(Delivered in Parliament on 7 May 2019)
Rely on the Judiciary, not the Executive
Sir, as the Select Committee report on Deliberate Online Falsehoods observes, the phenomenon of fake news is nothing new. Since time immemorial, a battle for hearts and minds has taken place between people who host different views and seek to persuade others of their beliefs and causes; Between politicians at the hustings; Between companies through elaborate public relations exercises and spin; And between countries – most vividly played out during the Cold War between the US and former Soviet Union, each forwarding the superiority of the capitalist and communist systems respectively.
The landscape of fake news
What we refer to as fake news today, with misinformation and disinformation at its core, has been the domain of propaganda in the days before the internet. As framed by Claire Wardle in her submission to the Select Committee, at one end of the spectrum, misinformation has been a method of choice of individuals, politicians, companies and countries. Here, misleading content, false context and imposter content dominate. On the other end is aggressive disinformation with falsified or manipulated content which seek to deceive an audience or a reader. This is usually the domain of sophisticated state and well-endowed non-state actors.
The advent of the internet, and more recently social media – where communication has been democratized with both positive and negative repercussions – has brought the ease of propagating fake news centre-stage. The political economy of social media companies and their algorithms which are skewed at extracting profits, in some cases regardless of the consequences, accentuate the problem. Bots and the existence of enterprises that charge for services to manipulate the public discourse, subvert democracy and elections and weaponize information, have become a feature of the online world with many examples highlighted to the Select Committee.
Over the last few years, Western powers have identified Russia’s employment of hybrid warfare, combining both a hostile information campaign employing both misinformation to disinformation before and during the onset of hostilities as the norm for future conflicts. However, it would be a mistake to suggest only Russian involvement. The arc of history has proved that many countries, even those friendly to Singapore are no less seasoned at subversion and subverting even democratic forces in other countries. And it would be naïve to assume that the employment of misinformation and disinformation is not a permanent aspect of the world we live in today, much of which is lived online.
The Executive should not decide what is a falsehood
Clearly, there is a problem at hand. The question is how should Singapore deal with the problem? The Government has proposed the Protection against Falsehoods Online and Manipulation Bill before the House today, what I henceforth refer to as POFMA. After spending a long time deliberating the nature of the problem including forming a Select Committee of Parliament, the Government decided not to consult the public on how it preferred to tackle the problem.
To this end, a lot of the public apprehension over the Bill can be located in its choice of the decision-making authority on matters concerning online falsehoods – the Executive. The remedies available under this Bill are virtually identical to those individuals and companies can rely on under the Protection from Harassment Act or POHA. In deciding that the Executive will determine what is an actionable falsehood and what is not, there has been significant disquiet even amongst moderate and politically disengaged members of the public about the potentially wide remit of powers extended to Ministers through this Bill.
Sir, the public routinely get involved in political discussions both online and offline on the effectiveness or ineffectiveness of policies, the appropriateness of Executive action, the lack of information on matters on public interest such as the size of our reserves, amongst many others. By their very nature, such discussions are also limited and even exaggerated sometimes because of a lack of disclosure by the Government or the absence of any freedom of information regime to equalize the asymmetry between the information and facts available to Executive as compared to general public.
Given our unique laws that govern how the press operates in Singapore, the infamously local phrase, “out-of-bound” or OB markers, and our unique political culture steeped in a history of hauling up members of the public and politicians who utter defamatory statements to court to be slapped with punitive damages – there is a genuine sense amongst the public that this Bill can easily abused in the wrong hands. It does not help that the public do not appear to be clear on what can be said or what cannot be said – for example, how does a false statement of fact interplay with an opinion or a comment? I believe Minister also recognises this point. In comments to the Straits Times last Saturday about whether the Bill could have the unintended effect of self-censorship, Minister said “we need to educate the public that the Bill applies only to people putting out falsehoods and that various ministries like the Education Ministry is working on public education in this area.”
Mr Speaker, the Workers’ Party opposes this Bill. All the Workers’ Party MPs will speak against it. Our objections centre primarily around a fundamental matter.
First, we do not agree that the Executive should be the initial decision-maker on matters surrounding false statements of facts. Secondly, we do not support the uncertainty over the circumstances under which the Executive can move on matters that rest purely on a Minister’s subjective opinion that a false or misleading statement is nonetheless not in the public interest – for which a correction or take-down order, amongst other directions are necessary. While the Government must legitimately be able to apply to shut down malicious actors, a Court order should legitimise the action that needs to be undertaken.
In fact, the Select Committee report noted representors raising the prospects of the Executive itself spreading falsehoods. This should give all Singaporeans reason to pause and consider whether the Bill that will be passed today with the Executive as the decision maker is truly in the best interests of Singapore. In fact, it is my case that POFMA can easily become a proverbial Damocles sword that would hang over members of the public who do not support the Government’s narrative or tow the Government line.
Alternatives to the Executive as the decision-maker
Sir, it would be useful for the House to revisit Recommendation 12 of the Select Committee report and the analysis that precedes it. Here, the Committee’s report deliberated on which entity should become the decision-maker in determining what is a falsehood.
