Falsehoods, freedom of speech and burden of proof: Key findings from Apex Court's landmark POFMA judgment

SINGAPORE: The Court of Appeal has allowed part of the Singapore Democratic Party's (SDP's) appeal against correction directions the Manpower Ministry issued to the political party under the Protection from Online Falsehoods and Manipulation Act (POFMA).

In the landmark judgment released on Friday (Oct 8), the Apex Court set out its stand on related issues stemming from the controversial piece of legislation for the first time since it came into force in October 2019.

Here are some of the key findings from the judgment, which tackled both the SDP appeal and a separate appeal by The Online Citizen on POFMA.

THE POINT OF POFMA

The purpose of POFMA is, among other things, "to prevent the communication of false statements of fact in Singapore and to enable measures to be taken to counteract the effects of such communication", and "to suppress ... support of online locations that repeatedly communicate false statements of fact in Singapore".

Chief Justice Sundaresh Menon cited the Minister of Law's explanation that POFMA is the Legislature's response to the threat of "a serious loss of trust in governments, in institutions, both public and private", and a "weakening of the infrastructure of fact" caused by "falsehoods spread through new media".

He found that there was "no merit" to SDP's argument that Parliament did not specifically consider whether restricting the right to free speech was "necessary or expedient" to achieve or protect public order.

"We are therefore satisfied, from our examination of the legislative material, that Parliament did consider the POFMA to be necessitated by concerns, at least, of national security and public order," the court found.

THE 5-STEP FRAMEWORK TO SET ASIDE A CORRECTION DIRECTION

The court established a five-step framework that a court has to determine if someone applies to set aside a correction direction issued under POFMA.

First, the court should start with the subject statement identified as false by the relevant minister. The court must identify what is the statement that the minister wishes to target by his correction direction.

Second, the court should determine whether the subject material being targeted makes or contains the subject statement identified by the minister, as understood according to the minister's intended meaning. The court should consider whether the minister's interpretation is a reasonable one. If the court finds that the subject material does not contain the subject statement identified by the minister, then the correction direction may be set aside.

Third, the court should determine if the identified subject statement is a "statement of fact" as defined under the POFMA.

Fourth, the court should determine if the identified subject statement is "false" in the sense explained in the relevant section of POFMA.

Fifth, the court should consider if the subject statement "has been or is being communicated in Singapore" according to POFMA.

THE BURDEN OF PROOF

Both the SDP and TOC argued that the burden of proof in applications to set aside correction directions issued under POFMA should lie on the Attorney-General, and that it should fall on the AG to justify the issuance of the correction directions. It should not fall on the statement-maker to show that the correction directions ought not to have been issued.

In considering the matter, the court looked at the structure of POFMA and the wording of its provisions. Two conditions must be satisfied before a correction direction may be issued: First, there must be a false statement of fact that has been communicated in Singapore, and second, the minister is of the opinion that it is in the public interest to issue a correction direction.

The court found that the answer to the question of burden of proof must stem from an understanding of the true nature of the procedure for setting aside a correction direction. The appellants SDP and TOC misunderstood the significance of the terms "appeal" and "rehearing" under POFMA, the court found.

The procedure for an "appeal" under POFMA is not in the sense of a superior court's appellate review of the decision of a lower court or tribunal, but rather a statutory mechanism specially provided under POFMA so an appellant dissatisfied with a correction direction can directly challenge the minister's direction.

This statutory mechanism is unique, and an avenue for challenging an executive decision, so the submission that the burden of proof must lie on the minister does not sit well with the nature of this statutory mechanism, the court found.

The court gave at least three reasons why the burden of proof should lie from the outset on the recipient of the correction directions.

First, as in the case of judicial review proceedings, it is inconsistent with the administrative law presumption of the legality of executive action to allow an applicant to mount a challenge to a minister's issuance of a correction direction without putting forward any basis for the challenge.

The court cited a previous judgment that presumed constitutional office holders and other officials exercise their public functions in conformity with the law, and it is for any party alleging otherwise to adduce evidence at the outset to rebut this presumption.

