Following the Protection from Online Falsehoods and Manipulation Bill (POFMA) which was proposed in the Parliament of Singapore on 1 April 2019, current and former media practitioners sent a statement to all Members of Parliament, highlighting their concerns that hopefully will be addressed in a more informed debate next month.
Their concerns are that the POFMA would infringe freedom of expression as it does not sufficiently account for the distinctive nuances that lie between facts, opinions and outright disinformation; render the government a reactive player in the fight against disinformation, rather than a proactive and engaged partner of media outlets; and grant the government unchecked powers that can be abused by this government or the next.
If the POFMA was left to proceed along these lines, they contended that it will cause immediate and long-term harm to freedom of expression, impede the development of an engaged and thinking public, and erode trust in the government. Hence, the statement outlines their justifications for these concerns.
Some of the directions they recommended for the MPs to consider revolve around two main thrusts. Firstly, they suggested a refinement of existing laws for the government to treat media entities as valuable partners, rather than as the problem in the fight against disinformation. This is in light of the POFMA’s original intent which is to foster racial and religious harmony and secure electoral integrity, rather than as a law that permits executive overreach of power.
Secondly, excessive executive power should be removed from the law to stipulate conditions that encourage the government to better engage media outlets in a timely fashion, in the case that the POFMA is enacted. They also reiterate the formation of an independent body to decide on falsehoods, a proposal that many media practitioners and outlets have recommended.
The following is the aforementioned statement.
Statement by current and former media practitioners on the Protection from Online Falsehoods and Manipulation Bill
We are deeply disappointed with the Protection from Online Falsehoods and Manipulation Bill (POFMA), tabled in the Parliament of Singapore on 1 April 2019. Our objections to the Bill are based on three main concerns:
1. The excessive infringement on freedom of expression, which will impact the work of media practitioners;
2. The government’s inability to appreciate the digital news industry and to work with media practitioners to combat disinformation; and
3. The increasing lack of government accountability to citizens.
These concerns have been expressed by various media practitioners, academia and civil society groups since the Bill was first made public, but were barely addressed by the Law Ministry since, or did not adequately address the concerns raised by these individuals and were quickly rebutted.1
We also recommend some directions that we would like our Parliamentarians to consider when debating POFMA.
Concern 1: POFMA as an affront to freedom of expression
The Singapore government, particularly through its representatives in the Law Ministry, have persistently declared that the protection against disinformation was meant to enable free speech2. Both the Minister and the Senior Minister of State for Law have repeatedly claimed that the Bill was meant to govern “statements of fact”, not opinions. However, from our own varied experiences, serious opinion writers who wish to better inform their readers about government policies would draw on contradictory facts and figures and the opinions of other stakeholders to support their analysis. These articles would be a combination of facts and viewpoints, diverse by nature, to add weight to the analysis. Yet, the Bill gives little clarity on how these opinion pieces, despite the diligence given to the analysis, can completely avoid running afoul of POFMA.
This is exacerbated by the vague definition of falsehood in the Bill – “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” (Part 1, Clause 2(2)(b) of the Bill). In such a definition, would a news report that uses facts from the government, but accurately replicates a view made by a newsmaker who disputes those facts, also be liable?3 Such ambiguity in the Bill makes it extremely hazardous for journalists to practice their craft in an environment where the Singapore government has demonstrated a low tolerance for even the slightest hint that it made a mistake.
Despite reassurances from the government that the Directions provided for under the Bill have minimal impact on online content4, the government retains the ultimate authority to close down any news website if its journalists fail to comply with its Directions. Such Directions must also be complied with even as news outlets seek to challenge them. This means news outfits would likely choose to preemptively self-censor or comply with Directions without further thought, to avoid more severe legal ramifications such as the curtailment of funding or imprisonment.
We state that POFMA, as it stands in the current Bill, promotes a “carpet bombing” mentality in the fight against disinformation, paying no heed to the distinctive nuances that lie between facts, opinions and outright disinformation. This approach is detrimental to the development of positive journalistic practices and to the development of a thinking public.
