SINGAPORE: A proposed law against fake news narrows, not widens, the Government’s powers, the Ministry of Law said on Thursday (May 2), in response to comments from two Senior Counsels.
The Protection from Online Falsehoods and Manipulation Bill (POFMA) Bill, tabled in Parliament on Apr 1 and due for a second reading next Monday, is aimed at tackling the spread of online fake news using regulatory tools as well as criminal sanctions. It includes powers for ministers to order sites like Facebook, Google and Twitter to put warnings next to posts authorities deem false, and in extreme cases, to take them down.
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In opinions published in The Straits Times on Wednesday, Senior Counsels Harpreet Singh and Siraj Omar expressed their concerns and suggested several changes to the Bill.
Mr Singh, a partner with Clifford Chance Asia, said that “legitimate concerns remain” despite the Government’s assurances to allay fears that the Bill would curtail free speech.
Two key preconditions to exercise the extensive powers under the Bill, a “false statement of fact” and a minister’s subjective determination of the “public interest”, are both very widely defined, he said.
“Falsehoods extend to any statement that is ‘misleading … whether in whole or in part, and whether on its own or in the context in which it appears’.”
The definition of “public interest” in the Bill also goes beyond traditional categories to the diminution of public confidence in the performance of any duty, or any function, or any power of the Government or even a statutory board, Mr Singh said.
“These requirements set a very low bar for a minister’s exercise of the extensive powers under the Bill,” he said.
Senior Counsel Harpreet Singh. (Photo: Clifford Chance Asia website)
Ms Teo Wan Gek, Press Secretary to Law Minister, said in response to Mr Singh that the powers to be given to the Government under the Bill, and the public interest grounds on which the Government can exercise its powers, “are actually narrower than the Government’s existing powers”.
In a separate letter on Mr Omar’s opinion, Ms Teo agreed with his view that the proposed law is a “more measured and calibrated approach” by the Government to the problem of fake news.
Both of Ms Teo’s letters were provided to CNA and published in the Straits Times on Thursday.
Mr Omar, a partner with RPC Premier Law, noted that the Government already has broad powers under the Broadcasting Act and other legislation to deal with online content deemed contrary to the public interest.
These powers include the ability to block access to specific sites, such as in the recent blocking of the States Times Review website over an article linking Prime Minister Lee Hsien Loong to the scandal involving Malaysia state fund 1MDB.
“Those who fear that the Bill is an attempt by the Government to broaden its powers should keep in mind that it already possesses wider powers than those provided under the Bill,” Mr Omar said.
Agreeing, Ms Teo said this has been overlooked by some commentators. “The Bill does seek to scope down and calibrate the Government’s powers in key areas,” she noted.
OPINION VS FACT
Mr Singh also pointed out that “while the Bill is not intended to apply to opinions and criticisms, it is often difficult to differentiate statements of opinion and statements of fact”.
“Opinions and criticisms are often premised on underlying statements of fact. Even statements of pure opinion carry an implied statement of fact that there is a reasonable basis for the view expressed,” he wrote. “The Bill, as drafted, may easily be interpreted to extend to criticisms and opinions as long as one of the underlying premises of fact is erroneous.”
In response, Ms Teo said there is jurisprudence, or legal theory, on this.
“If there is a dispute, ultimately the Courts will have to decide whether a statement was factual, or an opinion,” she said.
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She agreed with what Mr Omar said in that the Bill proposes greater oversight for the courts than currently under existing laws.
Mr Omar noted that the Bill provides for an appeal to the High Court against the minister’s decision on the question of whether something is a “false statement of fact”. There is no such right of appeal under existing legislation, he said.
“The fact that the Bill refers to a right of appeal and not a right of judicial review is also significant, as the appellate standard is lower than that required in cases of judicial review. The Bill, therefore, provides for greater judicial oversight, which in turn limits the scope of the Government’s powers,” he said.
Senior Counsel Siraj Omar. (Photo: RPC Premier Law)
The concern that the Bill may curtail free speech by blurring the lines between opinion and fact is unfounded, given their well-established definitions in law, Mr Omar said.
“The Bill expressly defines a ‘statement of fact’ as ‘a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact’. It is an objective standard that applies, not the minister’s subjective view,” he said, adding that the distinction between fact and opinion is one that the courts have dealt with and refined in many decisions over the years.
SUGGESTED CHANGES
Mr Singh also called for several changes to the proposed legislation, including expressly requiring a minister’s order against a purported online falsehood be supported by reasons.
“Specifically, it should require a minister’s order to identify the relevant falsehood, set out what the true position is, identify the specific public interest involved and how it is threatened by the falsehood, and articulate why the order is both proportionate and necessary.”
For the more onerous take-down orders or disabling directions, there should be reasons explaining why a lesser measure would not suffice, he added.
READ: Academics raise concerns on proposed online falsehoods laws; MOE assures research unaffected
Mr Singh also recommended that the legislation should require any order to be proportionate to the nature of the falsehood and the degree of harm to the public interest.
By putting some boundaries on these wide powers and requiring that orders made under the Bill are proportionate, the courts would have a greater latitude of supervision over a minister’s orders, he said.
In response, the Law Ministry’s Ms Teo said that a “close reading of the Bill will show that it already contains the proportionality requirement”.
She made reference to Mr Omar’s point that the Bill sets out a range of measures that the minister can take, and that which measure is ultimately deployed depends on what would be “necessary or expedient”.
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Mr Singh also called for an annual review of the legislation by Parliament for the first five years. In the review, the Government should provide a summary of the ministerial orders issued, the facts and circumstances of each case, the reasons for the specific orders, the number of appeals and their outcome.
This would enable Parliament to decide if the law is properly achieving its stated legislative aims and how its operation can be improved, he said.
Mr Omar suggested mandating a simplified or expedited process for appeals to the court, and to consider the availability of legal or financial aid to prevent legal costs from becoming a deterrent.
Ms Teo said the ministry will consider the two suggestions from Mr Singh and Mr Omar.
