Judge dismisses The Online Citizen's POFMA challenge

Judge dismisses The Online Citizen's POFMA challenge

The Online Citizen chief editor Terry Xu
Chief editor of The Online Citizen (TOC), Terry Xu. (Photos: Facebook/TheOnlineCitizen/Terry Xu)

SINGAPORE: A High Court judge on Wednesday (Feb 19) dismissed an appeal by The Online Citizen (TOC) against a correction direction under the Protection from Online Falsehoods and Manipulation Act (POFMA).

The alternative news site had been issued the direction by Home Affairs Minister K Shanmugam for an article where a Malaysian human rights group alleged "brutal, unlawful" executions in Changi Prison.

The article, "M'sian human rights group alleges 'brutal, unlawful' state execution process in Changi Prison", was published on Jan 16 this year.

It described allegations of brutal hanging procedures, including the kicking of a prisoner's neck "with great force in order to break it".

READ: Singapore invokes online falsehoods law against Malaysian rights group's 'preposterous' claims on execution methods

The Ministry of Home Affairs refuted the allegations as "untrue, baseless and preposterous", and said any acts as those described would have been thoroughly investigated and dealt with.

In her judgment, Justice Belinda Ang noted how TOC contended that the subject statement is not a "statement of fact" because it is "neither a fact nor an opinion but rather a report on hearsay". 

"In TOC's view, it has never affirmed that the subject statement contained statements of facts or that the events described in the subject statement took place in fact," said Justice Ang, adding that TOC argues it "merely reported in an even-handed way that LFL (Lawyers for Liberty) had made certain allegations". 

TOC editor Terry Xu had said in his affidavit that the news site was "simply reporting the fact that the allegations ... were made by LFL" and that he was "not responsible for making the statements". 

Justice Ang said she was "unable to accept" this argument, adding that TOC's "reporting defence" was "untenable". 

This defence is "premised on a misconstruction", said Justice Ang.

While it is true that LFL did make a press statement, this is "inconsequential", she said, because the relevant inquiry is whether the statement identified by the correction direction - the details of the alleged hanging procedures - is true, and not whether TOC's report that LFL made a press statement is true.

READ: Judgment reserved in TOC's POFMA challenge, arguments on whether falsehoods can be republished

In addition, the fact that TOC does not know whether the subject statement is true is "ultimately an immaterial consideration" as under POFMA the issuance of such a correction direction does not require a fault element, said Justice Ang.

"Section 11(4) states that '[a] person who communicated a false statement of fact in Singapore may be issued correction direction even if the person does not know or has no reason to believe that the statement is false”, she said. 

"A minister is therefore not prevented from issuing a Part 3 CD (correction direction), even if a person genuinely believes that he communicates a true statement of fact when the statement is in fact false."

TOC NOT ENTITLED TO CREATE ANOTHER CATEGORY OF STATEMENTS: JUDGE

The judge also rejected TOC's argument that the statement was neither a fact nor an opinion, but a "report based on hearsay". 

Mr Xu wrote in his written submissions that a reasonable reader would recognise that the article was reporting on hearsay.

He said the words "allege" and "allegation" were used six times in the article, ensuring that readers were aware that they were unverified allegations. 

The article also concluded with a sentence stating that TOC had contacted MHA for comments, apparently signalling to readers that TOC was trying to verify the allegations with the ministry.

In doing so, TOC has "mistakenly" assumed it can introduce a different category of statement, said Justice Ang.

There are only two recognised categories of statements for the purposes of this POFMA section - "facts" and "opinions", she said, and TOC was not entitled to create a third category of statements.

TOC also wrongly assumes that a statement can only be regarded as a fact after a fact-checking exercise, said the judge. However such an exercise is only relevant for determining whether a fact is true or false and not whether a statement is a fact or an opinion.

Applying the "reasonable person" test, the judge found that a "reasonable person" who reads the subject statement would regard it as being a statement of fact.

WHO SHOULD BEAR THE "BURDEN OF PROOF"?

TOC relied on a particular sub-section of POFMA, section 17(5)(b), as its sole ground to set aside the correction direction. The sub-section states that a correction direction can be set aside if the subject statement is not a statement of fact or if it is a true statement of fact. 

A significant feature of this section requires TOC to prove the truth of a statement rather than have the respondent prove its falsehood, said Justice Ang.

READ: Judge dismisses SDP's POFMA challenge, says statements were false in face of statistical evidence

Both sides, TOC and the Attorney-General, have argued "at length" in their written submissions about who should bear the burden of proof, said the judge. 

In its arguments, TOC relies on a previous decision made in Singapore's first POFMA challenge by the Singapore Democratic Party (SDP). SDP's challenge was dismissed, but the judge in that case held that the onus of proof in a setting aside application under s 17(5) falls on the respondent.

Justice Ang said her views are "quite different" from the judge in the SDP case and that the legal burden of proof actually rests on the statement-maker - in this case, TOC.

In any case, even if the onus was on the respondent (in this case, the Attorney-General) to prove that a factual statement is false, the outcome of TOC's case would have remained the same, she said.

This is because TOC did not in the first place argue that the statement in the correction direction is true, she said.

Source: CNA/nc(hs)

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