ST article on grey area between “innocent sharing” or breaching Official Secrets Act – informative or cautionary?

In light of the “viral”, instantaneous sharing culture on social media where visual evidence of incidents or events can be shared in a single tap, individuals may be treading on thin ice in relation to the Official Secrets Act (OSA).

The Straits Times on last Fri (13 Sep) cautioned members of the public against “violating the OSA, accidentally or otherwise” such as when sharing photographs of victims in a fatal accident.

Invictus Law Corporation director, Darren Tan told ST: “If you are in possession of a document or information that possibly could be governed by OSA, and if the source is suspect, then you should be more circumspect and do your due diligence.”

“If you think that the information you are sharing may have been obtained by a person by virtue of their position as someone who holds a government contract, it is probably best to verify the source before sharing it,” Tan added.

Tan referred to the case of former Singapore Airlines pilot Fazli Hisham Mohd Fairuz Shah, who was fined under the OSA for sharing photographs of a deceased domestic worker and a Singapore Civil Defence Force (SCDF) call sheet.

He noted that while Fazli did not hold a government contract himself, his girlfriend Nurizzah Afiqah Hussain, a paramedic involved in the domestic worker’s case and from whom he had obtained the images, was tied to the authorities.

“Theoretically, if the man forwarded the message to a WhatsApp group knowing or having reason to believe that it’s a leak of information from government sources, he could be in contravention of the OSA, just like the principal offender,” Tan said.

However, such regulations will not apply to a “casual bystander” taking photographs of a dying person in similar circumstances, as such photographs will not be considered to come from official sources, and thus will not be classified under the OSA.

A spokesperson for the SCDF and Police told ST: “Officers of the SPF and SCDF are required to safeguard confidential and official information obtained during the course of duty.”

“Any officer found to have violated the OSA will be charged as well as face internal disciplinary action,” the spokesperson said.

Officers of other government bodies are also subject to such penalties, such as in the case of Housing and Development Board (HDB) officer Ng Han Yuan who was fined S$2,000 in Dec 2017 for “wrongfully communicating confidential information” to Janice Tai, a reporter working for Singapore Press Holdings (SPH).

Police said that HDB filed a police report in July after receiving queries from an ST reporter on the launch of its new resale portal, which was still classified as confidential information at the time the query was made.

The confidential information, Police added, originated from Ng, who had divulged HDB’s plans regarding the portal despite previously making a request to Tai to not publish anything about the project after she had asked as to whether she could run a story regarding the portal.

Tai approached other parties related to the portal after receiving information from Ng. She was also penalised for receiving confidential information from Ng under OSA and was given a “stern warning”.

While Ng’s lawyer Kevin Cheng said that the information on the portal was not “state secrets per se” and that the consequences fell on the “less serious end of the spectrum”, Deputy Public Prosecutor Kumaresan Gohubalan sought the maximum fine of S$2,000, arguing that the principle of deterrence ought to apply in order to prevent more serious instances involving the leak of such confidential information.

Should there be a whistleblowing culture in Singapore and laws protecting whistleblowers?

The cautionary tone of the ST article raises questions regarding the role of whistleblowers in Singapore in relation to the OSA, given the potentially sweeping scope of the Act.

In 2014, a person by the name of Tan Keng Hong filed a lawsuit against the Maritime and Port Authority of Singapore (MPA) for damages after the latter failed to protect his identity in a whistle-blowing case, resulting in harassment against him and his family.

Tan witnessed a crime in August 2011, in which Singapore firm Elcarim Petroleum’s motor tanker loaded a cargo of unrecovered waste oil at Tanjong Kling Road.

He filed a police report the same month following the incident, which resulted in Elcarim Petroleum being found guilty of breaching Regulation 7 of the MPA (Dangerous Goods, Petroleum and Explosives) Regulations in Jan the following year. The firm was fined S$7,500.

Tan’s name and other personal particulars such as IC number and address did not only show up in court documents tendered by MPA, but the particulars were also read out loud in open court during proceedings.

MPA argued in defence that there was evidently no agreement of confidentiality, as the complaint was unsolicited and voluntary, and that any whistleblower filing a complaint to the police or any regulatory body “would reasonably have known that they may be called as witnesses in court in the prosecution of any persons for offences pursuant to the relevant laws, statutes and regulations”.

An MPA spokesperson later on told The New Paper in Sep 2014 that the Authority has a “strict policy” when it comes to protecting “the identity of any whistle-blower” except when it comes to court documents.

Section 36 of the Prevention of Corruption Act, however, provides for the non-disclosure of a complainant’s identity even during court proceedings “unless the court finds that he has wilfully made a false statement in his complaint” as observed by Singapore Law Review.

Arguably, the problem should not be framed as stemming from the practice of whistleblowing itself, but rather from an apparent lack of enforced protection of whistleblowers as seen in Tan’s case.