The draft of Singapore’s new ‘Fake News’ law is out. The Protection From Online Falsehoods and Manipulation Act (POFMA) was proposed in Parliament on 1 April as a means to combat the spread of false and/or misleading information online – which undoubtedly has become a major issue as the world enters a new level of connectedness via the internet.
Among other measures, the proposed bill requires websites to run corrections to ‘online falsehoods’ and allow the government to cut off profits of sites that are deemed to have spread misinformation. However, the bill in its current form poses several significant concerns.
Media professor Cherian George wrote a document detailing observations and concerns that he has on the proposed law.
Declaring falsehoods are at the discretion of ministers
Currently, POFMA would surpass the country’s existing defamation ‘in its chilling effects’, says Mr Grorge, affording the government a wider range of power to supress and silence even legitimate criticism if they feel it could result in a ‘diminution of public confidence’ in the government’s performance or incite ‘feelings of enmity, hatred or ill will between different groups of persons’, and other threats.
With POFMA, any government minister has the discretion to issue a directive, free of the moderating influence of their colleagues in the cabinet or experienced civil servants within a specialised ministry. Yes, any ministers, along with any public agency that the Minister appoints as Competent Authority to hold the powers of the enforcement.
Mr George describes this as ‘unusual’ as most legal powers come under a specific ministers.
There is also no independent regulatory body named to provide any sort of oversight when it comes to deciding whether a statement is actually a falsehood or not.
Mr George pointed out that best practice media regulation requires regulators to be free as possible from political interference. However, the proposed bill specifically outlines that the authority MUST follow the instructions of the complaining minister and does not propose an independent regulator.
12 – (5) Once a Stop Communication Direction has been issued, the Competent Authority must publish a notice of that fact in the Gazette as soon as possible.
Ministers empowered to issue directions of correction/removal
Humans are flawed, as history has proven time and time again. Mr George wrote that Singapore needs to not assume that it will be left by angels and anticipate how rogue politicians might seeks to exploit the law.
As much as the Ministry of Law – and the government as a whole may – try to reassure the public that the law will not be misused or exploited, assurances are meaningless unless specifically outlined in the law, said Mr George. Safeguards can only be affective if they are explicitly included and worked into the proposed legislation.
POFMA will allow ministers the power to issue a correction direction or stop communication direction – basically to compel an individual or company/website to issue a correction of the ‘falsehood’ or remove the content entirely.
They are also allowed to issue a stop communication direction without issuing a correction direction first. This means journalists or individuals might not even get a chance to correct themselves in good faith before the minister in question decides to place the full weight of POFMA on them.
As you can see above, the bill also allows ministers the freedom to dictate a ‘specified time’ of when the alleged falsehoods need to be removed or corrected but it doesn’t require them to set a reasonable deadline. Which means it’s entirely up to the minister to decide how fast a correction/removal has to be made. The courts do have the authority to decide if the specified time is technically doable, though.
As for the corrections themselves, the bill allows the government the freedom to dictate the wording of the apology/correction. This is similar to defamation suits, said Mr George. However, he pointed out that the difference here is that defamation suits go through a court process while these directions issued under POFMA are executive orders.
A person could also be ordered to place a correction/apology in a print newspaper – which the bill specified will be done at the subject’s own expense. The financial cost of that to an individual would be significant.
11 – (1) A Correction Direction is one issued to a person who communicated the subject statement in Singapore, requiring the person to communicate in Singapore in the specified form and s manner, to a specified person or description of persons (if any), and by the specified time, a notice (called in this Part a correction notice) that contains one or both of the following:
(a) a statement, in such terms as may be specified, that the subject statement is false, or that the specified material io contains a false statement of fact;
(6) a specified statement of fact, or a reference to a specified location where the specified statement of fact may be found, or both.
13 – (6) A person issued a Part 3 Direction is responsible for the costs of complying with the Direction.
Now, the bill does allow a person/entity to appeal these directions to the High Court but only after they have first applied to the minister in question to vary or cancel the direction. Only when the Minister has refused the application can the appeal be taken to the High Court. Also, the direction will remain in effect until the High Court sets it aside.
17 – (1) A person to whom a Part 3 Direction is issued may appeal to the High Court against the Direction.
(2) No appeal may be made to the High Court by any person unless the person has first applied to the Minister mentioned in section 19 to vary or cancel the Part 3 Direction under that section, and the Minister refused the application whether in whole or in part.
(6) A Part 3 Direction that is the subject of an appeal under subsection (1) remains in effect despite the appeal, and only ceases to have effect if it is set aside by the High Court or the Court of Appeal on appeal from the High Court, or if it expires or is cancelled under section 19.
However, no timeline is specified as to how long a Minister can take to consider the application to cancel or vary the order. So technically, a minister, should they so wish, can indefinitely delay any application to the High Court, said Mr George.
At this point, he also noted that the Court has no leeway to judge whether the minister was in fact acting in the public interest, as required by the law, when they issue a directive under POFMA. “Judicial oversight is explicitly excluded,” he emphasised. This means judges can only consider whether the statement in question does indeed fall under the definition of falsehood as outlined in the bill.
Speaking of definitions, let’s look at how POFMA defines ‘false statements’.
(2) In this Act-
(b) 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 proposed bill doesn’t specifically outline what constitutes a falsehood, leaving it up to the ministers to decide.
Any minister gets to decide that he’s acting in the public interest by using this law to insulate his ministry or statutory board from “diminution of public confidence”.
And he or she can do so without having to consult with any independent regulatory body, committee or even other ministers. Basically, POFMA would give individual politicians the capacity to police speech, which puts the state in full control of political leaders.
Now, there is no question that there is a need for proper regulation to clamp down on the spread of fake news and misleading information. But a legislation such as POFMA which places unprecedented power in the hands of political leaders can get out of hand very quickly.
The next step, proposed Mr George, is for MPs to make substantial amendments to the legislation to “correct the extraordinary and unprecedented capacity that the Bill would give individual politicians to police speech”.
After all, “Singapore’s ministers, like politicians everywhere, are not known for sober, disinterested assessment of criticisms made about them,” said Mr Geroge. There is precedent showing the propensity of Singapore’s ministers to overreact and attribute the worst motives to journalists and other commentators who irk them.
One example of this was when the government called a new agency’s headline about a minister’s remarks ‘fabricated’, when when it was at worst a case of misinterpretation and overplay, said Mr George.
As for assurances that the law would not be exploited, one only has to look at how other Acts have already been used by the government to their advantage. One example that Mr George pointed out was the Political Donations act which was introduced to keep money out of elections but was eventually also used to restrict fundraising of an independent site like TOC.
Another example is the Protection from Harassment Act – which was introduced to address cyberbullying and cyberstalking – which was used by the Ministry of Defence to claim it was a victim of harassment and tried to use the law to punish bloggers.
POFMA is currently far from perfect and is at risk of being misused by unscrupulous politicians.
We can now only hope that politicians on both sides of the aisles propose the right amendments when it is tabled for the second time in Parliament. But given the fact that no amendment was made to the Population White Paper or the Elected Presidency despite the public outcry, what we see in the bill, will soon become the law that governs the people.