Opinions are often presented as statement of facts but should people face the risk of jail for that?

Strong criticism followed the announcement an event that by socio-political blogger Nussier Yassin who has decided to make Singapore the base for his new company, Nas Daily Corporation. The event was announced by Mr Yassin to be held on 21 April at the Botanic Gardens and several members of the public were surprised that he was even allowed to hold any kind of public gathering.

Andrew Loh questioned the basis of the Singapore Police Force granting a Public Order (PO) permit for the event, nothing that it’s surprising that a foreigner is allowed to get a permit to hold a meet-up at the Botanic Gardens when foreigners aren’t even allowed to do the same at Hong Lim Park which a pre-designated space for such events. Mr Loh also pointed out that Mr Yassin’s content created under his brand is clearly socio-political and therefore any event he holds under that brand would also be cause-based.

Adding on to that, Mr Remy Choo said, “It is also my opinion that it is hypocritical to give Nas a permit to hold his event on the basis that it is ‘public entertainment’ when socio-political activists are regularly denied permits and arrested for much smaller and more innocuous activities that are casue-based”.

In response to criticism over the SPF allowing the Nas Daily event to take place, SPF said that the foreign blogger didn’t need a Public Order permit for his event because POAs are only required for ‘caused-based events’ and this didn’t fall under that umbrella.

SPF said, “These allegations which suggest that the police have been biased and shown favouritism are untrue and baseless, and maliciously seek to undermine confidence in public institutions.”

Referring to that what SPF said which was included in a statement by the Ministry of Home Affairs, Mr Choo continued to highlighted how the language used by SPF was similar to that of the proposed fake news bill to suggest that statements like the one Mr Choo made above could potentially be criminalised.

He pointed out that under POFMA, the statements made by him and Mr Loh would both be considered a criminal offence and both of them would be subjected to either a penalty of S$50,000 or a jail term of up to five years or both.

Another example is if a person states that the government is practicing ‘double standards’ by having two different permit regimes to govern public activist events on political issues and non-cause public meet-ups by an influencers, that is considered a statement of opinion. Therefore, it’s not covered under the Bill.

However, if a person says or even implies that the same permit rules apply to both kinds of events and that there is ‘double standard’ applied to the granting of permits under the same rules, then that is considered a false statement of fact and therefore can be covered under the bill.

But as Mr Choo crucially pointed out, ”You can agree or disagree with our opinion, but are these statements something people should potentially go to jail for?”

Who gets to decide whether something is an opinion or statement of fact?

In his parliamentary speech on Tuesday (8 May), Mr Shanmugam said that the government had decided against provided further definition to the term ‘fact’ in the bill, noting that there is already a body of case law on fact and opinion and that it is ‘better to rely on existing case law’. Should there be a dispute, he says the matter can be dealt with in Court.

Worker’s Party (WP) politician Daniel Goh argued in parliament on 8 May that the definition of falsehood as provided in POFMA is ‘double-barreled’. Subsection 2(a) states that “a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact”.

However, the problem nowadays is that online falsehoods have undermined public discourse and eroded precisely this figure of the ‘reasonable person’. Mr Goh asks, “If the reasonable person does not quite exist anymore, how do we determine if a statement is indeed a statement of fact and not an opinion?”

He added that the fact Mr Shanmugam had to go to great lengths to differentiate statements of fact from statements of opinion clearly shows that “this distinction between fact and opinion has significantly blurred in public discourse”

“The definition of falsehoods should be simply based on fact – a fact is something that is known to be true because of existing information or proven to be so by current evidence,” said Mr Goh.

Already, many commentators have said that the distinction between a statement of fact and an opinion may not always be easy to draw, not to mention the difference between a statement of fact and an opinion of a statement of fact. WP’s Dennis Tan said in parliament, “Different surveys using different parameters produce different outcomes; they may all not be wrong, they may even constitute statement of facts in different ways but they prove that there can be divergence on what can constitute statement of facts.”

The thing is, even though the Law Minister has repeatedly assured parliament and the public that opinions are not covered under the bill, the wording of the bill does not give such assurances.

The courts can’t decide

With the argument of what is a statement of fact and what is a statement of opinion, POFMA allows for any government minister to make that initial decision. And while Mr Shanmugam has assured the public that the Courts are the final arbiters of truth, the scope of the High Court is limited under POFMA.

As WP’s Sylvia Tan said in her speech in parliament on 8 May, “the High Court cannot inquire into the merits of the decision, whether in the court’s view that decision should have been made in that way. On an appeal, the Court cannot ask important questions such as: a) Is the Minister over-reacting? b) Does the Direction impose obligations on the communicator which are excessively onerous or harsh? c) Does the public interest require the direction to be issued?”

“The appeal to the Courts is thus very tightly scoped,” she added.

The lines are still blurred

So in the end, POFMA was passed with little to no significant amendments to the original proposed legislation. All the concerns raised and criticism leveled from various experts, advocates, and stakeholders have been largely dismissed by the government, which has continued to insist that the law only applies to ‘statements of fact’ and not opinions without actually providing clearer definitions of what that means in the legislation itself.