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In a speech in parliament during the debate on the Protection from Online Falsehoods and Manipulation Act (POFMA) hours before the bill was passed, Worker’s Party (WP) Non-Constituency MP Leon Perera said that while ridding falsehoods from public discussion is the right thing to do, the bill is ‘a cure worse than the disease’ and it requires a radical overhaul instead of just minor tweaks.
While WP agrees with the ruling People’s Action Party (PAP) on the need for tools to “limit the reach of truly dangerous falsehoods spread by malicious actors”, Mr Perera notes that the two parties disagree on the means of achieving said goal.
Mr Perera said that POFMA would create a country where too much power is given to individual ministers and where free speech, debate and even thinking could be stifled, especially on important matters of public policy and politics.
Defining what is misleading
Mr Perera highlights that Section 2 of POFMA defines falsehood as statements of fact that are false or misleading, not false and misleading. This mean that a Minister could deem a statement to be misleading just by virtue of the omission of facts. The statement could also be construed as misleading if the ‘opposite facts’ are not given as sufficient weight according to the Minister.
He said, “Under POFMA, a falsehood can be deemed grave enough to warrant correction or penalties for being a misleading collection of facts, even if it does not contain one single false statement of fact.”
On top of that, the same Minister may not even correct statements made by the government of its supporters that present only ‘their facts’. Mr Perera notes that politicians are likely to further their political interests where possible.
“In this case, shouldn’t the court at least be the first arbiter of truth?” asks Mr Perera.
Defining a real risk
Moving on to the definition of risk, Mr Perera highlights Section 4 which sets out various criteria by which false statements are deemed harmful to the “public interest.” He adds, however, that the language in the bill lacks any reference to a real risk threshold. Instead, the bill uses words like “necessary” and “expedient” while failing to elaborate clearly on the threshold of impact.
He adds that Section 17 Part 5 limits what the High Court can take into consideration on appeals of correction or take down orders. The court cannot take into consideration, for example, the degree to which public interest is impacted by the alleged false statement.
Mr Perera warns, “This lack of a threshold of significance raises the risk of abuse of POFMA powers to correct matters which have a very minor impact on the public interest.”
Chilling free speech
On the matter of the effect of POFMA on free speech, Mr Perera noted the ‘bill’s peculiar cocktail of three things’ that would likely to chill free speech and debate about government policies and politics, particularly expressions of views that run counter to the government narrative. These are:
- Section 2 – defining what a Minister deems a misleading presentation of facts, not only false claims of fact, as correctable;
- Section 4(f) defining harmful falsehoods as including those that diminish confidence in the government; and
- Section 6, which establishes Ministers as the decision-makers of truth and falsehood in the first instance.
To demonstrate his point, Mr Perera asked the house to cast their minds to the future and imagine a world where correction and take down orders could damage if not destroy reputations and careers – for journalists, activists, academics, public intellectuals, politicians, professionals of various kinds and many citizens in general.
He said that the heavy fines and jail term provided under the bill is for a single offence of ‘having reason to believe’ that one’s statement is false or harmless is “not just of chilling free speech but of hurling it into an industrial freezer.”
Mr Perera adds, “By free speech here, I refer particularly to public speech regarding policies and politics that may contain criticism of the government of the day or the ruling party.”
Subsequently. He added that it would be difficult if not impossible to subject “offshore sponsors of deliberate online falsehoods” to these criminal penalties, meaning that the burden of these penalties fall primarily on Singaporeans.
Mr Perera suggested that self-censorship would grip Singaporeans and that they would begin to restrict their comments online as “many citizens will not have the stomach to risk a correction order or a criminal charge even if they are confident about their facts.”
He added, “Many will not want to take on the effort, time, cost and risk entailed by a legal appeal, let alone a full-blown judicial review action.”
Wording of correction statements
On the matter of correction statements, Mr Perera repeated concerns that the broad language in the bill does not specify that the correction statements should be as concise, factual, reasonable and non-pejorative as possible. He questions the lack of requirement of proportionality in the wording of correction statements as directed by ministers.
Lack of public interest defence
Moving on, Mr Perera pointed out that under Section 7 of POFMA, potentially even the expression of a public suspicion or the publishing of information from confidential sources by reputable journalists and writers using accepted journalistic and investigative methodologies could attract criminal penalties which would result is a significant restriction of the freedom of press.
