SDP Pofma case: Yes, it covers interpretation

By Bertha Henson

If you ever get a correction directive and want to challenge it in court, I suggest you get legal advice. That’s what the Singapore Democratic Party (SDP) decided to do yesterday after Singapore’s first Pofma case concluded this afternoon with the judge reserving his verdict. 

SDP Chairman Paul Tambyah told reporters that there were various technical legal issues that the SDP needed expert input on. He then got technical and rattled off terms like “single meaning versus multiple meanings’’, the definition of a reasonable person and burden of proof. Justice Ang Cheng Hock has given the party up till Wednesday to submit further responses. 

And here I was thinking that we’re already getting into a tangle over how to read statistical tables and what sort of data sets and time frames to use.  Now we’d have to contend with legal jargon as well. For what is supposed to be a swift and easy appeal process under the Protection from Deliberate Online Falsehoods and Manipulation Act (Pofma), it seemed extremely daunting especially if a mere individual decides to go up against the G to challenge a correction directive. 

In this instance, the SDP was facing Deputy Attorney-General Hri Kumar Nair with his 28-page submission as well as a 516-page submission from the Manpower ministry. SDP chief Dr Chee Soon Juan, noting the arsenal of documents brought into the judge’s chambers yesterday, had remarked wryly that he had only a few sheets of paper. 

So was it confusing? Yes it was.

But it was also the first time that we are seeing a fuller explanation on how the G defines a falsehood under Pofma.  It isn’t so simple like whether a statement is verifiably true or false, but also about whether people would view that statement in the “wrong’’ way.  It therefore comes down to, yes, interpretation.

Pofma covers not just “expressed’’ statements, but “implied’’ statements as well. Remember also that the Pofma also covers statements that are false or misleading, whether in whole or in part, when read on their own or in the context in which they appear. 

It doesn’t matter if the same statement can be viewed “rightly’’ or in many different ways, that is, have “multiple meanings’’. What matters is whether the minister believes that some reasonable people will give the statement a false interpretation. If so, he or she would be duty-bound to act in the public interest to stop the spread of falsehoods. 

That, in a nutshell, is my layman’s interpretation of the affidavits put up by the G, and which the SDP had referred to in its own report of the “in chamber’’ hearing last night. 

In his submissions, Mr Nair said that an ordinary reader is “not expected to read articles with cautious or critical care, and may engage in certain amount of loose thinking’’. 

“Different people may therefore reasonably read or understand a publication differently. It is evident that where one segment of the public may reasonably understand the statement in a way which is false, the relevant Minister is permitted to take action to deal with that falsity. It is irrelevant that the statement may also be reasonably understood in another way which is not false.”

I have to say I am more used to lawyers arguing that their version of the “truth’’ is the right one, or insisting that there was no other way to view an issue other than their own way. In defamation cases, for example, the aggrieved party has to argue that the statement — which must be false — would make people think poorly of him. It was quite disconcerting to hear Mr Nair talk about multiple meanings and how this doesn’t matter under Pofma so long as one meaning is false. 

Mr Nair said in his submission that Senior Minister of State for Law Edwin Tong had made this plain in the second reading of the Pofma Bill in Parliament last year when he said that the definition of false statements “addresses the various ways in which reality might be distorted’’. 

Yes, it was raised in Parliament. MP Seah Kian Peng, speaking in Parliament in support of the G’s definition of a falsehood had said: “Online falsehoods are seldom completely false. Most misleading messages hold a grain of truth, but their sum total is a lie.”

Worker’s Party MP Low Thia Khiang had argued at the same session of Parliament that the wide definition of false statements will allow the Minister to decide whether something is fact or opinion based on his or her own needs. “The same words coming from different people may be interpreted differently by the Minister.”

Speaking to reporters after the hearing,  Mr Nair noted that the SDP had argued in chamber that Pofma gave the minister carte blanche to decide on truth or falsity. That was not true. He said the minister who initiates a Pofma direction will look at the article or statement in question and determine what he or she believes to be its meaning. A correction direction can then be issued based on the minister’s interpretation.

