Judgment reserved in The Online Citizen, SDP's POFMA appeals, as court grapples with legal issues including burden of proof

SINGAPORE: The Court of Appeal reserved judgment on Thursday (Sep 17) on two appeals by the Singapore Democratic Party and The Online Citizen (TOC) against correction orders issued under the Protection from Online Falsehoods and Manipulation 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 hanging methods at Changi Prison.

Among the questions the court grappled with in a full-day hearing on Thursday included the burden of proof in such cases, and if the statements were indeed false.

Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong ordered all parties to file supplementary arguments on a point on whether POFMA restricts one's constitutional right of free speech. The judges will decide at a later date if another hearing is necessary.

The cases are separate but were heard together. Both TOC and SDP appealed to have the correction directions issued to them dismissed, but failed in their first bids in the High Court.

TOC was issued a correction direction by the Minister of Home Affairs on Jan 22 for an article it published based on a press statement by Malaysian non-governmental organisation Lawyers for Liberty (LFL), which alleged that illegal hanging methods were used in Singapore's Changi Prison.

MHA refuted the allegations as "untrue, baseless and preposterous", and said any acts as those described in the article would have been thoroughly investigated and dealt with.

READ: Judge dismisses The Online Citizen's POFMA challenge

SDP received three correction directions from the Ministry of Manpower in December 2019 for three posts: An online article published in June 2019 titled SDP Population Policy: Hire S'poreans First, Retrench S'poreans Last; a Facebook post in November 2019 linking to the above article; and a Facebook advertisement in December 2019 containing a link to the article and a graph with a downward-pointing arrow titled Local PMET Employment.

MOM said that SDP's graph showing plunging employment of local professionals, managers, executives and technicians (PMETs) was false, giving statistics to show that local PMETs employment has risen steadily since 2015.

It also said SDP's statement that its proposal comes "amidst a rising proportion of Singaporean PMETs getting retrenched" was also false.

READ: SDP directed to correct Facebook posts and article under online falsehoods law

WHO BEARS THE BURDEN OF PROOF?

Lawyer Suresh Nair, instructing counsel for the SDP's case, argued that the burden of proof lay on the minister issuing the correction direction, or on the Attorney-General's Chambers (AGC), to prove that the statement is false.

The High Court judges who dismissed both the SDP and TOC's earlier appeals were split on this issue - with Justice Ang Cheng Hock ruling that the minister bears the burden of proof in the SDP's case, and Justice Belinda Ang finding that TOC, or the statement maker, bears the burden of proof.

The AGC’s representatives maintained that the burden fell on the statement makers, saying that this was not "an overly onerous burden". 

"In other words, one should not assert statements of fact which affect the public interest if one does not have any evidence that it is true. This is the essence of responsible free speech," said Ms Kristy Tan, Mr Fu Qijing and Ms Amanda Sum.

Mr Nair highlighted "the extraordinary nature of this piece of legislation", saying that the mechanism of POFMA "amounts to a false confession", as the minister requires the other party to post a correction notice in terms defined by the minister.

"The correction notice issued in (SDP's) case … doesn't say the minister says that what the SDP … has said is false and that the minister says that these alternative facts are true,” Mr 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's a link to a Factually website.”

If the AG's arguments backing the correction directions are correct, then several consequences follow, said Mr Nair. 

Firstly, a correction direction can be made for not only what a person says, but also what a minister claims the person has said.

Secondly, the minister can change what he or she claims the person has said as the case goes along. The minister is not held strictly by the original statement in the correction direction, said Mr Nair.

Thirdly, in order to set aside the correction direction, the statement maker must prove that what the minister claimed the statement maker said is true, even if this was not what the statement maker meant.

Chief Justice Menon said he wondered if it was possible to take a step back to ask what the case was about, instead of focusing on whether the burden of proof fell on the statement maker or the minister.

"I don't think it's correct that the minister has to prove each and every (thing)," he said. 

"For example, if a statement says the minister has got billions of dollars stashed away in his account, if the minister issues a correction direction saying this is untrue, and the statement maker says, ‘you prove it’.

“It can't be right that the minister has to show all of his bank accounts in order to justify the issuance of the correction direction."

In response, Mr Nair said to have the burden lie on the statement maker to prove the truth of what he said will be "impossible" in many cases, in the absence of a freedom of information legislation.

Without this, people will have to depend on what they hear, as they will not be able to get documents supporting their statements.

"One wonders what wrongdoings of state would have gone unreported in a POFMA environment," said Mr Nair.

"For example, in China we now know that a doctor raised an issue of this virus that was passed around. In a POFMA environment, would the public have come to know about this? One wonders if Watergate would have come to public knowledge in a POFMA environment. Not possible to prove."

He said the court should consider if it was consistent with the constitutional right to freedom of speech 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 lawyer Mr Eugene Thuraisingam said that the article that was given a correction direction was "genuine reporting" of an allegation. The article contained a statement that said TOC had contacted MHA for its response.

Chief Justice Menon asked if publishing the correction direction would have the same effect as adding a response from MHA saying that the allegations of brutal prison treatment were untrue.

Mr Thuraisingam responded that it was not the same, as there are consequences to a correction direction being issued. A website that has three correction directions within six months can be made a Declared Online Location and face possible sanctions.

He said the Government proceeds with a correction direction under POFMA assuming that the author thinks the statement in the article is true, but TOC's position is that they never said it was true, but it had asked the Government if it was so.

If allowed to go down this route, Mr Thuraisingam said, reporters are placed in "a very difficult position".

AGC's representative Hui Choon Kuen said in response that the relevant section of POFMA is targeted at statements and not the article’s author.

A person can have genuine intentions in making a statement, but if it is a false statement affecting public interest, then POFMA can be used to neutralise the false statement’s effects, said Mr Hui.

"My concern with this approach is that it imposes quite a burden on responsible journalism," said the chief justice.

"I mean a journalist who gets wind of a fact that someone has made an allegation ... Just take for example someone says there's an allegation against a Government agent in the course of carrying out some work.

“Somebody has made that allegation, and say that it's an allegation that has to be or is going to be investigated.

“It worries me 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 is untrue’."

Chief Justice Menon said that if a media outlet receives a whistleblowing complaint, no one knows if the whistle was blown for 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 Mr Thuraisingam's point.

"And we are not saying that we agree with the whistleblower, we are not saying it is true, but we are saying this is what they say - they are just reporting the debate."

Mr Hui said there were different scenarios.

He gave the hypothetical scenario of an article that was published based on a whistleblower’s account that Singapore’s water supply had been tainted, causing panic.

If the news outlet said it had contacted the ministry in charge but it did not get a response by press time, it would not help in an appeal against a POFMA correction direction, said Mr Hui.

Justice Prakash said that this was the nature of journalism, and that if the water was truly not poisoned, the Government "would be out there saying immediately - no such thing".

Chief Justice Menon added that he was concerned by the AGC's arguments about this, as it would seem that there would be "a whole slew of things the media can't report".

In response, Mr Hui said that if a responsible journalist reports on something of public interest, they should make attempts to verify.

"And if at the end of the day, you do commit that false statement, and a correction direction is issued, it's not an indictment of the person," he said.

The chief justice asked: "But you do agree that three strikes, three times you do this, you can end up being declared a declared site, and that would affect their whole standing as a journalistic website?"

Mr Hui responded that the point of that section in the Act was to counter those who make money out of purveying falsehoods. It is at the minister's discretion to make a site a declared online location.

The judges reserved judgment after about six hours of arguments. A verdict will be released at a later date. So far, no one has successfully overturned a correction direction issued under POFMA.