SINGAPORE: A proposed law against fake news narrows, not widens, the Government’s powers, the Ministry of Law said on Thursday (May 2).
The Protection from Online Falsehoods and Manipulation (POFMA) Bill, tabled in Parliament on Apr 1 and due for a second reading next Monday, is aimed at tackling the spread of online fake news using regulatory tools as well as criminal sanctions. It includes powers for ministers to order sites like Facebook, Google and Twitter to put warnings next to posts authorities deem false, and in extreme cases, to take them down.
GOVERNMENT CURRENTLY HAS WIDER POWERS THAN UNDER POFMA: SIRAJ OMAR
Mr Omar, a partner with RPC Premier Law, said that the Government already has broad powers under the Broadcasting Act and other legislation to deal with online content deemed contrary to the public interest.
Agreeing, Ms Teo said Mr Omar is correct in that the Bill gives narrower powers to the Government, compared with powers it already has under existing legislation.
Mr Omar noted that currently, the Government has the power to block access to specific sites, such as in the recent blocking of the States Times Review website over an article linking Prime Minister Lee Hsien Loong to the scandal involving Malaysia state fund 1MDB.
The Bill also provides for an appeal to the courts against the minister’s decision on the question of whether something is a “false statement of fact”. There is no such right of appeal under existing legislation, Mr Omar said.
The concern that the Bill may curtail free speech by blurring the lines between opinion and fact is unfounded, given their well-established definitions in law, Mr Omar said.
“The Bill expressly defines a ‘statement of fact’ as ‘a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact’. It is an objective standard that applies, not the minister’s subjective view,” he said, adding that the distinction between fact and opinion is one that the courts have dealt with and refined in many decisions over the years.
“The Bill, therefore, appears to represent a shift in approach, with the Government attempting a more measured and calibrated approach to the problem.”
READ: Proposed law on falsehoods has ‘clear oversight mechanism’ to prevent abuse by Government, says Shanmugam
On criticism that the minister appears to be empowered to take action against an entire article even if the falsehood is merely an immaterial part of it, Mr Omar said that such a requirement of proportionality already exists in the Bill.
“For example, in deciding whether to issue a Correction Direction in response to a false statement of fact relating to public health, the minister must first ask whether it is in the public interest to do so, and in answering this question, must assess whether such a Direction is necessary or expedient to protect public health,” he said.
Ms Teo said in her response that “these points have been overlooked by some commentators”.
“The Bill does seek to scope down and calibrate the Government's powers in key areas,” she said in her letter provided to CNA and also published in the Straits Times on Thursday.
In his opinion piece, Mr Omar also suggested mandating a simplified or expedited process for appeals to the court, and to consider the availability of legal or financial aid to prevent legal costs from becoming a deterrent. Ms Teo said the ministry will consider the suggestions.
LEGITIMATE CONCERNS REMAIN: HARPREET SINGH
Senior Counsel Harpreet Singh, a partner with Clifford Chance Asia, said that while there can be "no serious disagreement" that governments need to be adequately equipped to deal with public dangers posed by online disinformation campaigns, the Bill as currently drafted "gives reason for pause".
Two key preconditions to exercise the extensive powers under the Bill, a "false statement of fact" and a minister's subjective determination of the "public interest", are both very widely defined, he said.
“Falsehoods extend to any statement that is ‘misleading … whether in whole or in part, and whether on its own or in the context in which it appears’."
The definition of "public interest" in the Bill also goes beyond traditional categories to the diminution of public confidence in the performance of any duty, or any function, or any power of the Government or even a statutory board, Mr Singh said.
“These requirements set a very low bar for a minister's exercise of the extensive powers under the Bill,” he said.
The Law Ministry’s Ms Teo reiterated the point made to Mr Omar that that the powers to be given to the Government under the Bill, and the public interest grounds on which the Government can exercise its powers, “are actually narrower than the Government’s existing powers”.
“In key areas, the Bill narrows, rather than extends, the Government's powers,” she said in the letter that was also provided to CNA and published in the Straits Times.
Mr Singh also pointed out that "while the Bill is not intended to apply to opinions and criticisms, it is often difficult to differentiate statements of opinion and statements of fact”.
"Opinions and criticisms are often premised on underlying statements of fact. Even statements of pure opinion carry an implied statement of fact that there is a reasonable basis for the view expressed,” he wrote. “The Bill, as drafted, may easily be interpreted to extend to criticisms and opinions as long as one of the underlying premises of fact is erroneous.”
In response, Ms Teo said there is jurisprudence, or legal theory, on this. “If there is a dispute, ultimately the Courts will have to decide whether a statement was factual, or an opinion,” she said.
Mr Singh called for several changes to the proposed legislation, including expressly requiring a minister’s order against a purported online falsehood be supported by reasons.
“Specifically, it should require a minister's order to identify the relevant falsehood, set out what the true position is, identify the specific public interest involved and how it is threatened by the falsehood, and articulate why the order is both proportionate and necessary.”
For the more onerous take-down orders or disabling directions, there should be reasons explaining why a lesser measure would not suffice, he added.
He recommended that the legislation should require any order to be proportionate to the nature of the falsehood and the degree of harm to the public interest. By putting some boundaries on these wide powers and requiring that orders made under the Bill are proportionate, the courts would have a greater latitude of supervision over a minister’s orders, he said.
Ms Teo said that a “close reading of the Bill will show that it already contains the proportionality requirement”.
She made reference to Mr Omar’s point that the Bill sets out a range of measures that the minister can take, and that which measure is ultimately deployed depends on what would be “necessary or expedient”.
Mr Singh also called for an annual review of the legislation by Parliament for the first five years. In the review, the Government should provide a summary of the ministerial orders issued, the facts and circumstances of each case, the reasons for the specific orders, the number of appeals and their outcome.
This would enable Parliament to decide if the law is properly achieving its stated legislative aims and how its operation can be improved, he said.
Ms Teo said his suggestion for a regular review will be considered and dealt with in Parliament.