily be indicative of the relevant court before which the claim should be tried for reasons of convenience, expense and efficiency, this is only a starting presumption that may be rebutted if the facts suggest that this factor may not be significant in the particular context of the case.

171 This was precisely the case here. In disputes involving well-heeled parties with a high degree of mobility, the location of the parties may carry little legal significance: Tania Rappo at [71]. Although the Appellant is incorporated in Singapore and has a place of business in Singapore, as part of a large and well-financed multinational corporate group, it clearly has the requisite resources to navigate the intricacies of a foreign legal system, especially with the support of its parent company which is based in the US. The Respondent, as a non-profit organisation based solely in the US, is in a weaker position when it comes to resources, and it claims to have had to lay off many employees as a direct result of the X Group’s litigation. ⁹² Nevertheless, there has been no suggestion that the Respondent has faced any difficulty in vigorously defending its position in these proceedings thus far in Singapore. The present situation is but another instance of the general expression that in a cross-border dispute, where parties are resident in different jurisdictions, the parties’ connections as a connecting factor would simply be neutral: Welton International Enterprises Pte Ltd v Averis Pte Ltd [2026] SGHC 34 at [79]. As such, I do not find the location of the parties to be a significant factor in this case.

172 In my assessment, the forum conveniens analysis turns on the remaining connecting factors.

173 The shape of the litigation refers to the manner in which the claim and defence have been pleaded: Tania Rappo at [71].

174 In considering the shape of the litigation, the court’s task is not restricted to an analysis of the claim (in terms of causes of action) and relief sought by the claimant. The Court must have regard to the totality of the dispute, including where necessary the defendant’s answer to the claim: Qatar Airways at [349]. The court should pay particular attention to “what are, or what are at least likely to be, the issues between the parties and which will ultimately be required to be determined at any trial”: Mujur Bakat Sdn Bhd v Uni.Asia General Insurance Bhd [2011] Lloyd’s Rep IR 465 at [9].

175 I note that while the Appellant’s claims in defamation and malicious falsehood are technically separate claims, neither party suggested the possibility that the claims should be divorced and tried in separate courts. This must be correct, since the underlying factual matrix for both claims was exactly the same, and both claims were concerned with the recovery of damages suffered in Singapore arising from the publication of the Article. Both causes of action also engage relatively similar issues relating to meaning, reference (to the claimant), publication and damage.

176 Importantly, a central feature of the case will be whether the Appellant is able to establish that the Respondent had deliberately engineered the placement of the advertisements next to pro-Nazi content and how this was allegedly accomplished. This goes to falsity and malice for the claim in malicious falsehood, and also impacts the Respondent’s proposed defences for the claim in defamation. While the Respondent has not filed a substantive defence at this stage, it has indicated that justification will be one of its potential defences. ⁹³

177 The Appellant’s claims arose from statements that were researched, written and uploaded for publication in the US, concerning the workings of a social media platform that was operated from the US. Insofar as the crucial factual issue at the heart of the Appellant’s pleaded case lies in the steps taken by the Respondent to bypass the X platform’s content moderation tools, ⁹⁴ these acts would all have taken place in the US, since this is the only jurisdiction in which the Respondent, and presumably Mr Hananoki, operate. This demonstrates how the Appellant’s claims – despite being limited to claims for damage suffered in Singapore by a Singapore-incorporated entity – bear very close links to the US.

178 It is evident from the facts and pleadings that the vast majority of the relevant witnesses and documentary evidence will be located in the US.

179 The Appellant concedes that it plays no role in operating the X platform. ⁹⁵ How the X platform’s algorithms and content moderation controls work, and how they were bypassed, will be a critical factual issue, and this evidence will have to come from the X Group’s employees and engineers based in the US. The X Corp employees who conducted investigations into the Respondent’s activity on the X platform are also based in the US, and the parties to the Texas Proceedings have agreed to review the X platform’s source code in the US. ⁹⁶

180 On the Respondent’s part, evidence as to whether and how Mr Hananoki and the rest of the Respondent’s employees had planned, researched, published and promoted the Article would be located exclusively in the US.

