Lawyer questions the feasibility of using legal aid to appeal fake news directives

Mr M Ravi

International human rights lawyer, speaker and author M Ravi took to his Facebook account on Monday (8 April) to question the feasibility and practicality of using legal aid to appeal fake news directives in High Court.

“Honestly, I have not heard of legal aid being grated to lay litigants to challenge the government in court. And if they are eligible to sue the government, the far majority of people who not qualify for legal aid will not have the means to pursue legal proceedings against the government,” he wrote.

Last Monday, the Protection from Online Falsehoods and Manipulation Act (POFMA) was tabled as a way to combat the spread of false and/or misleading information online.

Under the newly drafted law, ministers are given the power to order for corrections or removal of online falsehoods, as well as demand for sites spreading such falsehoods to be blocked when they harm public interest.

However, if someone wish to challenge the decisions, it can be done in court after applications to the ministers to vary or cancel the orders are rejected, as the court is the final arbiter.

What is even more worrying for M Ravi is that the Bill does not give citizens an avenue to challenge the government if it spreads fake news. He said, “What is equally troubling is that the Bill does not give the citizens an avenue to challenge the government if it spreads fake news (like the Marxist Conspiracy) in using the state media to manipulate such news by exempting the state media under Sections 61 of the Bill where the Minister can exempt certain persons/bodies from the Act.”

In the Facebook post, M Ravi was responding to comments given by Deputy Speaker of Parliament Charles Chong and Senior Minister of State for Law and Health Edwin Tong who failed to provide “convincing answers as to how the average person is going to afford legal costs in the range of $80,000 to challenge the decision of the Minister in the High Court or appeal against the decision made in the High Court”.

Mr Chong, who chaired the Select Committee on Deliberate Online Falsehoods last year said that mounting a challenge against a minister’s order for corrections or takedowns of online falsehoods should be less onerous, without actually suggesting what exactly the government should do.

By doing so, he said it will provide assurance that there are sufficient avenues to seek redress when there is a disagreement with the government’s decision. He said this as a respond to public feedback that had come in since POMFA was tabled last Monday.

On the other hand, Hong Kong Baptist University professor of media studies Cherian George felt that the Bill is broadly written which may be abused by the government to repress criticism. He also said that the law gives politicians a “tempting tool for dodging accountability”, while suggesting an independent regulator should be appointed to decide what is fake news and what isn’t.

As a reply to this, Mr Tong said that ministers will have to be accountable for their decisions before the High Court, if at all an appeal is filed. He added that ministers are politically accountable as elected officials, but a regulator does not have to account to the electorate.

Besides that, Prof George also mentioned that what the court can decide on when a person wants to challenge the government’s decision. He explained that the Bill allows the courts to decide if something was actually a falsehood, and not whether the minister is acting in the public interest.

For this concern, Mr Tong noted that the Bill follows an established position of the courts, which have mentioned that public interest is best handled by public officials.

Despite highlighting various concerns about the Bill, both the Ministers did not talk about the monetary costs that will burden an average person if they do decide to challenge the government’s decision under the proposed law.

According to the law, any government minister has the power to declare something as falsehood and issue a directive, free of the moderating influence of their colleagues in the cabinet or experienced civil servants within a specialised ministry.

On top of that, a minister gets to also 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.

Although critics are concern that the laws are too broadly defined, but the government is saying that it does not affect free speech but merely a way to fight online misinformation.

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