Court of Appeal reserves judgement on TOC, SDP’s Pofma challenges

• The court considered whether a Pofma order’s burden of proof should lie on the statement-maker or the Government
• The Online Citizen’s case raised concerns over how Pofma may affect journalism
• Lawyers argued on the seriousness of a correction direction

SINGAPORE — The highest court of the land on Thursday (Sept 17) heard its first legal challenges to the Protection from Online Falsehoods and Manipulation Act (Pofma), brought on by the Singapore Democratic Party (SDP) and socio-political website The Online Citizen (TOC).

The two cases were heard together before a five-judge Court of Appeal as their lawyers — Mr Suresh Nair for SDP and Mr Eugene Thuraisingam for TOC — took similar positions in arguing how Pofma should be interpreted in relation to their cases.

Still, the hearing ran beyond six hours, during which the parties argued over who holds the legal burden to prove whether a statement made was false, among many issues.

Justice Belinda Ang, in ruling TOC’s appeal in February, said that the burden of proof is on the person making the statement, while Justice Ang Cheng Hock ruled in SDP’s appeal earlier that month that it lies on the Government, adding that there is "nothing in the parliamentary debates that sheds light on this issue".

SDP is disputing the Government’s assertion that it made false claims about employment statistics for Singaporean professionals, managers, executives and technicians, while TOC is contesting a claim that it made false statements about execution methods for the dealth penalty.

The five judges presiding over the cases on Thursday are Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong. They reserved their judgement at the end of the hearing.

The following is a closer look at some of the arguments made.

BURDEN OF PROOF

What state counsels argue

State counsels from the Attorney-General’s Chambers (AGC) argued that the appellants, or parties that are appealing, should first give some credible evidence of the truth of their statements before the evidential burden shifts to the government minister, who holds the power to issue correction directions, to rebut them.

This is because the very purpose of the anti-fake news legislation, which came into force last October, is to promote responsible speech, they added.

One part of their submissions stated: “A statement-maker cannot complain that he is disadvantaged or placed in any position of difficulty by bearing the burden of proof, since only he knows what the basis of his own statement is in the first place.

“If he does not know, it means he had acted irresponsibly… and it would be contrary to the objective of Pofma to encourage such behaviour.”

They said the appellants’ argument that correction directions issued under Pofma are restrictions on a constitutionally guaranteed right of free speech and should thus be narrowly construed as “without merit” and based on “bare assertion”.

But even if free speech were a relevant consideration in determining the burden of proof, they argued that a correction direction does not restrict free speech since it is issued to target false speech.

What the lawyers argue

However, Mr Nair and Mr Thuraisingam said that if the burden were to rest on the person making the statement, it would not be possible for him to discharge any burden of proof given the “asymmetry” of information available to him versus the Government.

There is also no freedom of information legislation here to make it possible, they said.

Elaborating on this in written submissions, Mr Thuraisingam said that it would be an “intolerable curtailment of freedom of speech” if a person is required to acquire documents to which he can have no access, and witness statements from persons who are unavailable to him, before he can make a statement.

Pointing out that the most important information is likely to be the most closely guarded as well, he added: “One wonders how many important public interest disclosures would ever have seen the light of day in a Pofma environment.”

Adding to the points in court, Mr Nair cited the example of the Watergate scandal that rocked the United States and led to the resignation of President Richard Nixon in the 1970s, and the Chinese doctor who tried to warn about the coronavirus outbreak as examples of public interest disclosures.

He said: “It is important that the court considers whether it is consistent with the constitutional right of freedom of speech to place the burden of proof on the appellant to establish the truth of everything he says, when the evidence is simply not available to him.”

The lawyers will be making further submissions on this topic as Chief Justice Menon granted them permission on Thursday to raise new points.

IMPLICATIONS ON JOURNALISM

What the lawyers argue

TOC was issued a correction direction for its report from a press release by Malaysian anti-death-penalty group Lawyers For Liberty on how criminals on death row are handled in Changi Prison.

Mr Thuraisingam argued that the facts being reported are that a particular organisation has made allegations on a matter of public interest, and that TOC had asked the Ministry of Home Affairs (MHA) for its comments on them.

Stating that it is therefore a report on facts and not an opinion piece, he said that Minister of Home Affairs K Shanmugam could have “responded in a nice way”, such as by replying to the media query sent to MHA, instead of issuing a correction order.

Mr Thuraisingam went on to argue that it “puts the reporter in a difficult position” if the Government can pick and choose portions out of context and say that an article communicated falsehoods even though it was reporting what somebody else had said.

“The burden of proof surely must lie on the Government. It cannot be that The Online Citizen that is merely reporting what somebody had said as an allegation has to prove that person’s allegation,” he told the court.

Mr Thuraisingam further said that it is only if news outlets do not carry a government response that it is “fair enough” for a correction direction to be issued.

What state counsels argue

State Counsel Hui Choon Kuen, however, argued that Pofma is targeted at false statements of fact and not the maker of the statements.

“You can be completely innocent, honest, but it is a false statement that affects public interest, then the Act can be used to neutralise and mitigate public interest,” he said.

However, Chief Justice Menon said he is concerned that Pofma may allow a minister to go to a journalist and say that something cannot be reported, and that the journalist has to report on the terms of the minister who said it is untrue.

Mr Hui later argued that a “responsible journalist” will attempt to verify the information received and try to get information from the Government first before publishing it. But TOC sent its email to MHA on the same day it published its article, he said.

Justice Prakash shot back: “But that’s the nature of journalism. There is a pressure to publish in a timely fashion. If I get a reply the next day, put it in. That’s fine.”

Justice Phang then asked where the line should be drawn if someone received a controversial statement that is difficult to verify, as opposed to a case involving a blatant assertion that no reasonable person would believe is true.

“Are you going to say that you can’t report? (Then) the category of news that can be reported will be drastically reduced,” the judge said.

IS A CORRECTION DIRECTION THAT SERIOUS?

What state counsels argue

The state counsels said that issuing a correction direction is “in no way a form of criminal proceedings or punishment”. “There are no penal consequences. Nor is there any ‘fault’ element,” they added.

Pofma specifically stated that a correction direction may be issued notwithstanding that the person does not know or has no reason to believe that the statement is false, and parliamentary debates had made it “abundantly clear” that it is not a “criminal punishment”, they said.

The offence only comes when there is a failure to comply with the correction direction, and this offence has “nothing to do with communicating a false statement that affects the public interest”, they reiterated.

What the lawyers argue

Mr Nair argued that the nature of sanction that is a correction direction should not be understated, as it may require the statement-maker to “defame (himself) out of (his) own mouth”.

There can be even greater consequences for a website such as TOC, Mr Thuraisingam pointed out, since the minister may flag it as a “declared online location” if it has carried three or more different statements that are the subject of active directions issued by the Pofma office.

The owner of a declared online location will not be allowed to profit from it.

This prompted Chief Justice Menon to remark: “Then, Pofma being a potentially onerous tool should be used with circumspection. If the Government wants to put across a point, it has ample means, and you would have published that.”