[1998] SGHC 359

In the High Court of the Republic of Singapore

[1998] SGHC 359

Suit 24/1997

Between

DHKW Marketing
Another

… Plaintiff

And

Nature's Farm Pte Ltd

… Defendant

grounds of decision

Tort — Defamation — Malice

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

DHKW Marketing and Another v Nature's Farm Pte Ltd

[1998] SGHC 359

Suit 24/1997
Judith Prakash J
02 November 1998

1 JUDITH PRAKASH J

6 Straits Times . A copy of the full advertisement is attached to this judgment. The advertisement contained a photograph of the defendants` INC pycnogenol and some material about it as well as extracts from a letter written by Professor Masquelier. The material part of the advertisement read as follows:

... BEWARE PYCNOGENOL The Powerful Antioxidant ...

... In Singapore, the only PYCNOGENOL that is manufactured per Professor Jack Masquelier`s technical standards and that is being sold under his explicit trademark authorization is the original PYCNOGENOL that is delivered to you by (the defendants) ...

Under authorization of Professor Masquelier, PYCNOGENOL is a trademark of (the defendants`) supplier INC/Vaduz/Liechtenstein. ...

PYCNOGENOL is available exclusively at all (the defendants`) stores ...

`... Dear Users of PYCNOGENOL

... As you know, I am the inventor of the process of extraction of substances coming from the bark of the pine trees and the seed of grapes, and the sole keeper of the name PYCNOGENOL which I created in 1979 and registered as a commercial trademark in France no 1522228 ...

I have discovered that the trademark has been fraudulently used and registered in various countries by non-authorised companies. We have taken legal action to end these fraudulent acts ...

Yours sincerely,

(signature)

Professor Jack Masquelier ...`

9 Course of the proceedings

11 In January 1997, the plaintiffs and Horphag commenced this action against the defendants. All three parties sued the defendants for defamation and malicious falsehood based on the advertisement. Horphag, claiming to be the owner of the pycnogenol trademark, also sued the defendants for passing off the INC product as being pycnogenol.

17 (b). misled and/or were misleading the public into purchasing counterfeit pycnogenol products or Horphag pycnogenol products;

18 (c). distributed, promoted and/or sold or fraudulently distributed, promoted and sold counterfeit pycnogenol product or Horphag pycnogenol product to the public; and/or used or fraudulently used the pycnogenol trademark without authority.

20 (b). whether the advertisement or the words contained therein referred to or were understood to refer to or were capable of referring or of being understood to refer to the plaintiffs or either of them;

21 (c). whether the advertisement or the words contained therein bear or were understood to bear or were capable of bearing or being understood to bear any meanings pleaded by the plaintiffs; and

22 (d). whether the defendants` publication of the advertisement was protected by privilege.

24 First issue: was the advertisement defamatory?

26 The defendants` closing submissions on this point were perfunctory. Mr Rabi`s main contention was that the plaintiffs had not either in their pleadings or in their closing submissions made any reference to specific defamatory words. Although the plaintiffs were claiming to be drawing a defamatory imputation from the phrase `the only pycnogenol that is manufactured per Professor Jack Masquelier`s technical standards` that and the advertisement as a whole were trade puffs and not defamatory.

29 Second issue: did the advertisement refer to the plaintiffs?

31 This issue was the main point of the defendants` defence. Mr Rabi noted that the advertisement did not mention either of the plaintiffs by name and in fact it did not mention any particular person other than the defendants themselves. The reference in the advertisement, it was submitted, was to a class of persons distributing and selling pycnogenol products and this class included not just the distributors but also all the retailers. The class was wider than the six or seven people that the plaintiffs had referred to. As an example, counsel referred to one of the plaintiffs` witnesses, Mr Woo, who owned his own pharmacy. He had testified that his own customers had complained that by supplying them with the Horphag pycnogenol he had not been selling them the real pycnogenol and that they could only get that from the defendants. The conclusion was that because the advertisement maligned a whole class without differentiation, the plaintiffs could not complain that they were being pointed out and defamed.

32 Gatley on Libel and Slander (9th Ed) at para 7.8 at pp 167 to 169:

However, the civil law of defamation does not allow an individual to sue in respect of words directed only at a group. Where the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans, or the like, no particular member of the body or class can maintain an action. `If`, said Willes J in Eastwood v Holmes, `a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual`. As this statement makes plain there is no special rule about `class libel`, it is simply a question of whether a reasonable reader could conclude that the plaintiff as an individual was pointed at and the broader the `class` the less likely this is. The leading case is Knupffer v London Express Newspaper in which a war time article accused a Russian emigre group, `Mlado Russ`, of being instruments of Hitler. The group numbered 24 members in England and about 2,000 in the world and the plaintiff was head of the British branch. Although four of the plaintiff`s witnesses said that their minds went to him when they read the article, the House of Lords held that as a matter of law the words were incapable of referring to the plaintiff as an individual. According to Lord Atkin, the `reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalisations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be facetious exaggeration`. As a practical matter the plaintiff is more likely to succeed where he is a member of a small group at whom the words are aimed and more likely to fail if the group of a large one; but as a matter of principle the test is not whether the group is `small` or `large`. Thus in Knupffer`s case Lord Porter said that he `could imagine it being said that each member of a body, however large, was defamed where the libel consisted in the assertion that no one of the members of a community was elected as a member unless he had committed a murder`. Again, the words, though directed at a group, may be used in circumstances which point at a particular individual. For this purpose the knowledge of the recipients of the statement about whom the defendant is aiming at is relevant. In Le Fanu v Malcolmson a newspaper article imputed that `in some of the Irish factories` cruelties were practised upon the employees, and the plaintiffs, who were the owners of a factory in Ireland, proved to the satisfaction of the jury that the newspaper was referring especially to their factory. The House of Lords refused to arrest judgment for the plaintiff. In giving judgment Lord Campbell said: `Where a class is described it may very well be that the slander refers to a particular individual. That is a matter of which evidence is to be laid before the jury, and the jurors are to determine whether, when a class is referred to, the individual who complains that the slander applied to him is, in point of fact, justified in making such complaint. That is clearly a reasonable principle, because whether a man is called by one name, or whether he is called by another, or whether he is described by a pretended description of a class to which he is known to belong, if those who look on, know well who is aimed at, the very same injury is inflicted, the very same thing is in fact done as would be done if his name and Christian name were ten times repeated.

