Proposed law on falsehoods has ‘clear oversight mechanism’ to prevent abuse by Government, says Shanmugam
In an exclusive interview, the Law and Home Affairs Minister looks to address concerns that have been raised over the recently tabled Protection from Online Falsehoods and Manipulation Bill.
SINGAPORE: There is a “clear oversight mechanism” in place in the Protection from Online Falsehoods and Manipulation Bill to prevent possible abuse of power by the Singapore Government, Law Minister K Shanmugam told CNA in an exclusive interview during which he looked to address concerns over the legislation.
Mr Shanmugam said that checks are in place in the proposed law, as he dealt with arguments that it was too broad and provided for future abuse by future governments. For instance, if there was a declaration that something is false and needed clarification, the courts would have oversight.
In response to questions on whether the legislation provided the Singapore Government with too much power, Mr Shanmugam said that such accusations had also been made on previous pieces of legislation.
“We’ve always said: ‘OK what works for us, we’ve put it in place and we exercise those powers honestly.’ And we allow ourselves to be judged and, periodically, the people judge us at the elections and they look at the results of what we have done. The pluses, minuses, bottomline, how does it work,” the minister said.
“So that’s the way a transparent government has got to work,” he added.
The following is an edited transcript of the interview between Mr Shanmugam and CNA Digital’s chief editor Jaime Ho.
CNA: It’s quite clear that most people understand the need for all governments to address online falsehoods, especially deliberate online falsehoods. The question is obviously how. First off, why have you chosen the ministers to be the first point of decision for various things on what constitutes a falsehood and then deciding on appropriate action?
Minister Shanmugam: When there is a falsehood which affects public interest, it can spread very fast, very quickly.
I can give you actual incidents. In Myanmar, an allegation that two Muslim men raped a Buddhist woman spread within 24 hours. Within that time period, you have people getting killed, lots of rioters on the streets, buildings getting damaged, huge amount of public disorder.
If you turn to the financial markets, an actual example of a falsehood is that the founder of a Bitcoin company had died; it’s put out deliberately by somebody, I think, seeking profit. Within a period of four to five hours, billions of dollars were wiped out from the value. Lots of innocent investors lose money.
Likewise in Indonesia, a false allegation that a Chinese woman had criticised and said nasty things about a mosque. Within 24 to 36 hours, buildings were damaged, 12 Buddhist temples were vandalised, lots of public disorder, a real fear for people’s lives. These are real world consequences.
It doesn’t just happen in Asia; Germany too, and in many parts of Europe. Falsehoods spread like wildfire, they spread very quickly. The consequences have to be dealt by governments. So you need to move quickly.
Therefore, ministers are proposed to be given the power. Is it false? And if it’s false, you move in immediately to say: Clarify this. This is not true, it’s false. But we are only talking about facts, not opinion, not satire, not parody, not comments. Direct allegations - did a rape take place? Was this said or was it not said about a mosque by this person. Direct factual allegations which have impact on the public. Ministers call that and you put out a clarification, together with the original article, except that in some cases the original article may have to be taken down.
And if the person who is required to carry a clarification or take-down is not happy, he appeals to court.
CNA: How do you guard against, or at least mitigate, the different ministers having different approaches and thresholds to decide on what needs to be taken action on and, maybe, the different types of action?
Minister: I give you an example from Singapore. I think many people will remember somebody put up a false photo - Punggol HDB roof collapsed.
Do you know how many young families are living there? People will be concerned. (That’s why) SCDF, police and other assets rushed on to the scene. If we have the power to immediately clarify that this is false, and require the person and the (online) platforms to push out a notice to everybody: “Those of you who have read this article, please note that government has clarified that there is no roof collapse.” Would it not be better?
If there is an allegation like: “If you take this vaccine, your child is going to become autistic or is going to get measles”, you’d want the Ministry of Health to be able to put out a clarification and get it carried on the platforms that are carrying the untruth. So that’s what this is about.
The different ministries will have that expertise in different areas, and we’re talking about what facts, clear facts.
