Court of Appeal reserves judgment on TOC, SDP’s POFMA appeals

The Court of Appeal on Thursday (17 September) reserved judgment on two appeals made by the Singapore Democratic Party (SDP) and The Online Citizen (TOC) against correction directions issued under Protection from Online Falsehoods and Manipulation Act (POFMA).

The SDP was issued three correction directions by the Ministry of Manpower (MOM) on 14 December last year for two of its Facebook posts and an article the party had published regarding employment trends in Singapore.

TOC was separately issued with a correction direction by Minister of Home Affairs K Shanmugam on 22 January this year over an article containing allegations made by Malaysian-based human rights organisation Lawyers For Liberty (LFL) on alleged judicial execution methods carried out in Changi Prison.

TOC and SDP earlier appealed to have the correction directions issued to them dismissed in the High Court but failed.

Both cases were heard together yesterday at a joint hearing by a five-judge panel comprising Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang Boon Leong, Judith Prakash, Tay Yong Kwang and Steven Chong.

The SDP is represented by lawyer Suresh Nair from PK Wong & Nair LLC, while TOC is represented by lawyer Eugene Thuraisingam. Some of the arguments involved the burden of proof and the implications of POFMA against journalism and freedom of speech.

The burden of proof

Mr Nair argued that the minister who holds the power to issue correction directions, or the Attorney-General’s Chambers (AGC), should bear the burden of proof.

In TOC’s earlier appeal in the High Court, Justice Belinda Ang ruled that the burden of proof lies on the statement maker, while Justice Ang Cheng Hock decided in SDP’s appeal that the minister bears the burden of proof, adding that there is “nothing in the parliamentary debates that sheds light on this issue”.

Meanwhile, the AGC’s representatives noted that the burden of proof lay on the statement makers, indicating it was not “an overly onerous burden”.

“In other words, one should not assert statements of fact which affect the public interest if one does not have any evidence that it is true. This is the essence of responsible free speech,” said Deputy Public Prosecutor Kristy Tan.

Mr Nair pointed out that the mechanism of a correction direction “amounts to a false confession” as it allows the minister to request the other party to post a correction notice in his own terms.

“The correction notice issued in (SDP’s) case … doesn’t say the minister says that what the SDP … has said is false and that the minister says that these alternative facts are true.

“It requires the SDP to specifically say – the SDP has made a false statement, and for the truth, go to the link, and there’s a link to a Factually website,” he noted.

Mr Nair added that several consequences might arise in the case where the A-G’s arguments backing the correction directions are correct. He noted that a correction direction can be made over a statement made by an individual, and also what a minister claims the person has said.

The second consequence is that the minister can alter his claims on the person’s statement as the case goes along and that he is not held strictly to a correction direction.

The third consequence is that to cancel the correction direction, the statement maker has to prove that what the minister claimed the statement maker said is true, despite this being contrary to what the statement maker meant.

Minister’s leeway to change subject statement halfway through the appeal process

Mr Nair submitted that the Manpower Minister’s subject statement “does not reflect anything that was said” in SDP’s article.

“I submit that because of the nature of POFMA, the procedure must be very strictly followed. That if the Minister gets it wrong, the Minster can amend it under Section 19. But the Minister did not do it,” he noted.

“There is no way for appeals to succeed if the goalposts can be applied like that,” Mr Nair argued, adding that if the Minister fails to do so, the correction direction should be set aside.

Mr Nair also highlighted that one of the correction directions had lumped in Singaporeans with permanent residents (PRs) in the “local” category when it is clear that the SDP was referring only to the former.

DPP Tan tried to argue that certain readers would have read the context of the SDP article in a different way.

Justices Chong and Phang, however, said that there could have been “no other reasonable interpretation of the sentence” written by the SDP on the increasing retrenchment of local PMETs.

“Locals are not going to be looking at MOM statistics … In the context of the article, in everyday language, locals clearly mean Singapore citizens,” said Justice Phang.

He also referenced Mr Nair’s argument about shifting the goalposts, saying that the Minister changing the subject statement in a correction direction is akin to scoring a goal after the whistle is blown.

