(Delivered in Parliament on 8 May 2019)
Mr Speaker sir, all members in this House and both the WP and PAP agree that fake online news is a danger that modern societies must address. We have seen what happens elsewhere when falsehoods fan sectarian hatreds, swing elections and harm national security. We need tools to limit the reach of truly dangerous falsehoods spread by malicious actors.
But while we agree on the goal, the WP and PAP disagree about the means to achieve that goal.
We disagree because we look ahead at the future of this country after this Bill is passed. And we see a country where too much power is vested in the hands of any and every Minister. We see a country where free speech, debate and thinking could become stifled, especially on the very important matters of public policy and politics, on which so much else in national life turns.
We disagree because the cure that the PAP government has placed in front of us could lead to outcomes worse than the disease.
Defining what is misleading
As the Hon member Mr Pritam Singh said, Section 2 of POFMA defines falsehood as statements of fact that are false or misleading, not false and misleading. So a misleading statement can be deemed false by a Minister, by virtue of omission of facts.
Sir, in political, intellectual, legal, academic, public debate, individuals often present facts that support their arguments and devote less time and space to facts that tend to support the opposite argument. This has been the case for centuries.
Yet Section 2 suggests that a particular collection of facts may be construed as misleading if the “opposite facts”, as it were, are not given what the Minister thinks is sufficient weight. The same Minister may not correct statements made by the government or its supporters that present mainly “their facts”, as it were.
How do we deal with statements like this: HDB flats are more like rental flats than owned assets since lessees lack strata titles, the HDB controls many aspects of what you can do with your flat and the value declines over the long-term towards zero dollars at the end of 99 years.
Minister Lawrence Wong denounced a similar notion as legally and factually wrong. Would such a view be deemed subject to a correction order under POFMA?
Under POFMA, a falsehood can be deemed grave enough to warrant correction or penalties for being a misleading collection of facts, even if it does not contain one single false statement of fact. If this wide definition of “misleading facts” is maintained, the Courts should at least be the first arbiter of truth in respect of formulations such as this one, rather than Minsters who have and who will be seen to have their own political interests, a point I will come back to.
Defining a real risk
Next, Section 4 sets out various criteria by which false statements are deemed harmful to the “public interest.” However, the language lacks any reference to a real risk threshold. In Section 4, it would seem that anything that impinges on national security, public health, public finances and so on, in however microscopic or indirect a manner, would be upheld as vulnerable to corrections or penalties. The language of the Bill refers to “necessary” and “expedient” – but necessary and expedient for what? For what threshold of significant impact?
Shouldn’t Section 4 be worded to define public interest with reference to a real risk posed to the things described? In lieu of this, any statement having however minor an impact on the things described, would qualify as correctable. How could meaningful judicial review thus operate?
And this is setting aside Section 17 Part 5’s circumscription of the scope of what has been said will be fast and cheap POFMA High Court Appeals to exclude consideration of the degree to which public interest is impacted, a point my colleague Mr Dennis Tan spoke about and which my Party Chairman Ms Sylvia Lim will expand on. This lack of a threshold of significance raises the risk of abuse of POFMA powers to correct matters which have a very minor impact on the public interest.
Chilling free speech
Next, my colleagues have spoken about the chilling effect POFMA may have on free speech. This is not political point-scoring.
It is by virtue of this Bill’s peculiar cocktail of three things: of Section 2 – defining what a Minister deems a misleading presentation of facts, not only false claims of fact, as correctable; Section 4(f) defining harmful falsehoods as including those that diminish confidence in the government; and Section 6, which establishes Ministers as the decision-makers of truth and falsehood in the first instance. It is through the combination of these three aspects of POFMA, Sections 2, 4 and 6,that this Bill is likely to chill free speech and debate about government policies and politics, particularly expressions of views that run counter to the government narrative.
Why do I say this? Look ahead to the future. Correction and take down orders could damage if not destroy reputations and careers – for journalists, activists, academics, public intellectuals, politicians, professionals of various kinds; in fact for many, many citizens.
If your post becomes subject to such orders, what would your employers think? Your lecturers and tutors? Your professional colleagues? Your friends? Your spouse? Your business associates, partners and customers?
When we bring in the risk of massive fines and lengthy jail time under Section 7 for a single offence of “having reason to believe” that one’s statement is false or harmful as POFMA defines it, which includes undermining confidence in the government, and with no threshold of significant impact on public interest specified in the law, the risk, Mr Speaker sir, is not just of chilling free speech but of hurling it into an industrial freezer. By free speech here, I refer particularly to public speech regarding policies and politics that may contain criticism of the government of the day or the ruling party.
