(Delivered in Parliament on 7 May 2019)
Positive changes, but absence of remedies against false statements made by the Government a lost opportunity
Mr Speaker, the changes proposed to the Protection from Harassment Act or POHA by this amendment Bill are very significant, falling into three broad categories – outlawing doxxing, establishing the Protection from Harassment Courts with faster processes and enhancing judicial powers to deal with false statements of fact made against individuals and companies. The Workers’ Party supports the Bill.
I will speak on five general matters where I seek clarifications about the application of certain clauses in practice. I will also highlight one important area where the Bill falls short in my view.
First, the problem of doxxing.
Sir, victims in cases of doxxing normally start as perpetrators – they behave in an outlandish, loutish or uncivilised manner. They are shamed, often through social media with videos of their actions shared and distributed widely. This in and of itself is not the issue and the public must be clear that posting and sharing examples of uncivilised behaviour is not circumscribed by this Bill, even if other company specific regulations or codes of conduct apply.
So, for example, if an individual says that he had to wash the stench of SMRT or SBS commuters off his body because he had to take public transport for the two weeks his Mercedes Benz or Bentley was in the workshop – and he is then pilloried online for such crass remarks – that would not be caught by the Bill. What happens however in such cases is that the public approbation that ensues has the potential of inviting vigilante justice against the perpetrator and a real risk of personal harm when the private information of the perpetrator is revealed.
This has become a growing problem. In some cases, netizens would release identity information such as the perpetrator’s place of work and contact numbers and other personal information ostensibly in the pursuit of a sense of justice. Others however may release the information with malicious intent.
To this end, clause 6 of the Bill is helpful because it illustrates and clarifies what particular factual circumstances can operate to give rise to the offence of doxxing.
Nonetheless there may be a challenge in other cases, particularly borderline cases where the intent of the individual releasing identity information does not neatly cohere with the offence and illustrations in the Bill. For example, there may be a case where an individual’s identity information is already online and another online commentator posts a hyperlink to it with an innocuous comment like “this person is a lawyer and yet he behaves in such a way” – the actively revealed information being uncontroversial – in this case the occupation of the individual. However, the hyperlink reveals other personal information like place of work and contact numbers. In such a case, it would be arguable whether the comment and hyperlink together meet the threshold of intent as required under clause 4 of the Bill. What would be Minister’s view on such a scenario – would the individual who made the comment including the hyperlink be guilty of an offence in such a case?
A second issue could be doxxing carried out by anonymous users on popular third party Facebook pages, something which requires active moderation to combat, a resource most social media sites and Facebook pages may not have any real bandwidth to undertake. Would such sites be found liable for the offence of doxxing where there is no intent on the part of the moderators of a Facebook page to harass, but because of the ecology and anonymity provided by the internet, doxxing ensues nonetheless?
Secondly, enhancing protection for victims of Intimate Partner Violence.
My second clarification involves enhancing the penalties for offences against a victim in an intimate relationship with the offender under Clause 11 of the Bill. A corollary purpose of the amendments under the Bill are to bring the Protection Orders and Expedited Protection Orders regime in line with the Personal Protection Order regime under the Women’s Charter. I believe these are important amendments, providing better protection for individuals, particularly women, who may not be married but are in an intimate partner relationship and suffer from intimate partner violence or IPV at the hands of their spouses.
I read Minister’s speech at PAVE’s Dating Violence Awareness Week Event at *SCAPE in February and the stories shared on Intimate Partner Violence (or IPV) and separately, how PAVE’s activism and engagement directly resulted in the amendments in this Bill to address the current gaps in the law. Indeed according to the World Health Organisation (WHO), the overwhelming global burden of IPV is borne by women. However, according to the WHO, IPVs also occur in same-sex marriages as well. Can I clarify if the remedies proposed under this Bill can be sought by individuals who are not married but are in same-sex relationships?
Thirdly, the boundaries of the definition of misleading under the Bill.
Sir, clause 3 of the Bill explains that “a statement is false if it is false or misleading whether wholly or in part, and whether on its own or in the context in which it appears”. The Bill targets both a false statement and a misleading one. While there exists an objective legal test for determining whether a statement of fact is false, can the Minister confirm how the Government expects the Courts to interpret the boundaries of a statement that is misleading in the context of the new remedies provided for under the Bill. I understand Minister referred to the omission of material facts would make ought the meaning of misleading. But this may not be without controversy.