Chief Justice Menon, however, said that asking the minister to prove each and everything may not be the right thing to do.

“For example, if a statement says the minister has got billions of dollars stashed away in his account, if the minister issues a correction direction saying this is untrue, and the statement maker says, ‘you prove it’.

“It can’t be right that the minister has to show all of his bank accounts in order to justify the issuance of the correction direction,” he said.

Mr Nair noted that in many cases, it would be “impossible” to have the statement maker bears the burden of proof when there is no freedom of information legislation. People will have to rely on what they hear as they cannot attain documents that support their statements.

“One wonders what wrongdoings of state would have gone unreported in a POFMA environment,” said Mr Nair.

“For example, in China we now know that a doctor raised an issue of this virus that was passed around. In a POFMA environment, would the public have come to know about this? One wonders if Watergate would have come to public knowledge in a POFMA environment. Not possible to prove.”

He emphasized the need for the court to consider whether it was consistent with the constitutional right of freedom of speech to place the burden of proof on the appellant, even when the evidence “is simply not available to him”.

POFMA implications on journalism

Mr Thuraisingam argued that the article was based on “genuine reporting” of an allegation made by the LFL, and that a statement saying that TOC had contacted MHA on the matter was also included in the article.

Mr Thuraisingam pointed out that website such as TOC could face greater consequences due to possible sanctions and will be flagged as a Declared Online Location (DOL) after being issued three or more correction directions.

He noted that it “puts the reporter in a difficult position” if the Government can take portions out of the context and say that an article contains falsehoods despite it was merely reporting based on someone else’s statement.

Stating that a correction direction should be issued when a news outlet has failed to carry its response, Mr Thuraisingam noted that TOC did not receive any replies from the MHA pertained to its media query on LFL’s allegations.

To this, AGC’s representative Hui Choon Kuen noted that the section in POFMA is targeted at statements and not the author. He said POFMA is able to neutralise the false statement’s effects if it is affecting the public interest.

But Chief Justice Menon said this could potentially “imposes quite a burden on responsible journalism”.

“It worries me that you are saying that POFMA allows us to effectively go to a journalist and say, ‘you can’t report that, or you can report that but you must report that and say it is untrue’.”

The chief justice noted that in the case where a news outlet receives a whistleblowing complaint, it is a matter of public interest and “Singaporeans have a right to know”.

“And we are not saying that we agree with the whistleblower, we are not saying it is true, but we are saying this is what they say – they are just reporting the debate,” said Chief Justice Menon.

Mr Hui then gave a scenario of an article that was published based on a whistleblower’s claims that Singapore’s water supply had been tainted and alarmed the people. If the news outlet said it had contacted the ministry for a response, it would not help in an appeal against a correction direction under POFMA.

Justice Prakash pointed out that is the “nature of journalism” where “there is pressure to publish in a timely fashion”, adding that the Government would immediately make a clarification that there is “no such thing” if the water was not truly tainted.

Chief Justice Menon voiced concern on the AGC’s arguments, noting that it would mean “ a whole slew of things the media can’t report”.

But Mr Hui reiterated that a responsible journalist should make attempts to verify on news related to the public interest.

“And if at the end of the day, you do commit that false statement, and a correction direction is issued, it’s not an indictment of the person,” he said.

But Mr Hui conceded that the TOC article would not have been able to be a target of a POFMA correction direction if the same article had contained the Ministry’s response stating the allegations are false when Chief Justice Menon placed such a hypothesis before him.

Chief Justice Menon had earlier pointed out that the TOC article had defined the statement from LFL as allegations a number of times in the article and included a statement at the end of the article that it stated it had sought the response from MHA.

Meanwhile, Justice Phang said a news outlet would risk losing credibility if it constantly harps on a certain theme and publishes questionable articles. He then emphasised the need to maintain balance, noting that “it is a very delicate balance the eco-system that we are dealing here”.

The Court of Appeal reserved judgment on the case after about six hours of hearings.

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