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Fake news laws narrow, rather than extend, Government’s powers: Law Ministry

SINGAPORE — The proposed laws against fake news will narrow the Government’s powers instead of extending them, the Law Ministry said on Thursday (May 2).

The proposed laws against fake news will narrow the Government’s powers instead of extending them, the Law Ministry said on Thursday (May 2), in response to a commentary by a Senior Counsel who raised concerns about the scope of the Bill.

The proposed laws against fake news will narrow the Government’s powers instead of extending them, the Law Ministry said on Thursday (May 2), in response to a commentary by a Senior Counsel who raised concerns about the scope of the Bill.

SINGAPORE — The proposed laws against fake news will narrow the Government’s powers instead of extending them, the Law Ministry said on Thursday (May 2).

For example, there are already existing laws which allow the Government to block access to sites and to take down certain content, but the Bill, which will be debated in Parliament on Monday, gives power to ministers to take such actions only against false statements of fact.

This was the response from Law Minister K Shanmugam’s press secretary to a commentary published on Wednesday (May 1) by a Senior Counsel who raised concerns about the scope of the Protection from Online Falsehoods and Manipulation Bill.

The laws, tabled in Parliament in April, give ministers broad powers to quickly stop the dissemination of online falsehoods and punish those who create and spread them.

They can exercise their powers when two key preconditions are met — that a false statement of fact has been made and that it acts against public interest.

However, Senior Counsel Harpreet Singh Nehal wrote in a commentary in the Singapore Law Watch that the terms “false statement of fact” and “public interest” are very widely defined under the Bill, and that the line between fact and opinion is not always so clear.

More importantly, Mr Singh, who specialises in complex commercial litigation and international arbitration at Clifford Chance Asia, said that the Bill sets a low bar for ministers to exercise their powers.

His arguments echoed those made by three NMPs — Ms Anthea Ong, Ms Irene Quay and Associate Professor Walter Theseira — who in a joint statement on Tuesday proposed changes to the draft laws, such as including a clause that sets out key principles that guide the exercise of powers.

MINLAW’S RESPONSE

Responding to Mr Singh, Mr Shanmugam’s press secretary Teo Wan Gek said that there is already an established jurisprudence in defining what constitutes a falsehood.

“If there is a dispute, ultimately the courts will have to decide whether a statement was factual, or an opinion,” said Ms Teo.

Mr Singh has also had “constructive discussions” with the Law Ministry on the Bill, she added.

“On ‘fact’ and ‘public interest’, Mr Singh was told that the definitions in the Bill had been calibrated and were the most workable, given the existing jurisprudence,” she said.

“Mr Singh would also be aware that the powers proposed to be given to the Government under the Bill, and the public interest grounds on which the Government can exercise its powers, are actually narrower than the Government’s existing powers”.

The Bill also proposes greater oversight for the courts than is the position under existing laws, she added.

“In key areas, the Bill narrows, rather than extends, the Government’s powers.”

Ms Teo said Mr Singh’s suggestion for the fake news laws to be reviewed regularly will be considered and dealt with in Parliament.

Mr Singh had also suggested that the laws expressly require any ministerial order against fake news to be proportionate to the nature of the falsehood and the degree of harm to the public interest.

To this, Ms Teo responded that the Bill already contains a proportionality requirement.

Under the Bill, before exercising his or her powers, a minister would not only have to determine whether a false statement of fact has been made. The minister must also ask if the content acts against public interest and assess if the action taken would be “necessary or expedient”.

A DIFFERENT POINT OF VIEW

Ms Teo also wrote a separate response to a commentary by Senior Counsel Siraj Omar, which was published in The Straits Times on Wednesday, saying he was “correct to note” that the Bill gives narrower powers to the Government, as compared with the broad powers under existing laws.

Mr Siraj noted that the Bill gives greater oversight to the courts and represents a shift in the Government’s approach, with the Government adopting a more measured and calibrated approach.

“These points have been overlooked by some commentators,” she wrote.

“The Bill does seek to scope down and calibrate the Government’s powers in key areas.”

Ms Teo added that the Law Ministry will consider the suggestions he made.

In his commentary, Mr Siraj, a director at Premier Law LLC who specialises in commercial law, had proposed that the Government consider mandating a simplified and expedited process for appeals to the court against ministerial orders.

NARROWER, MORE TARGETED APPROACH

Mr Siraj had argued that the Bill provides for greater judicial oversight and limits the scope of the Government’s powers, because it allows a right of appeal and not a right of judicial review.

This is significant, he said, because the “appellate standard is lower than that required in cases of judicial review”.

Unlike other laws, which give the Government broad powers to deal with online content seen to be acting against public interest, Mr Siraj said that the proposed fake news laws appear to take “a narrower and more targeted approach to the regulation of online content”.

There are existing laws, he pointed out, which allow the Government to block access to some sites and to take down certain content.

But the new Bill includes a “limiting factor” — the scope of content covered is restricted to false statements of fact, he said.

The Bill also calls for the use of more targeted tools such as correction directions — which would require the offender to post a correction notice alongside the original falsehood — and measures to deprive funds to the creators of falsehoods, he pointed out.

Powers under the draft fake news laws, therefore, are “significantly narrower than those already in the Government’s armoury”, he said.

“Those who fear that the Bill is an attempt by the Government to broaden its powers should keep in mind that it already possesses wider powers than those provided under the Bill,” he added.

“The Bill, therefore, appears to represent a shift in approach, with the Government attempting a more measured and calibrated approach to the problem.”

The definition of statement of fact under the Bill is also an “objective standard that applies, not the minister’s subjective view”.

It draws directly from the approach that has been taken by the Court of Appeal — the country’s highest court — and this suggests that the Bill is “not departing from the wealth of judicial authority on this distinction”, said Mr Siraj.

He further pointed out that the Bill already includes a requirement for ministers to act proportionally, as it states that a minister can exercise his powers only if it is in the public interest and must assess if the action taken is “necessary or expedient” to protect the public.

Mr Siraj noted: “This added constraint of necessity or expediency essentially embeds an assessment of proportionality into the analysis.”

“The Bill sets out a range of measures that the minister can take. Which measure is ultimately deployed depends on what would be ‘necessary or expedient’ in the particular circumstances.”

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