181 I accept that employees of both the X Group and the Respondent may be willing to voluntarily come to Singapore to take part in these proceedings given that they are within the employ or control of the parties to this action. However, this is subject to two important caveats. First, it is evident from the Respondent’s affidavit dated 28 May 2026 that many of the material witnesses involved in the operation of the X platform and its brand safety department at the material time have in fact left X Corp’s employment, including Ms Yaccarino. ⁹⁷ As these witnesses had to be subpoenaed to be deposed in the Texas Proceedings, there is no basis for the Appellant to suggest that they would be willing to travel to Singapore to testify voluntarily. Second, it is undeniable that having so many witnesses fly into Singapore to give such evidence will not only come at great expense but also entail significant time costs. This would place a particular strain on the Respondent, which is a non-profit entity and, unlike the Appellant, not part of a large and well-financed corporate group. While the Appellant chose to commence this action in Singapore, the Respondent was drawn involuntarily into the matter. As such, in this analysis, the court is not overly concerned with the availability of evidence for the claimant’s case, as it is the potential prejudice to the defendant in running its defence that is significant: Ivanishvili, Bidzina v Credit Suisse Trust Ltd [2020] 2 SLR 638 at [86]. Unless there is a sufficiently compelling factor tying the resolution of this dispute to Singapore, it is unclear to me how requiring all of the relevant witnesses to fly into Singapore would serve the fair and efficient resolution of the case. I would add that, given the technical complexity that much of the evidence relating to the operation of the X platform will entail, I do not think that it would be appropriate for this evidence to be taken via video-conferencing technology.

182 What is perhaps most telling is that the Appellant has to date only identified a single employee who will be a material witness for its claims, and this is Ms Amanda Soh, the “Client Partner” who corresponded with EightBar Collective. ⁹⁸ However, her role appears to be largely peripheral to the main issues in dispute, and as counsel for the Appellant had acknowledged at the hearing on 25 May 2026, there was no evidence before me that Ms Soh was even based in Singapore. This underscores the point that the roots of the Appellant’s claims in Singapore do not run deep: in substance, they are limited to the fact that special damage was suffered in Singapore as the Appellant is incorporated in Singapore. Insofar as evidence of this damage would come in the form of email correspondence, invoices and financial statements, these were fairly straightforward documents that could be easily transferred to the US.

183 The Appellant focused on the compellability of third-party witnesses to support its case that Singapore was the appropriate forum for its claims. However, other than OMD Singapore and Mindshare Singapore (which were the local advertising agencies for Apple and IBM respectively), no other potential third-party witnesses in Singapore were identified.

184 This is significant because the Appellant did not deny that the decisions to pause advertising on the X platform by Apple and IBM were taken at the global level. Thus, the key third-party witnesses who would be able to give meaningful and material evidence on the reasons for the pause in advertising would be the employees of Apple and IBM who made those decisions from the companies’ headquarters in the US. Any evidence from their advertising agencies in Singapore would be peripheral to the main issues in dispute as these agencies would simply have been executing decisions taken by their clients (or their clients’ parent companies) in the US.

185 In my assessment, the location of relevant witnesses and other evidence point strongly towards the US as a more appropriate forum.

186 As I have noted at the outset, in addition to the present action, the X Group has mounted similar claims against the Respondent in Texas and Ireland in respect of similar losses flowing from the same Article.

187 The first claim was filed by X Corp in Texas for intentional and tortious interference with contracts between X Corp and its advertisers, the Respondent’s business disparagement regarding the X platform and the Respondent’s tortious interference with prospective economic advantage that X had with its advertisers. The next claim to be filed was the action in Ireland against the Respondent for defamation and malicious falsehood. The present action in Singapore was the last to be commenced. Proceedings were also commenced by the Respondent in California for an injunction against the Irish Proceedings and OC 556, which have since been discontinued.

188 While the Irish Proceedings remain at the jurisdictional stage, substantial discovery has taken place in the Texas Proceedings, multiple depositions have been taken and the matter is progressing towards trial. For present purposes, therefore, the Texas Proceedings are the only material proceedings to be considered.

189 The existence of parallel proceedings is relevant to the forum non conveniens analysis as it gives rise to legitimate concerns of duplication of resources and the risk of conflicting judgments. In considering the weight to be given to the existence of related proceedings in this context, the court assesses the degree to which the respective proceedings have advanced, and the degree of overlap of issues and parties: IM Skaugen (CA) at [154]; Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] 2 SLR 372 at [59].