He said, “POFMA Bill as it stands lacks a public interest defence, something the UK is reportedly considering including in its eventual fake news policy.”
He suggested, “there should be a public interest defence whereby a statement that was “false” according to the strict standards of POFMA, ie it could have been deemed misleading at the time that it was made, may still not be an offence (or would be a far smaller class of offence carrying smaller penalties) if made in good faith, using a defensible investigative process and to serve the greater public interest.”
Impact on media and academia
Echoing concerns raised by members of the media and the academic community, Mr Perera posited that POFMA would lead to hesitation on the part of researchers with a different view from the government – for example on public health matters – out of fear that they may be subject to a correction order because they did not also publish, in the same statement the ‘opposite facts’. When academics are forced to stifle discourse and research for fear of personal consequences, that leads to an impoverishment of policy debate, said Mr Perera.
“How do we mitigate the risk that academics and the media may come to see a need to “soft-launch” their ideas before publication with government officers to minimise the risk of POFMA action, or worse yet simply self-censor or water down outputs that may disagree with the government’s narrative and hence be deemed to undermine confidence in the government under Section 4?” he questioned.
Rise of abuse by a rogue government and damage to democratic politics
On how the anti-fake news law would affect politics in Singapore, Mr Perera said a post-POFMA Singapore will see ministers correcting statements they deem to be misleading while themselves avoiding the stringent, immediate and broad strictures of the law.
He said, “ Ministers and government spokespersons can say what they want, including misleading statements with a partisan political character. What is the restraint on the government here?”
He adds, “Can victims of possible government falsehoods go to POHA Courts? Evidently not.”
He questions if an individual could take government ministries and agencies to Court for defamation and how long the process would be. He also questioned this: if a falsehood affects the outcome of an election and a positive defamation verdict only comes after the election, would that even help?
On the matter of ‘harm to public interest’, Mr Perera highlighted, “Section 4(f) describes diminution of confidence in the government as one definition for a falsehood being harmful to the public interest, a feature of this law that is different from most similar Fake News laws or draft laws in other countries.”
He questions if is a responsible thing to do to vest such broad powers in the government of the day, asking what happens if a rogue government decides to use these powers to silence critics and bury their own mistakes.
He says, “What if a rogue government uses these powers to stifle criticism, block the circulation of embarrassing information about lapses, abuses or corruption, perpetuate fear and entrench itself in power? What if such a rogue government exploited the reluctance of many Singaporeans to sue the government in Court to its advantage? What if such a government exploited the lack of a public interest defence to suppress investigative journalism?”
Mr Perera then repeated what the Law Minister had said in response to concerns that future rogue governments might abuse POFMA which was, “I cannot vouch for how a future government will act.” The Law Minister added that a rogue government or Minister who abuses their POFMA powers will be held to account in elections and many PAP members of this House has made much of that.
However, Mr Perera says this response ignores the fact that a rogue government can use POFMA powers to stop voters from learning negative information about its actions, which could be a factor in those very elections.
He continued, “To say Parliament is a check against abuse is neither here nor there – the abuse may affect the composition of Parliament itself. Mr Speaker sir, this argument is, to a large extent, circular.”
WP’s Alternative
An an alternative, Mr Perera put forth WP’s suggestion that the Courts should be the first arbiter, not the final arbiter.
To do this, WP suggest that the law require judges to approve correction orders at the point of implementation – similar to the model that is being considered by the French. Additional, WP wants proposed that resources be provided to ensure that duty judges provide fast prima facie decisions in time-sensitive cases.
Concluding his speech, Mr Perera said that a post-POFMA future is one where the only the rich and brave would dare to speak out. He also described how the ‘chill on political free speech’ would affect young people who will likely start self-censoring their thoughts and expressions.
Using an analogy of a surgeon dealing with a disease, Mr Perera said, “The problem of fake news needs a surgical tool, welded by objective, non-conflicted surgeons, to strike at the diseased organ and not the healthy limbs. But this Bill is not a carefully crafted tool. It is a blunt weapon handed to a conflicted surgeon, able to cause a great deal of collateral damage to the democratic body politic in this country.”
Mr Perera had also asked the Law Minister if it is in anyway possible to increase the capacity of the courts so as to process the applications from the Ministers in a speedy manner, just as how the United States have set up their system in certain states. The Law Minister as seen in the video below, did not reply to that and instead ask Mr Perera if he do not agree to the findings of the Select Committee on Deliberate Online Falsehoods.