‘Very onerous’ process to challenge order on content deemed as online falsehood: Sylvia Lim
SINGAPORE: Individuals appealing against a correction or take-down direction under the proposed law against online falsehoods could find the process “very onerous”, said Workers’ Party (WP) Member of Parliament (MP) Sylvia Lim in Parliament on Wednesday (May 8), adding that it is up to the individual to prove that his statement was true.
Under the proposed Protection from Online Falsehoods and Manipulation Act (POFMA), a minister can instruct a “competent authority” to take actions ranging from requesting corrections to removing content for what he has determined as a deliberate online falsehood.
A person who does not agree will first have to comply, and then appeal against the order. He will have to apply to the minister who issued the order, and if unsuccessful, file an appeal in court.
A minister has to make a decision within two working days of receiving an application against his direction.
In all, a person disputing the decision will have the opportunity to have the case heard in High Court as early as nine working days after initiating the challenge.
Law and Home Affairs Minister K Shanmugam said on Tuesday that the appeal process will be made fast and simple, with costs "kept very low".
READ: New law deals specifically with online falsehoods, ‘preferable’ over amending existing ones: Shanmugam
Ms Lim, however, said it remains that the “burden of proof falls on the individual to prove that his statement was true”.
“This is potentially very onerous due to information asymmetry between the Government and individuals,” she said on the second day of the debate on the Bill.
WP Non-Constituency MP Dennis Tan agreed, saying: “Surely the minister and Government, as the aggrieved party, must always bear the burden of proof for any direction or order under POFMA."
Ms Lim added that the grounds for appeal were “very tightly scoped”.
She noted that the courts could only set aside a minister’s direction on three grounds: If the subject statement is not a statement of fact, or is a true statement of fact; if the individual did not communicate the subject statement in Singapore; and if it is not technically possible to comply with the direction.
“The High Court cannot inquire into the merits of the decision, whether in the courts’ view the decision should have been made in that way,” she added.
“The court, for example, cannot ask important questions such as is the minister overreacting, did the directions impose obligations on the communicator which are excessively onerous and harsh, or does the public interest require the direction to be issued.”
Making a similar point, former WP chief Low Thia Khiang described the appeal process as “do it first then complain later” and one that leaves individuals with “no room … to disagree”.
“If the minister decides that you have to take it down, then you take it down (before going to the court),” the veteran opposition member said in an exchange with People’s Action Party MP Gan Thiam Poh in Mandarin.
“This circumstance means do it first then complain later. He has been chopped and he has already died. How can he complain?” added Mr Low.
In his closing speech at the end of a marathon debate, Mr Shanmugam described those remarks by Mr Low as “inaccurate”.
Mr Shanmugam pointed out that an article “stays in full” even when issued with a correction order. And in the case of a take-down order, the “proportionality has to be shown”. This, he said, was equivalent to “shining a … torchlight on falsehoods”.
“The minister is given the torchlight to shine,” he added. “The person who is upset can decide to go to court and nobody's head is chopped off. Nobody's hands are chopped off.”
READ: Measures targeting online falsehoods aim to ‘remedy’ impact, ‘not punish wrongdoers’: Edwin Tong
CONCERNS ABOUT POTENTIAL ABUSE OF POWER, EFFECT ON FREE SPEECH
The role of the court has been a major point of contention in exchanges between both sides of the House, notably with WP chief Pritam Singh crossing swords with Mr Shanmugam earlier on Wednesday.
WP, which declared its objection to the Bill on Tuesday, had argued that the court, not the ministers, will be better placed to be first arbiters in determining falsehoods.
Opposition members who spoke on day two of the debate continued to make the case for that.
WP Non-Constituency MP Leon Perera, for one, noted that the proposed law may chill free speech due to its “peculiar cocktail” of three elements.
He referred to three sections in the Bill that define harmful falsehoods as including those that diminish confidence in the Government, define what a minister deems as correctable, and establish ministers as the decision-makers of truth and falsehoods in the first instance.
“It is through the combination of these three aspects … that this Bill is likely to chill free speech and debate about Government policies and politics, particularly expressions of views that run counter to the Government narrative.”
He also sounded the risk that the proposed law could cause scientists with a different view from the Government to delay publishing research, or practitioners in the media industry and academia to “err on the side of caution”, among others.
Mr Perera added that the burden of criminal penalties and ensuing fear could fall primarily on Singaporeans, with offshore players often being difficult or impossible to pin down.
“When we bring in the risk of massive fines and lengthy jail time under Section 7 for a single offence ... as POFMA defines it, which includes undermining confidence in the government, and with no threshold of significant impact on public interest specified in the law, the risk … is not just of chilling free speech but of hurling it into an industrial freezer,” he said.
Addressing this, Mr Shanmugam said in his closing speech that these “broad points on free speech" overlook the fact that "falsehoods (are) turbocharged by bots, trolls, fake accounts”.
“First of all, (WP members) don't deal with the point that the Bill is narrower in powers. Secondly, they don't deal with the fact that there's greater judicial oversight,” he said.
“So unfortunately, this debate, for all the rhetoric, there’s been no engagement on the key issue on why there should be free speech in this area. What speech are you protecting? Why are these things entitled to free speech?”
Beyond cooling free speech, other WP members expressed concerns about loosely defined terms in the Bill, noting that they could lead to abuse of power.
For instance, Aljunied GRC MP Faisal Abdul Manap said the use of the word “misleading” in the definition of a false statement could give rise to “worries about a potential abuse of power”.
Under the Bill, a statement is deemed a falsehood “if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears”.
“The definition is troubling,” MP Dennis Tan said. “The definition … is too wide, especially the requirement of ‘misleading' alone. It would be misleading according to whose standards or opinion? And how would it be misleading?”
In response, Mr Shanmugam said that the use of the word “misleading” reflects “existing jurisprudence” that statements can also be false by reason of having misled through omission.
“At the end of the day, whether by omission or express statement, the Bill deals with material that is false,” he added.
After a lengthy debate spread over two days, Parliament passed the Bill, with 72 MPs voting in favour. All nine members from the WP voted against. There were three abstentions.