Apex court partially allows SDP’s appeal against 1 Pofma direction, dismisses other appeals by SDP and TOC

• Correction directions had been issued to The Online Citizen (TOC) and the Singapore Democratic Party (SDP)
• After being dismissed by the High Court, both groups appealed to the Court of Appeal
• On Friday, the Court of Appeal dismissed TOC’s appeal
• It partially allowed SDP’s appeal on one of the three correction directions it had been issued but upheld the other two and the other part of the third
• The court also ruled that Pofma is constitutional and the burden of proof lies firstly with the recipient of a Pofma direction

SINGAPORE — In its first set of judgements relating to Singapore’s nascent fake news law, the Court of Appeal on Friday (Oct 8) partially allowed an appeal by the Singapore Democratic Party (SDP) against three correction directions, overruling part of one direction that had been issued against the party but upholding the rest.

Meanwhile, the apex court dismissed a separate appeal by now-defunct sociopolitical website The Online Citizen (TOC).

Both had been issued correction directions under the Protection from Online Falsehoods and Manipulation Act (Pofma), which came into effect in October 2019.

This meant they had to post correction notes on top of certain articles on their websites and on social media posts that the authorities said contained falsehoods.

The SDP had been issued these directions in 2019 by then-Minister for Manpower Josephine Teo in relation to an article it had posted on its website about jobs in Singapore and two Facebook posts linking to that article.

TOC had been issued a correction direction by Minister for Home Affairs K Shanmugam after posting an article carrying false claims about hanging methods at Changi Prison.

TOC and SDP had earlier applied to set aside the correction directions issued to them, but their applications were dismissed by the High Court.

They then lodged appeals, bringing a Pofma challenge to Singapore’s highest court for the first time.

The cases were heard by a five-member panel comprising Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang Boon Leong, Judith Prakash, Tay Yong Kwang and Steven Chong.

In a 156-page judgement delivered by Chief Justice Menon on Friday, the court laid out, for the first time, a five-step framework to determine whether or not to overturn a correction direction under Pofma.

Ultimately, the court ruled that Pofma was constitutional, and that the burden of proof lay on the person making the allegedly false statement and not the minister issuing the correction direction.

During earlier court hearings, the parties had spent considerable time arguing over who holds the legal burden to prove whether a statement was false.

The court also disagreed with the Attorney-General’s argument that a falsehood remains a falsehood even before a court determines it to be false.

The judges said it is “untenable” to regard a statement as false just because the minister has identified it to be so.

“The Minister may, after all, be mistaken. Truth and falsehood are ultimately matters to be determined by a court based on the evidence.”

SDP’S CASE

The SDP case concerns claims that the party had made about employment statistics for Singaporean professionals, managers, executives and technicians (PMETs) in an article on its website in June 2019 and two Facebook posts in November and December that year linking to that article.

In December 2019, Mrs Teo issued three Pofma correction directions against two particular statements in the article and posts.

They were that “local PMET retrenchment has been increasing” and that “local PMET employment has gone down”.

SDP had written in the article that its proposal for Singapore’s job market “comes amidst a rising proportion of Singapore PMETs getting retrenched”.

Although SDP had referred to a “rising proportion of Singapore PMETs”, it did not mention what this rise was a proportion of, the apex court said.

As a result, many readers would interpret the statement as meaning that the absolute number of Singapore PMETs getting retrenched was rising.

But in fact data from the Ministry of Manpower (MOM) showed a decline in local PMET retrenchment from 2015 to 2018, both in absolute terms and as a proportion of total local PMET employment.

Therefore, there were no grounds to set aside the correction directions related to this statement, since it did amount to a false statement of fact and was communicated in Singapore, the court said.

As for the second statement, SDP’s December Facebook post had carried an illustration of a graph showing “local PMET employment” to be falling.

Although a “local” employee is ordinarily defined by MOM as either Singapore citizens or permanent residents (PRs), the court found that some readers would have understood “local” to mean only Singapore citizens, excluding PRs.

Given that the minister’s typical use of the term “local” is not usually understood the same way by a considerable segment of Singapore readers, the court set aside half of the correction direction that pertained to SDP’s December Facebook post.

The other half of the correction direction was in relation to the hyperlink in the post, which carried the first statement on supposed rising PMET retrenchment. This part of the direction was upheld.

The court also allowed SDP to raise new grounds of appeal. Specifically, these grounds of appeal are that certain provisions of the Pofma and consequently, the correction directions themselves, were unconstitutional as they are “inconsistent with the right to freedom of speech”.

SDP has another outstanding Pofma appeal, in relation to a correction direction it received after posting a statement on Facebook last year that Singapore’s population would rise to nearly 10 million by 2030.

TOC’S CASE

TOC’s case concerned an online article it published in Jan 2020 that reproduced claims made by Malaysian non-governmental organisation Lawyers for Liberty that execution methods used at Changi Prison were “brutal and unlawful”.

TOC’s main argument against the correction direction it received for this article was that it had not made a “statement of fact”, but had carried the allegations in the form of a neutral report.

The Court of Appeal found that argument irrelevant.

“It is unmistakable from the legislative material that a key concern of Parliament in enacting the Pofma was the speed and scale at which falsehoods might be spread online under the guise of news reports,” the judges wrote.

TOC had also filed for leave to adduce further evidence, which consisted of two affidavits filed by Malaysian lawyer Zaid Abd Malek, that it said would demonstrate the truth of the allegations by Lawyers for Liberty.

By the time of the hearing for the appeals, however, TOC’s lawyer Eugene Thuraisingam had accepted that the focus of TOC’s arguments on appeal was no longer on proving the truth of the allegations.

The Court of Appeal thus made no order on the application to adduce further evidence.

In a statement to the media after the judgement was released, the Ministry of Home Affairs said: “The Court of Appeal noted that TOC did not attempt to prove any of the serious allegations. The Court of Appeal said that Lawyers for Liberty’s allegations were ‘categorically refuted’ by evidence produced by Singapore Prison Service. Lawyers For Liberty’s allegations — as reproduced by TOC — were ‘baseless’.”

TOC took down its whole website and social media pages last month after authorities suspended its class licence for its failure to declare its funding sources.