I note in passing that for offshore sponsors of deliberate online falsehoods, like state actors or offshore extremist or sectarian groups, it would be difficult if not impossible to subject them to these criminal penalties. The burden of these penalties and the fear they generate will fall primarily on domestic actors, on Singaporeans. Of course penalties for harmful falsehoods are necessary but when the penalties are so severe and attached to language like that in Section 2 and 4, and with Ministers as the first arbiters of truth, the prospect of chilling public, political debate is very real.
What would Singapore look like if most Singaporeans avoid commenting publicly in ways that may be seen as critical of the government and its narrative?
What may take hold is self-censorship and the restriction of online comments in favour of verbal conversations among friends or talks held among small groups.
The reason for this is clear to see. Many citizens will not have the stomach to risk a correction order or a criminal charge even if they are confident about their facts, as many will not want to take on the effort, time, cost and risk entailed by a legal appeal, let alone a full-blown judicial review action. Under POFMA the burden of proof falls on the person saying something, not the government for saying that that something was false. Many will choose not to take up that burden and simply not speak up.
Wording of correction statements
Next, Section 11 raises a related issue – its language regarding correction statements is broad. The correction statement must be worded “in the specified form and manner.” Is there any requirement that correction statements be as concise, factual, reasonable and non-pejorative as possible? Where is the requirement of proportionality in wording correction statements?
The lack of a public interest defence
Next, look ahead to the future. The price we pay for this Bill may be to live in a country where alternative media, activists and journalists are afraid to bring certain information to light – possibly information about lapses, abuses, scandals or corruption – because they need to protect people who have shared information confidentially but are too afraid to be named. In this case, under Section 7, potentially even the expression of a public suspicion or the publishing of information from confidential sources by reputable journalists and writers using accepted journalistic and investigative methodologies could attract criminal penalties.
The POFMA Bill as it stands lacks a public interest defence, something the UK is reportedly considering including in its eventual fake news policy.
There should be a public interest defence whereby a statement that was “false” according to the strict standards of POFMA, ie it could have been deemed misleading at the time that it was made, may still not be an offence (or would be a far smaller class of offence carrying smaller penalties) if made in good faith, using a defensible investigative process and to serve the greater public interest.
Impact on Media and Academia
Let’s look ahead at the post-POFMA future. Will practitioners in the media industry and academia err on the side of caution? Does that help Singapore’s reputation as a global business, R&D and knowledge hub?
Will scientists and public health professionals with a different view from the government on the public health impact of e-cigarettes, for example, hesitate to publish clinical research showing harm reduction to confirmed smokers for e-cigarettes, out of fear that they may be subject to a correction order because they did not also publish, in the same statement, facts about how many young first-time smokers are taking up e-cigarettes in the US and hence that research would be deemed a misleading collection of true statements? As a result, will they refrain from publishing such facts due to the personal consequences they will have to face? And how does that impoverishment of policy debate help the formation of good policies?
How do we mitigate the risk that academics and the media may come to see a need to “soft-launch” their ideas before publication with government officers to minimise the risk of POFMA action, or worse yet simply self-censor or water down outputs that may disagree with the government’s narrative and hence be deemed to undermine confidence in the government under Section 4?
Risk of abuse by a rogue government and damage to democratic politics
Next, let’s look ahead to the future post-POFMA in respect of politics. Singapore will be a country where any Minister can determine, in the first instance, what is truth and falsehood.
Post-POFMA, ours will be a country where Ministers, with the political interests they are seen to have, can correct statements they deem misleading.
But the very same Ministers will not be subject to the stringent, immediate and broad strictures of the POFMA law. Ministers and government spokespersons can say what they want, including misleading statements with a partisan political character. What is the restraint on the government here?
Can victims of possible government falsehoods go to POHA Courts? Evidently not.
They can sue for defamation but again, how many would do that? Would defamation apply to statements made by Ministries and agencies as opposed to individual Ministers? And how long would that take? What if a falsehood affects the outcome of an election? Would a positive defamation verdict for a victim of government fake news after the election help?
Section 4(f) describes dimunition of confidence in the government as one definition for a falsehood being harmful to the public interest, a feature of this law that is different from most similar Fake News laws or draft laws in other countries.
Is vesting powers this broad in the government of the day from now till this law is repealed, if ever that day comes, the responsible thing to do for future generations of Singaporeans?
What if a rogue government uses these powers to stifle criticism, block the circulation of embarrassing information about lapses, abuses or corruption, perpetuate fear and entrench itself in power? What if such a rogue government exploited the reluctance of many Singaporeans to sue the government in Court to its advantage? What if such a government exploited the lack of a public interest defence to suppress investigative journalism?
Do we serve future generations of Singaporeans by passing such a law and passing into the hands of the government of the day such a powerful weapon, not knowing how it might be used?
When asked about the possibility of future rogue government abusing POFMA, the Law Minister said: “I cannot vouch for how a future government will act.”
Some would say, and the Law Minister also said in the same interview (I’m not taking him out of context), that a rogue government or Minister who abuses their POFMA powers will be held to account in elections and many PAP members of this House has made much of that.
