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Apex court rejects AG’s appeal on anti-harassment law in split decision

SINGAPORE — The highest court of the land on Monday (Jan 16) upheld a ruling that excludes the Government from invoking anti-harassment laws to deal with falsehoods, in a rare 2-1 split decision that saw Chief Justice Sundaresh Menon dissenting.

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SINGAPORE — The highest court of the land on Monday (Jan 16) upheld a ruling that excludes the Government from invoking anti-harassment laws to deal with falsehoods, in a rare 2-1 split decision that saw Chief Justice Sundaresh Menon dissenting.

Judges of Appeal Chao Hick Tin and Andrew Phang upheld the High Court’s judgment that Section 15 of the Protection from Harassment Act (POHA) — which requires the publisher of a false statement to bring the falsehood to readers’ attention — is a remedy available only to human beings.

But CJ Menon found that “non-natural persons” like the Government can also benefit from the clause, saying there is “nothing in the statutory context” to restrict the clause to human beings.

The case concerned a medical device firm co-founder’s comments published on socio-political website The Online Citizen (TOC) over an alleged patent infringement involving the Ministry of Defence (Mindef).

The firm, MobileStats, had sued the Government claiming that Mindef had copied its concept of a mobile emergency medical station. But it dropped its claim in January 2014, citing financial difficulties.

In January 2015, TOC published an interview with MobileStats co-founder Ting Choon Meng, in which he claimed that Mindef knowingly copied his concept and was trying to wear him down financially by delaying court proceedings.

When TOC and Dr Ting refused to remove the statements upon request, the Attorney-General (AG) applied for a court order under Section 15 of POHA to have them taken down. A district court granted the order, but this was overturned by a High Court, prompting the AG to take the matter to the Court of Appeal.

Upholding the High Court decision, Justice Chao and Justice Phang cited Law Minister K Shanmugam’s speech in Parliament when the Protection from Harassment Bill was debated. Based on his references to “victims” and the absence of any mention of other entities, it was clear that the minister’s focus was “solely on human beings”, they said.

On whether it was possible that Parliament intended to extend Section 15 to entities other than human beings, the justices noted that Mr Shanmugam’s clarifications in Parliament were “neutral” at best and do not advance the Government’s case. Moreover, if Section 15 was to be extended to entities, it would have warranted more discussions or even additional legal provisions, they added.

Even if Section 15 could be extended to entities like the Government, the order could not be granted in this case, the justices said, agreeing with the High Court that TOC had “already taken significant steps to point out to readers and viewers that the truth of Dr Ting’s comments was by no means beyond doubt”.

They also stressed that Mindef was by no means a “helpless victim”.

“It is a Government agency possessed of significant resources and access to media channels … Given all these, it is difficult to see what discernible impact the allegations and TOC’s publication of (them) could have had on Mindef’s reputation or public image,” they said.

CJ Menon, in dissenting, said that while the POHA was enacted to provide recourse primarily to human beings, Section 15 is distinct from the rest of the Act.

He also cited Mr Shanmugam’s speech in Parliament during the debate on the Bill, pointing out “nowhere in the Minister’s speech does he expressly exclude the view that Section 15 can apply to non-natural persons”.

POHA itself is divided into four sections, and remedies found in Part III of the Act are all tied to offences in Part II, which contain the provisions that limit those who can invoke the laws to natural persons.

But Section 15 is an exception to this. As such, it “denudes” the argument that “person” in Section 15 must be construed the same way as in other parts of POHA and there is no reason for thinking that it is a remedy limited to natural persons.

As for whether a Section 15 order should have been granted in this case, CJ Menon found that it would have been “just and equitable” to do so, noting that the false statement by

Dr Ting implied bad faith and dishonesty on the part of Mindef.

While TOC had published in full a Mindef statement that stressed the ministry’s propriety in the conduct of legal proceedings, CJ Menon found this to be inadequate to “draw attention to the true facts”.

In response to the ruling, a Ministry of Law spokesperson said the Government’s intent is to allow both natural persons as well as the Government and corporations to rely on Section 15 of POHA.

“The Government will study the judgment, and consider what further steps it should take to correct the deliberate spreading of falsehoods,” the spokeperson said.

The spokesperson also pointed out that “fake news” has become a major problem for many societies. “As recent events elsewhere show, the spreading of false and misleading information can be highly destructive of the institutions of democracy,” he added.

Commenting on the ruling, Dr Ting Choon Meng said: “I have always believed the Government shouldn’t be able to use the anti-harassment act against the man in the street. I am happy that a majority of the Court of Appeal has confirmed this.”

TOC chief editor Terry Xu said: “It is heartening to have the judgment to be based on common sense. It can also be said that the Government’s decision to use POHA for the protection of Mindef was inappropriate and unjustified.”

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