— Marcus Teo, Sheridan Fellow, National University of Singapore’s Faculty of Law
The threat that fake news poses to free speech and democracy is now well-established, though less established is how Governments should address it. Legislation which requires social media companies and intermediaries to remove or rebuff falsehoods posted on their platforms, like Germany’s Network Enforcement Act, are now no longer rarities,[1] though some countries like the United States continue to resist regulation. Even then, among states that do regulate online falsehoods, it remains rare for laws to require individuals to take responsibility for their statements. This responsibility is potentially very onerous, since individual statement-makers may lack the information or resources needed to prove the legitimacy of their statements.
Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) is an example of such a law: it grants the Minister for Home Affairs power to issue Directions against statement-makers who make false statements of fact deemed threatening to the public interest.[2] These Directions oblige statement-makers to either append a notice to their statements (which the Act calls “subject statements”) stating that they are false,[3] or remove those statements entirely,[4] on pain of criminal penalties.[5] Websites which repeatedly post statements subject to Directions may also have access to them blocked or disabled by internet service providers or social media platforms.[6] POFMA, however, does contain an avenue of redress: statement-makers may appeal Directions to the High Court on several grounds, including that the subject statement was not a false statement of fact, which the Court must assess de novo.[7] A further right of appeal to the Court of Appeal is also available with leave.[8]
Given POFMA’s potential implications for individuals, the right to appeal POFMA Directions is of considerable importance. Yet, the text of POFMA itself leaves several important questions unanswered: is the Minister’s ability to identify subject statements unfettered or guided by law? Who bears the burden of proving the truth or falsity of subject statements in an appeal? And more fundamentally, is POFMA consistent with the right to free speech enshrined in Article 14 of Singapore’s Constitution? In The Online Citizen v Attoney-General,[9]its first decision rendered on appeals from POFMA Directions, the Singapore Court of Appeal set out to address these questions.
Online Citizen involved two appeals: in the first, an opposition party had published an online article and two Facebook posts containing statements alleging a rising “proportion” of unemployment among “locals” in Singapore; in the second, an online news site in Singapore had published an article noting that a Malaysian human rights group had alleged that prison guards had mistreated prisoners during their execution. Both applicants were issued Directions to “correct” their “subject statements” with a notice that they were false and the Government’s perspective on what the truth was (“Correction Directions”). The applicants challenged the Minister’s interpretation of their articles and posts and his identification of subject statements therefrom, which they contended skewed the meaning of their material and led to them unfairly being labelled as false statements. The applicants also brought a more fundamental challenge to the constitutionality of the provisions of POFMA empowering the Minister to issue Correction Directions, on grounds that they unjustifiably infringed the right to free speech contained in Article 14 of Singapore’s Constitution.
The Court of Appeal upheld POFMA’s provisions as constitutional: they did not amount to restrictions of protected speech because they did not compel speech.[10] Though it was unclear whether compelled speech amounted to a speech restriction under Article 14, even if it did, only an obligation to assert a particular perspective “as true”, and not an obligation to merely “communicate” it, amounted to compelled speech;[11] because POFMA Directions did the latter not the former, POFMA did not compel speech.[12] Having established POFMA’s constitutionality, the Court then set out a five-step framework to address appeals of Correction Directions, under which the Court had to determine:[13]
- First, what the Minister intended to identify as the subject statement;
- Second, whether the material published by the applicant could reasonably bear the Minister’s intended meaning;
- Third, whether the subject statement was a statement of fact and not of opinion;
- Fourth, whether the subject statement was false; and
- Finally, whether the subject statement was communicated in Singapore.
