Questionable points in MinLaw and MCI’s response to PSP’s statement on POFMA

Earlier on Tuesday (10 December) the Progress Singapore Party (PSP) called for Courts of Singapore to be the authority that declares a piece of news as falsehood and impose corresponding penalties to ensure that Protection from Online Falsehoods and Manipulation (POFMA) is in line with the value of ‘independence’.

In a statement on their website, PSP emphasised that the party is founded on the tenets of transparency, independence and accountability which it feels the current POFMA “falls short”.

“Currently, POFMA empowers the Minister to declare a piece of news to be falsehood, without requiring any justification, criteria or standards,” said PSP.

“This does not measure up to the standards of Transparency and Accountability. And where the news involves the Government, it also fails the standard of Independence,” it added.

Agreeing that the government needs to act speedily in curbing the viral spread of fake news, PSP voiced its support on the need for Ministers to be empowered to demand that news purveyors post a link to a site which includes facts from the government in order “to swiftly stop the spread of misinformation”.

However, the party also said: “to declare any news as falsehood and to impose any penalties thereof, PSP is of the view that it should be done by the Courts of Singapore for Independence.”

The statement goes on to explain that the Courts have an established system and precedence for determining falsehoods given that it handles cases like fraud. This would ensure transparency and accountability, said PSP.

Untrue that ministers can impose penalties as they wish, said MCI and MinLaw

In response to PSP’s statement, Ministry of Communication and Information (MCI) and Ministry of Law (MinLaw) issued a joint statement on Thursday, stating that it is untrue that ministers can impose any penalties they wish.

“Ministers can give directions, for example, requiring a correction to be posted. But if the direction is not complied with, only the courts can impose penalties, in accordance with due process and established legal principles,” the ministries added.

The ministries also wrote: “A person who posts a falsehood but subsequently posts a correction will face no penalties. If there is any criminal conduct, that has to be determined by the Courts, and penalties are again decided by the Courts.”

However, there seems to be a few misleading points in the ministries’ statement.

No prosecution if correction order is complied?

The ministries’ statement seem to give an impression that no penalties will be imposed if the correction order is complied.

But according to the wordings in section 7 of POFMA, “Communication of false statements of fact in Singapore”, there does not seem to be any provision that states one will not be prosecuted once correction has been made to the offending post.

This offence under section 7 carries an penalty of a fine of up to $50,000 and/or imprisonment for a term not exceeding 5 years or to a fine not exceeding $500,000. If one is using a bot or a fake account, that penalty is doubled.

The offence that one will not be guilty of, will be that of non-compliance of the correction order under Section 15 of the Act which carries a penalty of a fine not exceeding $20,000 or to imprisonment for a term not exceeding 12 months or to both; or to a fine not exceeding $500,000.

In the two cases of correction orders involving Brad Bowyer and States Times Review, it was the Attorney General’s Chamber which ultimately decided whether a charge under Section 7 was to be filed against the two.

Unless AGC or the two ministries can confirm that one is legally absolved of any criminal offence once a correction or takedown order is complied, this point seems to be misleading and to a certain extent, untruthful.

Court doesn’t make the decision to charge, but the AGC

The ministries’ statement also implied that the court will determine if there is any criminal conduct and penalties are again decided by the Courts.

But as stated above, it is the AGC that will file the charges where the court will then pass a verdict. And if the accused is found guilty, AGC will propose a penalty which the court will deliberate on.

Not much leeway for a judge to rule against a POFMA charge

Under the definition of false statement of fact under section 2(b) of POFMA, “a statement is 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.”

And if we look at the wordings of POFMA for when a person is said to have violated the law:

A person must not do any act in or outside Singapore in order to communicate in Singapore a statement knowing or having reason to believe that —
(a) it is a false statement of fact; and
(b) the communication of the statement in Singapore is likely to —

(i) be prejudicial to the security of Singapore or any part of Singapore;
(ii) be prejudicial to public health, public safety, public tranquillity or public finances;
(iii) be prejudicial to the friendly relations of Singapore with other countries;
(iv) influence the outcome of an election to the office of President, a general election of Members of Parliament, a by‑election of a Member of Parliament, or a referendum;
(v) incite feelings of enmity, hatred or ill‑will between different groups of persons; or
(vi) diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board.

From the above, we can see how wide ranging of the scope of a false statement that the ministries and AGC can find fault with.

Workers’ Party Member of Parliament, Ms Sylvia Lim pointed out during the POFMA debate in May this year, that the courts could only set aside a minister’s direction on three grounds:

  1. If the subject statement is not a statement of fact, or is a true statement of fact;
  2. if the individual did not communicate the subject statement in Singapore; and
  3. if it is not technically possible to comply with the direction.

“The High Court cannot inquire into the merits of the decision, whether in the courts’ view the decision should have been made in that way,” said Ms Lim.

“The court, for example, cannot ask important questions such as is the minister overreacting, did the directions impose obligations on the communicator which are excessively onerous and harsh, or does the public interest require the direction to be issued.”

Therefore, as what Ms Lim rightfully pointed out, there is not much leeway for a judge to rule otherwise, if AGC decides to charge an individual based on the definition of a false statement – just as how the judges’ hands are tied on whether a death sentence can be commuted to life sentence when AGC refuses to hand out certificate of cooperation for drug traffickers.

People are not taped at their mouth but in their mind because of fear

The above point leads to the question raised by the two ministries on the imagery used by PSP in their statement. PSP’s image showed people’s mouths being taped up.

They asked, “How has Mr Bowyer’s mouth been taped? His original post remains available for anyone to read,”.

“His rights to free speech remain unaffected. He has gone on to issue repeated clarifications on his original post.

“Requiring a factual statement to be posted in order to correct a false statement does not curtail anyone’s free speech.”

But if one were to considered the powers that the ministries have – as stated above where the AGC can simply prosecute anyone with the law and how wide ranging is the scope of the law as compared to that of the Sedition Act – one is not taped at the mouth but at one’s mind. In fear of the repercussion if one were to speak truth to powers.

Based on the above points, the ministries’ statement can be interpreted as making false statements under POFMA’s definition as it misleads people, “whether wholly or in part, and whether on its own or in the context in which it appears.” But unfortunately, POFMA can only be used by the ministers and senior civil servants during election and cannot be used against the ministries.

With POFMA in force, it appears that only the ministries can make statements that have misleading points while non-government entities and individuals stand the risk of being penalised for the smallest of mistakes if and whenever the ministers desire for action to be taken.

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