In MINDEF’s case against Dr Ting & TOC, POFMA would serve them better than POHA did

Back in 2015, TOC found itself fighting legal battle the Ministry of Defence over a report published about events that transpired between the company of Dr Ting Choon Meng, MobileStats Pte Ltd, and the Ministry of Defence (MINDEF).

In the report published by TOC, Dr Ting recounted the sequence of events which transpired, alleging that MINDEF had infringed on his patent for ‘Mobile First Aid Post’ and had the patent revoked through a ‘war of attrition’ in the courts.

In response, MINDEF has disputed Dr Ting’s claimed with its own statement of facts and sent a letter of demand to both Dr Ting and TOC via the Attorney General’s Chambers (AGC) to remove the article in question or face legal action under the Protection from Harassment Act (POHA).

TOC and Dr Ting declined to accede to the AGC’s demands. This led to MINDEF proceeding with legal actions against both Dr Ting and TOC in February 2015 via the use of POHA, seeking protection from harassment from the two.

TOC decided to take the case to court instead of giving in to the legal suit by MINDEF only because TOC was offered the services of Eugene Thuraisingam LLP who offered to fight the case on a pro-bono basis. If not for their assistance, TOC would have been unable to take on the suit which dragged on for about 2 years as the site does not have the same financial backing that the government does.

Though TOC lost the case at State Court level, both the High Court and Court of Appeal found in favour of TOC.

The High Court ruled on 9 December 2015 that the government cannot use POHA to make TOC take down the statements from the site made by Dr Ting.

Two years later in 2017, the Court of Appeal passed a landmark judgement stating that the government is not deemed as a ‘person’ under Section 14 of POHA. This means MINDEF’s use of POHA is invalid, meaning it cannot be harassed by TOC and Dr Ting.

The courts also found that certain facts cannot be established as true such as whether or not MINDEF had used Dr Ting’s patent unlawfully.

It should be noted that the Courts merely ruled that the government is not entitled to use POHA as a non-natural personal. It did not say anything about the case between Dr Ting and MINDEF.

Now, we see how the government has already tried to use POHA in the past to quell criticism or anyone who dared shed a light on anything unsavoury in relation to the government. How do you think POFMA will fare?

The proposed fake news law gives broader powers to the government to silence dissent and criticism. And even though they say that the High Court will be the final arbiter of truth, who would have the resources to fight a prolonged case with the government? Legal fees don’t come cheap and not everyone will be able to get a lawyer or firm willing to work pro-bono.

As for TOC, if the site is struck with three claims of such alleged ‘falsehoods’, POFMA (Clause 32 and 33) would require the site to cease operations while it appeals the orders given by the ministers – first appealing to the minister who gave the order before even taking the case to court if the minister eventually declines the application (no time limit is set on how long the minister can take to review an appeal).

Clause 32 (1) of POFMA
Clause 33 (3) of POFMA

Using the example above, the site will be forced to shut down for up to two years while we try to prove in court that we are in the right when it comes to stories such as Dr Ting’s case.