Second, placing the burden of proof on the minister without requiring the recipient of the correction direction to show some objective basis for his complaint opens the way for abuse. This means a person can make any false allegation and then go to court, requiring the minister to prove that they have satisfied the legal requirements for issuing a correction direction.

Third, the minister is required to set out in a correction direction the basis on which the subject statement is determined to be a false statement of fact. This extends to the grounds for the assertion that it is false. Since the minister must provide his grounds on why the statement is regarded as false, the recipient of the direction who wants to challenge those grounds must explain why it challenges them.

However, the court found that a person challenging a correction direction would just have to show a prima facie case that one or more of the grounds for having the direction set aside is satisfied.

If the person cannot even establish this, his application would fail at the threshold.

Conversely, if the person can cross this threshold, the evidential burden will then shift to the minister to show that none of the grounds the person challenging the direction rely upon are made out.

Whether the minister proves this will depend on all the circumstances, including the content of the subject statement, the types or sources of information or knowledge relied on, the investigations undertaken and the pertinent data.

The final determination will be made by the court based on the totality of evidence shown by all parties.

ON WHETHER REPORTING ON A FALSEHOOD COUNTS AS MAKING A FALSEHOOD

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.

TOC argued it was merely reporting the fact that LFL made those allegations, and did not endorse the allegations themselves.

"This is a point of importance," the court found. "While TOC's argument may be superficially attractive, it overlooks the fact that the legislative imperatives underlying the POFMA are focused on the deleterious effects of online falsehoods and seek, specifically, to safeguard the infrastructure of fact as well as to protect the Government and other key institutions from breakdowns of trust engendered by the proliferation of such falsehoods."

"In our judgment, this cuts against an approach which prevents the court from considering the falsity of a statement on the basis of its being read out of context because statements that are rendered false when they are reasonably understood in a particular way ... can conceivably cause the very harm that the POFMA was enacted to address," said the Chief Justice.

He gave an example of a "clickbait" article that uses deceptive headlines to attract attention, but where the headlines turn out to be correct when read carefully with the article.

However, a reader may nonetheless be misled by the headline and misconstrue it in a way that renders it false, and this could potentially affect public order. This is a matter to be assessed on the facts of each individual case, but exposes the flaw in TOC's argument that speech that is false because it is taken out of context is harmless to public order, the court found.

POFMA IS CONSTITUTIONAL

The court upheld that POFMA is constitutional, but noted there is "considerable public benefit" in assessing the constitutionality of POFMA, as this is the first case before the Court of Appeal concerning POFMA's interpretation and application.

SDP argued that parts of POFMA are unconstitutional as they limit the right to freedom of speech, but the Attorney-General argued that false speech does not even attract protection under the Constitution.

Chief Justice Sundaresh Menon, who delivered the judgment, said the Constitution confers on every Singapore citizen the right to freedom of speech and expression, but noted the tendency to assume that any type of speech is constitutionally protected.

Under POFMA, a person who receives a correction direction must comply with it even before any court proceedings are brought to challenge the issuance of the direction.

"The question then is whether speech that is considered by the minister to constitute a false statement of fact, but that has yet to be proven to be so in a court of law, is nonetheless protected from restriction by (the relevant article) of the Constitution," said Chief Justice Menon.

The AG argued that a falsehood remains a falsehood "even before a judicial determination of its falsity", and therefore a statement that a minister has identified as false cannot be protected under the free speech article of the Constitution.

"With respect, this is incorrect," said the Chief Justice. "What the AG's submission amounts to is that a statement is a false statement of fact because the minister has identified it to be so in exercising his powers under Part 3 of the POFMA."

"We regard this as untenable. The minister may, after all, be mistaken. Truth and falsehood are ultimately matters to be determined by a court based on the evidence."

Instead, the court characterised the issuing of a correction direction under POFMA as the exercise of a power to identify statements of fact the minister regards as false, and to act upon that belief in the interest of arresting their swift online spread.

This assessment by the minister is subject to a final determination by the court as to whether or not it is correct, said the Chief Justice.

Ultimately, the court found that POFMA was not unconstitutional, whether in whole or in part.