High Court reserves judgement on TOC POFMA appeal

TOC argued that the reproduction of M'sian human rights organisation Lawyers For Liberty's statement was "simply reporting"; AGC argues the source of the statement "makes little difference to the impact of falsehoods"

Source: ST

The High Court on Thu (6 Feb) reserved its judgement on The Online Citizen’s (TOC) appeal against Home Affairs Minister K Shanmugam’s correction direction under the Protection from Online Falsehoods and Manipulation Act (POFMA).

The correction direction was made pertaining to an article published on TOC regarding Malaysian-based human rights organisation Lawyers For Liberty’s (LFL) recent allegations on the judicial execution methods employed in Changi Prison.

The question in TOC’s appeal revolves around whether POFMA does and should only apply to the originators of statements classified as falsehoods under the Act, and whether the re-publication of such statements with no affirmation of whether the statements are factual can fall under the ambit of offences under POFMA.

TOC argued that the article on LFL’s allegations, dated 16 Jan, was “an even-handed reporting of information” provided by LFL’s advisor N Surendran, who narrated the account of an unnamed former Singapore Prison Services (SPS) officer regarding instructions he allegedly received prior to carrying out executions in Changi Prison.

Citing Section 2(2)(a) of POFMA, TOC submitted that a reasonable person seeing or reading the Subject Statement — namely the allegations made by Mr Surendran — within the context of the 16 Jan article would inevitably recognise that the article was, quite blatantly and unequivocally, reporting on hearsay.

TOC has emphasised throughout the article that the allegations by LFL are nothing more than allegations based on a third party, with no verification from the Ministry of Home Affairs after TOC had submitted a query regarding LFL’s claims.

TOC argued that “an abundance of caution” was exercised in the process of reporting Mr Surendran’s claims, as the words “alleged” and/or “allegation(s)” were used no less than six times in the article.

In addition, TOC did not include any opinions or comments on the alleged execution process, and had even attempted to verify the  allegations as seen in the following sentence at the end of the article: “TOC has contacted the Ministry of Home Affairs for comments on the matter as of press time.”

While TOC submitted that the Subject Statement is a true statement of fact — given that Mr Surendran did communicate the information provided by the former SPS officer to TOC as a media entity — we also argued that reporting on allegations made by third parties is commonplace in the practice of journalism.

“It is common practice for respectable newspapers and journals to report on allegations made by third parties.

“For example, in the context of reporting ongoing criminal proceedings in court, a press statement would contain the allegations that have been made against an accused person, but which have not been proven in court,” TOC submitted.

The AGC, however, referred to TOC‘s originating summons and TOC‘s editor-in-chief Terry Xu’s affidavit filed on 28 Jan on behalf of TOC, in arguing that TOC does not dispute the Minister’s position that the Statement in question is false.

“TOC argues that since it is true that Lawyers for Liberty did make the allegations, the Statement, “when viewed in context”, is true. This, we submit, is no defence,” submitted the AGC.

Referring to Justice Ang Cheng Hock’s decision in the Singapore Democratic Party (SDP) POFMA appeal on Wed (5 Feb), the AGC argued that “[t]he issuance of a CD does not constrain an applicant’s freedom of speech”, as TOC‘s article remains posted on the website “for anyone to read”.

“There are no penal or financial sanctions that accompany a CD, only when there is non compliance. There is simply no constraint on free speech for the Minister to contend before the court,” the AGC added.

In SDP v AG, while Justice Ang dismissed the SDP’s appeal, he held that the burden of proof in determining whether a false statement had been made — and whether the statement is true or false — rests upon the Minister who issued the correction direction.

He reasoned that by issuing said correction direction against SDP, the Minister “seeks to infringe upon” the SDP’s right to free speech under Article 14 of the Singapore Constitution.

The AGC also submitted that — contrary to the judge’s reasoning that Parliament could not have intended the burden of proof to fall on applicants — Parliament could not have intended for the burden of proof to fall on the Minister who made the correction direction.

