In Singapore’s war on fake news, the Constitution is not an obstacle

Singapore’s highest court, the Court of Appeal, has decided the first case under the city state’s Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The whopping 154-page judgment of 8 October 2021 finds key elements of the Act constitutional and establishes a test to determine the lawfulness of governmental correction notices. The case illustrates how the government’s insistence on factual accuracy pushes the courts to almost absurdly meticulous assessments, while being barred from asking the most significant question.

POFMA and the first High Court cases

In a prior post, I discussed the key provisions and potential problems of the POFMA. In short, the Act mainly allows the government to issue “Directions”, mandating persons or intermediaries to post corrections, stop certain communications, block access to or cut off online locations from advertisement revenues. Criminal liability is stipulated for various cases of non-compliance and for the communication of a false statement of fact if it is “likely” to affect certain public interests. Abstract threats are sufficient to trigger liability. In addition, governmental fact checks, published on “Factually”, accompany the legal responses.

In February 2020, the first two POFMA cases reached the High Court: Singapore Democratic Party v Attorney-General (dealing with allegedly false statements about the level of unemployment) and The Online Citizen Pte Ltd v Attorney-General (dealing with an allegedly false statement regarding execution methods in a prison). The appellants had received Correction Directions, which can be issued to a person who has communicated a false statement of fact in Singapore. They require the person to insert correction notices usually at the top of the respective article, Facebook post or other online statement. The appeals filed by the Singapore Democratic Party (SDP) and The Online Citizen (TOC) against the Correction Directions were both dismissed by the High Court.

Among other issues, the cases raised the fundamental constitutional question whether false statements of fact are protected by the right to free speech (Article 14(1)(a) of the Constitution). The High Court judge in the SDP case considered that the Correction Direction restricted freedom of speech and argued that the Minister therefore bore the burden to prove that the statement was false. The judge in the TOC case, however, found that Correction Directions do not restrict free speech and held, more fundamentally, that “the nature of the speech in question is not in the categories of speech covered by Art 14.” Thus, the stage was set for the Court of Appeal not only to address these conflicting views but also to provide an analytical framework for future POFMA cases.

POFMA and free speech

The Court of Appeal did not fail to live up to the expectations and delivered 154 pages of constitutional, statutory, and factual analysis. It began its assessment with a discussion of the POFMA’s constitutionality. The Attorney General had challenged the Court of Appeal’s constitutional review power, but the judges referred to similar prior cases and insisted that “if there is substance to the constitutionality concerns raised by SDP and TOC, then it would undermine the very basis on which the [Directions] were issued” (para. 48).

The first constitutional issue was the scope of protection (Schutzbereich) of Article 14(1)(a): Do false statements enjoy free speech protection? Invoking the marketplace of ideas metaphor and citing prior cases, the Court reiterated that “there is no interest in being misinformed” (para. 58). Thus, false speech is not protected. However, the Court rejected the Attorney General’s assertion that the minister’s determination of falsity would in and of itself remove constitutional protection. Rather, the judges emphasized that “truth and falsehood are ultimately matters to be determined by a court” as “the Minister may, after all, be mistaken” (para. 60). Therefore, statements enjoy constitutional protection until judicially determined to be false.

As the constitutional protection of free speech thus continued to apply in this case, the Court went on to consider whether Correction Directions amounted to restrictions of this right. The (debatable) answer: No, because the communicator remains free to continue publishing the material including the alleged falsehood, “save that it must also put up the specified correction notice in respect of that material” (para. 67). Neither a person’s positive right to free speech would be affected, nor their negative right. In the latter regard, TOC advanced the U.S. constitutional doctrine of compelled speech and argued that the correction notice fell under this category. While the Court left undecided whether the doctrine applies in Singaporean law, it argued that, in any event, it was not a case of compelled speech because the person concerned “retains the freedom to qualify [a position with which one disagrees] appropriately in an equally visible manner” (para. ). I think that better arguments speak for a restriction, as the communicator is impacted in their freedom to choose the appearance, context and effect of the statement.

The Court could have ended its constitutionality assessment here: No restriction, therefore no violation. But the judges apparently wanted to seize the opportunity to say a bit more about the constitutional issues raised by the POFMA. They thus proceeded to the (hypothetical) assessment of whether Correction Directions were constitutionally justified, assuming they restricted free speech. But they did not stop there: “for completeness, we analyse [the constitutional justification] with reference to the Act as a whole” (para. 81) – a bold announcement as the Court eventually did not address many issues that would have merited discussion. For instance, the Act’s criminal provisions remained entirely unaddressed in the Court’s assessment.

Constitutional justification: The truth as a public interest?

Article 14(2)(a) of the Constitution allows such restrictions as Parliament considers “necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence.” The Court affirmed that Parliament considered the enactment of the POFMA “necessary or expedient.” To support their finding, the judges referred to statements from parliamentary debates, including the partly bellicose language – “shift in the rules of war” (para. 89) – with which the government had framed the fake news threat back in 2019.