34 Gatley mentions, Lord Porter in Knupffer v London Express Newspaper Ltd [1944] AC 116 was able to imagine that in certain cases each member of a class however large could be defamed by the libel. Lord Atkin in the same case stated that even where there is a libel of a large number of persons `words may be used which enable the plaintiff to prove that the words complained of were intended to be published of each member of the group, or, at any rate, of himself`. See Knupffer v London Express Newspaper Ltd [1944] AC 116 at 122.

35 Knupffer `s where the defamation related to a group called Mlado Russ which had a total membership of 2,000, and where various general allegations were made in respect of the policies and intentions of the group as a whole. They were much closer to the situation in Foxcroft v Lacey [1613] Hob 89; 80 ER 239, also cited in Gatley , where a suit was pending against Foxcroft and 16 other persons and in talking about the suit, Lacey said `these defendants helped murder HF`. It was held that although Lacey had referred to a group, each of the defendants was entitled to maintain an action as if he had been specifically called a murderer.

36 Gatley at pp 162 to 163 as follows:

The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognised; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that the person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.

37 Hough v London Express Newspaper Ltd [1940] 2 KB 507. Also as Gatley states in the passage cited at para 18 above, where the words refer to a class, the question is whether a reasonable reader could conclude that each of the plaintiffs, as an individual was pointed at.

38 Straits Times , Berita Harian , The New Paper and all the Chinese newspapers. It was reasonable to infer that some people would have seen those advertisements. Thirdly, in the course of their promotional work the plaintiffs had marketed pycnogenol directly to retailers, industry professionals and consumers, and the first plaintiff gave lectures and talks on the efficacy of pycnogenol to professional industry users. The plaintiffs also promoted Horphag pycnogenol to their personal friends and associates by giving away samples, flyers and brochures. Obviously, all these people whom the plaintiffs interacted with personally were aware that the plaintiffs were distributors of pycnogenol. In view of the volume of recent advertising and promotion undertaken by the plaintiffs, it was probable that when the advertisement appeared, their names would have definitely come to the minds of people in the trade as dealers in fake pycnogenol.

40 Straits Times on the morning of 14 August 1996. She was taken aback because she had bought the pycnogenol in good faith and this advertisement told her that she had been buying from someone who was not authorised to sell it. Mrs Chan immediately sent a copy of the advertisement to the second plaintiff by facsimile transmission and she subsequently telephoned Ms Chua to find out what was going on. Mrs Chan`s evidence was sufficient to establish reference to both plaintiffs.

43 Third issue: were the words complained of false?

45 This issue did not arise in connection with the plaintiffs` claim for defamation since once the defamatory meaning has been established, the law presumes that the words complained of are not true. The plaintiffs, however, had an alternative cause of action for malicious falsehood relating to goods and in order to substantiate that action they had to show that the words complained of were false. This they were able to do.

49 Fourth issue: were the defendants malicious in publishing the advertisement?

51 The plaintiffs had to establish malice as an ingredient of their second cause of action. The defendants made no effort to meet the plaintiffs` submissions on this point. They did not adduce evidence or put forward any rebuttal to the plaintiffs` points. I was satisfied on the evidence that the allegations of malice had been made out.

55 Straits Times . It was presented as a warning to the public since it was headed `BEWARE PYCNOGENOL` with these words printed in uppercase bold print in a large font size. Finally, it contained the false representation that the United States patent referred to belonged only to the defendants` supplier INC when in fact it also belonged to Horphag.

57 Mathieson v Schneideman [1930] NZLR 151. Here the defendants refused to apologise or acknowledge that the advertisement was false even after they had: 1. started to sell Horphag pycnogenol; and

58 2. unequivocally represented in their product literature that the pycnogenol trademark belonged to Horphag.

59 Fifth issue: quantum of damages

61 Under s 6(1)(a) of the Defamation Act (Cap 75) it is provided that the plaintiff in an action for slander of goods or other malicious falsehood does not have to allege or prove special damages if, inter alia, the words upon which the action is formed are calculated to cause pecuniary damage to the plaintiff and are published in writing. The words `calculated to` according to Gatley (at p 499) mean simply `likely to produce the result`.

Judith Prakash J

Thio Shen Yi and Ernest Lau (Thio Su Mien & Partners) and Tasneem Haq (Haq & Namazie Partnership) for the plaintiffs
Rabi Ahmad and Mylene Chia (PK Wong & Advani) for the defendants