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

SINGAPORE: A High Court judge on Wednesday (Feb 5) dismissed an appeal by the Singapore Democratic Party (SDP) against correction directions by the Manpower Minister under the Protection from Online Falsehoods and Manipulation Act (POFMA).

Justice Ang Cheng Hock found that statements made by the SDP were "in fact false in the face of statistical evidence against them", and found that there was proper basis for all three correction directions.

He found that the Attorney-General bore the burden of proof, but said it had proven with statistics that the three statements made by SDP on employment in Singapore were false.

SDP had made two statements labelled as false by MOM: That local PMET (professionals, managers, executives and technicians) retrenchment has been increasing, and that local PMET employment has gone down.

These statements were made in a June 2019 article on its website and two Facebook posts in late 2019.

Justice Ang rejected SDP's case, put forward by its Secretary-General Chee Soon Juan in chambers over two days last month.

He said he could not accept interpretations of the statements offered by SDP, over the same set of statistics from MOM.

SDP had argued that the relevant data should stretch back to 2010, whereas the AG presented data showing increasing employment between 2015 and 2018. The judge found this "problematic" in a few ways. 

He referred to the use of the term "amidst" in SDP's article, where it claimed that its population policy proposal came "amidst a rising proportion of Singaporean PMETs getting retrenched".

The term suggests "an urgency and contemporaneity" with the time that the Facebook post linking the article was published - in November 2019 - and this is "discordant" with SDP's tweaked approach to referring to "a broad swathe of time" from 2010 when considering the evidence of the truth of the statement.

There was nothing in the article that offered "any hint that the 'rising proportion of PMET retrenchment' should be understood with such a long timeframe rather than by reference to the most recent period of time", the judge said.

"The critical factor on the question of truth or falsity is that the appellant did not challenge the veracity of the statistics put forward by the (AG) as evidence of falsity," said Justice Ang.

While SDP had called on the AG to make available further data pertaining solely to Singapore citizens, the party did not "at any point assert, or even suggest, that the statistics were inaccurate".

The judge also dismissed SDP's arguments on a graph it posted showing a downward trend in local PMET employment, saying there was no label on the time period and rejecting the explanation that it showed only a proportion of PMET employment.

He rejected SDP's argument that "locals" refers only to Singaporeans and not Singapore Permanent Residents.

He also said he could not accept the party's argument that its experience of meeting voters and citizens while knocking on doors contributed to them using the word "locals" as referring only to Singaporeans and not PRs.

BURDEN OF PROOF FALLS ON AG: JUDGE

In coming to his decision, Justice Ang said the court had to decide who the burden of proof fell on, in what was the first challenge against POFMA.

POFMA does not specify which party bears the burden of proof in the appeal, and there is "nothing in the parliamentary debates which sheds light on this issue", said the judge.

Deputy Attorney-General Hri Kumar Nair had said in his arguments that the burden of proof fell on SDP to prove that its statements were true, while SDP argued otherwise.

Justice Ang said he was unable to agree with Senior Counsel Nair, as this would mean "that the minister would succeed in a situation where neither party provides any evidence of truth or falsity simply and solely because of the Minister's own earlier decision" to issue a correction direction.

"There would be no opportunity for scrutiny by the court of the minister's decision that there was a false statement of fact," said Justice Ang. 

This would mean the court would "be fettered" by the minister's decision to issue a correction direction.

He added that he was not satisfied that Parliament intended the appellant to bear the burden of proof.

"Unlike the minister, who is able to rely on the machinery of state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources," said Justice Ang. "For a statement-maker, who may be an individual, to bear the burden of proof would put him in an invidious position."

The judge noted that the role of the court was to interpret legislation, and "not to comment or adjudicate on the desirability of particular policies".

"I pause here to highlight that both parties attempted to cast aspersions on each other’s intentions and motivations, with labels such as 'disingenuous' and 'dishonest' being bandied about," said Justice Ang.

"I underscore that the POFMA necessitates an objective approach based on the wording of the material in question," he said. "The issues are whether the subject statements are borne out by the words and or depictions in the communicated material, and then whether those subject statement(s) are true or false."

The intentions of parties in relation to POFMA are "irrelevant when there is no question before the court of any criminal liability", he said.

The AG has to write to the court within a week to justify its basis for seeking costs if it wishes to, and SDP will have a week after this to reply to the AG's submissions.

In a statement, SDP said it is "very disappointed" with the verdict and is "considering appealing the decision".

It also pointed to Justice Ang's comment which said: “Unlike the Minister, who is able to rely on the machinery of the state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources.”

"POFMA must only be applied to clear cut cases of falsehoods, not for interpretations of statistical data," SDP said, reiterating the argument it put forward in the case.