Let me use a hypothetical example. An individual has made a statement against a black metal band two weeks before it is due to perform, encouraging others not to attend the performance, leading to a loss of revenue and poor ticket sales that can be attributed to the onset of a viral online campaign by that individual. The statement that is headlined in bold goes – “People who listen to black metal music may commit violence in the real world” alongside pictures of individuals with heavily tattooed faces. From the standpoint of a black metal band, whose music undoubtedly may not be everyone’s cup of tea, the statement is misleading because all sorts of people may commit violence in the real world.
Therefore a statement can potentially be misleading if it does not cover all the relevant facts or represent the matter fairly – and the choice of which facts are chosen usually turns on where you stand on any given matter, philosophically, politically or morally for example. In this scenario, what remedies will be available to the band under the new clause 20(1) of the Bill ? I understand there is a corpus of literature on misleading statements when it comes to securities law. It would be helpful if Minister could share with the House and lay members of the public what the appropriate test would be in the case above, where real damage is done to band.
Fourthly, the Protection from Harassment Courts and the speed at which they are expected to deal with falsehoods.
Sir, Clause 20(8) of the Bill creates a specialist court, the Protection from Harassment Courts, that have oversight over all criminal and civil matters under the Bill. Another key feature of the Bill is the adoption of simplified procedures involving a straightforward claims form for victims of harassment and the doing away with having to initiate an application through an originating summons, something which more often than not, requires the hiring of a lawyer. This is to be welcomed, especially for those who seek urgent relief.
A second important feature of the Bill is the speed at which the Harassment Courts will hear applications. For example, in the case of Expedited Protection Orders, where there is a risk of violence or actual violence, the Ministry of Law (Minlaw) has indicated the Courts will aim to hear the application within 24 hours. I have one clarification in this regard, and this not is with respect to EPOs, but to victims of falsehoods online where virality is a real concern and applicants can rely on a variety of remedies under the Bill.
Minlaw has stated and I quote, “courts will be empowered to make relevant interim orders to provide victims with urgent relief”. Unquote. To that end, in Minister Shanmugam’s comments on the Protection from Online Falsehoods and Manipulation Bill (what I will henceforth refer to as POFMA) to Channel News Asia on 13 April, Minster used an actual example of the financial markets, where I quote, “the founder of a bitcoin company had died; the news was put out deliberately by somebody, I think, seeking profit. Within a period of four to five hours, billions of dollars were wiped out from the value. Lots of innocent investors lost money.” Unquote. Clause 3 of the Bill clarifies that an entity can seek relief under the Bill and an entity is defined to mean any company or association or body of persons whether corporate or incorporate.
It follows therefore, that a company in Minister’s example – the bitcoin company – provided it was domiciled in Singapore, could apply urgently to the Harassment Courts for perhaps a general correction order or the appropriate order which gives the Court powers to make an order on an expedited basis. The key word here is expedited. In such a scenario, how quickly will the Harassment Courts hear such an application given that significant damage, using the Minister’s example, can occur in a mere four to five hours? Or does the Bill envisage a faster hearing for the applicant, given that the death of a founder who actually has not died would easily meet the prima facie threshold of an interim order.
To the that, it would appear that in some cases, the Courts may have to move faster on online falsehoods affecting individuals and companies, and hear urgent applications perhaps in even less than 24 hours. Is such a shorter application hearing timeline within the contemplation of the Bill for individuals or entities who seek very urgent relief, failing which significant damage or losses would inevitably increase with every passing hour? If so, how quickly can the public expect the Harassment Courts to hear an interim application in the case of an online falsehood against an individual or entity? More generally and equally important, would the remedies provided for false statements necessitate filing a summons and affidavit as is currently the case, or does the Ministry seek to introduce a quicker and simpler filing procedure akin to a simple form as envisaged for expedited protection orders?
Finally, orders relating to false statements of fact.
