Contrary to arguments perpetuated by advocates of the Protection from Online Falsehoods and Manipulation Bill (POFMA), which has now been passed in Parliament, the judiciary remains the most suitable initial and final arbiter in deciding on matters involving alleged online falsehoods compared to Ministers and the Executive under POFMA, said Workers’ Party secretary-general Pritam Singh.
Speaking in response to People’s Action Party MP Cedric Foo’s argument on Wed (8 May) regarding the Courts’ suitability in handling cases involving alleged online falsehoods, given that such issues must be dealt “in a matter of hours”, Mr Singh told the House that he disagrees with the idea that “individuals and companies cannot expect a fast, expeditious solution to falsehoods that have been carried against them” under the Protection from Harassment Act (POHA).
“It is not my understanding that in cases of online falsehoods targeted against individuals and companies, POHA is going to present a slow response for these individuals. That process can also be quick. If not, there would be no provision for interim orders.
“So I disagree with this idea – unless I’ve gotten POHA completely wrong – that individuals and companies cannot expect a fast, expeditious solution to falsehoods that have been carried against them.
“Again, the Workers’ Party will stick to the point, and we believe that the courts actually can respond to online falsehoods speedily,” said Mr Singh.
Mr Foo questioned Mr Singh: “If the judiciary needs to be bulked up in order to handle issues in a matter of hours, as opposed to the Executive branch, which is supported by 16 Ministries and 135,000 officers with years of experience in different domains – security, economics, health, education – and fake news can occur anywhere, how long does it take to bulk up a judiciary if it has to respond in a matter of hours?”
He also pointed out that POHA is designed to address “private matters”, such as in a case where “somebody felt that they have been harassed as a private individual”, while POFMA “is about public interest, riots” and “racial disharmony”.
“These are public interest matters that have to be dealt with much faster than the POHA cases, because [while] the individual’s cases are important, they are not as urgent, as in cases under POFMA, which are both important and urgent, and have to be dealt with right away,” argued Mr Foo, adding that expecting to “equip” the courts with “the same capability and response time and experience and domain knowledge as the executive branch” is “a very far-fetched idea”.
Mr Singh replied that parliamentarians were informed during the debate on POHA that the application process for a review “for online falsehoods for individuals and companies would be a quick one”.
“Separate courts have been set up for this for Singaporeans – for individuals and for companies. And it is in that context that I believe that a speedy response is possible for the courts, because those courts are going to be set up by virtue of the amendments passed on POHA,” he added.
The following flowchart illustrates the differences in the methods through which PAP and WP would interpret and structure POFMA, with PAP preferring to leave the judiciary as a last resort for those wishing to appeal against a Minister’s corrective/takedown directions while WP focuses on making the Court the first and final arbiter of such cases:
Previously, Mr Singh told the House on Tue (May 7) that executive arm of Government, particularly Ministers, should not be given the “remarkable leeway” to determine what constitutes false statements of fact”.
Citing a clause in POFMA which stipulates that the Government may declare a statement to be false if it considers such to be misleading, whether partially or wholly, he said: “In public understanding, this clause gives broad latitude to the Executive to clamp down on what it deems to be even misleading statements which may not be false per se.”
Mr Singh argued that what the Government deems to be offensive, misleading, or in contravention to “public interest” might be understood or defined differently by others.
“While the Government must legitimately be able to apply to shut down malicious actors, a court order should legitimise the action that needs to be undertaken,” he added.
Mr Singh also drew attention to concerns raised by individuals and other entities in their submissions to the Select Committee on Deliberate Online Falsehoods last year, highlighting that the broad scope of powers granted upon Ministers has been one of the strongest points of contention against the Bill since it was first drafted.
Quoting the Select Committee’s report, he highlighted: “There was concern that Executive action could feed fears over the abuse of power […] It was also pointed out that Executive directions would not be able to deal with falsehoods spread by the Executive”.
While Mr Singh acknowledged that urgency and speed in correcting and removing false statements online are the primary reason for vesting broad scope of powers into Ministers and their relevant Competent Authority under POFMA, he argued that granting such power comes with the risk of an “unchecked Executive”.
“On its part, the Executive will act in some cases of falsehoods, and it other cases, it will not. In both scenarios, questions will be asked why the Executive acted as such.
“Suspicions will be raised and perceptions formed. Politicisation would be inevitable,” he added, particularly in reference to the heightened possibility of the spread of “fake news” during elections and other significant events.
The judiciary, an independent council or ombudsman and self-regulation within media firms, noted Mr Singh, were three alternatives to the anti-fake news legislation that were proposed to the Executive.
New provisions under POHA as well as remedies under civil law, can also be employed in dealing with online falsehoods, argued Mr Singh.
“I believe there is scope to introduce processes involving duty judges to deal with an urgent application from the Government speedily or at very short notice,” he said, particularly given that “the meaning of a falsehood is identical under both Poha and the Bill”.