The key point that SDP had raised, however, was whether Correction Directions could be justified with reference to “public order” because the POFMA authorizes the competent minister to issue Directions if he or she believes that such issuance is in the “public interest.” Public interest is broadly defined in Section 4 of the Act and refers to the protection of national security, public health, safety or tranquility, public finances, international relations, elections or referenda, peaceful relations between different groups, and public trust in state institutions. The question was whether the elements constituting public interests under the POFMA would match up with the grounds for restrictions under Article 14(2)(a) of the Constitution. In particular, the applicants doubted whether undue influence on elections and the diminution of public confidence in state institutions fell under “public order.”

The Court proceeded to discuss wider and narrower approaches of defining public order, with references to Singaporean and Indian case law. The judges eventually adopted an interpretation not requiring physical disorder. Rather, they appeared sympathetic to a test advanced by the Supreme Court of India, which asks whether a particular act “led to disturbance of the current life of the community.” The Court thus fell largely in line with the government’s interpretation and held that “the use of falsehoods and lies to undermine a democratically elected government cannot be tolerated and cannot be seen as being compatible with a state of public order” (para. 99). What is more, according to the Court, the proliferation of online falsehoods undermining an election “shakes the foundations of a democratic society to its very core and carries the potential for far greater harm” (para. 100).

Therefore, the provisions enabling Correction Directions were (hypothetically) constitutionally justified. It should be reiterated, though, that other governmental powers under the Act remained unaddressed despite the Court’s initial intention to discuss them.

In addition, in what appeared to be something like a Freudian slip, the judgment says that “the balance that is at stake in the POFMA context is the protection of truth in public debate on the one hand, and the protection of free speech on the other” (para. 151). Of course, POFMA does not (yet?) protect the truth for its own sake, but rather serves the protection of the aforementioned, enumerated public interests. Is the Court’s phrasing perhaps the first sign of the truth emerging as a novel ground to restrict free speech?

Proportionality

Finally, TOC raised the additional argument that the relevant POFMA provisions would only be constitutional if an additional proportionality requirement was read into them. The Court rejected this, relying in part on comments by the Minister of Law in the parliamentary debate, who had argued that proportionality was already incorporated within the Act. The judges held that the POFMA indeed requires the competent minister to assess whether a given Direction is “necessary or [sic] expedient.” Therefore, no additional proportionality requirement would be needed, specifically not “one that requires the Minister to utilize only the least restrictive means available to him in the circumstances” (para. 112).

This finding is not surprising. Singapore’s legal system adheres to a thin version of the rule of law. Courts largely defer to the will of Parliament as they enjoy only limited substantive constitutional review powers. The Court of Appeal’s decision is an example of this Westminster-like arrangement.

Still 89 pages to go…

Less than halfway through the judgment, the Court turned from the constitutional issues to highly detailed questions of how to ascertain a minister’s intended meaning of an allegedly false statement, how to determine its objective meaning according to the understanding of “an appreciable segment or a particular class of the potential readership or audience” (para. 156), and the issue of the burden of proof.

After that, the remainder of the judgment applies the Court’s analytical framework to the two cases. In the SDP case, the Court meticulously determines the minister’s intended meaning of the impugned statement, its objective meaning, whether the statement was made in Singapore, and whether it was false. Thirty pages down, the result is confirmed: SDP’s statement that “a rising proportion of Singapore PMETs [was] getting retrenched” and an accompanying graphic were false. Same in the TOC case: The statement alleging brutal execution methods in a Singapore prison was false, too.

The key questions remain unanswered, again

Now that we know that these statements were false, the obvious next question should be: Were the statements likely to affect one of the enumerated public interests, hence, significant enough to issue the Correction Directions? Could the statements potentially have an impact on public debate so that governmental intervention was required? These questions remain unanswered, again. The POFMA (Section 17(5)) bars the Court of Appeal, like the High Court, from addressing them. Indeed, the Court of Appeal emphasized the minister’s executive power and stated that “the decision to issue a Part 3 Direction in respect of a subject statement is a discretion that clearly lies with the Minister alone” [emphasis in the judgment]. The assessment of whether it is “in the public interest” to issue a Part 3 Direction (…) is part of the discretion to be exercised by the Minister, and not by the court” (para. 130).

Thus, the courts’ task is merely to assess the falsity of impugned statements. Driven by the government’s intention to weed out online falsehoods, judges must engage in highly detailed interpretations. The actual or likely impact of a statement is relegated to insignificance. The truth must prevail.

At the same time, the government’s use of the POFMA has been increasingly politicized. It is therefore highly doubtful whether the Act is a suitable tool to maintain public trust in institutions. It might be more advisable to engage in constructive public dialogue rather than using the law to defend the government.