(Delivered in Parliament on 8 May 2019)
Mr Speaker, the Workers’ Party opposes the Protection from Online Falsehoods and Manipulation (POFMA) Bill. Much as I believe that there is a need for some form of legislation to deal with online falsehoods and online falsehoods, the remedy must be appropriate. Indeed the Bill has generated much concerns and objections from many Singaporeans since its first reading in April. I will share some of the concerns I have about the POFMA Bill.
Clause 4: In the public interest – general definitions
As part of the conditions for the granting of the various directions under this Bill, the minister must be of the opinion that it is in the public interest to issue such a direction. Clause 4 provides a list of definitions or a set of different scenarios of what constituted “in the public interest”.
I am concerned with some of the definitions provided in clause 4 of the Bill of what constitute “in the public interest”. I find them to be too general and the precise scope is not clearly spelt out.
For example, in the context of falsehoods, what does it mean by “to protect public health or public finances” or “to secure public safety or public tranquillity”? What acts or words will definitively trigger each of the definitions?
This brings me to the second point of concern about what is in the public interest:
For Part 3 and 4 directions, a person who has been served with a correction or stop direction, may appeal to the High Court against the directions after having first applied to the minister. However, for both Part 3 and Part 4 directions, the appeal provisions expressly provide that the High Court may only set aside such a direction on three grounds of appeal as seen in clauses 17(5) and 29(5):
- In the case of Part 3, the person did not communicate in Singapore the subject statement; in the case of Part 4, for targeted correction direction or a disabling direction, the subject material was not communicated in Singapore or was not communicated in Singapore by means of any internet intermediary service provided by the person;
- The subject statement is not a statement of fact or is a true statement of fact;
- It is not technically possible to comply with the direction.
The issue of whether the minister was correct or not in arriving at his opinion that it is in the public interest to issue the direction itself does not come within the three grounds of appeal and cannot be decided by the court on appeal under clause 17 or 29. Similarly, the exact meaning and coverage of the definitions provided in clause 4 cannot be decided by the court hearing an appeal under clause 17 or 29.
In this connection, the minister mentioned the availability of judicial review yesterday.
As things stand, the procedure and costs regimes for judicial review will be quite different from the procedure and costs regimes for the appeal procedure under clause 17(5) and 29(5). Does the minister intend to apply the same costs, procedure and timelines requirements for all court applications or appeal under POFMA including judicial review?
Would it not be better for the Bill to expressly provide for the court’s ultimate jurisdiction over all areas of the bill including the issue of public interest and for the same procedure and costs mechanism to apply?
Finally, according to the Explanatory Statement of the Bill, the list of definitions is non-exhaustive. I am concerned that in future, what else may be read by a minister as a further definition or example of “in the public interest”.
In the public interest: prevent a diminution of public confidence
Still on Clause 4 of the Bill, clause 4(f) provides for one definition of doing anything in the public interest if the doing is to prevent a diminution of public confidence in the performance of any duty or function of, or in the exercise of any power by the Government, an organ of state, a statutory board, etc.
I believe that the diminution of confidence in government as a factor warranting legislative action is not found in fake news legislation elsewhere in the world. I am concerned that the extension of the definition of public interest to include not diminishing public confidence in the Government may deter or prevent bona fide criticism and well-meaning intentions to expose Government failings. Above all, no government will always be correct, perfect or beyond reproach; it is for the Government, by its own efforts, to earn and maintain public confidence in itself and any use of law to deter the diminution of public confidence will run counter to that.
Definition of statement of fact
The Bill provides, at clause 2(2), the definition of (a) a statement of fact and (b) a definition of when a statement is false.
Already, many commentators have said that the distinction between a statement of fact and an opinion may not always be easy to draw, not to mention the difference between a statement of fact and an opinion of a statement of fact.
Different surveys using different parameters produce different outcomes; they may all not be wrong, they may even constitute statement of facts in different ways but they prove that there can be divergence on what can constitute statement of facts.
Under the Bill, 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 definition is troubling. The definition of “if it is false or misleading, whether wholly or in part, whether on its own or in the context in which it appears” under clause 2(2) is too wide especially the requirement of “misleading” alone.
It would be misleading according to whose standards or opinion? And how would it be misleading?
For example, if I were to say something in good faith according to my own views, but what if the minister and even the court decides that it meant something else and is different from what I have explained? I didn’t even think of the minister’s view when I uttered those words. Wouldn’t that be very unfair to me as I did not intend that meaning? Why should I be subject to his correction or stop directions? Why should I have to appeal to the courts? Shouldn’t he apply to the court if he feels aggrieved in the first place and the courts can decide at first instance whether a correction or stop direction is necessary?
Next, according to clause 2(2), an article can be deemed to be a false statement even if only a part of it or a small part of it is false or misleading. Is there a risk that as a result of a small or even irrelevant or inconsequential factual error in an otherwise cogent article with serious issues, the article can be taken down, preventing the bulk of the meritorious arguments and issues raised in the article from being read and disseminated?
I am also troubled by the definitions of “statement of facts” which have been defined as not false or misleading, rather than just ‘false’ or ‘false and misleading’. Such definitions can be opened to different interpretations. For example, if I were to tell some people that I made a police report against someone. In my opinion, that is a simple statement of fact, period, there is nothing much to disagree or dispute. I made the police report, surely I know that as a fact. But when one applies the definition “misleading”, what I have said may be interpreted by another to be something beyond what I ever intended to say or mean. And history has shown that such statements could be subject to different interpretations.