Finally, the Court recognised that, on the third to fifth steps, the statement-maker bore the burden of proving that the subject statement was either not one of fact, true or not communicated in Singapore.[14] This, however, was only a burden to prove a prima facie case of reasonable suspicion; thereafter, the evidential burden would shift to the executive to rebut it, with the Court making the final decision on a balance of probabilities.[15]
On the facts, the online news site’s appeal failed, because the identified statement, that prison guards had mistreated prisoners during their executions, could reasonably be borne by the published article, and the statement was a demonstrably false statement of fact communicated in Singapore.[16] The opposition party’s appeal, however, succeeded in part: while the Minister believed the party had alleged that employment for both Singaporean citizens and permanent residents had declined, this statement was not reasonably borne by the published article and posts, where the party had evidently confined itself to Singaporean citizens; the Minister’s identified “subject statement” was thus not communicated in Singapore.[17]
Three aspects of Online Citizen are noteworthy. First, the second step of the Court’s five-step framework for addressing appeals of Correction Directions reasserts the judiciary’s role as the final arbiter of truth under POFMA. This is a rejection of a position taken by one of the courts below that it was up to the Minister to identify a “subject statement” from the statement-maker’s published materials, even if that meant ignoring the context in which the identified statement was published, and impugn that “subject statement” as false on that basis.[18] Were this position correct, the Minister could misconstrue a statement-maker’s words and allege that she had made a false statement on that basis. The Court’s five-step framework, however, makes it clear that the Minister’s identified statement must be one reasonable interpretation of the statement-maker’s published material: the Minister could only read a subject statement “out of context” if an “appreciable segment” or “class” of potential readers could reasonably be expected to do so as well,[19] as might be the case with “clickbait” articles or articles using “deceptive headlines”.[20] But it remains for the court, not the Minister, to consider on an “objective approach” whether the Minister’s identified statement is a reasonable interpretation of the published material.[21]
Second, the Court’s decision on the burden of proof sought to strike an appropriate balance between the individual statement-maker and the public interest in combatting falsehoods.[22] Although the burden is nominally placed on the statement-maker, it is a low one, which merely filters out “frivolous or vexatious” challenges.[23] More importantly, the Court also affirmed that the Minister had a prior obligation, when issuing the Direction, to disclose “the reason(s) underlying the determination that that subject statement is a false statement of fact, including the grounds upon which the determination is made.”[24] This prior duty to give reasons, coupled with the lowering of the standard of proof, goes a long way to mitigating information asymmetries that statement-makers would otherwise face. It is also a considerable innovation within the context of Singapore public law: there is presently no constitutional or statutory right to information, and the Government does not habitually make official records publicly available.[25] The duty to give reasons for Directions within POFMA’s framework therefore does more than equip applicants to discharge their burdens of proof; it also ensures that the Government cannot legally quash assertions of fact without demonstrating why it believes those assertions false.
Third and finally, the Court’s reasoning that the issuance of Correction Directions does not restrict free speech represents Singapore law’s first attempt to grapple with the doctrine of compelled speech in free speech law. The Court’s approach was a markedly conservative one: it drew its distinction between obligations to assert perspectives as true and obligations to merely communicate perspectives from the dissenting judgements of Rehnquist and Blackmun JJ in the US Supreme Court’s decision in Wooley v Maynard.[26] The Court also cited the UK Supreme Court’s recent decision of Lee v Ashers, where Baroness Hale had reasoned that the right to freedom of expression in the European Convention of Human Rights would be prima facie restricted if individuals were “required to express a message with which they deeply disagreed”.[27] This, however, was not what POFMA Directions did: statement-makers could still qualify themselves by saying that the “Correction Direction [is] being challenged under s 17 of the POFMA, and that whether there [are] any grounds for setting it aside pursuant to s 17(5) remain[s] subject to judicial determination.”[28]
The Court’s reasoning here, however, is not particularly persuasive even on its own terms, because the distinction between obligations to assert perspectives and to communicate them is slippery: when does a communication turn into an assertion? Since a Direction requires statement-makers to communicate “a statement … that the subject statement is false”,[29] not a notice that the Government believes that the subject statement is false, isn’t it an obligation to assert rather than merely communicate a position? Moreover, the Court’s contemplated permitted qualification is not a clear disavowal of that obliged assertion: a statement that the statement-maker is challenging the Direction is at most a statement that the statement-maker believes that the subject statement is true, not that it is true. If Online Citizen is Singapore’s first venture into the doctrine of compelled speech, it is not a particularly promising one; but by recognising the doctrine itself, it does hold out the hope for future potentially richer developments.
