Singapore—On Thursday, May 2, press secretary to Singapore’s Law Minister said that under the proposed anti-fake news bill, the Government’s powers, as well as the public interest grounds on which the Government can exercise its powers, “are actually narrower than the Government’s existing powers.”
Channel NewsAsia (CNA) reports that Press Secretary to Law Minister Teo Wan Gek said this in answer to Senior Counsel Harpreet Singh of Clifford Chance Asia, who had written an opinion piece in the Straits Times on Wednesday, May 1. Siraj Omar, also a Senior Counsel, had written an opinion piece concerning POFMA as well. Both men had included recommendations to amend the bill.
POFMA is scheduled for a second reading on Monday, May 6, and is expected to be passed this month.
Ms Teo had responded to both men, and her letters were published in the Straits Times on Thursday, May 2.
Its goal is to curtail the spread of fake news and hate speech and empowers ministers to order websites to place warnings for material they consider false, as well as to have these kinds of posts taken down.
According to Mr Singh “legitimate concerns remain” even though the Government has repeatedly issued reassurances that the Bill would not stand in the way of freedom of speech.
He cited the broad definition of a “false statement of fact” and a minister’s subjective determination of “public interest” as issues of concern.
Mr Singh wrote, “Falsehoods extend to any statement that is ‘misleading … whether in whole or in part, and whether on its own or in the context in which it appears’.”
“These requirements set a very low bar for a minister’s exercise of the extensive powers under the Bill,” he added.
Regarding Mr Omar’s perspective that POFMA is “a more measured and calibrated approach” to tackling online falsehoods, Ms Teo was in agreement.
Mr Omar pointed out that the Government is already in possession of wide powers due to the Broadcasting Act and other such laws so it can deal with online content perceived to be against public interest, which includes the ability to block access to certain cites, such as the States Times Review sometime last year, since it carried an article that implied a connection between Singapore’s Prime Minister Lee Hsien Loong and Malaysia’s 1MDB scandal.
According to Mr Omar, “Those who fear that the Bill is an attempt by the Government to broaden its powers should keep in mind that it already possesses wider powers than those provided under the Bill.”
To which Ms Teo was in agreement, saying that some of those who have commented on POFMA seemed to have missed this point.
Again, she emphasized that POFMA actually narrows the Government’s powers, saying, “The Bill does seek to scope down and calibrate the Government’s powers in key areas.”
Mr Singh also brought this up distinguishing between opinion and fact.
“While the Bill is not intended to apply to opinions and criticisms, it is often difficult to differentiate statements of opinion and statements of fact.
Opinions and criticisms are often premised on underlying statements of fact. Even statements of pure opinion carry an implied statement of fact that there is a reasonable basis for the view expressed. The Bill, as drafted, may easily be interpreted to extend to criticisms and opinions as long as one of the underlying premises of fact is erroneous.”
Ms Teo answered that for these cases, there is legal theory, or jurisprudence, saying, “If there is a dispute, ultimately the Courts will have to decide whether a statement was factual, or an opinion.”
Mr Omar pointed out that the Bill makes it possible for individuals to appeal to the High Court if they are in disagreement with the minister’s decision on the question of whether something is a “false statement of fact”.
Under current laws, there is no right of appeal like this, he wrote.
“The fact that the Bill refers to a right of appeal and not a right of judicial review is also significant, as the appellate standard is lower than that required in cases of judicial review. The Bill, therefore, provides for greater judicial oversight, which in turn limits the scope of the Government’s powers.”
He also stated his belief that POFMA may threaten freedom of speech through making the distinction between opinion and fact one that is difficult to determine is without foundation.
“The Bill expressly defines a ‘statement of fact’ as ‘a statement which a reasonable person seeing, hearing or otherwise perceiving would consider to be a representation of fact’. It is an objective standard that applies, not the minister’s subjective view.”
On his part, Mr Singh proposed changes to POFMA, which includes providing reasons to support a minister’s order against an alleged online falsehood.
“Specifically, it should require a minister’s order to identify the relevant falsehood, set out what the true position is, identify the specific public interest involved and how it is threatened by the falsehood, and articulate why the order is both proportionate and necessary.”
If a post is commanded to be taken down, or a site disabled, reasons should be provided as to why a less stringent penalty would not be sufficient.
He also said that POFMA should require that a minister’s orders be a proportionate response to the nature of the fake news and how much harm it could cause to public interest.
Ms Teo responded that a “close reading of the Bill will show that it already contains the proportionality requirement”.
The Press Secretary to Law Minister added that the two following suggestions would be considered.
Mr Singh asked that Parliament review POFMA every year for the next five years, and provide a summary of orders from ministers, the reasons why they were ordered, how many appeals were filed and what the results of these appeals were. This way, he said, Parliament would know if POFMA is achieving its legislative aims and how it can be made even better, as needed.
For his part, Mr Omar suggested that a simplified process of appeal be put in place, as well as making legal or financial aid available so that legal costs would not be a deterrent in the process./TISG
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