by Nicholas Tang
This being an online article, I feel the need to preface it with IANAL (I am not a lawyer), but still, proceed to give my opinion on legal matters which in all likelihood I am unqualified to comment on.
The first uses of the Protection from Online Falsehoods and Manipulation Act (POFMA) happened over the past months and already have become the subject of much debate and discussion. Because this article is discussing an Act which sole purpose is to curtail the spread of fake news, it shall be split as far as possible into fact and opinion (yes, I understand labelling something as fact or opinion does not make it so).
FACTS:
- POFMA was passed in Parliament on the 8th of May 2019, and took effect on the 2nd of October 2019
- The Bill was passed with a majority of 72 to 9, with 3 Nominated Members of Parliament (NMP) abstaining
- All 9 against the Bill are members of the opposition from the Workers’ Party
- All 72 for the Bill are members of the People’s Action Party
- The elections will be held soon, it must be called by the 15th April 2021
OPINION:
I am conflicted. On one hand, I abhor how easy it is to spread misinformation in this digital age, and I recognise the need for corrections to be issued and facts to be known. On the other hand, I believe that POFMA is too blunt an instrument for its purpose, that the executive is the wrong branch of government to wield this power, and that POFMA as a legislation is very open to abuse.
I understand the government’s concerns about fake news, and its ability to unduly influence populations. Fake news made headlines during the 2016 US Presidential elections, where it entered the public’s consciousness and became apparent just how widespread and far reaching disinformation campaigns attempting to influence and manipulate the outcome of said election. There is a worry that this could happen in Singapore as well, and some of the opposition parties do themselves no favours when they make allegations which are not backed by any facts or figures, or misuse statistics in misleading ways.
Before I give an example of this, let me first say that I fully sympathise with the predicament opposition parties find themselves in. To put it nicely, the Singapore government has never been particularly forthcoming with data, so much so that when asked a direct question point-blank in Parliament, Minister Chan Chun Sing treated Member of Parliament Pritam Singh with a half-hour lecture about why he wouldn’t be giving the data.
To put it bluntly, the government lacks transparency in certain areas of its operations and policies. This makes it difficult for opposition parties to research on the effectiveness of policies or government bodies.
Having said this, the difficulty in finding data is not an excuse for opposition parties to make spurious claims or incorrect statements.
As an example, People’s Voice Party (PVP) leader, Lim Tean quoted statistics from the government regarding their spending on grants and scholarships for foreign students versus local students. The figures that he used were accurate, and technically factually correct. However, those figures did not fully capture the total sum of spending for local students, and resulted in the government issuing a correction order under POFMA.
Whether it was necessary for the government to issue a correction order is a debate for another time, either way, I believe that what Lim Tean did was disingenuous and dishonest. There are plenty of things to criticise the government without having to cherry-pick statistics.
Incidents like this only serve to further diminish the credibility of not just PVP, but all opposition in Singapore. It also gives the government and members of the public cause to believe that POFMA is in fact necessary. I do believe that some form of fake news legislation might be necessary, but certainly not in its current form.
POFMA too wide an instrument
In an interview with Channel News Asia, Minister of Home Affairs and Law, K Shanmugam rattles off a list of examples in which fake news can spread panic and result in damage.
The list is as follows:
- First, in Myanmar, an allegation that 2 Muslim men raped a Chinese women caused riots and public disorder within 24 hours of the news breaking;
- Second, billions of dollars were lost in the span of hours when false news of the founder of a Bitcoin company arose; and
- Third, false allegations of a Chinese woman criticising a mosque in Indonesia led to public disorder. In those examples, clarifying and refuting the fake news in an expedient manner was necessary, and time was clearly of the essence.
I doubt many Singaporeans, if any, would have any issue with the government using fake news legislation like POFMA to correct and disseminate the truth.
But on examining the cases in which POFMA has been invoked thus far, it seems as though only the correction notices issued to SPH magazines and Facebook over the Wuhan virus seem to fit into the list of examples mentioned above. The other correction orders which were all directed at opposition parties in what was deemed an “unfortunate coincidence” do not seem to quite fit into the list of examples. There was no imminent threat to public order where any of these correction notices have been issued.
On an objective test, I would be willing to bet that the common man on the street would find the use of POFMA excessive in these cases. In couching the need for having a tool like POFMA in the guise of public safety and as a matter of public policy, the government has come across as very disingenuous in its intentions.
The hammer is a great tool, but mostly only at hammering nails. It is not great at screwing in screws, or painting walls. It is a blunt object without much nuance, and so is POFMA. The Act is a giant hammer, and if there is nuance to be found, it is certainly not in the wording of the Act, which raises more questions than it answers. Is the Executive bound by judicial precedent?
What level of evidence is required by a ministry before issuing a Section 3 or 4 Direction? What is the test to decide if something is considered misleading under POFMA?
Wrong branch of government to wield the power of POFMA
I also believe that the executive is the wrong branch of government to wield this power. This is not a novel thought, in fact, it was the main point of contention that the Workers Party had in Parliament when they were debating the Bill. The problem with vesting the executive the power to issue correction orders is that it opens the possibility of conflict.
I use the word conflict not necessarily with the legal definition with all its implications in mind, but rather as a layperson might understand the term: a person in a position to make decisions which might be influenced by his own personal interests.