Concern 2: POFMA as a stumbling block for how the government should respond to media
The Minister and the Minister of State for Law have assured that the courts are the “final arbiters of truth”5 and that this arbitration would be cheap and uncomplicated6. However, it is undoubted that Ministers have the privilege to decide first what constitutes falsehoods7. To overturn this decision, an aggrieved news outlet will have to endure a lengthy process of appealing to the same Minister to revoke the Direction, failing which it can then take the same Ministry to court to resolve the issue. For a news organisation chasing a story of public interest, where timeliness is everything, this process is no different from killing the story.
Indeed, we are surprised that the government has not considered Recommendation 9 by the Select Committee on Deliberate Online Falsehoods, which states that “public institutions should, wherever possible, provide information to the public in response to online falsehoods in a timely manner”. Rather than reach for cease-and-desist Directions as a first option, the government should instead consider implementing processes for responding to media queries promptly.
Providing journalists with answers to their queries give them no cause to publish falsehoods or risk doing so at a cost to their own reputation. It would also demonstrate a willingness on the part of the government to take responsibility for quelling disinformation early. This can be done by putting into legislation a timeframe for government departments to respond to media queries, beyond which what the news outfit publishes cannot be declared “false”. Indeed, the Minister of State for Law has claimed that demonstrating the truthfulness of a statement was not difficult8. It then stands to reason that a government with infinitely more resources than online media practitioners should not find it too difficult to prove a falsehood.
We state that POFMA, as it stands in the current Bill, essentially makes the government a reactive player in the fight against disinformation, rather than a proactive and engaged partner of serious media outlets. This approach leads to a public that will be increasingly distrustful towards both the government and media outlets.
Concern 3: POFMA as the tipping point for poor government accountability
The greatest public discomfort with POFMA must certainly be the expansive powers granted the executive to act against what the government, and only the government, decides to be falsehoods. This executive overreach is most prominently seen in the sixth condition of falsehoods – that which “diminishes public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, Organ of State, or a statutory board” (Part 2, Clause 7(1)(b)(vi) of the Bill).9
This sixth condition does not reflect the publicly announced ambit of the Select Committee on Deliberate Online Falsehoods, nor what the Committee had affirmed was its focus throughout the public hearings – that of combating disinformation to maintain racial and religious harmony and election integrity in Singapore. This condition grants each Ministry the right to declare as false any material online that opposes its position, silencing meaningful public debate on policy issues and increasing the chances for political abuse that the Law Minister could not guarantee against.10 This is fundamentally unhealthy to our democracy and to public trust in the government and amounts to passing a dangerous law that a rogue government can abuse to clamp down on anything it finds unfavourable.
The Law Minister has also rejected calls for setting up an independent body to decide on cases of disinformation – an idea recommended by mainstream media, civil society and many individuals who participated in the Select Committee hearings11 – with the reason that the government is ultimately responsible. However, while the government has a responsibility, it is not the only one who is responsible12. Media practitioners and civil society all have a vested interest in ensuring a healthy media and information ecosystem. The government cannot play goalkeeper, defender, midfielder, striker and referee all at once.
We state that POFMA, as it stands in the current Bill, connotes a worrying trend of a government that is eager to implement laws that over-extend its reach into civic discourse and grants it unchecked powers that can be abused by this government or the next. This is patently unhealthy for public trust in the government, rendering any progress POFMA might make in securing free and fair elections nought.
In view of the problems identified above, we make the following recommendations to the Singapore government and to Parliamentarians debating on POFMA, and request that Parliamentarians follow these general directions in their deliberations and debate:
- To reconsider POFMA in light of the original purpose of Singapore’s fight against disinformation, which was to maintain racial and religious harmony and the integrity of our elections. These issues have a much narrower scope than “online falsehoods”, and there is a need for the government to craft laws that address these issues surgically.
- To consider amending relevant laws, such as the Maintenance of Religious Harmony Act and Election Acts, to better accommodate the repulsion of disinformation. This would allow for the refinement of laws to specifically cater to the nuances of disinformation related to these situations, and also grant the government more legitimacy in using targeted tools.
- To consider all media entities, mainstream and online, as valuable partners in the fight against disinformation, rather than as the problem. Doing so affirms the government’s sincerity in enhancing freedom of expression and developing a more engaged public.