“But that’s not the final say,’’ Mr Nair said.

“The court will determine what the statement says.  So if the court disagrees with the minister, then the minister’s interpretation will not be accepted. So it’s not correct to say that the minister determines what the statement is and that is the final determination, that is not correct,” he said. 

It seems to me that unless the falsehood is a simple case about whether a building had collapsed or not, it makes sense for a person who had been Pofma-ed to keep going to the courts for a final say on whether the “false” statement had really implied something you didn’t mean it to.

How do these legal principles apply in this case?

SDP had made two statements labelled as false by MOM: That local PMET retrenchment has been increasing, and that local PMET employment has gone down. MOM also took issue with its statement that there was a rising proportion of Singapore PMET retrenchments. The data itself wasn’t in dispute. It was more a case of whether the data was correctly presented or could be misinterpreted falsely. 

Mr Nair said that one of the “meanings’’ that the minister determined in the SDP case is that local PMET retrenchments are increasing. That, he argued, would be what a reasonable person would conclude from reading the statements SDP made.

“Now, if the court agrees with that meaning, then the next question is, is that statement true or false? So one looks at the data, which is not disputed, and look at the number of PMET retrenchments. …if it’s going down, the statement must be false. If it’s going up, they must be true. So it’s as simple as that.’’

SDP had issued a rebuttal for each correction directive, which it wants the judge to cancel. It presented its case yesterday and this morning. When it came to his turn, Mr Nair, countered that the party had not presented any direct data to support its allegations. Instead it was attempting to “muddy the waters’’ by using terms such as local PMETs to refer to only Singaporean PMETs when it used the same term to refer to both Singaporean and permanent resident PMETs in other instances.

Much of the contention revolved on an SDP  policy paper published in June last year (pre-Pofma) and which SDP referred to later (post-Pofma). The paper presented SDP’s proposals to reform the immigration system which the SDP alleged has led to local PMETs being displaced by foreign PMETs. 

The MOM and Mr Nair said that current statistics, from 2015 to 2018, showed that it was not true that more local PMETs were being retrenched. It cited three different charts to make this point. SDP countered that if the numbers were studied over a longer time frame, from 2010 to 2018, they would show that its assertion on local PMETs was true. 

Mr Nair said that the use of 2010 figures was an “afterthought”, “irrelevant and misplaced”. This is especially since an ordinary person would have thought that the issue of increasing PMET numbers was a current issue, especially since SDP was pushing for policy reform.

“Knowing that it cannot sustain its assertion that the number of retrenched local PMETs have been increasing recently, the SDP has contrived to rely on data going back to 2010,” added Mr Nair. 

“This is simply disingenuous.” 

 Asked if the G’s Pofma case was in large prompted by the SDP’s attempt to advance a political proposal, Mr Nair disagreed. 

“The proposal is not the subject of Pofma. The SDP can make whatever proposal they want. The question is, what is the problem they are making the proposal in relation to? The problem they are making the proposal in relation to, according to the article, is rising PMET retrenchments. So the question is, are local PMET retrenchments rising?”

Referring to the data used by MOM, Mr Nair asserted that it was a “fact” rather than an “opinion”, to claim that local PMET retrenchments were “going down”. 

When reporters asked SDP’s Dr Tambyah about the SDP’s decision to date its chart from 2010, he said it was to gather sufficient data for statistical analysis.

“If you only use 2015 to 2018, there are too few points in the timeline to be meaningful. So we just took 2010, you could pick 2011, you could pick 2012, you see the same data, you see the same results,” he said.

The issue of burden of truth also surfaced in the hearing.

Mr Nair had argued that the burden of proof was on SDP to prove that its statements were true, as it was the party bringing the court action. The SDP said that the burden of proof should be on the MOM as it had made the “first accusation”.

“So we are going to get our lawyers to try to sort it out,’’ Dr Tambyah told reporters.

“I mean, friends who are lawyers. We can’t afford to pay lawyers.’’

So this is not such a simple case after all. You get my meaning?