Sir, Clause 20 repeals the existing sections 15 and 16 and broadly replaces them with a stop publication order, a correction order, a disabling order, a targeted correction order, a general correction order including various interim orders in cases where a prima facie case is made out. These are far reaching remedies, largely identical to those the Government has sought under POFMA and they can be imposed upon any individual or entity and applied for by the same. While much of the attention of the public has been focused on POFMA since the first readings of both Bills on 1 April, for the man on the street, POHA will be the law they can avail themselves to, with a view to take action against other individuals or entities who peddle falsehoods against them, in addition to applications against internet intermediaries like technology companies. I have two clarifications here.
First, in view of the costs incurred by the applicant and claimable under the new section 16CA, I note these apply specifically to general correction orders. However, the explanatory statement to the Bill at page 71 appears to suggest that costs can be ordered regardless what type of remedy is ordered by the Courts. Is there any particular reason why the clause as drafted does not order costs against authors or publishers of false statements of fact in cases where the Courts issue orders other than correction orders, such as stop publication orders. In addition, can Minister share in what circumstances and scenarios would the Court mandate costs against the subject who applied for the order as provided in clause 16CA(c)?
Secondly, under clause 3, the Bill has defined the word “entity” to exclude any public agency and public agency is in turn defined in the Bill by Section 128A(6) of the Evidence Act. What this effectively means is that an individual or company cannot apply to the Harassment Courts in case the Government makes misleading or false statements against them. As a matter of principle why ought this to be the case?
The Select Committee on DOFs noted the observations of some representors that Governments can also communicate falsehoods or misleading information. There are enough examples of governments around the world through the course of history that have done so. Why shouldn’t the public receive protection provided by this Bill – against a prospective Government or Minister that uses his or her powers not just unwisely but maliciously – with a view to seek a remedy from a neutral body like the courts – the same remedies which the Government can direct against individuals and companies under POFMA?
On this point Mr Speaker, the decision to create an exemption for the Government such that it cannot be sued for perpetuating a falsehood is in my view a glaring omission and a lost opportunity at winning the trust of the public. More fundamentally, it does not conform to the principle that the rule of law applies equally to all.
To illustrate the point, in late 2014 and 2015, the New Mandala, a publication of the Australian National University ran a series of exchanges between the former Singapore Ambassador to Australia Mr Burhan Gafoor and former ISA detainee Dr Poh Soo Kai. One aspect of the exchange involved the alleged assistance given by Dr Poh to an injured CPM bomber who escaped the premature detonation of an explosive device in a car along Still Road in 1974. Last week, Function 8, a local civil society organisation put up a video titled Fake News: Who is the culprit? on its Facebook page. In it, Dr Poh accused the Government of wrongfully alleging that he rendered assistance to the injured bomber in Masai, Malaysia. Dr Poh’s position was that he never went across to Malaysia to render assistance to the injured party, something that the Government accused him of doing. Dr Poh further asserts that this can be proven in his favour through immigration records. By alleging he did go to Malaysia, Dr Poh then goes on to accuse the Government of peddling a false statement of fact as defined by the Bill.
Now, the limitation period of this example notwithstanding, under the Bill such an individual would have no remedy against a false statement made by the Government. Would the public interest not be better served in allowing a person to apply for the appropriate order from the Harassment Courts and in doing so, make their case? I would argue that the prospects of such recourse and the availability of a neutral forum like the Courts, combined with a simple process would in itself act as a deterrent against individuals who seek to retrospectively burnish their reputations or embarrass the Government. To this end, in the event an individual can apply for a stop publication or correction order under the new section 15 but does not do so, and instead continues accusing the Government, an obvious adverse inference can be drawn about what the truth really is.
In conclusion Mr Speaker, in highlighting this example, I am not taking a view about the veracity of the facts as presented either by Dr Poh or the Government. Because all the relevant information is not openly accessible, there is no way members of public can objectively take a view on either side of the story. The Workers’ Party has made its position known on matters involving the opening of the archives and a Freedom of Information regime in Parliament before. These are matters that are not within the boundaries of this Bill. However, it goes without saying that there exists an asymmetry in information and power between a Government and its citizens. It is my view that allowing a Government to open itself up to scrutiny on matters where it is accused of peddling falsehoods can paradoxically operate to strengthen trust in Government, particularly in these times where political leaders all around the world find their mandate to rule increasingly questioned by a sceptical public and where political polarisation increasingly appears to be the order of the day.
I look forward to having my clarifications addressed. Thank you.