The High Court has dismissed The Online Citizen’s (TOC) appeal against the Home Affairs Minister K Shanmugam’s Correction Direction issued under the Protection from Online Falsehoods and Manipulation Act (POFMA).
The appeal filed by TOC pertained to a correction direction (CD) issued on 22 January on an article published by TOC regarding allegations made by Malaysian-based human rights organisation Lawyers For Liberty (LFL) on the judicial execution methods employed at Singapore’s Changi Prison.
In setting out the reasons underlying her decision, Justice Belinda Ang said that there were two components to TOC’s arguments under Section 17(5)(b), namely:
First, that the court can set aside the Part 3 CD on the basis that the “subject statement” is “not a statement of fact”, as Section 2(2)(a) of POFMA provides that “a statement of fact is a statement which reasonable person seeing, hearing or otherwise perceiving would consider being a representation of fact” and
Second, that POFMA empowers the court to set aside the CD on the grounds that the “subject statement” is a “true statement of fact” as provided in Section 2(2)(b), which states that “a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context which it appears”.
The subject statement in question here refers to the allegations made by LFL on the brutality of executions at Changi Prison, specifically.
High Court “unable to accept” TOC’s argument that the statement is not a statement of fact
On the first component of whether the subject is actually a statement of fact, Justice Ang says she is “unable to accept” TOC’s argument that the subject statement is a report based on hearsay.
Justice Ang went on to highlight two “critical errors” made by TOC.
Firstly, according to the judge, TOC had wrongly assumed that there is another category of ‘statement’ under POFMA. Instead, said Justice Ang, there are only two types of statements: “fact” and “opinion” under Section 17 of POFMA.
Secondly, Justice Ang asserted that “an unverified but verifiable report based on hearsay” can be a statement of fact.
She went on to say that a “reasonable person” who read the article would regard it as a “statement of fact”.
Therefore, Justice Ang ruled that TOC’s basis to set aside the CD under the first limb fails.
Reporting defence would frustrate POFMA legislation
In paragraph 15 of the judgement, Justice Ang said that it is up to TOC to prove the truth of the statement, and not for the respondent — in this case the Minister of Home Affairs — to prove the falsehood of the statement.
On the issue of whether the statements in TOC’s article are “true” as outlined in Section 17(5)(b) of POFMA, Justice Ang noted that it is untenable for TOC to assert that the article is “a true statement of fact” simply on the grounds that it is a report on LFL’s press statement.
Explaining TOC’s ”reporting defence”, Justice Ang said that the court has to take into account the use of quotation marks and quoted extracts, adding that the subject statement is true when read in context and that TOC “simply reported the fact alone”.
However, the judge went on to explain the AGC’s response to this particular argument by TOC. Justice Ang said that the AGC’s contention is that the Minister directed the CD against the subject statement, and not against TOC’s statement that LFL had made certain allegations.
The AGC argued that while TOC’s assertion that the statement in its article was about LFL’s statement is true, it is inconsequential, given that the CD was confined to the relevant subject statement — namely about the alleged execution methods carried out in Changi Prison.
The AGC argued that since TOC had not taken a position on the truth of the statement in question and has provided no evidence on that matter, TOC has thus failed to provide evidence to discharge its burden of proof that the statement is true.
Having heard from both parties, Justice Ang said that TOC’s “reporting defence” is based on a misconstruction of the “subject statement”.
She pointed out that while it is true that LFL made certain allegations, that is not what this case is about.
She noted that TOC had conceded at the start of the hearing that the statement in question is the statement identified in the CD. Therefore, TOC cannot now define the context of the statement, the judge reasoned.
Justice Ang also explained why TOC’s knowledge of whether the subject statement is actually true is “immaterial” in her view, as laid out in Section 11(4) of POFMA.
Section 11(4) states that “[a] person who communicated a false statement of fact in Singapore may be issued a Correction Direction even if the person does not know or has no reason to believe that the statement is false”.
Justice Ang highlighted that a Minister is thus not prevented or prohibited from issuing a CD even in circumstances where a party believes the statement they made is true when it is actually not.
Thus, the fact that TOC did not know whether the statement was true is “ultimately an immaterial consideration”, according to the judge.
Further, added Justice Ang, any “reporting defence” would “frustrate” the legislative purpose of prevention as laid out in POFMA.
Justice Ang said that Sections 5(a) and 11(4) of POFMA target not only “tale-makers” but “tale-bearers” as well. This means that no weight is given to a person’s honest, innocent or ignorant dissemination of false information, said the judge.
Consequently, TOC’s defence — that it was merely “reporting” the statement made by LFL without confirming or knowing the statement’s veracity — is not a defence at all, said Justice Ang.
Justice Ang noted that TOC has repeatedly insisted that it has taken no position on the truth of the subject statement.
This, said the judge, denotes that TOC does not argue that the statements are “true” in as intended by Section 17(5)(b) of POFMA which it relied on.
“Therefore, TOC has no legal basis for its application to set aside under the second limb of s 17(5)(b) of the POFMA, and this alone is sufficient to dispose of the issue”, the judge reasoned.
Touching further on the issue of burden of proof, TOC had failed to discharge its “legal or evidential burden of proving the balance of probabilities that the subject statement is true”.
Justice Ang had earlier sought written submissions from TOC and AGC to to be made on s2(1) of the evidence act and its effect on the issue of the onus of proof. Law firm, Eugene Thuraisingam LLP had represented TOC in the written submission.
As such, Justice Ang said, “there is no need to consider the respondent’s evidence”.
Justice Ang said, however, that she did consider the respondent’s evidence, which was presented in the form of an affidavit by Deputy Director of Operations Management of Singapore Changi Prison Service Mr Ong Pee Eng, and said that she had “no reason to doubt Mr Ong’s evidence”.
Other than TOC, CDs were also issued to Yahoo! Singapore and journalist Kirsten Han for publishing and sharing articles and/or Facebook posts containing the allegations made by LFL published on the organisation’s website on 16 Jan.
TOC had previously applied for the correction direction to be cancelled. However, Mr Shanmugam rejected the application on the grounds that TOC had not provided any grounds to show that the issuance of the CD had not been satisfied.
Following that, TOC took the matter to the High Court to appeal against the Minister’s order.
For a background of the case, please read TOC’s previous article: ‘High Court reserves judgement on TOC POFMA appeal‘.