How evidence law can help us better discern misinformation and falsehoods

There has been a recent spate of misinformation and disinformation going around. The difference between the two is that misinformation may be an innocent mistake, whereas disinformation means a deliberate falsehood.

First, Member of Parliament Raeesah Khan claimed to have accompanied a rape victim to a police station to file a police report, then admitted to lying in Parliament about her claim.

Then, YouTube removed anti-vaccination videos by the Healing the Divide group for violating community guidelines. The Ministry of Health (MOH) says that the group has a history of sharing content about Covid-19 that is false and misleading.

A day later, MOH called out activist Gilbert Goh for a Facebook post alleging that two women had been sent home from hospitals despite showing Covid-related symptoms, and that one had died as a result. MOH said that no such cases exist.

Mr Goh has since posted a clarification on his Facebook page stating that one of the claims, related to a woman allegedly sent home by Tan Tock Seng Hospital, was inaccurate.

As members of the public, we ought to be wary about what we read and hear.

In the age of the keyboard warrior, it’s easy to make claims about anything and have those claims circulated to a wide audience. As consumers of information, our first, best line of defence is our own critical thinking.

The first principle is this: Do not abdicate your judgment to anyone else. Not to your friends, family, or even the Government.

Your beliefs influence how you exercise your legal rights, such as voting or deciding whether to get vaccinated, and therefore what you believe is your responsibility.

Radical scepticism, questioning everything, is an appropriate response to an era in which information can be easily falsified, twisted or otherwise miscommunicated.

LESSONS FROM THE LAW OF EVIDENCE

How might we train ourselves to be rigorously sceptical?

The law of evidence provides some pointers. Of course, we do not live in a courtroom and cannot be expected to apply strict evidence law in every situation, but some concepts are useful and can be applied in daily life.

GO TO THE SOURCE

First, be wary of hearsay. Hearsay means basically that the person telling you the information did not experience that information firsthand but heard it from someone else.

For example, your friend heard from his friend that something happened. WhatsApp messages forwarded through a chain of contacts are textbook examples of hearsay.

In court, hearsay is generally not allowed because it is inherently unreliable. The information could have become garbled, like in a game of Chinese Whispers.

More worryingly, the source of the information is not available for further questioning, which is necessary to establish whether they were telling the truth.

Further, it is easy to make up information and simply attribute it to a conveniently unavailable source.

We can apply this to what we read online. We should ask ourselves: What is the source of this information?

If the information is not firsthand, we ought to wonder why the person who did experience it firsthand is not coming forward to advance the allegation.

There may, of course, turn out to be good reasons for preserving anonymity, but in the absence of a valid explanation, it should be viewed with suspicion.

We should also ask whether the information is being accurately conveyed from or by its source.

In Mr Gilbert Goh’s case, his subsequent clarificatory post shows why it is important that the source be available for further questioning.

It is always better to get the information straight from the horse’s mouth.

LOOK FOR PROOF

Second, distinguish between facts that are proved and those that are merely alleged.

The Evidence Act contains three useful terms: “Proved”, “disproved” and “not proved”.

Proving a fact is a matter of gathering enough evidence to show that it is true. Disproving a fact means showing evidence that it is false. For example, you can disprove the theory that all swans are white by producing a black swan.

But in real life there are many things that are simply “not proved” — there might be insufficient evidence to say for sure, or there might be evidence pointing in contradictory directions.

Not being a court, we don’t often have the opportunity to call for evidence to prove or disprove facts.

But we can adapt the concept to everyday life. Consider it a mental sliding scale with “proved” on one end, “not proved” in the middle, and “disproved” on the other end.

An allegation starts in the middle of the scale at “not proved”, and as we amass more evidence from various sources (reliable sources such as reputable news reports, academic research, or information from reputable organisations or governments), we can shift that allegation either towards “proved” or “not proved” based on our assessment of how reliable the evidence is.

BE PREPARED TO REVISE YOUR BELIEFS

Third, and most importantly, be open-minded.

The concept of “conditional belief” is useful here — that is, hold a belief to be true on condition that no new information emerges that shows that it is false.

This means that we should not cling to beliefs because they are convenient or comforting. We should be prepared to change or discard them as new evidence emerges.

The sliding scale described above needs to slide — a belief can move from “proved” to “not proved” or even “disproved” if new and compelling information is available.

Admitting that you were wrong is not a sign of weakness.

In the law of evidence, this is known as the “evidential burden”.

The court weighs up the evidence at each stage of the court proceedings. It can appear at one point as though the allegation is true, then at another, after more evidence is shown, as though it is false.

The “evidential burden” shifts from one party to another over the course of a trial, as they produce evidence to prove or disprove the facts in issue.

The court makes a final decision on whether a fact is proved, disproved or not proved at the end of the case after hearing all the available evidence.

The challenge for us, not being a court with a finite end date to its process, is that the case never really ends.

More information might always become available as news stories progress or the state of scientific knowledge changes. Therefore, we have to maintain a constant state of conditional belief about everything we read.

The world is becoming increasingly polarised. We have seen this in politics and also over the effectiveness of Covid-19 vaccinations.

A lot of the polarisation is driven by misinformation and disinformation. It is reinforced by social media “echo chambers”, such as Facebook, which are governed by algorithms that prioritise what people want to see over what is true.

Or messaging platforms such as WhatsApp that allow like-minded individuals to selectively disseminate things that fit their own beliefs and agendas.

The solution to this problem starts with all of us taking responsibility for our own beliefs.

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and practises law as Of Counsel at RHTLaw Asia. He was formerly a deputy public prosecutor at the Attorney-General's Chambers.