- Should it be decided that POFMA proceeds:
a. To remove the sixth condition and all related clauses that grant the government
excessive jurisdiction over the definition and persecution of perceived falsehoods. State legitimacy is not attained by force of laws, but in demonstrating a willingness to share power with those the government serves.
b. To stipulate in the law conditions for the government to respond in a timely fashion – as befitting the urgency of debunking falsehoods, such as the response times prescribed in the current Directions – to substantive efforts by media practitioners to clarify information, failing which the government cannot declare a statement false.
c. To consider the formation of an independent body comprising government representatives, community leaders, civil society groups, mainstream and online media practitioners and legal professionals, to serve as the deciders of disinformation, whose decisions would be arbitrated by the courts before any corrective actions are to be taken against said disinformation.
We the undersigned:
Choo Zheng Xi
Team @ TR Emeritus
Editors of Wake Up Singapore
1. Recurrent challenges to POFMA include uncertainty over how the laws would be used and the very real possibility of its misuse to silence dissent (https://mothership.sg/2019/04/online-falsehoods-cherian-george/); the lack of clarity in the letter of the law that offers no guarantee for the protection of free expression (https://www.straitstimes.com/singapore/some-scholars-want-academic-protection- reflected-in-fake-news-bill); and a general ambiguity over what constitutes an opinion versus a statement of fact (http://theindependent.sg/filmmaker-asks-ministers-to-clarify-exactly-what-constitutes-an-online-falsehood/). The government’s assurance that legal aid would be provided to those who challenge the government on POFMA executions were also called into doubt (https://www.theonlinecitizen.com/2019/04/08/lawyer-questions-the-feasibility-of-using-legal-aid-to-appeal-fake-news-directives/).
2. This view has been made public by Minister for Law K Shanmugam (https://www.channelnewsasia.com/news/singapore/regulating- online-falsehoods-is-new-area-for-singapore-11400908) and Senior Minister of State for Law Edwin Tong (https://www.channelnewsasia.com/news/singapore/new-falsehoods-law-chilling-effect-edwin-tong-11408816).
3. This was the situation faced by The Online Citizen, when it was sued by the Ministry of Defence under the Protection from Harassment Act for its interview with Dr Ting Choon Ming in January 2015 (https://www.straitstimes.com/singapore/courts-crime/mindef-patent-case- dr-ting-choon-meng-and-toc-website-made-false-claims). The case was only resolved two years later after the High Court ruled that Mindef has overstepped the permissible usage of POHA (https://www.channelnewsasia.com/news/singapore/court-rejects-govt-s- appeal-to-invoke-anti-harassment-law-agains-7562884).
4. The Law Minister has insisted that “99 percent of people don’t have to worry about what they do, 99 percent of the time” (https://www.todayonline.com/singapore/draft-fake-news-laws-exercise-government-power-put-out-truth).
8. The Minister of State for Law has said that, for content producers to prove to the courts that their statements are not false, “I just have to show that what I wrote is true. That cannot be a very difficult or high bar… If I wrote it, I must have had a basis for writing it in the first place.” (https://www.todayonline.com/singapore/concern-over-legal-costs-appeal-govt-orders-fair-help-available-edwin-tong)
9. Issues with the sixth condition for falsehood was highlighted in online articles (https://sg.news.yahoo.com/comment-fake-news-bill- time-lawyers-mps-stand-counted-044456719.html, http://theindependent.sg/singapores-online-falsehoods-bill-the-death-knell-for-trust- in-the-public-service/).
10. The Law Minister has said, “I cannot vouch for how a future government will act.” https://www.channelnewsasia.com/news/singapore/proposed-law-on-falsehoods-has-clear-oversight-mechanism-to-11438132.
11. https://www.straitstimes.com/politics/keeping-it-real-5-recommendations-that-could-emerge-from-the-select-committee-on- deliberate.
12. https://www.straitstimes.com/singapore/proposed-law-targets-only-those-who-spread-fake-news-deliberately. The Law Minister has also said separately that an independent body cannot response as quickly to falsehoods, and the ability to decide on falsehoods resides with the government.