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SINGAPORE: The Court of Appeal reserved judgment on Thursday (September 17) on two appeals by the Singapore Democratic Party and The Online Citizen (TOC) against correction orders issued under the Online Falsehood and Tampering Protection Act ( POFMA).
The SDP is accused of making false statements about unemployment in Singapore, while TOC is alleged to have made a false statement about the hanging methods in Changi Prison.
Questions the court addressed in a full-day hearing on Thursday included the burden of proof in such cases and whether the statements were truly false.
Chief Justice Sundaresh Menon and Appellate Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong ordered all parties to present supplementary arguments on a point on whether the POFMA restricts the constitutional right to freedom of expression. The judges will decide at a later date if another hearing is necessary.
The cases are separate but heard together. Both TOC and SDP appealed to have the issued correction instructions dismissed, but failed their first bids in Superior Court.
TOC received a correction instruction from the Home Secretary on January 22 for an article it published based on a press release from the Malaysian non-governmental organization Lawyers for Liberty (LFL), which alleged that illegal methods of hanging in Singapore’s Changi Prison. .
MHA rebutted the allegations as “false, unfounded and absurd”, saying that any acts such as those described in the article would have been thoroughly investigated and dealt with.
READ: Judge dismisses POFMA challenge from The Online Citizen
SDP received three correction instructions from the Ministry of Manpower in December 2019 for three posts: An online article published in June 2019 titled SDP Population Policy: Hire the S’poreans First, Retrench the S’poreans in the end; a Facebook post in November 2019 that links to the previous article; and a Facebook ad in December 2019 containing a link to the article and a graphic with a downward pointing arrow titled Local PMET Employment.
MOM said the SDP chart showing the decline in local professional, manager, executive and technical (PMET) employment was false, and provides statistics showing that local PMET employment has risen steadily since 2015.
He also said that SDP’s statement that its proposal comes “amid a growing proportion of Singapore’s PMETs that are shrinking” was also false.
READ: SDP aimed at correcting Facebook posts and articles under the law of online falsehoods
Who bears the burden of proof?
Lawyer Suresh Nair, who instructed the lawyer in the SDP case, argued that the burden of proof rested on the minister issuing the correction order, or the Attorney General’s Office (AGC), to prove the statement false.
The High Court judges who dismissed the SDP and TOC’s earlier appeals were divided on this issue: Judge Ang Cheng Hock ruled that the minister bears the burden of proof in the SDP case, and Judge Belinda Ang concluded that the TOC , or the author of the statement, bears the burden of proof.
AGC representatives argued that the burden fell on the statement makers, saying that this was not “an excessively onerous burden”.
“In other words, you should not make statements of fact that affect the public interest if you do not have any evidence that it is true. This is the essence of responsible freedom of expression,” said Ms. Kristy Tan, Mr. Fu Qijing and Ms. Amanda. Sum.
Mr. Nair highlighted “the extraordinary nature of this legislation”, saying that the POFMA mechanism “amounts to a false confession” as the minister requires the other party to publish a notice of correction under the terms defined by the minister.
“The correction notice issued in the (SDP) case … does not say that the minister says that what the SDP … has said is false and that the minister says that these alternative facts are true,” Nair said.
“It requires the SDP to specifically say: the SDP has made a false statement and for the truth go to the link and there is a link to a Factually website.”
If the attorney general’s arguments supporting the correction instructions are correct, there will be a number of consequences, Mr. Nair said.
First of all, a correction address can be made not only for what a person says, but also for what a minister claims the person has said.
Second, the minister can change what he claims the person has said as the case progresses. The minister is not strictly governed by the original statement in the correction direction, Mr. Nair said.
Third, to set aside the correction direction, the author of the statement must prove that what the minister claimed the author of the statement said is true, even if this is not what the author of the statement meant. .
Chief Justice Menon said he wondered if it was possible to step back to ask what the case was about, rather than focus on whether the burden of proof rested with the author of the statement or the minister.
“I don’t think it is correct that the minister has to prove each and every one of (things),” he said.
