POFMA – A Commentary
With the seismic shift to the use of online means as a primary mode of communication, education and data, such merits brought about by the rise in digitalisation and the internet has been accompanied by their own perils – fake news. Fake news is more than merely the spread of false information online. In many cases, content portrayed in articles classified to be fake news do not have a heavy emphasis placed on its relevance to actual facts, but rather, commentary that “expresses a particular point of view or an incomplete report of an event by a citizen journalist” which leaves room for different interpretations by readers.
Locally, a survey conducted by BBC on 310 Singaporeans found that 59% of Singaporeans found it difficult to distinguish between real and fake digital news (Chua, 2017), and this has been further exacerbated by new media, with Singaporeans also enjoying high social media penetration rates. Echo chambers and complex algorithms tailor social media feeds to users’ likes and preferences, resulting in their own beliefs and opinions consistently reinforced and barely challenged. Together, these have complicated the necessary approaches required to tackle the spread of fake news digitally.
In Singapore, the government has implemented various measures, ranging from educational campaigns to laws criminalising the spread and purveying of fake news. In 2019, the Protection From Online Falsehoods and Misinformation Act (POFMA) was passed. Its aims include allowing authorities to tackle the spread of fake news and ensuring sustained trust in major key public institutions for society to function and live harmoniously. Corrective actions put in place include a Correction Direction, which requests for users who initially posted the false piece of information to correct it with a factually accurate one as well as fines and/or imprisonment.
However, the bill was not the most well-received by multiple stakeholders, including mixed responses from members of the public, local independent organisations and
international organisations. POFMA was criticised for granting governments too much power over the decision of whether something should be fact or fiction and its heavy grasp on citizens’ freedom of speech and expression especially on online platforms. However, it cannot be forgotten that POFMA has indeed brought about various merits, ranging from correcting false claims and serving as a highly effective deterrent for the intentional spread of fake news, ensuring public order and preserving harmony amidst Singapore’s highly fragile social fabric. Through this essay, I seek to explore, as well as weigh the various merits and drawbacks of POFMA to assess the extent to which POFMA is justified, and subsequently propose possible improvements to the bill.
ONE – THE UTILITARIAN PERSPECTIVE
While considering whether the punishment, in the form of Correction Orders, fines and imprisonment, is comparable with the act of intentionally spreading fake news, it would also be vital to pay heed to the extents to which various aspects of POFMA has been in line with various widespread moral theories and universal human rights principles.
The intention of POFMA is to clamp down on the rapid spread of misinformation online, protecting national security and public safety. Tied with its hefty punishments, it serves as an effective deterrent from the deliberate spread of misinformation, in turn safekeeping society’s peace and harmony.
Richard. A. Wasserstrom’s book encompassing law and philosophy, The Judicial Decision, suggests the use of “restricted utilitarianism”, which emphasises “the evaluation of a particular action by appeal to a moral rule, which in turn is to be justified in terms of a principle of utility for producing maximum happiness with minimum conflict.” (Allen, 1962) Hence, similar to rule utilitarianism, the most morally desirable action would be obtained likely by following a set of rules likely to result in the greatest good for the greatest number. As opposed to act utilitarianism, one can refrain from acts that might maximise utility in the short run but instead, act in which one will maximise utility for the majority of the time (CrashCourse, 2016)
From the above, an analysis of the relative importance of utility derived by different stakeholders and in both short and long terms is required. Fake news, no longer in theory, has had profound impacts on many countries, including Singapore. In 2018, a false rumour and misleading picture of Punggol Waterway Terraces’ roof having collapsed triggered the false activation of emergency services and unnecessarily heightened anxieties of many
Singaporeans (Channel NewsAsia, 2019). In other countries, such as India, a rumour circulating on WhatsApp regarding the identities of alleged (later, proven false) child traffickers resulted in mob lynching and deaths of a few innocent people (Bali et al., 2019), and fake news, coupled with social media virality and an insatiable appetite for sensationalised news, could be wielded as a potential political tool or even one detrimental to national security and safety. POFMA has also been employed during the COVID-19 pandemic against a false claim on HardwareZone.com that a man had died from COVID-19. HardwareZone was then required to carry the Correction Notice to all end-users in Singapore of HardwareZone.com. There were also many other COVID-19 related fake news, but such strict enforcement of POFMA would effectively help minimise further spread of such misinformation and better vigilance against such websites, reducing the unnecessary anxiety and distress such fake news could have brought. Though Singapore has yet to see fake news with such far-reaching impacts, it remains unsafe to assume that Singapore will be exempt from them, that Singapore would merely suffer from fake news that affects a small minority with no long-lasting harm involved. This is utility derived in terms of order, peace and safety of the population in the long run, and also where members of the public are likely to feel more at ease knowing that such a deterrent is present to threaten purveyors of fake news.
