Does the newly introduced subsidiary legislation address concerns surrounding POFMA?

The Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) is officially in effect as of 2 October 2019, according to the Government Gazette. The Act, which was introduced in April, passed in Parliament in May and subsequently published in the Gazette in June, has been hotly debated by various local and international organisations and individuals.
Also published on the online Gazette on 1 October were several subsidiary legislations that are meant to supplement the Act, providing extra regulations and directions on the specifics of the act such as companies which are exempt and details on the process of appeals.
Now, when the Act was first proposed as a Bill, POFMA drew immediate backlash for its vague and broad definitions as well as the scope of powers it affords to government ministers. The consensus of worry was that the law would have a chilling effect on free speech and freedom of the press in Singapore and that it would lead to more Singaporeans and Singapore media practising self-censorship to avoid being prosecuted.
Many organisations and individuals proposed amendments and adjustments to the Bill to better define the provisions and protect the freedom of speech, but in the end, the Bill was passed into law without any amendments.
However, Law and Home Affairs Minister did say in response to a letter from Nominated Members of Parliament about proposed amendments that subsidiary legislation would be introduced to supplement the Act, assuring the public that this subsidiary legislation would address concerns that were raised.
Now, let’s take a look at those concerns and see if this subsidiary legislation lives up to expectations.

Definitions are too broad

Concerns:
A common thread in all the arguments presented about POFMA was that certain terms – like ‘public interest’, ‘false statement’, ‘statement of fact’ – in the Act were too broadly defined.
For example, managing director of the Asia Internet Coalition (AIC) Mr Jeff Paine said that the definitions are “vague” and leaves room for a “highly subjective application of the law” and could give rise to the possibility of misuse by the ministers the law empowers.
He also pointed out the “lack of specific protections for the expression of opinion and criticism,” noting that while the government has verbally assured the public that criticism, opinion, satire and parody will not be covered within the scope of POFMA, “it is a striking omission that these kinds of popular speech are not explicitly addressed or protected in the Bill.”
Additionally, the ASEAN Parliamentarians for Human Rights (APHR) in Jakarta said that those terms which are vaguely and broadly defined leaves room for excessively broad interpretations by authorities. Again, noting the possibility of misuse by ministers.
During the parliamentary debate on POFMA, Worker’s Party MP Low Thia Khiang said, “I believe that the Minister can also use the broad and vague definition on falsehood to selectively interpret the relevant text as information or opinions as needed”.
He also noted that Article 2 of the Act states that the government has the power to deal with misleading information but fails to stipulate a boundary between misleading and false.
In response to criticism that the Act inadequately defines what is ‘fake news’, Mr Shanmugan said in an interview that “99% of people don’t have to worry about what they do 99% of the time”.
He added, “The people who need to be concerned are the people who profit from and peddle in falsehoods. They put out [sic] knowing that it’s false and they know that they are going to profit from it. They are doing it deliberately, they are setting it out, there’s some element of malice, they need to worry.”
He has also emphasised that POFMA does not cover satire or parody.
In his scathing speech, Mr Low also suggested that the definition of ‘false information’ is ambiguous as it doesn’t stipulate a boundary between misleading and false. He continued by asserting that this indicates the government’s lack of interest in having any in-depth discussion on the issue, waiting only for the people to hand them the power to make decisions.
Subsidiary legislation:
There is nothing in the Protection From Online Falsehoods and Manipulation Regulation 2019 (POFMR) to further clarify these terms that have been deemed vague.
What the legislation does define are terms like internet intermediaries and website owner, Section 16(1).

Other issues such as what constitutes ‘public interest’ or a clearer definition of ‘false statement’ or ‘statement of fact’ hasn’t been outlined. There is also no guideline or criteria that a minister has to follow when stating their basis for declaring a statement as misleading or false.

