XBB strain WhatsApp messages: Pofma correction notices can be issued to those who forward falsehoods, say lawyers

SINGAPORE — Even if the Government may not be able to pinpoint the original sender of viral WhatsApp messages carrying falsehoods, it would still be able to issue correction directions under the Protection from Online Falsehoods and Manipulation Act (Pofma) to people who have forwarded such messages, legal experts told TODAY. 

All it takes could be a screenshot showing that the message was forwarded by a person for him or her to be issued a Pofma notice.

This means that the person who forwarded the false viral message might have to send a follow-up message to all recipients, clarifying that the original message sent was false, and include a link to where a statement of fact can be found, such as on a government website. 

The Ministry of Health (MOH) said on Tuesday (Oct 11) that it was initiating Pofma action against falsehoods spread through a viral WhatsApp message, which claimed that there is a rapid and large increase in Covid-19 cases here with severe illness and deaths due to the circulating XBB strain of the Omicron variant.

Lawyers who spoke to TODAY said that this case is the first of its kind involving a Pofma direction issued for falsehoods circulating on the WhatsApp application. TODAY has reached out to the Pofma Office to confirm this. 

However, the move by MOH has been a possibility since the law was introduced late in 2019. Mr Edwin Tong, then-Senior Minister of State for Law, said in 2019 — before Pofma had taken effect — that the law also covers closed platforms such as chat groups and social media groups. 

Legal experts said that it may be difficult to find the original sender of a viral message, but a correction notice can be sent to anyone who forwards a viral message with falsehoods. 

Associate Professor Eugene Tan from the Yong Pung How School of Law at Singapore Management University (SMU) said: "The law doesn't require the public body issuing the Pofma direction to go after the original sender.

"If it's in the public interest and what you're spreading is a falsehood, it doesn't matter if you're the last spreader." 

Agreeing, Mr Marcus Teo, a Sheridan Fellow from the law faculty of the National University of Singapore (NUS), said that anyone who passes on a false statement of fact may be subject to a correction direction, because the point of Pofma is "precisely to stop falsehoods from spreading throughout the community".

He added that many people may regard WhatsApp as a "private" platform, but this is not always the case with viral messages. 

"WhatsApp may seem like a 'private' setting, but the boundary between 'private' and 'public' settings becomes blurred when the message spread becomes viral and is spread quickly through multiple channels," Mr Teo said.

HOW DOES A CORRECTION DIRECTION WORK ON WHATSAPP? 

Mr Alex Woon, a lecturer at Singapore University of Social Sciences' School of Law, said that the correction direction could "technically" be issued to each and every individual who circulates the rumour in Singapore to stop communicating it or to forward it along with a correction notice.

The procedure could be like what is commonly seen on other correction notices that accompany posts on social media platforms. Instead, the sender may be required to send the correction notice to all the people who had received the false message from him. 

Assoc Prof Tan from SMU said: "It's certainly possible within the law for those who are 'Pofma-ed' to require them, for example, to send the notice that the message was false, and if they want to read the facts, to go to this (link)."

However, Mr Woon said that this approach may not be feasible or effective. 

"This is unlikely to be practical as it would be difficult to both identify targets for the directions and to enforce the directions, if the rumour has already become widespread." 

He added that forwarding a false viral message in itself is not a chargeable criminal offence, but ignoring the correction direction would be. 

"It is only if the recipient of the direction fails to comply with the direction without any reasonable excuse that it becomes an offence." 

HOW CAN THE AUTHORITIES PROVE THAT SOMEONE SENT THE FALSE MESSAGE? 

Given that WhatsApp is seen as a "private" platform, how would the authorities prove that someone had sent a false message? 

Legal experts said that such evidence can come in the form of screenshots from the message recipients. 

Mr Teo from NUS said: "Usually, when someone reports the false statement of fact to the Pofma Office, that person will also provide the message he received from the communicator, which will itself be evidence that the communicator sent it.

"The recipient of a private message generally has no legal duty to keep it private, unless the message contains confidential information — which should not be the case for WhatsApp chain messages."

Agreeing, Assoc Prof Tan said that people who have received a message with falsehoods may have forwarded it to the authorities "because of their concerns about the falsehoods". 

"They may have also cooperated with MOH and are willing to let MOH have access to those messages," he said. "And MOH would minimally know that the recipient got this message from person 'A'." 

Assoc Prof Tan added, however, that the chances of reaching every person who forwarded the viral message is slim, and this is ultimately not the goal of the authorities. 

"I think (the authorities) are wanting to make the message clear, that this is a falsehood, and equally important, that people should exercise responsibility before forwarding messages that will unnecessarily cause public alarm." 

TODAY has reached out to MOH to ask about its next steps regarding its Pofma action.