190 The Appellant accepts that there is a substantial overlap in the issues in the Texas Proceedings and OC 556. ⁹⁹ Save for the fact that the specific losses which are being claimed in the two actions are distinct as they were allegedly suffered by different entities within the X group, the factual matrix underpinning both sets of proceedings is identical. The actions in both Texas and Singapore were filed by X Group entities against the same defendant, ¹⁰⁰ arising from the same types of losses flowing from the publication of the same Article. Although the causes of action in the Texas action are different, the Texas court hearing X Corp’s action will have to grapple with issues such as whether the Article was false and published maliciously, whether and how the Respondent had manipulated the X platform’s content moderation controls, and whether important clients such as Apple and IBM had decided to pause their advertising on the X platform as a direct result of the Article’s publication. A Singapore court hearing the Appellant’s claims for defamation and malicious falsehood would be called upon to determine the exact same issues. The potential duplication of resources and risk of conflicting judgments is therefore significant.

191 The Appellant argued that the existence of the Texas Proceedings should be considered a neutral factor because: (a) both sets of proceedings are still at a pre-merits stage; (b) the Appellant is not a party to the Texas proceedings; and (c) OC 556 is the only action brought by the X Group to seek recovery for damage suffered in Singapore. ¹⁰¹

192 I do not think these points take the Appellant’s case very far. First, it cannot be seriously disputed that the Texas Proceedings are at a much more advanced stage than the Singapore action, which has remained at the jurisdictional challenge stage since its inception. Pursuant to the Texas Court’s Revised Scheduling Order dated 23 April 2026, fact discovery in the Texas Proceedings is to be completed by 6 November 2026, and the trial is expected to commence on 29 March 2027. ¹⁰² Notably, more than 400,000 documents have already been disclosed thus far. ¹⁰³

193 As for the other points raised by the Appellant, I accept that the Appellant is not a party to the Texas Proceedings and is therefore not bound by any findings of the Texas Court. I also accept that the Texas action does not directly concern any damage suffered by the X Group in Singapore. However, this is a direct result of the Appellant’s decision not to join its parent company in that action. Put simply, the X Group is solely responsible for the multiple proceedings.

194 Shortly after the Respondent’s Article was published, Mr Musk had publicly declared that X Corp would be filing a “thermonuclear lawsuit” against the Respondent. ¹⁰⁴ The Texas action was commenced on 20 November 2023, four days after the Article was published, and the Irish action was filed shortly thereafter on 6 December 2023. On 10 December 2023, Mr Musk also stated that the X Group would be suing the Respondent in “every country that they operate”. ¹⁰⁵ Shortly after this, Twitter UK Ltd also threatened to commence an action against the Respondent in the UK, although this never came to fruition. ¹⁰⁶

195 The present action in Singapore was filed on 23 July 2024, more than seven months after the Texas and Irish Proceedings. While it is a claimant’s prerogative to decide where it wishes to vindicate its rights, this is always subject to the court’s overriding discretion to decline jurisdiction if it takes the view that the claims placed before it would be more appropriately tried by another court which is already seised of a similar matter.

196 Bearing in mind the advanced nature of the Texas Proceedings and the substantial overlap in the issues to be determined, I agree with the AR that the existence of these other proceedings point firmly in favour of the Texas Court as the more appropriate forum. In essence, the Singapore-specific factors in this case boil down to the location of the Appellant as a Singapore-incorporated company and the damage allegedly suffered by the Appellant in Singapore. While these are not insignificant, they are far outweighed by the connecting factors pointing towards the US – namely, the fact that the vast majority of the relevant evidence and witnesses are located in the US, and that the Texas Court will soon be considering many key factual issues that substantially overlap with OC 556.

197 It is also important to note that there is nothing to preclude the Appellant from trying its claims before the Texas Court. While the Appellant’s US law expert, Mr Michael Ramsey (“Mr Ramsey”), had initially pointed to a number of jurisdictional and other barriers to the Appellant joining X Corp’s claims in Texas, ¹⁰⁷ these have been substantially addressed by the Respondent:

(a) First, any issues relating to personal jurisdiction in Texas would have been obviated by the Respondent’s undertaking to consent to joining the Appellant and its claims in the Singapore action to the Texas Proceedings. Both Mr Ramsey and the Respondent’s expert, Mr Lee Levine (“Mr Levine”), agree that under Rule 15(a)(2) of the US Federal Rule of Civil Procedure, X Corp’s pleadings in the Texas action can be amended to add a plaintiff and/or additional claims with the opposing party’s consent, and Mr Levine also makes clear that any requisite permission from the Texas court would be granted. ¹⁰⁸

