The Buzz over Free Speech: Kena POFMA already or not?

By Alvina Koh

ILLUSTRATION: LIANG LEI

It’s become something of a joke these days to say that someone has been POFMA-ed. The Protection from Online Falsehoods and Manipulation Act is the latest weapon in the Government’s arsenal directed at irresponsible speech.

Free speech in Singapore is a guaranteed right under the Constitution of Singapore but this is caveated by a clause which says “Parliament may by law impose such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof”.

Speech in Singapore is thus ringed by a series of legislation, with several changes to the law in recent years. The key arguments for such laws include the need to maintain order and social cohesion in a multi-racial and multi-religious society. The rise of social media within and across borders has added to the fear of what unbridled free speech will lead to — polarization and chaos.

The Government and conservative observers have justified the curtailments by contrasting the relative disorder in western societies, where liberal values are more entrenched, with the relative stability in Singapore, where public order is prioritised over individual rights.

Furthermore, it has often been argued that for the majority of Singaporeans, their material prosperity is more important than the right to free speech, and that it has been successful in providing it to the people.

Many liberals and critics, however, contend that many of these curtailments have little to do with the public interest of Singapore, but are measures used by the Government to maintain its political dominance and silence dissent. They warn of a future where it becomes difficult to hold the Government accountable, should it one day stop delivering economic prosperity and social stability.

On top of that, even though in practice the laws do not affect the free speech of the vast majority of Singaporeans, critics have also taken issue with the concept of “OB markers”, short for “out-of-bounds markers”, which is not covered by the law, but implicit indications by the Government of what topics lie outside what is permissible for public debate. Because the conditions for which an issue falls “out of bounds” is ambiguous, critics argue that this breeds a culture of self-censorship, or what’s known as the chilling effect which deters people from voicing their opinions because they do not know if they would be crossing a line.

In recent years, a new facet has since entered into the public discourse on free speech: foreign interference. This was an issue that surfaced in the 2016 US Presidential Election and the British Referendum on Brexit, which were alleged to have been influenced by foreign disinformation campaigns, in some cases by hostile state actors. This can take the form of influences which accommodate hate speech in some form, the introduction of religious ideas inimical to the national interest, as well as covert funding of local media to subvert a country’s system.

Besides defamation laws and the regulated use of spaces for assembly, several laws passed in recent years have given the Government what critics say is an expanded arsenal of specific tools that stifle free speech to preserve public order. Here are a few to take note of:

Protection against Online Falsehood and Manipulation Bill (POFMA)

Passed in Parliament on 8 May 2019, POFMA gives the Government the power to demand corrections or takedowns of what it deems as false statements of fact, and impose criminal penalties on perpetrators who continue to put out fake news. Ministers get to determine what is factual and what is not, which critics say puts too much power in the hands of the minister. The Government has argued that it is the courts, not the ministers, that are the final arbiters of the truth because individuals can appeal the use of POFMA against them in the courts. It added that the time-sensitive nature of POFMA cases makes it necessary for the Executive, which can act faster than the courts, to be the initial decision-makers on what are falsehoods

POFMA does not apply to opinions, satire or academic-based research. In cases where observations and conclusions are drawn from unreliable sources or are aimed to mislead, academic-based research may still be subjected to interrogation by government agencies.

Example: POFMA

1. Statement not covered by POFMA: A states that government policy is not working.

2. Statement covered by POFMA: A additionally states that 500 companies had made complaints about the relevant policy, when this did not happen, the latter statement is a false statement of fact.

(source)

Penalties for offences violating POFMA. Source: Ministry of Law Singapore

The recent spike in falsehoods pertaining to COVID-19 has witnessed the government invoking the POFMA legislation more often than usual. The reason for doing so is straightforward — falsehoods about the virus can easily cause widespread panic and Ministers armed with the right statistics and information can quell unnecessary hysteria quickly. Such sentiments are also echoed by opposition members like Workers’ Party chief Pritam Singh, who agreed that the principle of POFMA should be targeted at correcting bogus claims made about the virus.

As of Feb 23, seven correction orders have been issued against falsehoods made about the virus. In less than a month, the States Times Review (STR) received two correction orders for two separate posts made on Jan 30 and Feb 13. Among other things, Alex Tan Zhi Xiang, owner of the STR Facebook page, had claimed in his posts that Singapore had run out of masks and that the Government had failed to trace the source of infection for any of the infected COVID-19 cases in Singapore (Feb 13).

When Mr Tan refused to comply with the correction directions, the Government ordered Facebook to block access to STR’s Facebook page from all Singapore users — the most severe action taken under the ambit of POFMA so far.

However, the bulk of POFMA cases have so far only dealt with corrections. People’s Voice party leader Lim Tean has received two correction directions for his Facebook posts. Progress Singapore Party (PSP) member Brad Bowyer has received one. While both complied with the order, they have not stopped posting on  Facebook. Is it possible that knowing what sort of discourse and content to avoid, the contexts in which POFMA is being invoked could instead be generating new spheres for discussion rather than chilling free speech?

