NTU Public Policy and Global Affairs Club: Fake News Forum
POFMA: A Shield, not a Sword
Speech by Pritam Singh
Secretary-General, Workers’ Party of Singapore
(Delivered on 28 January 2020)
Introduction
Distinguished faculty of NTU, Mr Mohd Ismail Yaacob – Chairperson, Public Policy and Global Affairs Club and students of NTU.
Thank you for your kind invitation to share my thoughts and to engage with the student body on the matter of Fake News. The Protection from Online Falsehoods and Manipulation Act or POFMA was debated in Parliament in May last year and became law in October. Since then, we have seen the law employed against opposition party members and Government critics.
My opening remarks will cover three main issues. First, I will assess whether the POFMA directions issued so far correspond to the Government’s justification that POFMA was needed as a speedy response to viral and malicious online falsehoods.
Second, I will deal with the matter of falsehoods and the “public interest” as defined by POFMA. I will also explore how the pretext of a misleading statement which may not be false, and separately claiming to act in the “public interest” can be easily abused by a vindictive and politically motivated Minister.
Finally I will speak of the multi-pronged response to online falsehoods and what other options the Government can employ to address to falsehoods without resorting to POFMA. This is particularly important since the Government has announced that it will not deal with all online falsehoods. Therefore, the use of POFMA and the reasons behind its application will continue to be closely scrutinized by the public. I look forward to listening to and addressing questions and criticisms from faculty and the student body on my speech later.
The Workers’ Party Position
It is the Workers’ Party case when the Bill was debated in Parliament in May last year that a neutral body like the Courts was better placed in our Westminster system of government – one that separates the Executive, Legislature and Judiciary – to adjudicate on fake news. Our position was that court procedures could be modified to address the Government’s main criticism against our proposal – the need for a speedy response.
It is the position of the Workers’ Party that the problem with POFMA as it stands, is that it gives far too much power in the elected Government of the day to use it for collateral purposes. Far from being used a shield to protect society from online falsehoods, it can also be used as a sword, addressing low-level one-off misleading comments that do not pass the threshold of how POFMA was justified by some PAP MPs – to deal with riots, people dying on the streets etc.
The Need for Speed: How POFMA was justified
The first issue I want to address is that of speed. POFMA was framed by the Government as a piece of legislation that would address the virality and damage online falsehoods could cause, with the offending falsehood addressed with a correction or removal within “a matter of hours”. What this implies is that the falsehood is so dangerous and malignant for the public discourse, potentially inciting violence and harm, that it has to be dealt with speedily – hence the inclusion of POFMA in the Government’s armoury.
The PAP’s case was that the only way to act speedily was for the Executive – being in receipt of all the relevant facts and experts – to issue the appropriate order in the first instance. But in the case of most POFMA directions served so far, the alleged falsehoods that the Government has taken issue with were online for a comparatively significant duration of time. In one case, the New York Times reported that an alleged falsehood remained online for 12 days before a POFMA order was issued. So if the Government could afford to take 12 days to respond to an online falsehood, it is my argument that the alleged falsehood may not have been of such a malignant nature nor may it have met the public interest threshold to invoke POFMA.
Given how POFMA has been used or “abused” as some may opine, it should not come as a surprise that one Nominated MP, a Parliamentarian without political affiliation filed a parliamentary question to ask why was it that POFMA appeared to be directed chiefly against the opposition and Government critics. I don’t think she is the only one wondering about perceptions of political bias when it comes to POFMA. The Government’s reply was that the use of POFMA was a consequence of the actions of the perpetrators.
Falsehoods and the Public Interest
The second point I wish to make concerns falsehoods and the public interest. In order to employ POFMA, the Government must cross two hurdles. First, it can only act on a falsehood. However, a falsehood is widely defined. It covers statements that are false or misleading, whether in whole or in part, when read on their own or in the context in which they appear.
But for practical purposes, the Government’s lawyer Dy Attorney-General and former PAP MP Hri Kumar Nair put it more succinctly. As reported by the Straits Times and I quote, “a minister who initiates a POFMA direction will look at the article or statement in question and determine what he believes to be its meaning. A correction direction can then be issued based on the minister’s interpretation.” The Straits Times report goes on then to say what we already know, that the Minister’s decision is appealable as per the Act. The point to be made here is the sweeping nature of power in the Minister’s hands.
Separately, the Government assured the public that opinions would not be captured by POFMA. But an opinion is not defined by the act. What is an opinion if not an interpretation of facts? And if those facts are not false per se, but focus the spotlight on matters that underpin an opinion while at the same time minifying or omitting other facts deemed irrelevant to the person hosting that opinion, on what basis does the Government decide to invoke POFMA? And more pertinently, at what point does an offending statement cease to be an opinion and turn into an interpretation for the purposes of a POFMA order?
It is my case that POFMA’s principal focus should be on dealing with false or falsified information per se. An example would be the latest POFMA general correction direction issued against Hardwarezone.com for hosting a statement that claimed someone has died of the Wuhan coronavirus. That the order was issued after the statement was already taken down is another matter. It is my view that the danger of moving too deep into the domain of interpretation is that POFMA risks stifling a frank and healthy exchange of opinion required for a functioning democracy. It also threatens engendering a cynical perspective about how the Government employs POFMA, something I opine has started to take root already.
