POFMA has been gazetted – it is now the law of the land

The Protection from Online Falsehoods and Manipulation Act (POFMA) is officially in effect as it’s been published in the Government Gazette online on 25 June at 5pm.

The bill which was introduced in Parliament on 1 April was passed after a second reading on 8 May. It was then sent to President Halimah Yacob who assented to the law on 3 June before it was published in the Gazette last Friday, making it the law of the land.

During the 105th session of Parliament on 8 May, POFMA was hotly debated – mainly addressing questions and concerns of Worker’s Party MPs – before being passed with 72 votes in support of the bill. There were 9 votes against and 3 abstentions.

The 9 MPs who voted against POFMA were all Worker’s Party members while the 72 who voted for the bill were 72 present PAP MPs and Nominated Members of Parliament (NMP). 3 NMPs abstained from voting after not having their proposed amendments to the bill passed.

A controversial bill

The introduction of POFMA triggered a shockwave of debates around the island about the need for such a law and the possibilities of how the law could be manipulated by errant government ministers to further their political agenda. Overwhelmingly, the concerns revolve around the issues of freedom of speech and freedom of the press.

Countless experts, activists, NGOs, and members of the public echoed similar concerns, pointing several problems with the law such as:

  1. Any minister can declare a statement to be a falsehood and order an immediate removal or correction of the statement
  2. The person accused of making a falsehood can only seek recourse at the High Court once the minister who made the declaration first rejects their appeal
  3. The High Court can only decide whether the statement was indeed false. It cannot judge on whether the minister’s original declaration and/or order of removal was made ‘in the public interest’ as the law outlines.

Regional and International organisations such as the Asian Internet Coalition, ASEAN Parliamentarians for Human Rights, the UN Special Rapporteur, Reporters without Borders came out against POFMA almost immediately citing infringement of rights and proposing adjustments to the bill. Global tech firm Google said that POFMA would be detrimental to innovation. FORUM-ASIA and CIVIUS described the law as yet another tool for the government to silence dissent and criticism.

Locally, 28 civil society and arts community groups including Maruah, Pink Dot, AWARE, Sayoni, HOME and Function 8 wrote a strong letter of concern over POFMA.

These groups also urged the Singapore government to make several key amendments to the draft of the bill before passing it in order to mitigate the concerns that were raised. However, the law was passed without any amendments.

What the bill is suppose to do, according to the Law Minister

Law and Home Affairs Minister K Shanmugam has consistently asserted that POFMA will not infringe on rights such as freedom of the press and freedom of speech as it is only targeted towards individuals who intentionally spread falsehoods. “99% of people don’t have to worry about it 99% of the time,” he said. Many remain unconvinced.

At one point, several NMPs proposed a number of amendments and commentary on the proposed bill. While acknowledging the need for such a law, the NMPs raised concerns that the Act does not contain assurances that limit how the 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.

In response, the Minister cited the potential use of subsidiary legislation to supplement POFMA, indicating that the government does intend to address the concerns raised by the MPs regarding the ministers unfettered discretion to issue orders under the legislation.

Details of this subsidiary legislation have yet to take form, however.

Besides that, in response to criticism that POFMA is redundant as Singapore already has several laws in place that deal with the same issue, Mr Shanmugan said that POFMA has a “narrower set of powers than under existing legislation” which focuses on falsehoods online. He added that the remedies provided for POFMA are “calibrated and provided greater judicial oversight on Executive Action”.

The counter to this is that while the law does afford the High Court jurisdiction to decide on whether a statement is false or not, the judge is still not specifically allowed to make a decision on whether the minister’s executive action is in-line with the provisions of the law – that an order can be made if a person knowingly makes a false statement and that the statement is likely to threaten public interest.

Additionally, Mr Shanmugam explained that the law will go a long way to tighten regulation of tech companies which cannot be expected to regulate themselves. Highlighting incidents such as in Sri Lanka where online rumours led to ethnic violence, attacks and a state of emergency eventually being declared, he said “Facebook users lodged thousands of complaints over hate speech. Facebook did nothing”.

So POFMA, the Law Minister asserted, will help address that issue.

As to whether or not the law will be as effective at combating the spread of fake news as the Minister suggested it would be, that remains to be seen. We also have to wait and see if POFMA will be used as intended on paper or whether it will be used by unscrupulous politicians to silence their critics and stamp out dissent.

Correction to the number of supporting votes and absentations