Moreover, whether or not restrictions on freedom of speech, coupled with other concerns, will be a mere short term “conflict” is debatable. While indeed, POFMA has seen cold responses from both local and international stakeholders. Despite being concentrated during the time period where POFMA was first introduced, it is unlikely that these issues resolve themselves and may very well last for the entirety of POFMA until changes are made to it. Moreover, there have also been concerns over whether POFMA would suppress dissent and free expression. Whether or not it does, however, it is also possible that citizens, especially journalists and academics, would have to be extremely careful when “investigative pieces are fraught with hazards given that the full picture takes time to be borne out, and newly revealed facts could change a narrative completely.” (Chng, 2019)
In the long run, it is unlikely that POFMA can outrace the virality of fake news, catalysed by social media algorithms and swayed readers. While POFMA may serve as an effective deterrent, once a piece of information starts to circulate, its impact remains irreversible. However, a sense of security shared by the government and members of the public, where public order and harmony is better safeguarded, is more than likely a significant merit of POFMA. Hence, this allows POFMA to align largely with restricted utilitarianism.
TWO – RISK OF GOVERNMENT OVERREACH
Imposing such a heavy restriction on online speech would undoubtedly lead to a substantial risk of government overreach and power. The final decision of whether something is true or false is placed in the government’s and the court’s hands, especially where facts and opinions cannot be compartmentalised in a dichotomous manner today. Raised by SCL, journalists often would have to be extremely careful when “investigative pieces are wrought with hazards given that the full picture takes time to be borne out, and newly revealed facts could change a narrative completely” (Chng, 2019)
In addition to the above, the Asia Internet Coalition also said “Determining whether the information is true or false is a highly subjective, nuanced and difficult task” and suggested that “prescriptive legislation should not be the first solution in addressing what is a highly nuanced and complex issue.” (Asia Internet Coalition, 2019). As such, the Asia Internet Coalition thinks that legislation would be not only too far-reaching but also less effective and less necessary as compared to promoting and inculcating “digital, media and information literacy at every level” in the long run, and should not be the mere duties of governments, but also that of media platforms and other relevant industries.
Moreover, transparency of decision-making processes and considerations is limited. Members of the public are neither unable to effectively question the result, nor cross-check with a variety of resources to ensure accountability and accuracy of the corrected information given to them, should it be a mere denial of legitimacy. There has also been a lack of transparency as to how a Correction Direction is justified in itself that the fake news at hand might affect public interest or diminish public confidence in institutions (Asia Internet Coalition, 2019).
For example, in April 2020, false statements were made with regard to Ho Ching, CEO of Temasek Holdings, a company wholly owned by the state. Claims surrounded Ho Ching’s salary. The Minister of Finance issued Correction Directions on the online posts. The Workers’ Party also brought up the “lack of clarity and transparency of the purpose of these Correction Directions.” (Asia Internet Coalition, 2019)
This arises majorly due to information on policies and decision-making processes likely being classified and not publically available. It is unfeasible for governments to be fully transparent with such documents and information, especially if it might concern national
security. Members of the public are largely limited to accepting the information presented as factually accurate without much means of challenging the outcome with tangible data. This could result in doubt and varying levels of mistrust as to whether information provided by governments and authorities is really factually accurate. Hence, despite the existence of appealing one’s issued Correction Direction, since the outcome cannot be effectively contested nor verified by members of the public who are on the receiving end of the stick, the final verdict on whether a piece of information is true or false will eventually only lie in the government’s and relative authorities’ hands.
Moreover, the first line of authority to issue a Correction Direction is mostly Ministers themselves. It is highly unlikely that Ministers issue a Correction DIrection on themselves. Hence, there lies an assumption that the government will always be an arbiter of truth at a specific time period for which a piece of information is up to date and valid. In Section 4(f) of POFMA, public interest is involved when false statements of fact are put out “to prevent a diminution of public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board.” (Singapore Statutes Online, 2021) It would be likely ironic that the government issued Correction Directions against themselves, since that would indirectly affect the reliability and accuracy of the government, in turn reducing trust people may have on them.
Coupled with insufficient resources and limited ability of members of the public to counter claims with tangible evidence, this further strengthens the inevitability of having to accept governments’ claims as factual, accurate and valid.
However, the government is not the sole nor the final decider of what is true or false, since the final decision on whether something is true or false, upon appeal, is made by the Courts. This ensures accountability and reduces bias, aided by the separation of powers in Singapore’s legal system which will be elaborated on in a subsequent section.