Two parties have challenged — unsuccessfully — the correction directives issued to them. The Singapore Democratic Party (SDP) made the country’s first legal challenge on Jan 16 after the Government ordered corrections for three online posts the party had made describing the employment trends of white-collared workers. While the judge, Justice Ang Cheng Hock, dismissed the SDP’s appeal, he said in his judgement that the Government, and not the appellant, should carry the burden of proving a statement false.

That interpretation of the fake news law was however disputed by Justice Belinda Ang in a later Feb 19 judgement dismissing an appeal by socio-political news site The Online Citizen. She said in her judgement that the burden of proof should lie on the person making the statement, not the Government. This means there are currently two legal precedents for the same law, known as a jurisdictional split, and it would remain to be seen how the court would decide which party bears the onus of proof for future POFMA cases.

The Administration of Justice (Protection) Act

Enacted in August 2016, this Act puts together past laws and regulation intended to uphold the judicial system and the integrity of the judiciary. Penalties are set for those who scandalise the court system, disobey its orders or try to interfere with the course of justice.

Example: Scandalising the Court

1. Illustration that scandalises the court: A states that the Singapore court is unfair.

2. Illustration that provides a fair criticism: A provides a rational basis for the criticism in (i) and such rational basis is accurately stated.

Example: Interference with Court processes

1. Instance that reveals an attempt to influence the outcome of cases: Publishing unauthorised recordings (both audio and video) of court proceedings.

2. Instance that does not reveal an attempt to influence the outcome of cases: Family discussion of pending proceedings over dinner.

Any person found to be liable for such an offence may be fined up to $100,000 and/or jailed for up to 3 years.

Protection from Online Harassment Act (POHA)

POHA was enacted in 2014 to tackle cases of harassment and stalking, as well as to provide civil remedies in cases of false statements of fact. The Act was revised twice in the past five years to include new internet crimes such as doxxing, where personally identifiable information is released to harass others. This includes information such as where they work and live, and their phone numbers. The wide accessibility of digital information has turned many into ‘watchmen’ who infringe on the privacy of individuals.

Example: Doxxing

1. Non-doxxing behaviour: Uploading videos of public disputes online to provide factual account of incidents.

2. Doxxing behaviour: Sharing a person’s LinkedIn profile on social media, to encourage others to stalk and leave threatening comments.

Penalties for offences violating POHA. Source: Ministry of Law Singapore

Victims of doxxing are set to get speedier redress in the new Protection from Harassment Courts (PHC), which will oversee criminal and civil cases concerning both online and offline harassment.

Maintenance of Religious Harmony (Amendment) Act

Introduced in 1990, this law was enacted to help the authorities prevent friction and misunderstanding between the country’s religious groups, as well as ensure religion stays separate from politics.

It was introduced at a time when religious groups had become more assertive and were competing more intensely for followers than before. Examples include how a Muslim preacher denounced Christianity as “the most foolish religion” and Christian groups pasted posters on an upcoming seminar outside a Hindu temple.

The Act provides powers for the Government to issue restraining orders against those who incite enmity, hatred, ill will or hostility between religious groups. It also targets those who use the guise of religion to promote a political cause, or cause discontent against the Government. The restraining order can prevent individuals from addressing religious groups on certain subjects, and prevent them from printing, distributing or holding office on the editorial boards of religious publications.

In Oct 2019, the government amended the Act to tackle the speed at which offensive remarks about religion can spread via the Internet. These amendments allow the Government to take down offensive posts immediately, rather than wait 14 days for dissenters to respond to the Presidential Council for Religious Harmony.

Other changes include ensuring that key positions in local religious organizations can only be held by Singaporeans or permanent residents. They have to disclose any donation of $10,000 or more if the donors are foreigners or foreign organizations. A Community Remedial Initiative was also set up as a means to help those found to be hurting religious sentiments mend ties with the community.

BUZZ POINTS

WHY THE BUZZ?

The Government is no laggard when it comes to policing the boundaries of free speech. There seems to be a consensus on the need for tough measures, even though some worry about laws being used as a political tool or about executive “overreach’. Nonetheless, these laws are effective in curbing dissentious remarks. For all it is worth, the stringent laws have allowed the incumbent to retain control over several “out-of-bounds” issues that can pose a real threat to the nation. Restraint on certain domains of free speech is thus justifiable in the eyes of many Singaporeans.

The trouble with free speech here lies not in its implementation, but in the complexity of understanding how the law is being applied. For the layman, the contexts in which the legislations are invoked may sometimes appear arbitrary or unusual. In other cases where legal technicalities are overly prioritized, masses might find it hard to comprehend why such cases were even hatched in the first place.

Particularly with the inception of POFMA, the discretionary power that lies in the Ministers to issue corrective directions when they deem fit can be very unnerving for the common man who might not know when and what to speak out. Thankfully, the trend in the POFMA cases point otherwise — the law seems to be less concerned with what our typical Facebook commenter has to say, but more on the intention and words put forth by outspoken figures or institutions. Anyway, whether the POFMA legislation and its counterparts prove to be a bad thing for free speech in Singapore is still up for debate, particularly with the rampant spread of fake news about the virus.

Read Alvina's take on free speech here.