That will then have to be put through a Competent Authority which will serve the notification. And we have said quite frequently what will be required, so that tech platforms can carry the clarifications and push it out to the people who have received notice of the (falsehoods).
For most people, there is no impact. They just receive the notifications.
CNA: You mentioned the Competent Authority. Since you raised the issue of the HDB block (falsehood), is there (an) iterative process between authorities and the minister before a decision is made? It may have to be done fast. It may have to be done quickly, but is there that balance as well that can be found?
Minister: Truth is not malleable - either something is true or it is not true. But the Competent Authority could obviously offer its views to the minister on what needs to be done, follow-up consequences. But the decision, ultimately, will have to be that of the minister’s.
CNA: Another issue that has caught the imagination of the critics is the issue about exemptions. There is a clause in the legislation that says the minister may exempt any person or class of persons from any provision of this Act. Who does the law have in mind here? Obviously when people see exemptions, especially for something as serious as this, they’re saying: “What is going on?”
Minister: It’s because most people, understandably, don’t realise that this is a fairly common provision in many pieces of legislation.
Off-hand, I can tell you, 15, 20 pieces of legislation, there must be more. Let me give you a few examples: Take the Executive Condominium Housing Scheme Act, or the Traditional Chinese Medicine Practitioners Act, Active Mobility Act, Casino Control Act, Telecommunications Act, Postal Services Act, the Remote Gambling Act, Smoking (Prohibition in Certain Places) Act, Dangerous Fireworks Act - a broad variety of legislation has got similar provision.
And the reason is simple. Say there is a request for a tech platform to carry a clarification or push out clarifications and it’s not technically possible to do some part of it. Then the minister will have to consider whether it is true, whether it is not possible. And if so, he could consider giving exemptions. That’s all that this is about.
CNA: The good thing is that you raised those examples used in different legislation as people have come to trust that (the exemption) will not be misused there. The question, then, is there some suspicion it could be misused with this proposed law. If there is some reassurance that it will not be misused, then that’s obviously helpful.
Minister: You know, any government that misuses its powers will face the consequences.
In terms of having this provision in, this legislation is no different from a variety of other legislation.
CNA: Another question about this particular portion that deals with the minister’s action is that before someone can appeal, or at least bring his case to the courts, he has to first send it to the minister, and the minister himself has to judge that first appeal to the …
Minister: Yes, that’s again very normal.
CNA: But can you explain that, and is there any rule to mandate at least some degree of speed and efficiency?
Minister: That will be done. It’s just that it’s not normal to set these things out in the primary legislation. I will certainly deal with it during the second reading in Parliament and set it out in subsidiary legislation. The whole approach will be to make it speedy, efficient, quick and as inexpensive as possible.
CNA: During the Select Committee process from last year, there were some who suggested for a separate, independent body, perhaps even accountable to Parliament, to do the fact-checking. Can you explain the thinking behind why this wasn’t taken up in the end?
Minister: We considered it very carefully. A number of reasons as I said earlier.
(One is that) you need to move immediately, sometimes it’s within a matter of minutes, sometimes within a matter of hours. And the people best placed to make those decisions are those who have to deal with the ground situation. That’s usually the government, the executive (branch).
Second, the executive - the ministers, the government - are accountable in Parliament, have to answer questions in Parliament. And also accountable to the courts, where if a person who receives a notice to clarify something, and he is not happy, he doesn’t want to carry the clarification, he may be a great believer in free speech. But he doesn’t want to carry the other side. He can go to court and the courts will then decide whether the minister was right or wrong in saying that something was not true.
We are dealing with a very basic thing: Is something true (or is) something not true. Is the colour of this table white or is it black? It’s factual. We’re not dealing with opinions here. Opinions, people can have. We are dealing with facts.
The third point is, ultimately, the government is accountable to the electorate itself. So it stands or falls by its judgments.
CNA: One of the, I suppose, attractive things about an independent (body), or however independent it can be …
Minister: Who appoints the body.
CNA: It’s one thing to appoint the body. Also, it at least minimises the politicisation of the final decision as well. Frankly speaking, if an appointed minister makes that decision, there’s always some degree of political sensitivity and politicisation of the decision made. The benefit in having the fact-checking body is it will at least be seen as slightly more independent.