“For example, if a statement says that the minister has billions of dollars hidden in his account, if the minister issues a correction order saying this is false, and the author of the statement says, ‘You prove it.’
“It cannot be correct that the minister has to show all his bank accounts to justify the issuance of the correction address.”
In response, Mr. Nair said that the burden falls on whoever makes the statement to prove the truth of what he said will be “impossible” in many cases, in the absence of freedom of information legislation.
Without this, people will have to rely on what they hear, as they will not be able to obtain documents to support their statements.
“One wonders what state crimes would not have been reported in a POFMA environment,” Nair said.
“For example, in China we now know that a doctor raised a problem of this virus that was transmitted. In a POFMA environment, would the public have known about this? One wonders if Watergate would have reached public knowledge in a POFMA Environment. It is not possible to prove. “
He said the court should consider whether it was consistent with the constitutional right to freedom of expression to place the burden of proof on the appellant, even when the evidence “is simply not available to him.”
POFMA, TOC AND JOURNALISM
TOC’s attorney, Mr. Eugene Thuraisingam, said that the article given a correction address was a “genuine report” of an allegation. The article contained a statement that TOC had contacted MHA for their response.
Chief Justice Menon asked whether posting the correction address would have the same effect as adding a response from the MHA saying the allegations of brutal treatment in prison were not true.
Mr. Thuraisingam replied that it was not the same, as there are consequences for issuing a correction order. A website that has three correction addresses within six months can become a Declared Online Location and face potential penalties.
He said that the Government proceeds with a correction direction under POFMA assuming the author believes the statement in the article to be true, but TOC’s position is that they never said it was true, but had asked the Government if it was.
If allowed to go this route, Thuraisingam said, journalists are in “a very difficult position.”
AGC representative Hui Choon Kuen said in response that the relevant section of POFMA is directed at the statements and not the author of the article.
A person may have genuine intentions when making a statement, but if it is a false statement that affects the public interest, then POFMA can be used to neutralize the effects of the false statement, Hui said.
“My concern with this approach is that it places a great burden on responsible journalism,” said the Chief Justice.
“I mean a journalist who learns that someone has made an accusation … Take, for example, that someone says that there is an accusation against a government agent in the course of a job.
“Someone has made that accusation and says that it is an accusation that has to be or is going to be investigated.
“I am concerned 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’s false.’
Chief Justice Menon said that if a news outlet receives a whistleblower complaint, no one knows whether the complaint was issued for a good reason or not, but it is a matter of public interest.
“Singaporeans have a right to know, and they have a right to know that a whistle has been blown,” he said, explaining Thuraisingam’s point.
“And we are not saying that we agree with the whistleblower, we are not saying that it is true, but we are saying that this is what they say, they are only informing the debate.”
Mr. Hui said that there were different scenarios.
He gave the hypothetical scenario for an article that was published based on a whistleblower account that Singapore’s water supply had become contaminated, causing panic.
If the news outlet said it had contacted the ministry in charge, but did not get a response as of press time, it would not assist in an appeal against a POFMA correction address, Hui said.
Judge Prakash said that this was the nature of journalism, and that if the water was not really poisoned, the government “would be out there saying immediately – no such thing.”
Chief Justice Menon added that he was concerned about the AGC’s arguments on this, as there would appear to be “a lot of things that the media can’t report.”
In response, Mr. Hui said that if a responsible journalist reports something of public interest, he should try to verify it.
“And if at the end of the day, you make that false statement and a correction order is issued, it is not an accusation against the person,” he said.
The Chief Justice asked: “But do you agree that three strikes, three times they do, can end up being declared a declared site, and that would affect its entire status as a journalistic website?”
Mr. Hui responded that the purpose of that section of the law was to counter those who make money by revealing falsehoods. Converting a site to a declared online location is at the discretion of the minister.
The judges reserved the judgment after about six hours of arguments. A verdict will be published at a later date. So far, no one has successfully reversed a correction direction issued under POFMA.