Time frame and cost of appeal process

Concerns:
Another point of contention was that the cost of appealing an order made under POFMA could be prohibitively expensive, time-consuming and intimidating for most people.
On top of that, an appeal to the High Court can only be sought after the Minister who issued the order rejects the application for appeal first. The Act does not specify a time-frame in which the Minister has to reject an application, leaving the impression that the issue could be dragged on for ages, leaving the appellant stuck in limbo and unable to seek recourse in the Courts.
Nominated Members of Parliament outlined in a letter that the appeals process laid out in Clause 17, 29, and 35 of POFMA “could potentially limit the ability of appellants to seek judicial oversight because all appeals must be made first to the respective domain Minister”.
The AIC, in their statement prior to the passing of the Act in Parliament, that the bill be amended to “clear and well-defined language and scope, targets very specific offences, and, critically, has full and independent judicial oversight and right to appeal available in a timely manner.”
In their letter, the NMPs proposed that the Act state that a provision be added to ensure that “do everything reasonable to ensure the appeals process is expeditious and low-cost”.
Mr Low in Parliament noted that ordinary citizens do not have the same volume of resources as the government, which makes appealing against a correction or takedown order a difficult process. He described the legal tussle as “hitting the stone with an egg”.
On this front, Mr Shanmugam had said earlier that the subsidiary legislation set out timelines for how fast ministers and courts must respond when a challenge is made on a decision under POFMA.
Speaking at an event, Mr Shanmugam said, “Of course, people can employ lawyers… But we want to make the process such that you fill in a form that sets out your position, and we want to try and make it fast and relatively inexpensive.”
Subsidiary legislation:
If a person/company wants to challenge a Minister’s decision made under POFMA, they can do so via writing. Section 13 of the legislation outlines the methods and guidelines on how one could go about doing that, either in writing or online at www.pofmaoffice.gov.sg.
Section 13(3)(b) specifically says that the application will have to include detailed arguments for each point on why the decision is being challenged.

Once an application is submitted, the minister who originally issued the order is required to make a decision on the appeal application within two days after it has been submitted, according to Section 14(1). So here, a time frame has been specified. However, Section 14(3) stated that if the minister does not respond, the application is considered as having been rejected. Meaning that the original order stands.


In that case, the person appealing the decision can take their case up to the High Court, but they have to file the appeal in the High Court within 14 days after the minister’s decision not to vary or cancel the direction or declaration. The appeal is filed by way of an originating summons (OS) and supporting affidavit.
According to the Supreme Court of Singapore website, the Registrar will fix the hearing date the appeal “on the 6th working day” after the documents are accepted by the Registry or after the appellant attends before the Duty Registrar, whichever is later.
The website also notes that if the appellant doesn’t attend before a Duty Registrar within the required timeline, the hearing date will be fixed for a later date “not earlier than 6 working days” after the date on which the relevant documents are accepted by the Registry.
As for cost, the website says filing the OS will cost S$200, while filing an affidavit costs S$1 per page, including exhibits, with a minimum fee of S$10.
Hearing costs are identical to fees set out in the Rules of Court. The first three days of the hearing will be free while the fourth day will cost S$6,000. Day 5 is S$2,000 while days six to 10 is S$3,000 per day. Subsequent days costs S$5,000 per day.

Court and hearing fees for appeals under POFMA. Source: Supreme Court Singapore

Powers too broad

Concerns:
Another commonly held argument against POFMA pointed out by Mr Paine of the AIC is that the Act gives individual ministers an “extraordinary amount of power” without providing consistent criteria how those ministers would justify their decision.
Special Rapporteur from United Nations (UN) David Kaye cited Section 2(1) of POFMA, which states that a statement may be found to be false “if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.”
He argued that it is possible for a Minister to “take a portion of a statement out of its context and direct its correction or removal on that basis”.
AIC had proposed that a provision be made to specify the process of making an order, providing detailed criteria and guidelines for ministers to publicly justify the reasons and conditions of the issuance of an order under the Act.
In Parliament, Mr Low said that the bill gives ministers absolute power to judge what is false and decide on what action to take. He likened it to playing a game in which the minister is both player and referee.
“The real aim of the Government through this Bill is to protect the ruling party and achieve political monopoly,” Mr Low asserted.
“To introduce such a Bill is not what a government which claims to defend democracy and public interest should do. It is more like the unscrupulous actions of a dictatorial government that will resort to any means to hold onto absolute power,” he added.
During the debate in Parliament, WP MP Pritam Singh spoke for his party, saying: “The WP does not support the uncertainty over the circumstances under which the Executive can act, which rests purely on a minister’s subjective opinion that a false or misleading statement is not in the public interest.”
Speaking to Straits Times in May, Mr Shanmugam countered concerns by saying, “It will be part of the law that when you say something is false, you give reasons why you say it is false. All along we had intended to do it. This is going to be in subsidiary legislation; that’s why it was not in the Bill.”
Subsidiary legislation:
Again, there is little in the subsidiary legislation to address concerns of these broad powers. What it does contain is a sort of guideline for ministers on what their orders should contain.
Section 6 states that the minister’s directions should contain, for example, the location of where the so-called ‘false statement’ is communicated, the basis for why they have a determined a statement to be a false statement of facts, and a statement that the minister is of the opinion that it is in the public interest for the direction to be issued.