THREE – FREEDOM OF SPEECH AND EXPRESSION
Concerns over freedom of speech and expression also arose. On an article that is deemed to contain fake news, a correction notice will be issued – with no punishments just yet. Then, the purveyor of the alleged piece of fake news will have to upload a corrected version of the article according to instructions denoted by the Correction Direction.
Then, both initial and corrected versions will not be taken down. This means that they will be available to the public. Otherwise, an appeal can be made to the Minister who issued the correction direction, and upon his refusal, the appeal can be brought to the High Court.
According to Article 19 of the Universal Declaration of Human Rights, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (United Nations, 2021)
In Article 14 of the Constitution of the Republic of Singapore, the Parliament is allowed to impose laws on Section 1(a) “restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence” (Singapore Statutes Online, 2021)
Various local and international organisations have centralised their arguments against POFMA in the extent to which freedom of speech and expression might be affected. On the other hand, local authorities have also responded accordingly to these arguments and assertions, citing the infringement of citizens’ right to freedom of speech and expression.
In response to initial concerns over POFMA’s grasp on citizens’ right to free speech and expression, Minister for Law and Home Affairs K Shanmugam mentioned that POFMA can, and will only apply to false statements of fact. In the bill, a fact is defined to be “a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact”. (Singapore Statutes Online, 2021)
Hence, POFMA is unable to be used on non-statements of fact, such as opinions and commentaries. As long as it does not threaten national security, nor diminish public trust and confidence in public authorities which in turn threatens national security, one could post whatever opinions they would like to.
The above can be supported by Section 26 of the Internal Security Act, where “Any person who, by word of mouth or in writing or in any newspaper, periodical, book, circular or other printed publication or by any other means spreads false reports or makes false statements likely to cause public alarm, shall be guilty of an offence under this Part.” (Singapore Statutes Online, 2021). When false assertions and accusations have the
potential to mislead members of the public, inciting distrust, fear, panic and doubt, it is only natural that such statements are criminalised and restrictions are put in place to deter the dissemination of such statements. Shanmugam also suggested that “Not all forms of speech are worthy of equal protection. For example, if you falsely cry “fire” in a crowded theatre, that’s not protected as valuable speech.” (Ministry of Law, 2019). These enable POFMA to produce the greatest good for the greatest number in the long run, rendering it morally acceptable and favoured in aligning to restricted utilitarianism philosophies.
In October 2021, the Court of Appeal also mentioned that a Correction Direction did not restrict the right to freedom of speech, “because the communicator of the statement could continue to publish the alleged falsehood” and was only required to “put up a notice highlighting the alleged falsehood.” (Lum, 2021). Hence, until determined to be false, the statement remains protected under Article 14(1)(a) of the Constitution where the freedom of speech and expression is not infringed upon.
Moreover, Shanmugam, in an interview, also suggested that POFMA could “encourage greater democracy” due to POFMA “encouraging more information” (Channel NewsAsia, 2020). This is due to the fact that citizens can be “as hard as you (they) like on the Government policies, on the Government in your (their) viewpoints. You (They) can offer counter policies. POFMA cannot apply to any of that.” He also suggested that placing up warnings to inform others that what oneself has said was untrue did not disadvantage oneself, since ‘people read what you have written. People read what the Government says. And they decide for themselves.”
Hence, debate over local affairs will not be stifled, but rather, further enhanced and made more accurate with POFMA chiming in to correct blatant mistruths and false allegations, giving rise to more meaningful and factually accurate discussions. As such, people retain the same freedom to freely express themselves, as long as they stick to evaluating and giving opinions based on truths and not false premises.
On the other hand, arguments circling how POFMA might indirectly affect freedom of speech were raised. In a 2021 report by the International Commission of Jurists, the presence of such heavy penalties, though mentioned criminal sanctions have yet to be enforced in reality, is “likely to pose a chilling effect on the free communication of ideas, opinions or information”, where users may engage in self-censorship “to pre-empt and protect themselves from incurring severe penalties.” (International Commission of Jurists, 2021)
With human nature, such heavy penalties often cause one to rethink their actions, where they hence relook at the content they decide to post. Since there is a fine line to tread between fact, fiction and opinion, or a mixture of both, it is difficult for members of the public to be completely certain on the actual nature of the information they put out due to the complex nature of language in differentiating between fact and fiction. This might lead to self-censorship in fears of inadvertently treading into the danger zone of a fact that may eventually turn out to be false. Similar to this, a local independent journalism institution, New Naratif, suggested that POFMA also “created mental stress and paranoia” not only for their reporters, but also their sources, because of the fear of running afoul of the law. (International Commission of Jurists, 2021)
However, POFMA does indirectly have a rather hefty grasp over the freedom of speech and expression of individuals in Singapore. POFMA contradicts Article 19 of the Universal Declaration of Human Rights (see above), which states that freedom to hold opinions is to be granted “without interference”. While defamation claims that are passed off as truths are held accountable under POFMA, POFMA still imposes a fear and burden on citizens on what they decide to post online. Since there is no dichotomy between fact and opinion, but rather a grey area of both intertwined with one another, POFMA would indirectly have exuded interference on opinions and commentaries by various individuals, in fear of what one would consider an opinion to be considered an assertion of fact to the government, resulting in issuance of a Correction Direction. This would also cause detriment to not only one’s, but also one’s organisation’s reputation.
