NMPs propose amendments to draft fake news laws

SINGAPORE — Three Nominated Members of Parliament (NMPs) have proposed amendments to the draft fake news laws which were tabled in Parliament earlier this month, saying that the changes will “preserve the ability of the Executive to act against online falsehoods in the public interest, while ensuring that such decisions are subject to good governance”.

The NMPs — Ms Anthea Ong, Ms Irene Quay and Associate Professor Walter Theseira — proposed amendments to the Protection from Online Falsehoods and Manipulation Bill in the following areas:

- a clause that sets out key principles that guide the exercise of powers under the Act;

- requirements that any directions issued are publicly justified;

- requirements that the appeals process is expedited; and,

- the creation of an independent council to monitor online falsehoods and provide routine oversight on the use of executive powers under the Act.

In a joint public statement which they provided to the media on Tuesday (April 30), the three NMPs said that they came up with the proposed amendments after “significant consideration and consultation with stakeholders” over the past three weeks.

While the stakeholders also raised concerns over the definition of a statement of fact — which has been "criticised for being vague and difficult to understand from a layperson’s view" — the NMPs said this is an important issue that must be "dealt with by the appropriate experts in jurisprudence" and they lacked "substantial expert legal research on the matter".

In their explanatory notes accompanying their joint statement, the NMPs said their concern with amending the definition of the statement of fact is that "the definition must provide a clear interpretation to both the Courts in trying a statement of fact, and the Ministries in exercising powers" under the proposed Act. "A definition that appears clear to the layperson may, ironically, make the job of the experts more difficult if it conflicts with established principles of jurisprudence," they pointed out. 

Likewise, they said they needed a better definition of "public confidence" in the Government, which was cited in the Bill as part of the public interest, in order to address the stakeholders' criticism that this allows the Executive broad discretion to exercise powers under the draft laws. "The concern is to balance the legitimate exercise of power to protect public institutions against online falsehoods that could destructively undermine confidence... with the rights of the public to freely criticise the efficacy and quality of such institutions," they added. 

Without such a provision, the NMPs said they believe the Executive "may have to use provisions in other laws that may be more draconian, or, rely on conventional media methods, which may not be effective".

The NMPs said they have also considered proposals to "involve judicial oversight, or independent oversight, at an earlier stage in the decision to issue a Direction against an online falsehood". 

However, while they believe there are "valid concerns that the rule of law is eroded if the Executive is granted excessive powers to act without oversight", the Executive has the duty to act immediately "without ex-ante oversight to address imminent harms to life, property, and public order". 

"The question is how far powers under this Bill go," they reiterated. 

The NMPS said that while they "retain concerns on the rule of law", they support the Government’s assessment that the nature of certain online falsehoods requires immediate executive action for correction or removal without exante oversight. 

"While a case could be made that some types of online falsehoods are slow-acting enough to allow for ex-ante oversight, we also believe that executive powers should not be the first choice for addressing such widespread, low-intensity falsehoods," they said. 

They noted that the criminal provisions of the Bill follow the standard due process — criminalisation does not follow as an automatic consequence of the exercise of executive powers to correct or remove online falsehoods.

While the NMPs agree with and support the legislative intent of the Bill, they reiterated that “many in Singapore and globally have expressed concern that the Bill grants the Executive far-reaching powers to control online communications”.

“We share these concerns, as such tools could be used by the Executive and future governments to suppress or chill debate and expression for political purposes,” they said. 

While the Government has assured the public that the proposed laws were not intended to stifle free speech and criticism, the NMPs said that the Bill, in its current form, “does not contain such assurances that limit how the Bill’s powers can be used”.

“The Bill also contains broadly worded clauses defining what is a false statement and what constitutes public interest,” they added.

“We are concerned that these broadly worded clauses give the Executive considerable discretion to take action against online communications, without protection in the primary legislation that codifies the assurances given by the Government in explaining the Bill to the public.”

Parliament will sit again next Monday, with the Members of the House set to debate the Bill, among other items on the agenda. In their statement, the NMPs said they decided to go beyond the Second Reading of the Bill in Parliament to propose the amendments because "the text of the Bill takes precedence over the debate or policy statements if there is any conflict".

"We therefore believe improving the text of the Bill is the best way to address these concerns," they said. 

They also noted that Parliament has the final authority to approve any laws proposed by the Government.

"We believe Parliament must meaningfully exercise that authority to further public confidence in our robust Parliamentary processes," they said. "The Government has said that Ministers exercising their powers under this Bill will be accountable to Parliament and the public, and we believe that process starts with the consideration of these amendments to the Bill."