UN Special Rapporteur voices concern over how POFMA gives Ministers virtually unfettered discretion to label expression they disagree with as “false statements of fact”

Special Rapporteur from United Nations David Kaye has urged the Singapore Government to withdraw the proposed Protection Against Online Falsehoods and Manipulation Act, and to provide additional time for legislative and public consideration to ensure that the Bill aligns with international human rights standards.

In a strongly worded letter to the Prime Minister Lee Hsien Loong on Wed (24 Apr), the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression argued that not only would the impending legislation serve as a basis to deter fully legitimate speech – especially public debate, criticism of government policy, and political dissent – but could also serve as a model for far-reaching restrictions on vague and discretionary grounds of falsity.

“In my experience as Special Rapporteur, I have seen laws against “false information” be used to target journalists, activists, and others, and the proliferation of such laws are cause for grave concern.” wrote Mr Kaye.

The POFMA was introduced as a Bill for its First Reading in Parliament on 1 April as a means to combat the spread of false and/or misleading information online.

Other than making it a criminal offence to communicate deliberate online falsehoods or messages that undermine the public confidence of the government, the proposed bill requires websites to run corrections to ‘online falsehoods’ or to take down articles. It also allows the government to restrict access and cut off profits of sites that are deemed to have spread misinformation.

Mr Kaye, in his letter, dissected parts of the Bill he found troubling, such as the involvement of any Ministers and the relevant Competent Authority instructed by said Ministers – who are from the legislative and executive arms of Government – in determining what is considered “false statements of fact”, as the power granted upon them can be misused “to restrict, censor and punish online expression it designates as “false,” with limited opportunity for appeal”.

Citing Section 2(1) of POFMA, which states that a statement may be found to be 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,” Mr Kaye argued that it is possible for a Minister to “take a portion of a statement out of its context and direct its correction or removal on that basis”.

Instead, to ensure fairness and impartiality, Mr Kaye argued that “States should only seek to restrict content pursuant to an order by an independent and impartial judicial authority, and in accordance with due process and standards of legality, necessity and legitimacy”.

“States should also “refrain from imposing disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression.”

“I have also urged States to refrain from adopting models of regulation “where government agencies, rather than judicial authorities, become the arbiters of lawful expression,” he added.

Mr Kaye also noted that the Bill “does not provide any guidance on how a Minister should assess whether a subject statement adversely affects these objectives, or the circumstances under which a Direction would be a necessary and proportionate means of protecting these objectives”, which in turn fails to “meet the level of clarity and predictability required by international human rights law”.

He also highlighted the repercussions of heavy penalties stipulated in POFMA, which he argued may be “disproportionately imposed on or threatened against journalists, civil society activists, government critics and the political opposition” to stifle legitimate discourse, and will in turn “heighten the risk of censorship” and “create a significant chilling effect on freedom of expression”.

“I am also concerned that “access blocking orders” will be used to shut down entire websites or platforms that are essential to public discourse in Singapore,” he added.

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April 2019