I would add that to the extent that Mr Ramsey suggested that issues with respect to personal jurisdiction may remain as “consent to joinder […] is not necessarily a consent to personal jurisdiction”, ¹⁰⁹ I think the obstacle is more illusory than real. By Mr Ramsey’s own evidence, personal jurisdiction requires that the defendant in a civil case has sufficient contacts with the forum such that it is not unfair to require the defendant to appear in that forum. ¹¹⁰ However, the Texas Court has already assumed personal jurisdiction over the Respondent as defendant in respect of X Corp’s action. Mr Ramsey also accepts that unlike subject matter jurisdiction, personal jurisdiction is waivable by the defendant (ie, the Respondent), ¹¹¹ and it is the Respondent that is pressing for the case to be heard in the US. ¹¹²

(b) The parties’ experts also agreed that the Appellant would not face any issues with regard to limitation, as any joinder of the Appellant and its claims to the Texas Proceedings would allow the joined claims to “relate back” to the initial filing date of X Corp’s claims. ¹¹³

(c) Finally, insofar as forum non conveniens may be an issue for the Texas Court, the Respondent has undertaken to waive any forum non conveniens objections if the Appellant chooses to join the Texas proceedings. ¹¹⁴

198 The Appellant suggested that the Respondent’s undertakings could not be taken at face value as the Respondent had previously applied to transfer the case from the Texas Court to California. ¹¹⁵ Regardless of the merits of the Respondent’s transfer application (which has already been determined), the state of play by the time this appeal was heard before me was that the transfer is no longer in issue. The Texas Proceedings are currently the only ongoing proceedings in the US, those proceedings are progressing towards trial, and the Respondent has undertaken to consent to the joining of the Appellant and its claims in OC 556 to the Texas Proceedings. ¹¹⁶ There is therefore little by way of prejudice to the Appellant in having its claims determined together with X Corp’s claims in the Texas action.

199 On the contrary, this will enable all the issues between the X Group and the Respondent arising from the publication of the Article to be thoroughly examined and determined in a single action in the US, which is where the Article was written, where the X platform is operated from, and also where the Respondent and the X Group headquarters are based. This would avoid unnecessary duplication of resources and be consistent with the Ideals set out in the ROC 2021, which exhort the court to be guided by larger principles including the efficient use of court resources and fair and practical results suited to the needs of the parties: O 3 r 2 of ROC 2021.

200 There was also a suggestion by Mr Ramsey that the undertakings, which were given by the Respondent’s Chief Operating Officer Ms Cynthia Padera, may not be binding on the Respondent, or that a US court may allow the Respondent to renege on its undertakings. ¹¹⁷ I did not consider these objections, which were entirely speculative, to come anywhere close to tilting the balance in favour of a Singapore court assuming jurisdiction over the Appellant’s claims. Any such risk is easily addressed by the Singapore court granting the Appellant liberty to apply if the Respondent does renege on its undertakings and this leads to the Texas Court declining to hear the Appellant’s claims. This would sufficiently safeguard the Appellant’s right to pursue its claims in the Texas Court.

201 The second stage of the test in Spiliada provides that, if the court concludes at the end of the first stage that there is a “more appropriate” forum, a stay will ordinarily be granted, unless the court finds, at the second stage, that there are circumstances by reason of which justice requires a stay be refused, such as if the claimant establishes with cogent evidence that it will be denied substantial justice if the case is not heard in the forum: Tania Rappo at [68].

202 The Respondent pointed out that there is no reported decision applying the second stage of the Spiliada test in a case of service out of jurisdiction under ROC 2021 where the claimant has failed at the first stage. ¹¹⁸ On appeal, the Appellant also focused its submissions on establishing that Singapore was the forum conveniens for its claims. ¹¹⁹ The only substantive point that the Appellant raised that could be relevant to the second stage of the Spiliada test was to suggest that the US courts may refuse to apply Singapore law to the Appellant’s claims as US public policy precludes the application of foreign laws that are less protective of free expression than the First Amendment. ¹²⁰

203 In my assessment, the AR’s analysis here was beyond reproach. He rightly noted that the starting point must be to proceed cautiously before pronouncing that a litigant would be deprived of substantial justice in the foreign forum: Tania Rappo at [110]. To the extent that there were differences between US and Singapore law insofar as defamation and malicious falsehood were concerned, the AR also held that it was not apposite for the Singapore courts to find that the Appellant would be deprived of substantial justice in Texas on account of the difference in laws. ¹²¹

204 In the first place, I do not agree that with the Appellant that Singapore law would be the governing law for both of the Appellant’s claims if Singapore’s choice of law rules were applied (see [167] above). Even if I am prepared to assume this point entirely in the Appellant’s favour, the fact that the Texas Court may refuse to apply Singapore law, or only apply Singapore law with modifications to account for constitutional free speech concerns in the US, is insufficient in itself to ground a finding that the Appellant would be deprived of substantial justice if its claims were tried in Texas.