In turn, this would cause a reduction in public opinion and debate over matters concerning the government and her policies, contradicting Shanmugam’s claim that POFMA could in fact promote greater democracy.
FOUR – SEPARATION OF POWERS
Singapore’s legal system operates by splitting the power of governing the country into 3 branches: the Legislative, the Executive and the Judiciary. This enables checks and balances to be done on each branch, ensuring accountability to prevent abuse of power or corruption. Each branch has limited power to interfere in the doings of the other branch.
However, the separation of powers may pose a double-edged sword when it comes to POFMA.
Courts cannot exercise legislative power nor refine existing legislation. This is because legislation is typically widely scoped and affects a large range of people and actions. Hence, the Courts are unlikely to be well-equipped to carry out reforms of laws and legislations. (Tan et al., 2015).
Hence, this reduces the likelihood of the Courts being biased towards the government or a certain stakeholder, since the Courts will mainly focus on interpreting the laws given to them, and will hence likely interpret it in a fairer manner as compared to if legislative branches were to be involved in the final say of whether a piece of information is true or false. As such, having the final stage of appeal and hence the final decision to be determined by the Courts is fair and reliable to a large extent.
For example, in October 2021, the Court of Appeal disagreed with the Attorney-General’s argument stating that a statement is false based solely on a minister having identified it to be false. The court said, “We regard this as untenable. The minister may, after all, be mistaken” and concluded that truths and falsehoods “are ultimately matters to be determined by a court based on the evidence.” (Lum, 2021)
However, since Courts are unable to stray from what laws mention, should a law be unconstitutional or in need of reform, the Courts are unable to do so, since they only have the power to resolve the conflict they are tasked with in accordance with what the laws mention. Likewise, in the context of POFMA, they can only interpret POFMA based on what is written in POFMA. This poses an issue should concerns arise regarding certain features of POFMA, such as Section 4(f) of POFMA that states that a false statement of fact can negatively affect public interest should it serve “to prevent a diminution of public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board.” (Singapore Statutes Online, 2021)
Modifications can be made to improve POFMA, while retaining its power over maintaining public peace, to improve accountability and enhance transparency of processes.
Taking a closer look at the Act, “public interest”, in Section 4 of the Act, could be defined more specifically by including aspects to which public interest entails, such as
reputations of which stakeholders, national security, morals. This better aligns the definition of “public interest” with permissible purposes in the United Nations Human Rights Council (ICCPR), where Article 19(2) can be “subject to certain restrictions”, namely: “(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals.” (United Nations, 2021)
A more specific definition of “public interest” reduces room for interpretation and misinterpretation, also promoting transparency between members of the public and the government, allowing the public to have a better understanding of how a statement issued a Correction Direction could have infringed upon public interest.
The removal of Section 7-(1)(b)(vi), which states that statements that are both false and whose communication is likely to “diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board” (Singapore Statutes Online, 2021), for it assumes that ruling parties in Singapore would not communicate any falsehood and that any ideas communicated are wholly true, since it would be contradictory to issue a POFMA order against oneself.
Lastly, transparency of processes regarding POFMA and the issuance of Correction Directions can be improved upon by publicly justifying requirements and demands of Correction Directions. In addition, clear explanations of why a statement had been issued a Correction Direction, especially how an alleged false statement of fact would have had an effect on public interest could be provided as well, for better understanding and accountability of government decisions with regard to issuance of Correction Directions.
The heated debate between freedom of speech and expression and POFMA, whose primary aims include preserving public order and harmony, is one that will complicate over time, with heightened awareness of Singapore’s media censorship which has already begun to gain traction in other countries, in addition to on local platforms. There will exist a very thin line to tread when topics discuss free speech and simultaneously restricting it under certain circumstances, and this line is already one that is hard to draw. The concerns of oppositions towards POFMA are not unfounded as well, since multiple stakeholders ranging from academics to journalists are involved, and due to Singapore being led by a majority single political party, opposition voices can easily seem to be silenced, whether inadvertently or intentionally.
by Belinda Lian (21-A2)
under Programme LATITUDE