Online Citizen is a remarkable judgment: it sets out a nuanced and well-calibrated framework for addressing appeals of POFMA Directions; even if it does not satisfactorily address constitutional questions arising from POFMA itself. The decision thus provides an instructive example of how fake news laws could operate in practice, and how even onerous obligations imposed thereunder can be subject to and tempered by detailed and principled legal frameworks. More broadly, Online Citizen reaffirms the comparative insight that, in dominant party democracies, courts tend to resolve public law issues at the sub-constitutional level, perhaps to avoid a direct confrontation with the legislature.[30] Yet, the Court’s judgmentis also proof of how such sub-constitutional developments can be effective means of restraining state power and preserving individual rights, even as increased threat sensitivity among Governments on fake news spark fears of regulatory overreach worldwide.
Suggested citation: Marcus Teo, Giving Substance to Singapore’s Fake News Law: Online Citizen, Int’l J. Const. L. Blog, Nov 4, 2021, at: http://www.iconnectblog.com/2021/11/giving-substance-to-singapores-fake-news-law-online-citizen/
[1] For an overview, see Alberto Alemanno, How to Counter Fake News: A Taxonomy of Anti-Fake News Approaches, 9 Eur. J. Risk Reg. 1 (2018).
[2] POFMA, ss. 10 and 4.
[3] Id., s. 11.
[4] Id., s. 12.
[5] Id., s. 15.
[6] Id., ss. 32-34.
[7] Id., s. 17(5)(b).
[8] Id., s. 17(5)(8).
[9] The Online Citizen v Attoney-General [2021] S.G.C.A. 96.
[10] Id., [79]. And even if they did, the Court reasoned in obiter that those restrictions were justifiable, since POFMA’s provisions had an objective “nexus” with “public order”, which was a legitimate purpose contained in Article 14’s limitation clause (Id., [81]-[105]).
[11] Id., [71]-[72], [76].
[12] Id., [78].
[13] Id., [117], [163].
[14] Id., [183].
[15] Id., [183].
[16] Id., [235]-[244].
[17] Id., [217]-[234].
[18] See the discussion in The Online Citizen v Attorney-General [2020] SGHC 36, [52]-[55]. For a criticism, see Marcus Teo and Jonathan Hew, Context and Meaning in the Interpretation of Statements Under POFMA, Singapore Law Gazette, June 2020, available at https://lawgazette.com.sg/feature/interpretation-pofma/ (accessed 22 October 2021).
[19] Online Citizen, supra note 9, [136].
[20] Id., [157].
[21] Id., [136].
[22] For a discussion of the competing approaches adopted in the courts below, see Marcus Teo and Kiu Yan Yu, Burden of Proof and False Statements of Fact under the Protection from Online Falsehoods and Manipulation Act 2019, 33 Sing. Ac. L.J. 760 (2021).
[23] Online Citizen, supra note 9, [184].
[24] Id., [182].
[25] See Tee Zhuo, Parliament: Only 8% of 2 million public government records searchable on National Archives online portal, The Straits Times, September 4, 2019, available athttps://www.straitstimes.com/politics/parliament-only-160000-of-two-million-public-government-records-have-metadata-on-nas-web (accessed 4 March 2020).
[26] 430 U.S. 705, 720-722 (1977).
[27] Online Citizen, supra note 9, [54].
[28] Id., [77].
[29] POFMA s. 11(1)(a), emphasis added.
[30] See Po Jen Yap, Constitutional Dialogue in Common Law Asia ch. 5 (2015).
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