In fact, the Select Committee outlined three other alternatives – the first, was the Courts. The second was the establishment of an independent body or ombudsman that would issue directions and thirdly, the report considered the prospects of social media companies themselves acting upon notification of falsehoods by users with a recourse to the Courts.
At paragraph 364 of the Select Committee report, the Committee acknowledged the views of some representors, including those who were sceptical of the Executive as the decision-maker. Ironically, much of the concern that has been expressed in the public realm since the first reading of the Bill was actually foreseen by the Select Committee report.
At para 364(b)(iii) it read and I quote, “Representors raised concerns about whether Executive action would be credible. There was concern that Executive action could feed fears over the abuse of power. It was also pointed out that Executive directions would not be able to deal with falsehoods spread by the Executive.” In contrast, the proposal to have the Courts as the decision maker did not illicit any significant apprehensions.
Clause 2 – A misleading statement can be a false statement
To reinforce this point, it is apparent that the Bill gives remarkable leeway to the Executive to define what a falsehood, especially since the Government has said that it will not act on all falsehoods. In fact, Clause 2(2) legislates that a statement can be deemed by the Government to be false if it is misleading – whether wholly or in part, and whether on its own or in the context in which it appears. In the public understanding, this clause gives broad latitude to the Executive to clamp down on what it deems to be even misleading statements, which may not be false per se.
In fact, it is fathomable that some statements the Executive may interpret as offending are likely to exist along the misinformation and disinformation spectrum eloquently laid out by Claire Wardle in her submission to the Select Committee. Some statements would exist in the middle of the spectrum where reasonable people would disagree about whether such an offending statement is indeed prima facie false or misleading and against the public interest.
Clause 10 – What is the public interest?
In addition to Clause 2, Clause 10 legislates that any Minister can issue a whole range of directions if that Minister is of the opinion that it would be in the public interest to issue it. Clause 4 lists six broad considerations of what would be in the public interest. Reference is also made to a diminution of public confidence in the Government, again a term that I would argue can turn on how thick-skinned or thin-skinned the Government is – be it today or in the future.
For example, some weeks ago, some critics – of what many reasonable people would consider, correctly or incorrectly, to be a pro-Government influencer Nas Daily – were accused of seeking to undermine confidence in public institutions. These critics alleged double standards on the part of the Executive in allowing the applicant, a foreigner, to mark his presence in Singapore because of a different interpretation of what the Executive would deem to be a cause-based event. This led the Singapore Police Force to release a statement which framed the allegations of the critics as, I quote “a malicious attempt to undermine confidence in public institutions.” Unquote.
Sir if this example – rooted in a different perspective of how the Public Order Act is applied – outlines the contours of what the threshold of undermining public confidence as defined in the Bill is, then the irresistible conclusion must be that the public interest limb detailed in clause 10 can potentially be very easily invoked by the Executive. Such a conclusion would explain why even moderate Singaporeans have raised concerns about the prospect of POFMA having a chilling effect on the public discourse at the hands of an easily triggered Executive.
Now if an exceedingly low threshold to trigger Part 3 was not enough, the explanatory statement of the Bill at page 69 clarifies that the six scenarios of what would qualify as the public interest are actually only the tip of the iceberg. I quote the explanatory statement – “Clause 4 gives a non-exhaustive (let me stress this again) a non-exhaustive definition of the expression ‘in the public interest’, which is part of the condition for the making of various directions under the Bill.” Unquote.
So in fact, what this Bill is really saying is that Clause 4 is merely a precursor to another potentially unknown list of definitions of what could be in the public interest.
Mr Speaker, we have had episodes in our history where decisions made by the Executive by virtue of powers legally exercised were questioned with scepticism by members of the public, including even members of the Executive years after the event. Operation Spectrum or the Marxist conspiracy of 1988 is a good example. It is public knowledge that a senior Cabinet member left the Executive after expressing doubts about the Executive’s exercise of powers under the Internal Security Act. Senior Minister Tharman Shanmugaratnam was also quoted by the media as being doubtful about whether the individuals arrested in 1988 were communists.
These are not the opinions of lay members of the public who have access to all the relevant information and individuals involved to make a decision or clarify their understanding of events. It would appear that reasonable people even within the Executive would opine very differently on some matters, but yet, each Minister can invoke the powers under this Bill, even if a fellow Minister may not be in agreement. To avoid such inconsistency, wouldn’t the Courts represent a more neutral, transparent, accountable and uncontroversial platform to rule on such matters?
Difficulty in determining between a false statement of fact viz. a comment or opinion
The Government has argued that under the proposed Bill the Courts are the final arbiter of truth and that an uncomplicated appeals process to the Courts would address the concerns of aggrieved parties. Even so Sir, the judicial culture in Singapore is highly non-interventionist. The Courts cannot overrule Executive directions lawfully undertaken, pursuant to legislative powers passed by this House.
False statements which can include misleading ones – nonetheless require the independence and neutrality of the reasonable man who in the case of the Bill, will not be a Judge, but a PAP Minister in the first instance. It is open to question whether a traditionally non-interventionist judiciary will challenge what the Executive deems to be reasonable under the Bill particularly in the face of broad definitions like “misleading statements” and “public interest”.
