Law and Home Affairs Minister K Shanmugam says NMPs in agreement with key points of POFMA, but does his response paint the full picture of the key points?

In the wake of amendments proposed by three Nominated Members of Parliament (NMPs) and commentaries by two Senior Counsels regarding the proposed Protection from Online Falsehoods and Manipulation Act, Law and Home Affairs Minister K Shanmugam has issued a response to the points raised by the NMPs and SCs in a commentary published on The Straits Times on Fri (3 May).

Stating that he “has read all the pieces”, Mr Shanmugam concluded that “in principle, there is no substantial disagreement on their proposals – between what they have set out […], what the Bill provides, and what the Government intends to prescribe further”.

The key points shared in principle by the NMPs, according to Mr Shanmugam, are:

• That there is a need for the Bill;
• That the Government needs to deal with the serious problem of online falsehoods;
• That the Government needs to have the power to move quickly to deal with the problem; and
• That the Executive will have to make the decisions first.

The Law Minister, in his response, cited the potential use of subsidiary legislation to supplement the proposed Act, stating that the Government intends to address concerns raised by the NMPs regarding Ministers’ unfettered discretion to issue a directive using such legislation.

However, despite Mr Shanmugam’s and the Government’s assurance that the Bill will not be used to muzzle legitimate discourse and criticism, the three NMPs observed that the proposed Act “does not contain such assurances that limit how the Bill’s powers can be used”, in addition to having “broadly worded clauses defining what is a false statement and what constitutes public interest”.

“We are concerned that these broadly worded clauses give the Executive considerable discretion to take action against online communications, without protection in the primary legislation that codifies the assurances given by the Government in explaining the Bill to the public,” said the NMPs.

Consequently, the use of subsidiary or supplementary legislation, as suggested by Mr Shanmugam, does not appear to address the concerns of the NMPs as stated above, which explicitly refers to a lack of “protection in the primary legislation that codifies the assurances given by the Government” to the public regarding what POFMA actually covers.

The NMPs, in their joint statement, also said that while they “agree with the legislative intent of” the Bill, given how online falsehoods “can harm the public interest, even when there is no malevolent intent”, they were also of the opinion that the Bill is “far-reaching” in its scope in controlling “online communications”, as it may be “used by the Executive and future governments to suppress or chill debate and expression for political purposes”.

While Mr Shanmugam pointed out that Harpreet Singh SC recognised the need for wide definitions of “fact” and “public interest” in order to accommodate as much risk as possible, Mr Singh in fact emphasised that Ministers must be statutorily bound to give reasons for making take-down or correction orders, and that such orders must be required to meet standards of proportionality in law.

“This is particularly so given that one cannot vouch for how anyone, much less a future government or minister, might exercise these wide powers in any given case,” added Mr Singh.

It is also worth noting that Mr Singh argued that the definition of “public interest” in POFMA stretches “beyond traditional categories to the diminution of public confidence in the performance of any duty, or any function, or any power of the Government, or even a statutory board”, which “set a very low bar for a minister’s exercise of the extensive powers under the Bill”.

Touching on the three NMPs’ proposal regarding requiring a Minister to give reasons as to why a statement of fact is false, and subsequently, reasons as to why a directive or an order was issued, Mr Shanmugam briefly replied: “The Government intends to do this. It will be prescribed in law (through regulations)”.

It is debatable, however, as to whether the prescribed regulations, if and when they are implemented, may be framed in a way that still does not diminish the powers of a Minister under POFMA, and thus possibly rendering such regulations ineffective and redundant.

Mr Shanmugam also reiterated the Government’s stance that the proposed legislation will only be applied on statements of fact and not opinions.

However, it should be noted that Mr Singh had suggested that “Parliament should clarify the application of the Bill to statements of opinion or mixed statements of opinion and fact”, which demonstrates that the distinction between “statement of fact” and “opinion” is “not always clear”.

Additionally, “Opinion writers regularly cite facts to back up their positions, and a journalist’s interpretation and presentation of a set of facts might contradict a minister’s own understanding of what took place,” stressed a group of 27 local and international journalists in a letter to Communications and Information Minister S Iswaran last month.

Mr Shanmugam has said to ST on just this Thursday that there will be a subsidiary legislation of the POFMA which will define what falsehoods are, set out timeline which appeals will be processed and for Ministers to set out the facts when issuing an order. But no detailed wordings of this subsidiary legislation is out yet. If this subsidiary legislation was meant to be produced from the very beginning, why wasn’t it mentioned at the start? Is this a knee jerk reaction to the public displeasure over the bill? And does this not show the kind of facts that Ministers can throw at the public because they could claim things are such and such which are not public information and that it has been so behind close doors?

Given that the provisions in POFMA have been strongly opposed by various prominent individuals and groups in Singapore society and even internationally – and even recognised as being at least partially problematic by the NMPs and SCs above – the question of whether Mr Shanmugam had thoroughly “read all the pieces” and considered highly critical viewpoints regarding POFMA could potentially be raised in the context of his response in the ST commentary, which appears to primarily reflect the state media narrative that showcases the potential benefits of POFMA instead of the potential harms brought by the Bill.

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