Similarly, Section 8 outlines that for a direction on account restriction, stating that the minister has to provide a basis as to why the statement made by the account is determined as a false statement of fact as well as the behaviours of that accounts which led to the determination that its behaviour is ‘inauthentic’. The minister also has to provide a basis for why they might consider the account itself to be inauthentic or controlled by a bot.

On top of that, the minister will have to include a statement explaining their opinion on why restricting the account is in the public interest.

An independent arbiter

Concerns:
Another major issue that was pointed out was how the Act seemed to limit the powers of the judiciary. According to the provisions in POFMA, the High Court can only decide whether the statement declared by a minister to be false is, in fact, false. The Court cannot judge on whether the minister’s original declaration and/or order of removal was made ‘in the public interest’ as the law outlines.
Local arts and civil societies groups said in an open letter that the requirement of a so-called false statement of fact being deemed as such if it undermines “public interest” is inadequate because it is satisfied as long as the Minister is of the opinion that the statement is against the public interest.
The letter noted, “The court cannot question this judgment. In reality, this subjective requirement would barely constrain a Minister’s actions in any way.”
UN Special Rapporteur Mr Kaye argued that “States should only seek to restrict content pursuant to an order by an independent and impartial judicial authority, and in accordance with due process and standards of legality, necessity and legitimacy”.
He noted that the Act doesn’t provide any guidelines for a minister in assessing whether a statement adversely affects the objectives of the Act, or the circumstances under which a Direction would be necessary and proportionate”.
The AIC proposed that the Act include checks and balances and that an impartial and independent body or mechanism be put in place to assess a minister’s request before any orders can be issued.
On this, Mr Low had suggested that the Minister first take their complaint to the Court and prove to a judge that the information published online is fake news or false information.
In responding to concerns, Mr Shanmugam was quoted by ST as saying that POFMA gives ministers the power to make a quick initial decision on a piece of falsehood as there is a need to act quickly to prevent the spread of untruths.
He said, “There can be massive consequences when people deliberately put out and trade in untruths, so it has to be dealt with quickly. Within a few hours, the falsehoods can travel very far.”
He added that the decision can be challenged in court and overturned, saying “The courts decide ultimately what is true and what is false and they will be the final arbiters.”
However, during the second debate, Mr Pritam said that while he acknowledged the government’s argument that the courts will be the final arbiter of truth, the judicial culture in Singapore is ‘non-interventionist’.
He explained that as it is the minister, not the judge, that first decides to act based on what he or she deemed to be a “misleading statement” and a matter of “public interest”, it was open to question if a traditionally non-interventionist judiciary will challenge the interpretations of the Executive.
Subsidiary legislation:
On this point, it appears that the government is sticking to its guns. Mr Shanmugam has repeatedly said that while ministers make the initial decision to declare a falsehood, the final arbiter will be the High Court.
So the subsidiary legislation does not have any provisions for an independent body to regulate or oversee any orders made under POFMA. Basically, a minister can make their declaration or issue an order for account restriction or correction without having to first justify to an independent body why they are making the order. Of course, they will have to provide a basis for the order, but there will be no one to approve or deny it.
Only after the order has been given can the affected party apply to challenge the decision. If the minister rejects the challenge, the case is brought up to the High Court. The entire time, the order remains effective.

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