Exemption of Government from being sued under POHA amendments a 'glaring omission': Pritam Singh
SINGAPORE: The decision to exempt the Government from being sued should it perpetuate a falsehood is a "glaring omission and a lost opportunity at winning the trust of the public", Workers’ Party MP Pritam Singh said in Parliament on Tuesday (May 7).
Mr Singh was speaking at the second reading of the Protection from Harassment (Amendment) Bill, which seeks to enhance protection for victims of harassment and falsehoods, and to make it easier for victims to obtain remedies.
The amendments to the Protection from Harassment Act (POHA) include criminalising the act of doxxing, which is the publishing of someone’s personal information such as their photos, contact numbers or employment details with the intention to harass.
The amendments will also include the setting up of a Protection from Harassment court.
Under the Bill, public agencies are excluded.
"What this effectively means is that an individual or company cannot apply to the Harassment Courts in case the Government makes misleading or false statements against them," he said.
He added that such exemption does not conform to the principle that the rule of law applies equally to all.
READ: As the ‘human flesh search engine’ of online vigilantism grows, measures to deal with doxxing critical, MPs say
GOVERNMENTS CAN COMMUNICATE FALSEHOODS
In supporting his point, he noted the observations of some who spoke at the Select Committee on Deliberate Online Falsehoods that governments can also communicate falsehoods or misleading information.
"Why shouldn’t the public receive protection provided by this Bill – against a prospective government or minister that uses his or her powers not just unwisely but maliciously – with a view to seek a remedy from a neutral body like the courts?" he asked.
To make his point, Mr Singh referred to a video in which former Internal Security Act (ISA) detainee Poh Soo Kai accused the Government of wrongfully alleging that he rendered assistance to an injured Communist Party of Malaya member in Masai, Malaysia.
Mr Poh claimed that he never went across to Malaysia, and that this could be proven through immigration records. Mr Poh then went on to accuse the Government of peddling a false statement of fact as defined by the Bill.
"Now, the limitation period of this example notwithstanding, under the Bill such an individual would have no remedy against a false statement made by the Government," he said.
"Would the public interest not be better served in allowing a person to apply for the appropriate order from the Harassment Courts and in doing so, make their case?" Mr Singh asked.
"I would argue that the prospects of such recourse and the availability of a neutral forum like the courts, combined with a simple process would in itself act as a deterrent against individuals who seek to retrospectively burnish their reputations or embarrass the Government."
He said he was not taking a view about the veracity of the facts as presented either by Mr Poh or the Government. However, he said that because all the relevant information is not openly accessible, there is no way members of public can objectively take a view on either side of the story.
"It goes without saying that there exists an asymmetry in information and power between a government and its citizens," he said.
GOVERNMENT NOT BOUND BY LEGISLATION
He added that allowing a government to open itself to scrutiny on matters where it is accused of peddling falsehoods can "paradoxically operate to strengthen trust in Government".
He said that political leaders all around the world find their mandate to rule "increasingly questioned by a sceptical public".
In response to Mr Singh, Senior Minister of State for Law Edwin Tong said that the general position in law is that the Government is not bound by legislation unless it expressly provides for that to be so.
"In the case of POHA, that is the case, and the Government has taken a view that it will not avail itself of remedies under POHA and likewise, it will not be subject to the provisions under POHA," Mr Tong said.
"As to how officers of the Government can be held accountable, that can always be done in the usual forum, like in Parliament, as is the usual case."
WHAT IS A MISLEADING STATEMENT?
Mr Singh also had other points to clarify. He wanted to know how a "misleading statement" prescribed under the Bill will be objectively assessed.
Under the Bill, "a statement is false if it is false or misleading whether wholly or in part, and whether on its own or in the context in which it appears".
“While there exists an objective legal test for determining whether a statement of fact is false, can the minister confirm how the Government expects the courts to interpret the boundaries of a statement that is misleading in the context of the new remedies provided for under the Bill," Mr Singh asked.
He referred to a "hypothetical example" where a person will have made a statement against a black metal band two weeks before it is due to perform, encouraging others not to attend the performance.
This could lead to a loss of revenue and poor ticket sales that could be attributed to the onset of a viral online campaign by that person. The statement is then headlined in bold, reading "People who listen to black metal music may commit violence in the real world" alongside pictures of individuals with heavily tattooed faces.
"From the standpoint of a black metal band, whose music undoubtedly may not be everyone’s cup of tea, the statement is misleading because all sorts of people may commit violence in the real world," Mr Singh said.
"Therefore a statement can be potentially misleading if it does not cover all the relevant facts or represent the matter fairly – and the choice of which facts are chosen usually turns on where you stand on any given matter, philosophically, politically or morally, for example."
Responding to Mr Singh’s specific example, Mr Tong said that the statement made by the individual would be an opinion and not a fact.
"It’s a view that has been formed. It’s a culmination of various factors which have led a person to come to the conclusion. That's not a statement of fact, nor can it be characterised as a misleading statement which is also a statement of fact," Mr Tong said.
Misleading statements can also be made through omission, the minister added.
Mr Singh also noted that there may be a challenge in defining doxxing. For example, there may be a case where an individual’s identity information is already online and another online commentator posts a hyperlink to it with an innocuous comment like "this person is a lawyer and yet he behaves in such a way".
While the actively revealed information is uncontroversial, the hyperlink reveals other personal information like place of work and contact numbers.
"In such a case, it would be arguable whether the comment and hyperlink together meet the threshold of intent as required under clause 4 of the Bill," Mr Singh said. In response, Mr Tong said that based on this example, the act is not a question of doxxing.
"Posts which merely state opinion or which are meant to encourage social debate, for example, do not fall within the ambit of offences," Mr Tong said.
In addition, Mr Singh also said that the courts may have to move faster than the 24-hour window in which the courts will aim to hear the applications.
Mr Singh said that the Workers' Party supported the Bill, which proposed "very significant" changes to the Act.