205 The Appellant’s expert, Mr Ramsey, accepted that the Texas Court will recognise a cause of action for defamation and/or malicious falsehood suffered by the Appellant in Singapore. ¹²² He also acknowledged that the fact that damages may have been suffered outside the US would not be a barrier to establishing a cause of action in Texas. ¹²³

206 Both parties’ experts agreed that it was unlikely that a US court would apply Singapore law without modification as it is likely to contravene existing constitutional protections in the US. ¹²⁴ For example, under the First Amendment as interpreted by the US Supreme Court, the Appellant as claimant has the burden of proving falsity. If the claimant is a public figure, the claimant must also prove “actual malice” by “clear and convincing evidence”. ¹²⁵

207 I accept that the effect of this is that it may be more difficult for the Appellant to succeed in its claims in the US. However, I do not find that this is sufficient to amount to a denial of substantial justice, which is necessarily a high threshold. As the Court of Appeal noted in Tania Rappo at [110], the court must proceed particularly cautiously where the foreign forum operates a well-established and well-recognised system of justice, as the Texas Court certainly does. The court cannot be drawn into making comparisons between the laws of Singapore and that of another friendly state to do justice: The “Reecon Wolf” [2012] 2 SLR 289 at [54]. Any claim that may be tried in another forum will necessarily be subject to the other forum’s choice of law rules and public policy, which may not necessarily point in the same direction as Singapore’s choice of law rules. In the specific context of Internet defamation, it has been observed by the learned author of Dr Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 2nd Ed, 2010) at para 27.21 that “[i]t is unlikely, however, that such matters [ie, juridical advantages denied where the claim in defamation is heard elsewhere] would sway a court to refuse a stay in a case where some other court had the closest connection with the proceeding.”

208 The court in City Spark (Singapore) Pte Ltd v The Outdoor Recreation Group, LLC [2025] SGHC 25, on appeal from an order dismissing an application for a stay of proceedings in Singapore on a defamation claim, found in obiter at [13] that “the fact that the respondent has a legitimate or juridical advantage (if any at all) in Singapore does not mean that the respondent will be subject to a real and material risk of injustice” and that “there is no evidence that the respondent will not be able to obtain a fair trial in the United States.” To the extent that having the claims heard in the Texas Court means that the Appellant may not enjoy some of the juridical advantages that a Singapore court applying Singapore law may offer in the pursuit of its claims, this is not determinative (Rickshaw Investments at [13]), but simply part and parcel of the broader question for this court to consider, which is whether the Texas Court will be able to try the dispute in a manner which is procedurally and substantively fair. To my mind, the answer must be yes.

209 In any case, both parties’ experts accept that even if the Singapore courts are prepared to hear the Appellant’s claims based on Singapore law, any judgment the Appellant may obtain in Singapore will still face the same constitutional hurdles at the enforcement stage. ¹²⁶ This is because the Securing the Protection of our Enduring and Established Constitutional Heritage Act (commonly referred to as the SPEECH Act), a 2010 federal statutory law, prohibits the US courts from recognising or enforcing any foreign judgments for defamation or related claims unless the judgment comports with the protections of the First Amendment and the laws of the relevant state. ¹²⁷

210 Since the Appellant is seeking a substantial sum in damages and it is undisputed that all of the Respondent’s assets are located in the US, the Appellant must also accept that it will have to confront these same constitutional difficulties at the enforcement stage, even if its claims are heard in Singapore. I acknowledge the Appellant’s point that any judgment it may obtain in Singapore will still serve to vindicate its reputation even if it is unable to successfully enforce it, ¹²⁸ but this does further dilute the force of the Appellant’s argument that the Singapore courts should hear its claims on account of the difference in our defamation and other related laws.

211 In light of my findings above, it is unnecessary for me to consider the Respondent’s alternative claim for a case management stay.

212 For the reasons stated above, I dismiss RA 213 of 2025. While the Appellant has made out a good arguable case that it suffered special damage in Singapore, which is sufficient to establish the requisite nexus of its claims to Singapore, the appeal cannot succeed as Singapore is forum non conveniens. In light of the facts before me, the Texas Court is clearly and distinctly the more appropriate forum to resolve the Appellant’s claims.

213 The Appellant is also granted liberty to apply, in the unlikely event that the Texas Court declines jurisdiction.

214 I will hear parties separately on costs.