The Protection from Online Falsehoods and Manipulation Act (POFMA) is “a blunt tool” that may work against “responsible journalism”, said Chief Justice Sundaresh Menon on Thursday (17 September).
The Chief Justice — alongside Judges of Appeal Andrew Phang Boon Leong, Judith Prakash, Tay Yong Kwang and Steven Chong — reserved their judgement on Thursday on the appeals made by TOC and the Singapore Democratic Party (SDP) against correction directions issued under the Act.
Commenting on the Attorney-General’s Chambers’ (AGC) representative Hui Choon Kuen’s argument that POFMA can be wielded to counter the effects of a false statement on an issue of public interest, Chief Justice Menon said that such an approach may be troubling, as it may disregard certain nuances in reporting.
“Just take, for example, that someone says there’s an allegation against a Government agent in the course of carrying out some work.
“Somebody has made that allegation, and say that it’s an allegation that has to be or is going to be investigated.
“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’,” said Chief Justice Menon.
Mr Hui was responding to TOC’s lawyer Eugene Thuraisingam’s assertion during the hearing that the offending TOC article constituted “genuine reporting” of an allegation.
Mr Thuraisingam posited that the Government issued the POFMA correction direction under the assumption that TOC supports the allegations in the article.
TOC’s POFMA appeal concerns an article containing a statement by Malaysian human rights organisation Lawyers For Liberty (LFL) on alleged judicial execution methods in Changi Prison, which the Ministry of Home Affairs has branded “untrue, baseless and preposterous” in January this year.
Minister for Home Affairs K Shanmugam instructed the POFMA Office to issue a Correction Direction against LFL, as well as other media outlets including TOC, for publishing the allegations regarding the judicial execution methods.
In submitting grounds for the appeal against the correction direction, TOC highlighted that the report does not affirm the authenticity of the claims made by LFL and noted that we did not receive any response from MHA after submitting a query regarding the claims conveyed by the human rights organisation.
Chief Justice Menon expounded on Mr Thuraisingam’s point in court on Thursday, stating that acknowledging Singaporeans’ right to know “that a whistle has been blown” is not the same thing as agreeing with the whistleblower — a media outlet carrying a whistleblower’s allegation is simply “reporting the debate”.
“It is not [that] Singaporeans can’t be trusted to handle such info and such debate. Was TOC going out saying that this is happening, or bringing to their readership that this allegation has come out?” He questioned.
Mr Hui in the hearing responded to Mr Thuraisingam’s argument using a hypothetical scenario of an article published based on a whistleblower’s account that Singapore’s water supply had been tainted, which may result in widespread panic among the public.
He also argued that whistleblowers have “other venues” to channel their complaints or to flag certain issues instead of making potentially unverified matters subject to the public eye.
Mr Hui also submitted that TOC sent an email to solicit MHA’s comments the same day the article was published.
Justice Prakash, however, said that the nature of journalism necessitates things to be published “in a timely fashion” and that the in the event that the water supply was not poisoned, the Government would have immediately issued a public clarification regarding the issue.
“But that’s the nature of journalism … If I get a reply the next day, put it in. That’s fine,” she said.
Justice Prakash also noted that the context in which the statement was published and disseminated must be taken into account, and that one element would not suffice in determining whether a correction direction should be issued.
The TOC article, she said, “made it clear” that another party “has made certain allegations”.
“[I]f you put the three things together: The relevant facts, that an organisation has made certain allegations, and asked the Ministry … It is not right to argue that the reporter will need to verify the facts,” said Justice Prakash.
Following up to a question by Justice Tay about the sufficiency of time given by TOC for the Ministry to respond, Mr Thuraisingam noted that he had been instructed to note that the Ministry does not respond to queries filed by TOC.
Justice Phang said that the parameters submitted by Mr Hui would “drastically” reduce the category of news that can be reported and may upset the “delicate balance” between free speech and combating the dissemination of falsehoods.
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 with here”.
Burden of proof
The AGC’s representatives argued that the burden of proof falls on the maker of a statement.
“A statement-maker cannot complain that he is disadvantaged or placed in any position of difficulty by bearing the burden of proof, since only he knows what the basis of his own statement is in the first place.
“If he does not know, it means he had acted irresponsibly… and it would be contrary to the objective of POFMA to encourage such behaviour,” said the state counsels.
Justice Belinda Ang, in dismissing TOC’s appeal against the correction direction in the High Court in February, ruled that the burden of proof rests on the maker of the statement and not on the Minister.
Stating that the language of Section 11(4) of POFMA “is plain”, she reasoned that it was immaterial if TOC is indifferent towards the truth or falsehood” of LFL’s statement regarding the allegations.
Section 11(4) stipulates 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”.
TOC, said Justice Ang, “nonetheless continues to share an extract” of the statement “on its news website in Singapore” with readers “without verifying the truth of the content but merely states that it has contacted the Ministry of Home Affairs for comments”.
Mr Thuraisingam argued, however, that the burden of proof “surely must lie on the Government”.
“It cannot be that The Online Citizen that is merely reporting what somebody had said as an allegation has to prove that person’s allegation,” he told the Court of Appeal on Thursday.
Given that the TOC article was a factual report and not an opinion article, Mr Thuraisingam also said that Mr Shanmugam could have replied to TOC’s media query instead of instructing the POFMA Office to issue a correction order.
He added that it would be “fair enough” for a correction direction to be issued if news outlets do not display the Government’s responses instead.
In his written submissions, Mr Thuraisingam questioned “how many important public interest disclosures would ever have seen the light of day in a POFMA environment”.
SDP’s lawyer Suresh Nair similarly argued that the burden of proof rests on the Minister who instructed the issuance of the correction direction, highlighting whether it is fair “to require a person who is subject” to a correction direction to prove the falsehood or veracity of their statement.
He drew attention to the asymmetry between when the burden of proof is placed on a Minister and when it is placed on the appellant.
A Minister, said Mr Nair, has “an armoury of tools” to “prove every falsity made about him”. An appellant, however, in many cases may be constrained by limited access — or an absence thereof — to freedom of information via legislation that prohibits such access.
It will be nearly impossible to gather evidence and witnesses of whatever wrongdoings of the State in a POFMA environment, he argued.
Mr Nair referred to instances such as the Chinese doctor who tried to warn about the coronavirus outbreak last year and the Watergate scandal in the United States in the 1970s, which catalysed President Richard Nixon’s resignation.
“It is important that the court considers whether it is consistent with the constitutional right of freedom of speech to place the burden of proof on the appellant to establish the truth of everything he says, when the evidence is simply not available to him,” he said.