But this ignores the fact that a rogue government can precisely use POFMA powers to stop voters from learning negative information about its actions, which could be a factor in those very elections. The powers can be used to partly insulate against electoral accountability. To say Parliament is a check against abuse is neither here nor there – the abuse may affect the composition of Parliament itself. Mr Speaker sir, this argument is, to a large extent, circular.
Some might say that chilling free speech a little is the right price to pay for preventing foreign powers, extremists and opportunists from destroying our communal harmony or even our independence as a country.
Sir, we recognise the need for a surgical tool to fight fake news. That is why my Party leader MP Pritam Singh has argued for an alternative regime; a regime where the broad definitions and powers in POFMA are curtailed by virtue of the government requiring judges to approve correction orders at the point of implementation, which is closer to one aspect of the model being debated and implemented in France.
Resources can be provided to ensure that duty judges provide fast prima facie decisions in time-sensitive cases. The Courts should be the first arbiter, not the final arbiter.
Sir, in Malay please.
Tuan, rang undang-undang yang dibentangkan pada hari ini mengenai kepalsuan dalam talian merupakan satu penawar yang lebih teruk daripada penyakitnya. Kita semua bersetuju bahawa kepalsuan dalam talian adalah satu gejala buruk yang kita perlu perangi. Namun cara yang digunakan untuk memeranginya adalah salah.
Rang undang-undang ini akan membuat rakyat Singapura teramat berhati-hati untuk menyatakan pandangan kerana pandangan mereka boleh dianggap mengelirukan walaupun ianya berdasarkan fakta. Ini boleh berlaku, hanya kerana pemerintah beranggapan bahawa fakta itu sebagai fakta yang menyokong pandangan yang mengelirukan dan pandangan ini menjejas keyakinan rakyat terhadap pemerintah.
Rang undang-undang ini boleh mengurangkan usaha-usaha untuk menengahkah informasi-informasi yang dianggap kritikal terhadap permerintah. Ia juga boleh disalahgunakan oleh pemerintah yang tidak bertanggungjawab, jika ada Menteri-menteri yang berkemungkinan mempunyai kepentingan politik mereka sendiri, mengeluarkan perintah pembetulan dengan cara penulisan yang boleh memalukan para pengkritik atau bahkan mengambil tindakan untuk menurunkan berita yang dipaparkan serta memberhentikan peredaran informasi yang boleh memalukan pihak pemerintah.
Tuan, di bawah undang-undang ini, pemerintah membuat keputusan samada sesebuah berita itu boleh dianggap palsu ataupun tidak dan tanggungjawab untuk membuktikan bahawa ianya bukan palsu terletak pada orang yang mengeluarkan penyataan ini dan ia perlu dilakukan di Mahkamah.
Parti Pekerja meminta agar diadakan undang-undang berita palsu yang meletakkan tanggungajwab untuk membuktikan kepalsuan kepada pemerintah, bukan pada orang yang mengeluarkan penyataan. Mahkamah harus menjadi penentu pertama dalam membuat keputusan keadilan. Dan para menteri tidak boleh diberikan kuasa yang bahaya seperti yang terdapat dalam rang undang-undang ini, satu kuasa yang boleh digunakan oleh sesebuah pemerintah yang tidak bertanggunjawab, untuk mengekalkan kuasa pemerintahan mereka.
Tuan, kami di Parti Pekerja tidak membangkang atas dasar hanya semata-mata untuk membangkang. Tetapi kita membangkang apabila kita melihat sesuatu yang tidak mempunyai unsur-unsur kepentingan nasional, seperti rang undang-undang ini.
Conclusion – finding the right tool against fake news
In conclusion sir – purging destructive falsehoods from the public square is the right thing to do. But this Bill is a cure worse than the disease.
When we look ahead post-POFMA, we see a country where only the rich and brave may dare to speak out.
In time, the chill on free political speech may also affect our young people in our schools and higher education institutes. Will they come to self-censor their thoughts and their expressions to align with the government narrative? Will they internalise a fear of not diminishing confidence in the government, as Section 4(f) of POFMA details? What would this mean for Singaporeans becoming independent thinkers who can navigate a world of disruption? In fact, the honourable member Professor Lim San San earlier referred to how some members of the public have already started to use “POFMA” as a verb…as in ”I will POFMA you.”
Sir, the problem of fake news needs a surgical tool, welded by objective, non-conflicted surgeons, to strike at the diseased organ and not the healthy limbs.
But this Bill is not a carefully crafted tool. It is a blunt weapon handed to a conflicted surgeon, able to cause a great deal of collateral damage to the democratic body politic in this country.
The Bill as it stands needs a radical overhaul, not just minor tweaks.
Sir, we do not oppose for the sake of opposing. But we do oppose when it is right for Singapore and this is one such time.