And how would it affect articles or reports of an opinion nature which premised its theories or findings on anonymous contributors? This could be by a journalist or even an academic. Those who contributed their opinion or feedback or even to a survey may have good personal reasons for their anonymity and not necessarily because they are, as a matter of integrity, afraid to stand up for what they have said. How will the journalist or newspaper able to challenge an order on appeal given the circumstances? I fear that this new law will discourage journalists in their writings particularly where the source of information cannot, for whatever reasons, be fully disclosed or cited in court.
The minister or the Government cannot be the first nor final arbiter
To me, the most uncomfortable aspect of the Bill is the minister being the first and even final arbiter under this Bill.
The Workers’ Party object to the minister being an arbiter under this Bill. We think that the minister in question should apply to the Courts for an order under this Bill and let the Courts be the arbiter.
Many in Singapore have voiced this concern about the Government or the minister being the final arbiter.
The Government has been saying that the Courts are the final arbiter. For Part 3 and 4 directions, that is only true insofar as any appeal comes within the three narrow grounds in clauses 17(5) and 29(5). If the Courts are the final arbiter, why circumscribe and limit their powers in these ways? Why not let the Courts be the sole arbiter under this Bill?
As I have said earlier, even the minister’s opinion of whether the minister was correct or not in arriving at his opinion that it is in the public interest to issue the direction cannot be decided by the court when it hears an appeal under clause 17 or 29.
And even for appeal under the three grounds in clauses 17(5) and 29(5), it may only be true if the party being subjected to a minister’s order under this Bill does in fact actually appeal to the courts. Until then, there is no judicial scrutiny. And if the party affected does not appeal to the court for whatever reason, the minister’s order would have gone unscrutinised by the High Court.
Even when the appeal is pending, the Bill expressly provides for the minister’s direction to continue. Wouldn’t this create injustice if the appeal was later allowed, proving that the minister was wrong in the first place? In such cases, if the aggrieved person has suffered damages, he may not even be able to claim against the minister.
Further, in certain circumstances, a minister may potentially find himself in a position of conflict of interest when he invokes POFMA in respect of criticisms or complaints of wrongdoing on his part or in respect of his own ministry. Is there any provision to handle such conflict of interest?
Next, we do not have a Freedom of Information regime and well-meaning citizens may not have the same access to information unlike the Government and complaints may have arisen from well-meaning people where it may not be convenient to disclose the source of their information.
In the situation where the Government has access to certain information and for whatever reason refuses to disclose full facts in the first place, even on request, it would be unfair to penalise anyone arising from a media report or something discussed in social media.
Significantly, the procedure under POFMA is different from the procedure in POHA where the court there is truly the one and only arbiter. Any aggrieved person wishing to make an application under POHA applies to the court. If that works for everyone else, shouldn’t the same procedure applies to the Government in the case of POFMA?
In my view, the courts should be given the exclusive rights to decide on any application under POFMA at first instance and the courts’ jurisdiction should extend to all areas and issues under the Bill.
Next, I think the same court should handle and decide both POHA and POFMA applications. This is not currently the case as under the POFMA Bill, the High Court hears any appeal against the minister’s direction or order. On the other hand, applications under POHA are heard in the State Court.
Appeal procedure against a minister’s order
Without derogating from my earlier position that the Courts should be the only arbiter for POFMA, let me now deal with some procedural aspects of the current Bill.
For Parts 3 and 4 of the Bill, if the affected person wishes to appeal to the court against the minister’s stop or correction direction, he first needs to apply to the minister in question to vary or cancel the order. This seems odd to me as I am rather circumspect that a minister will change his mind within a matter of days after his order.
The additional step of notifying the minister is akin to being part of the appeal process itself and will merely add time to the affected person’s wait for the court hearing his appeal, but time may be of the essence to the affected person especially when the minister’s direction is wrongful and is bringing wrongful harm to the individual.
In any case, I find the idea of, in effect, appealing to the accuser to be a little odd.
Burden of proof
In POHA, an aggrieved party applying for an order has essentially the burden of proving his case to the judge deciding on whether an order should be given.
In POFMA, the aggrieved party, in this case a minister or the Government, does not have to prove to any authority or adjudicator, when it first decides on a direction under the Bill such as a correction direction or a stop communication direction.
Even when a defendant who is subject to a Part 3 direction feels that the minister is wrong in issuing such a direction under the Bill and wishes to appeal to the court, the minister does not seem to have the primary burden of persuading the court de novo that it is entitled to issue the orders in question. In any case, this is not clearly or expressly set out in the Bill.
In both civil and criminal actions, it would be fair to say that the plaintiff and the prosecutor, respectively, bears the primary burden to prove their case in court.
The burden of proof in an appeal under clause 17 or 29 of POFMA appears to be on the person who is the subject of a minister’s directions under POFMA. This should not be the case. Surely the minister and Government, as the aggrieved party must always bear the burden of proof for any direction or order under POFMA.
Conclusion
In closing, the minister cannot be an arbiter for any order or direction under POFMA. The Courts should be given that role exclusively.
Like many Singaporeans, I fear that the Bill, if passed, will create a chilling effect, whether for journalists, legitimate interest groups, academics or the average Singaporean. It may deter people from speaking up. It may encourage journalists or academics to err on the side of caution for fear of falling foul of the law. If a minister or the Government is not forthcoming in providing clarificatory facts, it may encourage journalists and even common citizens to practise self-censorship at the expense of truth. It will discourage bona fide criticism and stifle public debate. Along with my Workers’ Party colleagues, I do not support the Bill.