This is not to say that the executive will abuse the power, or that a person in conflict will necessarily make the wrong decisions. But the mere fact that they are in conflict is an issue.
Under s7(1)(b)(iv) of the POFMA 2019, it states that one of the purposes of the Act is to prevent people from communicating false statement of facts which is likely to “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”.
Given that the Executive is themselves elected Members of Parliament, and have an interest in staying elected Members of Parliament, giving them the power to issue correction orders to declare statements from Members of the Opposition as falsehoods puts them in a position of conflict.
Workers’ Party (WP)’s suggestion to vest the power in the courts instead of the executive, was shot down by Minister Shanmugam, who reminded WP that they had agreed with the Select Committee’s recommendation that a correction order had to be issued “within hours”, and therefore the courts would be unsuitable as they would be too slow. The necessity of having the order issued “within hours” is that news cycles in our day and age move quickly, and fake news can travel quickly if the government does not have the chance to correct it in time.
There is a certain double standard at play here: there is an emphasis on the government’s need to move quickly to discredit the fake news, but where the Act provides for appeals against these orders, there is no such emphasis or provision for expediency. Does the logic not apply both ways?
If fake news is damaging and needs to be undone as soon as possible lest it infects the public’s consciousness, then a wrongly issued correction order will be just as damaging to the aggrieved party and will need to be removed just as expediently.
Take the example of an opposition party making a post, which within hours, has been declared fake news under a POFMA correction order. Should the party wish to appeal this, they would have to wait first for the ministry that issued the order to review their appeal, and failing that for the court to hear their case.
In this time, many news cycles would undoubtedly have passed, and their credibility would be diminished in the eyes of the public. And make no mistake, the correction orders are meant to discredit: with the giant “FALSE” stamp on the banner, and the very public announcements.
Perhaps the most damning thing to me in the debates is when Minister Shanmugam spoke of due process as if it were a negative thing. I understand the context in which he was trying to make his point: where there is an emergency and a need for expedience, due process might unduly delay a correction order. But this is where the nuance which POFMA is lacking comes in again.
There is a difference between a real emergency with public safety concerns (like the fake news with regards to the Wuhan virus), and statements made by Members of the Opposition which might misuse certain statistics or misrepresent certain facts. The former is incredibly time-sensitive, while for the latter it is not. It can even be argued that it is in the interest of public policy that all parties can make their cases through due process, so the public can better make their judgment on what the truth is.
Who then should wield this power? The courts are supposedly too slow, and the Executive might be conflicted. I don’t have all the answers, but perhaps the Presidency could fulfil such a function. Given that our Presidency is now elected, and its function is no longer purely ceremonial, perhaps this burden could also be passed onto the President. The President is also not supposed to be a member of any political party, and that should, in theory, make the office politically neutral.
The President may be potentially conflicted, as the powers above cover Presidential elections as well. This could be worked around, and the powers could be exercised by a different branch during Presidential elections. This solution isn’t the cleanest, but this is one avenue worth exploring at least.
The danger of having the government telling us what to think or true
Of the two famous dystopias that we have in popular culture today, it has become something of a consensus that we are more likely to be living in Huxley’s Brave New World, than be transported back to Orwell’s 1984. With the introduction of POFMA, it feels like we’ve swung the pendulum too hard, and now we’re in danger of veering straight into 1984, where the powers that be decide what is or is not true for us.
Barring any sort of philosophical deep dive, truth as the layperson may understand it is an objective thing, it corresponds to some factual happenstance out in the world, as to whether something did or did not happen. The danger with having the government or any kind of authoritative figure telling us what is true is that we risk becoming reliant on that source for truths, and this is open to abuse.
This was brought up in the parliamentary debates over the Act, and Minister Shanmugam agreed that he could not guarantee that a future government would not abuse this law. His arguments against this were twofold: first, any legislation is open to abuse by a future government, including, in the extreme, the power to declare war; and second, the check and balance in place against a government who abuses their powers is the people, who have the power to elect whom they choose.
The first argument is slightly disingenuous, and also somewhat fallacious in its use of a slippery slope. What seems more likely: that a future government abuses this power to shut down opposition parties from taking part in the national discourse, or that a future government abuses their power to go to war without any national need or consensus?
As to the second argument, it is the nature of this law that makes this piece of legislation particularly insidious in its conception. Vesting the executive with the power to control the narrative and possibly shut out voices from opposition parties would severely hinder a voter’s ability to discern what is true or not, particularly if the sitting government is abusing this power.
What then is the solution to fake news? The government has to return the responsibility of identifying and discerning the truth back to the people. The people have to take responsibility for themselves, and learn not to take everything they read at face value (I’m looking at you, aunties who share everything they read on WhatsApp groups). In the digital age, it is as simple as looking for one or more other sources that confirm what you read is true.
People who propagate fake news rely on others to share and spread these news articles, and it is our responsibility to ensure we do not. The government’s heavy-handed approach will only serve to stunt the ability of Singaporeans to distinguish fact from falsehood, and further exacerbate the problems of the digital age.
There is an old proverb that feels all the more fitting now: if you give a man a fish, it feeds him for a day, but if you tell a man what to think, your society will eventually stop thinking for itself.