Minister: I think the answer lies in coming back to actual concrete examples.
Let’s look at the Punggol example: Roof of a HDB block has collapsed, what is political about it? It’s either the roof has collapsed or it hasn’t collapsed. The Myanmar example: Either the two Muslim men raped a Buddhist woman, or they didn’t. These are facts.
I don’t think we need to go into politicisation. And the consequences will have to be faced by the government acting in the best interest of its people. If there are riots, if there are deep divisions or if there is a serious public inconvenience in that people actually thinking that a fire that has broken out, or their building has collapsed, stuff like that, then it falls on the Government to deal with it.
The Government is best placed. What we are talking about is setting out a clarification, sometimes a take-down. And I don’t see why this needs to be politicised. This is an exercise of Government power, just like the exercise of so many other Government powers. Powers of arrest, powers of detention, powers of investigation, powers to run the economy, spend billions of dollars … (and) put out the truth.
CNA: Since you raised the example of the Punggol incident, honestly, we the media will also feel that that is our role as well. That’s precisely something which the media could have, and some of us probably did, go out to verify that …
Minister: So there is nothing wrong. But is there anything wrong with the Government coming in with a further clarification? It helps. There is no reason why that should …
CNA: We did seek that clarification, and the question then is whether or not in certain cases, we may not need the legislative (tools) …
Minister: I have asked in every session that I attended, including with journalists and others, and there are people who do these things day to day, some day to day for a living. (I asked them) to give me one example of a fact versus falsehood that they think doesn’t need to be corrected in this context, and I said I will amend the legislation.
Not one person has pointed out. Each of the examples I give from around the world and in Singapore, they say: “Oh but that… We agree that power needs to be exercised.”
That is the point, the power needs to be exercised.
CNA: Another issue which I think needs some addressing is the role of the courts. We sort of touched upon that earlier. As you’ve said since Apr 1, the court will be the final arbiter …
Minister: That’s what the Bill provides.
CNA: … and you’ve also said in recent days that you must and will prescribe timelines and even costs to keep the process as efficient as possible. Would you, therefore, admit that there was some understandable concerns from people when they saw that the appeals process to go to the courts will be expensive, will take a long time?
Minister: I can understand people’s concern. But in terms of our thinking, that has always been our thinking.
READ: Appeals process should be 'fast', 'simple' and 'relatively inexpensive' - Shanmugam on online falsehoods law
A lot of people don’t realise, but in addition to this Bill, there is another Bill to amend the Protection from Harassment Act (POHA). That gives individuals broadly similar powers. A lot of people don’t realise (but) people get harassed, people get lies said about them. And they are given powers now to go to court, get an application, get the falsehoods taken down or corrected.
Because why should their individual reputation be tarnished? So individuals are now going to be empowered under the Protection from Harassment Act. And I said some months ago, that it is my intention to make it as inexpensive as possible, streamline the process, make it efficient, make it fast, make it speedy. In fact, set up specialised courts that will deal with it.
CNA: The second reading (of the Bill) will clarify this?
Minister: Wait, so I had said that about POHA. And you don’t set those things out in the legislation. It was precisely my intention, whatever I said a few months ago, for POHA - and POHA and POFMA are being put in (for deliberation) at the same time – that similar sort of process and prescription will be put in place for the Protection from Online Falsehoods and Manipulation Act.
So it’s not something that we haven’t thought about. I can understand people being concerned, but we have already taken care of that in terms of our thinking. And I’ll make it clear during the second reading.
CNA: Another issue that I think needs to be clarified is that within the legislation that you’ve put on the table, the judges’ ability to act on the grounds of which they can decide, can be circumscribed into two areas. One is to decide whether it is true or if it is false, and also whether or not it’s technically feasible. Some have said why shouldn’t the judges be in a position to also decide whether a take-down is disproportionate or maybe a correction is needed …
Minister: They can decide, it follows established law. Whether it’s a true or false, it’s a straightforward question and the judges decide that. Technical feasibility is also a question that they decide.