Furthermore, an appeal to the High Court for a Part 3 direction under Clause 17, does not give leeway to the Court to order what is just and equitable in the circumstances, powers which a genuinely neutral appellant authority must ordinarily host. Instead, POFMA limits the grounds for appeal to the Courts to three circumstances as listed in clause 17. While Judicial Review nonetheless applies, it is a high bar as Judicial Review does not cover the merits of the Minister’s decision, but only its legality.
More fundamentally, the Executive will have to carefully assess and determine what constitutes a statement of fact, something which is not necessarily a straightforward exercise. What is not stated in unequivocal terms by the Government is that the line between satire, opinion or comment, and what the Executive may deem to be a false or misleading statement of fact in the public interpretation, can be highly subjective.
This point was raised in the Court of Appeal judgement in Review Publishing vs Lee Hsien Loong quoting Evans on Defamation, albeit in the context of the defence of fair comment, where it was said and I quote:
It will often be very difficult to decide whether a given statement expresses a comment or [an] opinion, or by contrast constitutes an allegation of fact. The same words published in one context may be statement[s] of fact, yet in another may be comment[s]. Therefore, whether this element of the defence established is one of fact, is dependent upon the nature of the imputation conveyed, and the context and circumstances in which it is published. The test in deciding whether the words are fact or comment is an objective one – namely, whether an ordinary, reasonable reader on reading the whole article would understand the words as comment[s] or [as] statements of fact.
However, in acknowledging that deciding between an opinion or a comment and a fact can be a difficult exercise to say nothing of misleading statements, it would follow that the application of a nonetheless objective test in some cases may likewise not be a straightforward exercise especially in cases of misleading statements where politically charged decisions need to be made.
The Courts as the decision-maker
Mr Speaker, it would appear that a key factor in the Government’s selection of the Executive as opposed to the Courts as the decision-maker on matters concerning falsehoods and manipulation turned on whether a false statement of fact can be corrected, removed and generally, dealt with speedily. If so, it would be important to put this factor into perspective and consider alternatives that seek to balance the urgency of moving against an online falsehood and having a decision maker that is more acceptable than an unchecked Executive.
Firstly, under civil law, quick remedies are available where service and the presence of a respondent in Court are to be dispensed with. And to this end, the ex-parte process is not an unusual judicial remedy to deal with certain time-sensitive applications. But one need not reinvent the wheel here. The prospect of interim orders made in favour of the Government in the face of a prima facie falsehood, just like how an individual or company would apply under POHA – can possibly also operate to deal with online falsehoods and manipulation quickly and effectively.
To this end, Part 3 and 4 of the Bill has close similarities with the remedies for online falsehoods this House has passed under Part 3 of the Protection from Harassment Bill earlier today. The new Section 15 and 16 of POHA envisages identical remedies such as stop publication and correction orders that can be invoked by individuals and companies in Singapore, in addition to orders sought against tech companies upon application to the Harassment Courts.
Mr Speaker, if ordinary Singaporeans and corporates registered here are expected to apply to the Courts to deal with online falsehoods and misleading statements made against them, it would be sensible for the Executive to surrender itself to such as process as well, particularly since the meaning of a falsehood is identical under both POHA and the Bill. The Harassment Courts, dealing with all online falsehood applications, from individual and companies and the Government would also result in a consistent application of the law in matters involving online falsehoods and misleading information, resulting in not only greater clarity for all parties but would help in public education on permissible and impermissible forms of expression. In cases of sensitive matters involving national security, in-camera applications can be made by the Executive to the Harassment Courts.
To this end, I believe there is scope to introduce processes involving duty judges to deal with an urgent application from the Government speedily or at very short notice. Likewise, there can be times where there is a heightened risk of false or misleading postings online. This can happen during elections for example. In such a scenario, urgent interim orders can be ordered by duty judges available at short notice to quickly deal with false content that threatens to subvert the election process. The difference in the time taken between an Executive direction and an Expedited Order through the judicial process in such cases may not be significant. On the other hand, an aggrieved party is also free to apply to the Courts to challenge, vary, suspend or cancel a Court’s decision.
In conclusion, Mr Speaker, the Workers’ Party is of the view that as a matter of principle, the Courts should be the decision-makers at the very first instance on matters that pertain to deliberate online falsehoods and manipulation. The fact that this Bill would have to regulate what some reasonable people may well interpret as an expression of free speech under Article 14 of our Constitution, must to give us reason to pause and question whether the Courts are better placed to exercise judgment on this point.
The fake news domain is already a very controversial one. Some players are sophisticated. Others will fake innocence when rightly called out. Some misleading statements will be completely political in nature, aimed lowering the esteem and political prospects of election candidates. And there would conceivably be a whole litany of other circumstances and scenarios to consider. On its part, the Executive will act in some cases of falsehoods, and it other cases, it will not. In both scenarios, questions will be asked why the Executive acted as such. Suspicious will be raised and perceptions formed. Politicisation would be inevitable. But it is precisely because of these very reasons that the decision-maker must be perceived to be free of conflict in deciding on matters concerning online falsehoods and manipulation as defined by the Bill.