Just yesterday, the Court of Appeal passed a historic judgment by the virtue of majority votes that the Singapore Government is not deemed as a “person” under the section 15 of the Protection from Harassment Act (POHA).
On 11 Feb 2015, MINDEF proceeded with legal actions against Dr Ting Choon Meng, co-founder of medical device firm MobileStats Technologies and The Online Citizen (TOC) via the use of POHA to seek protection of harassment from the two after TOC reported on Dr Ting’s recount of the sequence of events which transpired between his company, MobileStats Pte Ltd and MINDEF.
Dr Ting alleged that MINDEF had infringed his patent for “Mobile First Aid Post” and had the patent revoked through a ‘war of attrition’ in the courts.
Although the State court ruled in favour of MINDEF but subsequently the High Court ruled on 9 December 2015 that the Government cannot use the POHA to make TOC take down statements on its site made by Dr Ting against the MINDEF. MINDEF then went to make an appeal against the ruling which it lost eventually.
POHA was meant to be used by Government and corporations?
In response to the ruling, a Ministry of Law spokesperson was quoted by Straits Times to say that the Government’s intent is to allow both natural persons as well as the Government and corporations to rely on Section 15 of POHA.
“The Government will study the judgment and consider what further steps it should take to correct the deliberate spreading of falsehoods,”
The spokesperson also quoted to have pointed that “fake news” has become a major problem for many societies. and said, “As recent events elsewhere show, the spreading of false and misleading information can be highly destructive of the institution of democracy,”
Was such intention expressed by Minister of Law during his presentation at Parliament?
It is very interesting and bewildering to hear that the Government had intended to allow itself and corporations to use POHA to defend them from “falsehoods”. In fact, it should be the first time such information is being revealed to the public.
When Minister of Law K Shanmugam presented the proposed bill for POHA in parliament, he presented clause 15 of the POHA which is also section 15 as such:
“We should really give the people the ability to help themselves and try and sort out matters themselves wherever possible. Take attacks against someone involving lies, untruths, inaccuracies – 75% of those polled by REACH were of the view that such conduct should, ipso facto, be treated as harassment. Our view really is that we should not criminalise all such conduct, and that we really should keep to the definition of harassment, which already exists in the law, and simply give greater remedies. So to be criminal, the conduct must fall under the categories listed in clauses 3 to 7. We have not changed the law, only updated it, as I have explained.
Instead, if there are falsehoods, and let us say it is harassment, or it is borderline harassment; or maybe nearly harassment; or not harassment but it is a clear falsehood, then the victim has the right to ask the relevant parties that the falsehoods be corrected, maybe through publication of replies, which may set out the correct facts. Some victims of harassment may well choose that route instead of having to make a criminal complaint, as I said earlier, or launch a civil claim and claim damages. They just want the truth to be out and they do not want to escalate the matter further, and we should allow that. So it is a lower tier of remedy rather than having to go to the criminal and civil law all the time and make claims.
Of course, if the offending party or websites refuse to carry the clarification or the response, or the correction, or a notification that the true facts can be found somewhere else, or the victim’s reply is not able to get the same level of visibility as the falsehood, the law should provide some recourse.
Going back to public opinion, 82% of those polled by REACH felt that people should have a legal right to require that factual inaccuracies about themselves be corrected. This is the thinking behind clause 15. But there will be no claim for damages and there will be no criminal sanctions. If you choose not to file a criminal complaint, if you choose not to make a civil claim, if you choose to, say, look, I just want to clarify or correct it in some form, and the manner of correction is left to the court, then that is all that you will get. You do not get money, you do not get to send the other person to jail. And it is a very simple –
there are no damages, no filing of criminal complaint – a simple process, self-help, which can be applied to a range of situations, but you must prove or show that there was a false statement of fact. Clause 15 therefore allows the subject of the falsehood to apply for a court order that will give the court the discretion to make an order for the publication of a notification that draws attention to the falsehood and the publication of the correct facts. This will allow readers to assess the truth. It is really for the court to decide when it will be just and equitable for the court order to be made and in what form that order should be made.
Clause 15 is not intended to apply to mere conduits such as Network Service Providers or search engines. However, content providers who have some degree of control over the content published on their website could be subject to a clause 15 order.
At no point during his explanation, did the Minister of Law expressed the desire or intention for the government or corporate entities to use the provision embedded in POHA.
During the speech of Mr Pritam Singh, MP for Aljunied at the Second Reading of the bill, he asked the Minister: “On definitions, I seek some clarification whether “persons”, as used in the Bill, is to be broadly read to include corporate entities as under section 2 of the Interpretation Act or whether our courts will be left to determine this point. I ask this as there is case law from the UK, which in applying the UK Protection from Harassment Act, rules that on a proper construction of the term “person”, the Act does not embrace a corporate entity.”
In response, the Minister said, “Mr Pritam Singh queried if the term “person” in the Bill extends to corporate entities. The term “person” is defined in the Interpretation Act, and where this Bill references to “persons”, the Interpretation Act will apply.”
Ok, very unclear explanation there by the Minister. But when the state counsels took up the point about the Minister’s stance of the definition of a person in the legislation. They wrote, “Neither did the Minister, in response to the question of whether “persons” in the Bill includes corporate entities, rebut it and say that it was only limited to natural persons. A fair conclusion to be drawn from this exchange is that both Mr Pritam Singh and the Minister understood that the Parliamentary intent is for “persons” to refer to corporate entities. At the very least, this exchange cannot be in any way construed as evidencing a legislative intent contrary to the presumption in the GPA, i.e. to restrict the Act to only natural persons.”
Simply amazing how Minister’s ambiguous answer could be understood as such by the government. Or was it his intention to begin with? We would probably never know as the Minister has yet to comment on the definition since the case started.
POHA – A trojan horse?
During its appeal against the High Court ruling, the government then argued that it can take advantage of any statutes even if it is not specifically named in it based on Section 36 of the Government Proceeding Act (GPA).
S36 of GPA is the primary legislation that specifically sets out the legal position on how Acts of Parliament apply to the Government. It affirms the common law that the Government is presumed to be able to take advantage of any statutes even if it is not specifically named in it, unless there is contrary legislative intention.
The government argued that this was the entrenched common law position in England at the tie when Section 31(1) of the UK Crown Proceedings Act 1947 (“UK CPA”) was enacted, which is in pari material with Section 36 of the GPA.
Section 36 of the GPA states:
This Act shall not prejudice the right of the Government to take advantage of the provisions of any written law although not named therein; and in any civil proceedings against the Government the provision of any written law which could, if the proceedings were between private person, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the government.
In its submission to the court, the government wrote, “We have shown that Section 36 of the GPA recognises and protects the Government’s common law right, i.e. to take advantage of any statues , including Section 15 of the Act, unless there is contrary legislative intention. In fact, the position in Singapore is even clear than in the UK Section 3 of GPA.”
Based on the government’s argument in the Court of Appeal and If what the Minlaw spokesperson said is indeed the truth about the government intent, then was this POHA, a false extension of good will from the establishment to “protect the vunerable”? With carefully worded provisions within the Act for it to achieve its agenda or to serve as a sleeping provision at least, to be used when the time is right.
After all, based on its argument of S36 of GPA, it can claim usage of any provision in any statues for its advantage.
So should electors and parliamentarians be wary of future bills that may be passed for such agendas?
But then again, there is no point being cautious about such acts being passed in Parliament. Because it will be passed regardless because the ruling party holds majority seats and can do whatever it wants as long as it is required to do so.