Burden of proof doesn’t fall on Govt for Pofma appeals, says High Court judge who disagrees with fellow judge

SINGAPORE — A High Court judge on Wednesday (Feb 19) disagreed with another judge over how the Protection from Online Falsehoods and Manipulation Act (Pofma) should be interpreted, thus creating a legal quandary for the relatively new law meant to tackle fake news.

In a 25-page judgement dismissing the appeal by socio-political news website The Online Citizen (TOC) against a Pofma correction direction, Justice Belinda Ang said that the legal burden of proof when appealing against the Pofma rests on the person making the statement, and not the Government.

Her decision differed from the opinion by fellow High Court judge, Justice Ang Cheng Hock, in a previous Pofma appeal by the Singapore Democratic Party (SDP). He had also dismissed the case. But he ruled that the burden of proof was on the Government since Pofma failed to specify which party it falls on, and there is "nothing in the parliamentary debates which sheds light on this issue".

This means that there is a jurisdictional split — in which two legal precedents exist for a given law — on how Pofma, which came into force last October, is interpreted by the courts.

Justice Ang Cheng Hock in the SDP case had given three reasons why the burden of proof fell on the Government:

1.  

   It is the government minister who decided to apply Pofma and who seeks to curtail the individual’s constitutional right to free speech and expression, and so the existing Evidence Act requires him to prove that the statement is false.

2.  

   The minister would succeed in a situation whereby neither party are able to provide any evidence of truth or falsity “simply and solely” because of the minister's own earlier decision to issue a correction direction. This would thus restrict the court’s discretion to scrutinise an administrative decision.

3.  

   Parliament could not have intended for the person making the statement to bear the burden of proof since the minister has more access to information.

In the latest case, TOC argued that the Government had not discharged its burden of proof to show that its article's claims were false. 

While TOC cited Justice Ang Cheng Hock’s findings on the SDP case in its written submissions, the Attorney-General’s Chambers — which serve as the Government's lawyer — argued that the judge was wrong in ruling that the Government must prove the falsity of a statement when its corrections orders are challenged in court. 

In her judgement, Justice Belinda Ang disagreed with Justice Ang Cheng Hock’s findings on the burden of proof:

1.  

   The Evidence Act is a red-herring, she said. It actually states that any person who comes to court to seek judgement — TOC, in bringing an appeal against the Government, for example — must bear the burden of proof. A correction direction also cannot constrain the freedom of speech because not every type of speech is covered by the Constitution, such as misinformation.

2.  

   An outcome in favour of the government minister in a situation where neither party provides any evidence is “nothing exceptional”, and mirrors decisions in a judicial review case.

3.  

   Parliament could not have intended for the burden of proof to fall on the minister because it would compel the minister to “disprove a panoply of bare assertions and to disclose sensitive information on the basis of spurious claims”.

TOC’S APPEAL

TOC's case involves a report based on a press release by a Malaysian anti-death-penalty group Lawyers For Liberty over how criminals on death row are handled in Singapore.

In dismissing the case, Justice Belinda Ang rejected TOC’s arguments that its statement was neither a fact nor an opinion but “a hearsay report”. TOC is not entitled to create a third category of statements under Pofma, she said.

TOC wrongly assumes that the outcome of a verification procedure or fact-finding exercise will determine what is a "statement of fact" as defined under Pofma, she added. However, Pofma applies whether or not TOC has verified the statement.

A fact-checking exercise is only relevant for determining whether a fact is true or false and not whether a statement is a fact or an opinion, the judge said. 

TOC had also argued that its statement is true, because TOC’s statement is that Lawyers For Liberty made a press statement, which is true. It did not provide any evidence as to whether the anti-death-penalty group's statement was true.

Justice Berlinda Ang rejected this argument as Pofma states that a correction direction may be issued on a person even if he does not know or has no reason to believe that the statement is false. 

RESOLVING THE LEGAL SPLIT

Having two legal precedents for a law that is still in its infancy is not uncommon, lawyer Amolat Singh from his eponymous law firm said.

“It just simply means that there are two decisions, and that if it goes to appeal, the appellate court’s decision will be binding on the lower courts because it is placed higher on the legal hierarchy,” he said.

Without a single precedent, if a third appeal against Pofma happens, the judge in that case “may go one way or the other” because the decision in a court is not binding on others on the same hierarchy.

Mr Singh disagreed when asked if the jurisdictional conflict occurred because Parliament did not resolve in detail how appeals should be carried out under Pofma. He said that this scenario is normal because it is not possible for Parliament to think of every possible situation, and that the judges also look at the legislators’ intention in passing the law.

“This situation is common especially for new laws, and you don’t hear it so much for older ones… as most issues get resolved along the way,” he said.