Explainer: Significance of the apex court’s Pofma ruling and what it means for future cases

• The Court of Appeal released its first set of judgements on the Protection from Online Falsehoods and Manipulation Act on Oct 8
• The panel of five judges set out who bears the burden of proving that a statement is true or false
• This had been uncertain until this judgement, given that two High Court judges had conflicting views
• The judges also set out a clear framework for the court to use when deciding on future appeals

SINGAPORE — Two years since Singapore’s anti-fake-news laws took effect, a five-judge Court of Appeal has laid out a 154-page judgement on why it has found the legislation to be constitutional and how the court system should handle some aspects of appeals relating to its use.

In its first set of judgements on the Protection from Online Falsehoods and Manipulation Act (Pofma) issued last Friday (Oct 8), the apex court also clarified a key point: Which party bears the burden of proof in relation to “correction directions” issued under the Act.

A correction direction is issued when a falsehood is communicated that affects the public interest.

Lawyers interviewed by TODAY agreed that the burden of proof ruling was the most significant outcome of the judgements.

TODAY takes a look at the key findings and why they are significant.

BURDEN OF PROOF

The court ruled that the person who made the allegedly false statement, and not the government minister issuing the correction direction, should hold the legal burden of proving that the statement is true when challenging the direction.

Law lecturer Alexander Woon from the Singapore University of Social Sciences said that this issue had been uncertain until this judgement.

“There were two diametrically opposed High Court decisions, and then the Court of Appeal came in and decisively resolved the issue. Now there will be clarity going forward,” the former deputy public prosecutor said.

In the earlier High Court decisions, Justice Belinda Ang, in ruling an appeal by The Online Citizen (TOC) website in February last year, said that the burden of proof is on the person making the statement.

However, at a hearing earlier that month for an appeal by the Singapore Democratic Party (SDP), Justice Ang Cheng Hock said that it lies with the Government.

Mr Woon said: “The burden-of-proof issue has now been conclusively determined and all future cases will be bound by the court’s judgement.” 

The court held that the recipient of a correction direction must first raise a prima facie case, meaning valid on first impression, for setting aside the direction.

This was defined by the court to mean that “an adequate basis has been raised for suggesting that the minister improperly exercised his powers”.

If the applicant is not able to do this, then the case is over and the minister need not even respond.

If the applicant can cross the threshold, then the minister may be called on to show why the suggestion is not true.

Ultimately, the court will look at the totality of evidence from both sides and decide based on which version is more likely than not to be true.

THE APPEALS AND HOW THE COURT RULED

In 2019, SDP was issued correction directions by then-Manpower Minister 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 was issued a correction direction last year by Law and Home Affairs Minister K Shanmugam after posting an article carrying false claims about hanging methods at Changi Prison.

Last Friday, the Court of Appeal dismissed the appeal by the now-defunct sociopolitical website.

It partially allowed the SDP’s appeal against three correction directions, overruling part of one direction but upholding the rest.

Later that evening, Manpower Minister Tan See Leng issued SDP a new correction direction for one of the Facebook posts.

WHAT LAWYERS FOUND INTERESTING

The Court of Appeal laid out, for the first time, a five-step framework to determine whether to overturn a correction direction under Pofma.

The court should first identify the statement that the minister wishes to target with the direction and alleges to be false.

It should then determine whether that statement had been conveyed in the subject material being targeted. If not, the court may set aside the direction.

Mr Marcus Teo, a Sheridan Fellow from the National University of Singapore’s law faculty, said that these first two steps are significant because speech can be vague.

“The minister may need to deal with an ambiguous statement with many reasonable meanings, and the statement-maker may not be clear how his statement was interpreted,” he said. “The framework’s first two steps will now encourage both parties to be clearer.”

After those steps, the court should thirdly determine whether the identified statement is a statement of fact; fourthly, whether the statement is false; and lastly, whether it has been or is being communicated in Singapore, the Court of Appeal said.

Mr Yeoh Lian Chuan, managing director at Sabara Law, pointed to a passage in the judgement in which the court raised a scenario where a minister interprets a person’s statement differently from what the person had meant.

In this case, the person could, perhaps, post an afternote or follow-up post to clarify that he did not intend to convey that particular meaning and object to the correction direction, the court said.

Although the court left that as a provisional view because the point did not arise for decision in the present appeals, Mr Teo said that any such views coming from the Court of Appeal are bound to be very influential in practice even if they are not legally binding.

Expecting this scenario to play out in the future, Mr Yeoh said that it would be interesting to see how a minister will respond to such disavowals since the judgement does imply that the minister would have to at least consider withdrawing the direction in those circumstances.

THE DISAGREEMENT ON THE ATTORNEY-GENERAL'S POINT

In the judgement, the court disagreed with a point raised by the Attorney-General, which it said amounted to saying that a statement is false because the minister has identified it to be so under Pofma.

Mr Woon said that this was an argument over a technical point of law and holds minimal practical significance.

The point had been raised during an argument over whether Pofma is constitutional.

The Attorney-General had asserted that false speech is not protected by the Constitution.

It then argued that a falsehood remains a falsehood even before the court determines it to be false — an argument the court rejected.

The Attorney-General’s Chambers (AGC) has also confirmed in a statement that the Attorney-General's position has always been that the court, not the minister, ultimately decides whether a statement is true or false because of Pofma’s appeal process.

Although it rejected the Attorney-General's argument, the court later found that correction directions do not restrict free speech since the speaker is free to spread the message, albeit with a correction notice attached.

Mr Woon said: “So, the disagreement with AGC on the preliminary point is largely technical — the end result is still that correction directions are constitutional.”

HOW FUTURE CASES WILL PLAY OUT

By setting out who bears the burden of proof, Mr Teo said the judgement ensures that parties who appeal in the future will take genuine and non-opportunistic challenges to the court.

“If the full burden were placed on the statement-maker from the outset, many correction directions would be difficult to challenge,” he said.

“But if the full burden were placed on the minister from the outset, blatantly false statements could be made to extract information from the Government.”

Associate Professor Eugene Tan from the Singapore Management University said that the five-step analytical framework provided by the Court of Appeal will guide the AGC, the Government and defence lawyers when dealing with correction directions.

The court has also set a precedent in ruling that Pofma is constitutional.

This means that future challenges on the constitutionality of Pofma will have to provide new arguments asserting that the way Pofma is used is unconstitutional, rather than the Pofma legislation itself, he added.