After the Government has assessed that a statement is indeed false or misleading, the next hurdle to invoke POFMA is the requirement for the offending statement to be against the public interest. The explanatory note to the Bill before POFMA became law provided some examples of what is meant by the public interest. The note also stated that the definition of the public interest in the Act was “non-exhaustive”. So in Parliament, MPs were expected to support a Bill that would give a Minister carte blanche as to what defines the public interest. I am not going to say more about this except to add – Is it a surprise then that the Workers’ Party did not support the Bill?
To this end, former US President Barack Obama’s comments in a talk some weeks ago in Singapore accurately captures the Workers’ Party’s objections and I suspect those of many well-meaning Singaporeans. I quote, “in any country, if the government’s the only one that is deciding what is true and what is not, that’s dangerous. Because, let’s face it, those who are in power tend to want to look good, that’s human nature. And so then you reduce checks and balances over time.”
The PAP would argue that there is a check with regard to POFMA by way of judicial appeal and that is not incorrect. Yes, there is an appeals mechanism in place but according to POFMA and as enunciated by Workers’ Party Chair Sylvia Lim in Parliament, the scope of appeal under POFMA is narrow and fixed by law. In addition, the burden of proof falls to the individual who brought the appeal to court to prove that the statement the Government determines to be a falsehood is true. That can potentially be very onerous due to information asymmetry between a Government that does not host a freedom of information law that ordinary citizens can avail themselves to.
Even so, under section 17(5) of POFMA, it is provided that the High Court may only set aside an order on three grounds: (a) that the person did not communicate in Singapore the subject statement; (b) that the subject statement is not a statement or is a true statement of fact; or (c) that it is not technically possible to comply with the direction. These are the only three grounds on which the High Court can set aside the Minister’s Directions. As there is one POFMA order under appeal to my knowledge, it remains to be seen if the courts take a narrow interpretation of section 17(5) or whether are prepared to look at 17(5) critically, particularly limb (b).
There is of course, the option of judicial review. But the high costs of such an appeal route aside, it is established law that judicial review does not involve the Court looking into whether the Minister’s decision is right or wrong. The purpose of judicial review is to determine if the Minister’s decision is legal and rational.
Where is the multi-pronged response?
My last point deals with solutions to the fake news problem other than POFMA. The Select Committee report on Deliberate Online Falsehoods made it clear that fake news would have to be dealt with by way of a multi-pronged response. I would argue this is especially so because the Government has significant resources at its disposal to clarify matters – both online and offline. But for the purposes of today’s discussion it would be useful ask how the Government decides between using POFMA compared to other public education alternatives.
For example, ICA released a Facebook note at 10am on 25 Jan stating that the authorities were aware of rumours circulating online that more than 100 arriving travellers from Wuhan were denied entry into Singapore and for the public to be conscious of what they share. I would have expected most one-off misleading statements or falsehoods to be dealt with straightforward rebuttals by the Government and posted online on the Government’s websites or even published offline.
But the wide ambit of POFMA can also operate to give the Government a right of reply that can arguably be employed for political purposes. Let me share an example where the use of POFMA leaves gaps for criticism when the Government chooses to publish clarifications to allegedly misleading statements that seek can be interpreted to embellish itself.
It was the position of an individual who was recently “POFMA-ed” that the total amount of grants and subsidies available to Singaporean students was $167 million compared to the $238 million that is set aside on foreign students. POFMA was wielded because the implication was that MOE spent less on Singaporean students compared to foreign students. MOE’s position was that the more appropriate comparison should be the nearly $13b education budget allocated for subsidised education for all Singaporeans at all levels. But the MOE’s explanation that the original statement was misleading and therefore false actually provokes even more questions.
In my opinion, the Government’s clarification was partisan. It completely ignores how facts can be interpreted and what the appropriate comparison ought to be, a matter where even reasonable non-partisan individuals can hold different views. Rather than compare the amount of grants and bursaries with the entire education budget in its supposedly “factual” reply, in my view, the more appropriate comparison ought be for bursaries and aid awarded to foreign students at all levels on the one hand and bursaries and aid awarded to Singaporeans at all levels on the other, so as to establish a like-for-like comparison.
Information for both categories must surely be in the government’s hands. Why do we have to accept the subjective opinion of the Minister as to which is the appropriate comparison? I am concerned that if this is how POFMA is going to be employed moving forward particularly against political opponents, Singapore’s battle against fake news while effective in some cases, would be seen as a Trojan Horse for partisan politics in other cases. The latter will have grave implications for the state of trust between a Government and Singaporeans.
The other point I wish to make here is that the use of POFMA will continue to increase expectations Singaporeans are having of the PAP Government insofar as transparency and accountability are concerned. For trust to remain a cornerstone of state-society relations, Singaporeans ought to expect the Government to be far more active in providing information that they have ever been. And it is not a case of giving out information for information’s sake. At the heart of this fake news debate is ensuring we have a population which is not just wise enough to discern truth from falsehood but adapt at identifying and analysing the zone of grey that often exists in between.
Conclusion
To conclude, my participation in the Select Committee for Deliberate Online Falsehoods and as a Parliamentarian who took part in the POFMA debate inform me that there are two prongs that point at how the fake news problem must to be addressed. First, the need for a multi-dimensional response including a more open government, which to me is as, if not more important in the long-run than legislation. And secondly, and perhaps it is stating the obvious, a wiser and more judicious application of POFMA to deal with the problem of fake news since addressing it will likely involve Government Ministers making judgment calls that can be easily interpreted to be for political ends or partisan purposes.
Finally to Singaporeans and to all of you here, we should not fear to speak out more and share our views freely. If anything, we should be reminded to keep our conversations respectful, and read and listen more, even as we stand by our convictions. Thank you.