Administrative law Right to freedom of speech and expression (Article 14)

The Standards Applicable to Challenges of POFMA Directions | Symposium on POFMA | By Marcus Teo

Marcus Teo is a Teaching Assistant at the Faculty of Law, National University of Singapore, where he teaches constitutional & administrative law and the Singapore legal system. His research interests include constitutional & administrative law and private international law. Marcus is also an advocate and solicitor of the Supreme Court of Singapore.

Earlier this year, Parliament passed the Protection from Online Falsehoods and Manipulation Act (“POFMA”) to combat fake news online. Parts III and IV of POFMA empower any Minister to issue a Correction, Stop Communication or Disabling Direction (a “Direction”) against statements made online that meet two requirements. First, those statements contain false statements of fact. Second, the Minister must be of the opinion that it would be in the “public interest” for such a Direction to be granted.

The statement-maker to whom a Direction has been issued may then challenge it in court, on two grounds. First, she can argue that either that the Direction was flawed in its merits, on grounds that her statement was true, or was not a statement of fact (i.e. was a statement of opinion). Second, she can challenge its legality, on grounds that the Minister’s making of the Direction exceeded the legal limits imposed by POFMA itself.

To date, POFMA has yet to be used. Thus, how courts will actually assess the merits or legality of POFMA Directions, in particular the standards it will apply to such assessments, remains unclear. Given the plain wording of the relevant sections of POFMA, one might reasonably assume that challenges to such Directions will be held to the current standards required of defendants to defamation suits (for a Direction’s merits) or judicial review of administrative decision (for a Direction’s legality).

However, as Benjamin Joshua Ong has noted, reading POFMA in isolation from the applicable legal and interpretative framework may be misleading. Indeed, an investigation of POFMA’s Second Reading – specifically, the Government’s response to queries and criticisms raised about the Bill – paints a more nuanced picture of the two standards applicable to any challenge to a Direction’s merits or legality respectively. In fact, those two standards may be more lenient than those in tort and administrative law with which they might be compared. The two standards will be dealt with in turn.

A challenge on merits: A comparison with the defence of fair comment in defamation

Challenges to the merits of a Direction, on grounds that the impugned statement is a statement of opinion rather than fact, draws a natural comparison to the defence of fair comment in defamation suits. However, the standard a statement-maker must meet in relation to POFMA may be more lenient than that she must meet in raising a defence of fair comment.

As the Court of Appeal noted in Review Publishing v Lee Hsien Loong, the defence of fair comment is available only, inter alia, if the defendant can show that reasonable persons may “readily distinguish whether she is stating a fact or making a comment”, if her comments are “based on facts”, and if her conclusions are those a “fair-minded person can honestly make on the facts”. Further, in the context of defamation, it is unclear whether (or which forms of) satire may amount to fair comment.

In contrast, for challenges to the merits of POFMA Directions, broadly-worded and general statements of facts, and statements which insinuate improper motives on governmental agencies, may not be considered “statements of fact”: for example, Illustrations in a Handout by the Ministry of Law distributed during the Second Reading (labelled “Annex 4”) show that statements like “climate change is not real” or “the Government, by banning a death metal concert, was beholden to Christians” are regarded as “statements of opinion” for POFMA’s purposes. Further, the Government has emphasised prior to POFMA’s Second Reading (and it is now beyond doubt) that POFMA will not cover satire. Thus, the test for whether or not a statement is a “statement of fact” within the context of POFMA may be significantly more favourable to statement-makers than the test for fair comment in defamation suits.

The test of proportionality

During the Second Reading of the POFMA Bill, the Government affirmed that courts may assess the “proportionality” of the Direction issued to the nature of the statement made – in Mr K Shanmugan’s words, the belief that under POFMA “a judge cannot examine the proportionality of a [Direction]” is, simply put, “wrong.”

This affirmation is remarkable given that it radically departs from the Singapore’s High Court’s statement in Chee Siok Chin v Minister for Home Affairs (viz Article 14(2) of the Constitution which prescribes similar standards for limiting freedom of speech), that “proportionality has never been part of the common law in relation to…judicial review…[n]or has it ever been part of Singapore law.”

Importantly, the Government was probably not merely paying lip-service to the idea of “proportionality”, but intended to endorse that principle as understood in contemporary constitutional law discourse. Mr Shanmugam’s affirmation that “Proportionality is already incorporated into the requirements of [Directions under POFMA]” was given alongside his statement that in POFMA the “Government has gone one step further, perhaps more than one step further, than what [certain parliamentarians] have proposed”. Those parliamentarians Mr Shanmugam referred to had proposed that POFMA include principles which would limit a Minister’s powers to issue Directions to situations when the particular Direction used would be “the least restrictive on the rights of the public to speak and debate freely” in the circumstances (emphasis added). Hence, an application for the judicial review of the issuance of Directions, on grounds that it was disproportionate and not the least restrictive means of achieving the relevant public interest in the circumstances, may succeed.

When POFMA will be used

Since no POFMA Direction has yet been issued (let alone challenged in court), the above conclusions, on the standards applicable to assess their merits or legality, must remain tentative. Yet, perhaps the very fact that no such Directions have been issued itself shows that the Government is wary of overestimating its powers under POFMA.

POFMA came into force on 2 October 2019, and since then, there have been allegedly fake online statements against which Directions could plausibly have been issued. For example, in response to several articles it published after POFMA came into force, the Ministry of Law, Ministry of Communications and Information and Ministry of Health have accused The Online Citizen, an online media platform,of making statements which “contain falsehoods” in articles touching on issues within their regulatory purview. Interestingly, however, none of the three Ministries opted to invoke POFMA against those statements. This perhaps suggests that the Government recognises that POFMA should only used against alleged falsehoods which have the gravest consequences for public interests – in other words, when statements made are clearly false “statements of fact” as defined within POFMA, and when POFMA Directions would truly be the most proportionate and least restrictive means of combatting those false statements.

In conclusion, if the above observations on how POFMA balances free speech and the public interest are accurate, one must recognise that credit is due not only to the Government for striking this balance. This balance must also be attributed to numerous parliamentarians (both elected and non-elected), journalists, academics and lawyers who spoke up bravely and critically, at the time of the POFMA’s passage and thereafter, to ensure that POFMA did not unduly hamper deliberative democracy. Perhaps over time, the passage of POFMA through Parliament may come to be seen as a laudable instance of genuine collaborative law-making between the Government and civil society, for Singapore’s benefit.

Leave a Reply

%d bloggers like this: