SINGAPORE: Law and Home Affairs Minister K Shanmugam addressed criticism of the Protection from Online Falsehoods and Manipulation Bill in a parliamentary speech on Tuesday (May 7), saying while there is nothing wrong with questioning whether the powers given to the Government could be abused, those levelling the criticism should first read the proposed laws in detail.
He was speaking during the second reading of the Bill, where he addressed various concerns:
1. IT GIVES TOO MUCH POWER TO THE GOVERNMENT
On suggestions the Bill gives too much power to the Government, Mr Shanmugam said that it has “narrower terms” than the current law.
He noted that while the Bill gives ministers the power to declare that an article contains falsehoods and subsequently ask for a correction order to be carried or the article be taken down, he also said that the decision is open to be challenged in court.
Should the minister be found to have made a wrong judgment, he will be overruled, elaborated Mr Shanmugam.
He also refuted claims that spreading of falsehoods is a new crime. It already exists under Section 45 of the Telecoms Act (now covered under Miscellaneous Offences Act) and also applies to the Internet, he said.
Mr Shanmugam clarified that there will be recourse to judicial review, and that judges can examine the proportionally of a direction issued by a minister.
On the issue of criminalising falsehoods, the minister noted that some academics have argued that “truth is relative”. The academics have also stated that it is “impossible to state what is a ‘fact’ as opposed to ‘false and misleading’”, thus affecting their academic work.
Mr Shanmugam, however, said that their concerns “appear to be expressed without an understanding of the existing legal position, and how this Bill fits in".
“There is no legal or logical basis for the concerns that this Bill will stifle academic research specifically.”
2. IT WILL HAVE A "CHILLING EFFECT" ON FREE SPEECH
Responding to claims that the Bill would have a “chilling effect” on free speech, the minister said that it was “one of the most overused phrases” but stated that “free speech should not be affected by this Bill”. Instead, it will affect “falsehood, bots, trolls and fake accounts”.
Mr Shanmugam cited National University of Singapore law professor Thio Li-ann, who gave evidence in the Select Committee on Deliberate Online Falsehoods hearings in March last year.
He quoted Prof Thio, who said that "not all forms of speech are worthy of equal protection", and that falsely crying fire in a crowded theatre is not protected as valuable speech.
He also pointed to a judgement in the UK which said that "there is no human right to disseminate information that is not true" and that no public interest is served by communicating misinformation. "Misleading people and … purveying as facts as statements which are not true is destructive of the democratic society," he quoted.
READ: New law deals specifically with online falsehoods, ‘preferable’ over amending existing ones: Shanmugam
3. DEFINITION OF FACT AND OPINION IS NOT CLEAR
Mr Shanmugam acknowledged that calls have been made to define "fact" and further state that opinions are not covered under the Bill. He added that the Government has “considered this carefully” and decided against it.
He stated that there is a body of case law on fact and opinion, and that it is “better to rely on existing Case Law”.
He said that should there be a dispute, the matter can be dealt with in Court.
4. DEFINITION OF PUBLIC INTEREST IS TOO WIDE
Mr Shanmugam reiterated that the proposed legislation does not cover statements just because they are against the public interest. These statements must also be "false statements of fact".
There have been calls for Bill not to include Clause 4(f), which relates to the diminution of public confidence in the functions of government institutions, Mr Shanmugam said.
He added that online falsehoods seek to breakdown trust by attacking institutions, and that “it is important to protect institutions from falsehoods”.
NMPs SUGGESTED AMENDMENTS
Mr Shanmugam also addressed concerns raised by Nominated MPs (NMPs) and their suggested amendments to the proposed legislation tabled in a Notice of Amendment (NOA).
While Mr Shanmugam said that there was "substantial agreement on major points" between the Government and the three NMPs on the Bill, the differences they had on the regime for ministerial directions on online falsehoods were "mainly on matters of process".
He said that the three NMPs have proposed that the directions provide more specific reasons on falsity and public interest.
While he agreed with "the principle underpinning the first part of this proposal" that when the Government says something is false, it "must obviously set out the reasons why it is false".
Mr Shanmugam added that the Government had the intention to set this out in subsidiary legislation, which he said "is public, is transparent and open to scrutiny".
On public interest, the minister said: "I am not comfortable requiring a setting out of detailed reasons on how a particular course of action serves public interest."
"The level of detail depends on each case. It's difficult for parliament today to envisage what are the types of cases. How are you even going to start setting out what level of detail ought to be set out?" he told the House.
"You don't even know what the case is about. But you must set out enough detail, and if not, you take the risk of a court challenge."
Mr Shanmugam said that if there is a challenge, the Government will have to show public interest, or will have to explain in court why the information it is providing is adequate, and the Court will then assess whether to accept the explanation.
He also addressed the NMPs proposal that the Minister “shall do everything reasonable to ensure that appeals to the Minister are adjudicated without delay”, and that the “High Court hearings shall commence as soon as practicable, and that costs to the appellant are minimised”.
To which, Mr Shanmugam questioned the terms "as soon as practicable” and “without delay”, stating that court hearings can take 12 to 18 months from commencement. In his speech, he gave more details of the appeals process, which he said would be fast and simple.
AIC DOESN'T BACK UP OP-ED WITH ACTION
Among other critics of the proposed legislation that Mr Shanmugam spoke about in his speech was the Asia Internet Coalition (AIC).
The minister highlighted how in an Op Ed published on May 4, Mr Jeff Paine, the managing director of the lobby group for tech companies, said the Exemption Clause (Clause 61) was troubling.
Clause 61 "enables the Minister to exempt a person or class of persons from any provision of the Bill".
“I told my ministry officials to tell the tech companies: ‘You don’t think this Clause is necessary right?’ Ok, I’m quite happy to remove it. I am speaking in Parliament on Tuesday, and if I don’t get any response before I speak, I will assume the tech companies don’t want this Clause. Because, how do I tell members of this Parliament, that this primarily to help tech companies? When they themselves say they don’t want it?” said Mr Shanmugam.
He said this prompted a “swift” response from the AIC which issued a statement on Monday evening that they appreciated the clarification on the Exemption Clause.
Mr Shanmugam said the AIC also indicated that they appreciated the Government’s efforts to make the legislation technically feasible for tech companies.
“Tech companies will say many things to try and advocate their position,” he said.
“We have to show them we are fair and firm. They will then deal with us in a business like way.”