“This is because such a framework would allow any person to make up all sorts of falsehoods on sensitive matters without any basis and thereby potentially compel the Government to disclose such sensitive information as it has the burden to disprove the falsehoods.

“For example, falsehoods could be made, without an iota of evidence, about certain prison security procedures, thereby undermining public confidence in the Singapore Prison Service.

“If the burden of proof is on the Singapore Prison Service, it may end up having to disclose its security procedures to discharge its burden. Parliament could not have intended that any person could potentially compel the Government to disclose sensitive information with the following simple stratagem,” the AGC argued.

The AGC also pointed out that while the correction notice issued to TOC by Mr Shanmugam makes it clear that the Minister acknowledges that TOC is not responsible for making the allegations, the correction direction was still important, “as it informs the public reading the Article that the statements made by LFL (which are reproduced in full in the Article) are false”.

“It disrupts the amplification of the falsehood, and seeks to prevent the Singapore public from being insidiously mislead into thinking that what is alleged in the Statement is true,” the AGC added.

Background of the case

Mr Shanmugam on 22 Jan instructed the POFMA Office to issue the correction direction to LFL, following its recent allegations on the judicial execution methods employed in Changi Prison.

The Ministry of Home Affairs (MHA) in its statement on 22 Jan said that correction directions were also issued against media outlets such as TOC and Yahoo! Singapore, and to journalist Kirsten Han, for publishing and sharing articles and/or Facebook posts containing “falsehoods”, namely the allegations made by LFL published on its website on 16 Jan.

While Malay Mail had also published an article on LFL’s statement, it is not known if the English-language Malaysian daily has been issued a Correction Direction.

LFL director Melissa Sasidaran in a statement the same day criticised the Singapore government’s use of POFMA on a Malaysian organisation such as LFL “which is operating and issuing statements on Malaysian soil”, as “Singapore has no business interfering with the freedom of speech of Malaysian citizens making statements within our own country”.

“This is nothing short of an attempt to silence us and prevent the truth about the manner of executions from coming out,” she said, adding that the Singapore government does not have a “monopoly over what constitutes facts and the truth”.

Ms Sasidaran also alleged that the Singapore government’s attempt to invoke POFMA upon LFL and “to extend their jurisdiction to Malaysian citizens across the causeway is provocative, illegal and in breach of international law”.

“POFMA is an oppressive and undemocratic law which was passed recently by Singapore amidst controversy. It has been condemned internationally as a weapon by Singapore to stifle dissent or criticism,” she added.

The LFL director also stressed that the organisation will not abide by the “unlawful and oppressive Correction Notice given by the Singapore government to LFL demanding that we withdraw our statement”.

“We further demand that the Correction Notice issued under section 11 of POFMA be unconditionally withdrawn with immediate effect by the Singapore government,” she said, adding that the Correction Direction notices issued against “Singaporean citizens and organisations” including TOC and Ms Han should also be withdrawn.

Commenting on MHA’s denial of LFL’s allegations regarding the “brutal” and “unlawful” state execution methods in Changi Prison, Ms Sasidaran reiterated LFL’s statement that “prisoners on death row in Changi prison are executed brutally and unlawfully by kicks to the neck whenever the rope breaks”.

“Our statement is based upon evidence from former and current Singapore prison officers. These are officers with impeccable service records,” she said.

Commenting on TOC‘s appeal against Mr Shanmugam’s correction direction, TOC‘s editor-in-chief Terry Xu said on Thu (6 Feb): “The process of filing the POFMA appeal has been easy as a self-represented appellant due to the High Court’s assistance, but the sheer effort and unfamiliarity [with legal jargon and the court process] would deter any reasonable member of public from contesting a direction issued by a Minister.”

Justice Belinda Ang will release her decision on TOC‘s appeal at a later date.

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