Govt not required to prove statement is false, AG argues in TOC’s Pofma appeal over death row article

SINGAPORE — Sociopolitical website The Online Citizen has “no defence” in its appeal against a correction direction issued under the Protection from Online Falsehoods and Manipulation Act (Pofma), the Attorney-General contended.

The Attorney-General, representing the Ministry of Home Affairs (MHA) in the appeal, on Thursday (Feb 6) also pushed back against a High Court decision released on Wednesday about a separate Pofma case, which stated that the burden of proof is on the Government to show that a statement is false.

Thursday’s appeal was heard before Justice Belinda Ang in chambers, with members of the public and the media not allowed to attend. The judge will give her decision at a later undetermined date.

The Attorney-General was represented by Deputy Chief Counsel Hui Choon Kuen and State Counsels Jamie Pang and Jocelyn Teo, while The Online Citizen was represented by its chief editor Terry Xu.

The Online Citizen published an article on Jan 16 carrying a statement by Malaysian human rights group Lawyers for Liberty. The group alleged that prison officers were instructed to carry out brutal execution methods at Changi Prison.

On Jan 22, MHA said that it had directed the Pofma Office to issue correction directions to The Online Citizen, Lawyers for Liberty, online news site Yahoo News Singapore and freelance journalist Kirsten Han.

Home Affairs Minister K Shanmugam then rejected an application by The Online Citizen to cancel the correction direction.

Lawyers for Liberty has since said that it would not comply with the correction direction or challenge it, as Singapore has no jurisdiction over the group. It then filed a suit against Mr Shanmugam in the Kuala Lumpur High Court to declare the correction direction illegal.

'DOES NOT CONSTRAIN FREEDOM OF SPEECH'

On Thursday, the Attorney-General devoted almost a quarter of its written submissions to arguing that Justice Ang Cheng Hock — the High Court judge who had dismissed the Singapore Democratic Party’s Pofma appeal on Wednesday — was “incorrect” in ruling that the Government should prove a statement is false.

Justice Ang Cheng Hock found that in issuing a correction direction, a government minister is seeking to constrain one’s constitutional right to freedom of speech and expression.

Disagreeing with this, the Attorney-General said that The Online Citizen's article remains on the website “for anyone to read” and that no penal or financial sanctions accompany a correction direction.

The Attorney-General also disagreed with the judge's finding that Parliament could not have intended for the burden of proof to fall on those appealing against a correction direction.

If the burden falls on a minister, anyone could “make up all sorts of falsehoods on sensitive matters without any basis and thereby potentially compel the Government to disclose such sensitive information as it has the burden to disprove the falsehoods”, the Attorney-General argued.

Referring to The Online Citizen's appeal in particular, the Attorney-General said that the Singapore Prison Service could be placed in a position where it was required to disclose its “sensitive” security procedures if it has to discharge its burden of proof.

The Attorney-General also tackled Justice Ang Cheng Hock’s finding that if the burden of proof falls on a party appealing against a correction direction, a minister would succeed when neither side gives any evidence of truth or falsity, simply because the minister had issued a correction direction.

There is “nothing exceptional” about this conclusion, the Attorney-General said.

'IT WAS MERELY RE-PUBLISHING STATEMENT'

Turning to the appeal at hand, the Attorney-General argued that The Online Citizen was subject to Pofma because it had re-published a falsehood.

The Online Citizen did not dispute that Lawyers for Liberty had made false allegations, but argued that it did not “take a position as to the truth and veracity of the statement” in its article. The website said that it merely reported on Lawyers for Liberty making the statement.

However, the Attorney-General said that The Online Citizen “effectively repeated” the false statement of fact and spread it to the Singapore public by “repeating the statement wholesale without rejecting the falsehood”.

It would be an “absurd result” if only Lawyers for Liberty could be taken to task under Pofma but not other websites reproducing its allegations, because readers of the other websites would not know the allegations are false, the Attorney-General contended.

Government ministers are not prevented from issuing a correction direction just because someone genuinely believes he was communicating a true statement of fact too, the Attorney-General noted.

As for The Online Citizen’s argument that court reporters and investigative journalists will be affected by the issuing of correction directions, the Attorney-General said that a direction does not require the article to be taken down, only for the author to publish a correction notice.

“A journalist who disagrees that he or she has communicated any false statements of fact in his or her article is free to come to court and challenge the minister’s assessment that the article had done so,” the Attorney-General added.