When it comes to what’s in public interest and what is the right remedy, those are - based on previous case law, based on established precedent - matters for the executive. The courts intervene in certain circumstances and they will set out in law how they will intervene, in what circumstances they will intervene; that’s not being disturbed by this legislation.
There may be different standards in the way of how they will intervene, or the standards that they apply to intervene. As I have said, that’s set out in law. This legislation doesn’t change the law.
CNA: If we can now take a step back and look at it from a big picture perspective. For the ordinary citizen who looks at this legislation, some may understand it more, some may understand it less, and then they will hear international criticisms, they will see criticisms from other people. Obviously the main concern they will have is free speech – how does it affect their own ability to speak, to criticise, to critique, to comment. That’s one.
The second point is then, how does it affect their access to what they see as free speech. Will it constrain their access to contrarian views, different views? There is some groundswell of concern there. Is that something that you can respond to?
Minister: First thing, in all the different meetings that I, my colleagues, my officials have had and in the various soundings that we have taken, reaching out to lots of people, I think, by and large, people understand.
I would say that there are concerns but that’s restricted to a smaller group. But that’s not to minimise their concerns but we get the sense of what people are concerned about. So for the people who are engaging us, those who have concerns, my message has been very simple and I’ve said it publicly: “Ninety-nine per cent of the people don’t have to worry about what they do 99 per cent of the time.”
What do I mean? Most of us receive messages, we share them, we forward them, people like them, none of that is an issue. And if it turns out to be false, the primary approach is to ask the tech platforms to put up a clarification that’s pushed to everyone.
So for most of us, the day after this Bill becomes law, assuming Parliament passes it, life carries on as per normal.
The people who need to be concerned are the people who profit from and peddle in falsehoods. They put out (information) knowing that it’s false and they know that they are going to profit from it. They are doing it deliberately, they are setting it out, there is some element of malice. They need to worry.
But as I said, most people don’t fall into that category. They may be passing on falsehoods, but they are not the creators of it; they don’t know that it is false, they are just passing it on. Nothing changes for them. They will receive, and I’m sure many of them will be happy to receive, a notice saying that actually if you want to know the truth, you can go to such a place.
CNA: If I may close off with another even bigger picture and longer-term question: The way that you set out the legislation, obviously some people criticise it for being way too broad and for providing the Government with too much power.
And some may argue that, while the current government has explained the implementation of the law, there is nothing to prevent a future government from abusing the provisions within the legislation. We’ve seen examples of this everywhere; it’s not just individuals who proffer falsehoods. Certain governments, if I may say so, also quite liberally use falsehoods ...
Minister: And those governments will face the consequences at the elections.
CNA: Is that something that you think can be looked at within the legislation? That there are in-built checks to preclude such abuses?
Minister: First of all, there are checks. If there is a declaration that something is false and asking for clarification, the courts have oversight of it. So there is a clear oversight mechanism (and) checks.
Second, you are talking about future governments, whether they will abuse. The Singapore Government, in terms of other legislation, has also been accused of having too much power. We’ve always said: “OK what works for us, we’ve put it in place and we exercise those powers honestly.” And we allow ourselves to be judged and, periodically, the people judge us at the elections and they look at the results of what we have done. The pluses, minuses, bottom line, how does it work. So that’s the way a transparent government has got to work. I cannot vouch for how a future government will act.
But there is a serious problem - falsehoods are the new currency that a lot of people trade in. It has got serious consequences for people, in terms of blood, in terms of money, in terms of lives, and it is wrong for the Singapore Government to keep quiet.
You see legislation in Germany; you see Australia pass its legislation in two days; Britain has proposed very sweeping changes, not yet into legislation. And we had extensive hearings last year, when we heard a lot of evidence. It’s a serious problem, everyone accepts that it’s a problem and we’ve got to do something about it.
CNA: We certainly hope to hear a little bit more about it when the Bill comes for a second reading in Parliament. Thank you so much for giving us your time.
A special telecast of the interview with Minister K Shanmugam will be aired on CNA on Sunday, Apr 14, at 10.30pm.