Sunday, 5 May 2019

Law Minister K. Shanmugam responds to key issues on fake news Bill

Shanmugam spells out how law on fake news will work
A minister who takes action will have to give his reasons as to why info is false: Shanmugam
By Tham Yuen-C, Senior Political Correspondent, The Straits Times, 4 May 2019

A minister who acts against false or misleading information on the Internet under the proposed fake news law will have to give his reasons as to why the information is false, said Minister for Home Affairs and Law K. Shanmugam.

This will be spelt out in the subsidiary legislation of the Protection from Online Falsehoods and Manipulation Act, and is something the Government had intended to do all along, he added.

Speaking to The Straits Times on Thursday ahead of next week's Parliament session when the Bill will be debated, Mr Shanmugam sought to dispel the misconception that ministers will be able to arbitrarily make decisions without having to explain them.

The proposed law gives ministers powers to fight online falsehoods that harm public interest.

For instance, they can ask websites and social media platforms to put up corrections alongside untruths or take down the information completely, among other things.

Critics have said this would give ministers too much latitude to define what is true or false.

Mr Shanmugam said: "It will be part of the law that when you say something is false, you give reasons why you say it is false. All along we had intended to do it. This is going to be in subsidiary legislation; that's why it was not in the Bill."

He added: "It's common sense. How do you say something is false without setting out what the facts are, right?"

The subsidiary legislation will also set out the timelines for how fast the ministers and courts must respond when people want to challenge a decision. Last month, he had said the Government will make the appeals process fast and relatively inexpensive for individuals.

For technology firms and platforms, the appeal process will also be expedited but "they should pay normal fees", he added.

He emphasised that the law will focus mainly on these companies, which will be required to carry corrections or cut off a user's ability to profit from online advertisements, for instance. "They will be the ones who will be required to carry the clarification because it doesn't make sense to go and ask 20,000 people to carry clarifications. So that is the focus," he said.

When asked if the Government would trawl the Internet for fake news, he said it will not set up a body to do so. "There's no specific mechanism that will be set up to go and monitor. If it is fake news and of public importance, then one way or another, members of the public might alert us, it will come around and if we get to know about it, then we will deal with it," he added.

Since the Bill was introduced on April 1, the Government has received feedback from different groups, including academics, journalists and technology companies.

One of their anxieties is that the Government may treat critical opinions as fact and use the law to censor them. Some have suggested putting into writing that the law does not cover opinions, viewpoints and criticism, while others have asked for examples of falsehoods to be enumerated.

Mr Shanmugam said that while the Government does not plan to change the Bill, he will address the issues in Parliament.

"Instead of putting it in legislation, we will say that in Parliament. And it will go on record in the Hansard," he said, adding that this will be used by the courts for interpretation, during a court challenge or judicial review.

"So the feedback would be useful, in clarifying in public what the law doesn't cover."

Law Minister K. Shanmugam responds to key issues on fake news Bill
The Protection from Online Falsehoods and Manipulation Bill will be debated in Parliament when it sits next week. Home Affairs and Law Minister K. Shanmugam answers key questions on the proposed law in an interview with The Straits Times senior political correspondent Tham Yuen-C
By Tham Yuen-C, Senior Political Correspondent, The Straits Times, 4 May 2019


There is a body of jurisprudence and a lot of case law on how facts are defined and how to distinguish between fact and opinions, said Mr Shanmugam.

"That's the current law. Rather than try to reinvent the wheel and go and try to set it out in detail, we rely on the existing law," he added.

"Where the judges have said what is fact and what is opinion, and if there is a dispute on that, the final decision is with the courts."

For instance, in case law, the courts have said "a statement of fact is objectively verifiable whereas a comment is by its very nature not objectively verifiable".

The courts have also said how to define a fact: "One should adopt a common-sense approach and consider how the statement would strike the ordinary, reasonable reader, that is, whether it would be recognisable by the ordinary reader as a comment or statement of fact."

But some people have said there are varying degrees of truth and raised concerns that this would not be taken into account in the law. When asked to comment, Mr Shanmugam said: "We are talking about facts, how can there be varying degrees of fact? It's fact or false."

When given a specific example, like whether the statement "Lim Chin Siong is a communist" is fact or opinion, he said: "That's an opinion based on certain evidence. Based on that evidence other people can come to different conclusions. The body of research and historical opinion, historical evidence is there, you can choose to put weight on some and not others, and come to your view and somebody else can come to a different view. That would not be treated as a falsehood within the Bill.

"But supposing you say there is new evidence that shows (Minister Mentor Lee Kuan Yew) manufactured some data and put that out and used it - now, if it is not true, that is false. But whether that affects public interest is a separate point.

"You do research and you set it out and say, based on this research, I've come to this view, historically. That is not covered by the Bill. But supposing you manufacture or alter the data for your research, then that part is false.

"But the Government also has to prove it affects public interest. If it is something you publish based on altered data and it doesn't affect public interest, it's not within the Bill. So there are two gates, two hurdles to cross. By and large research should not be affected."

"But say, on public health, you manufacture the research data, and you say these injections that are being given by the hospitals have very serious consequences for people, based on my study. And your study is manufactured and altered. That is both a statement which relates to the public interest and is false."


The definition of public interest in the Bill is narrower than the definition in current law, said Mr Shanmugam.

"Under the Bill, when you talk about public interest, we actually included a set of specific factors that are relevant to public interest.

"If you look at the Broadcasting Act, it talks about public interest, national harmony and so on. It doesn't go into details as to what public interest is. When you don't specify, it's much broader, right? And national harmony is definitely much broader too."

Critics have raised concerns that a particular clause to explain what is in the public interest could be used to quash criticism of the Government. The clause says it is in the public interest for a minister to act against a piece of falsehood to prevent a diminution of public confidence in the performance of any duty or function of the Government.

Mr Shanmugam said: "If you are manufacturing falsehoods, I think people will have very little sympathy for you. First, it's got to be false. So why are you focusing on this particular definition? If it's false, it's false. And if it diminishes confidence in the police force, and you've put out a falsehood, why shouldn't I act?"


The spread of falsehoods can cause harm to public interest in many areas, so ministers who are domain experts in these areas are in the best position to decide whether or not to act, said Mr Shanmugam.

"You've got to move quickly and deal with the falsehood. So the individual minister is responsible and if he's challenged, he's got to go and justify in court. We've said the court process will be fast and simplified. So you give him the power, but there's also responsibility and there is accountability. He is accountable in Parliament, too.

"If you set up an independent body, if something happens, and they are the ones who have to decide whether to take down or carry correction, then if there are consequences, the consequences come to the Government. But the power to deal with it is with somebody else. That's not appropriate. You've got to put the power and the responsibility in the same authority. And impose accountability on them too."

During an election period, ministers will give up their powers under the Bill to an alternate authority which they have to designate. That authority is likely to be a senior civil servant.

When asked if it was feasible for civil servants - instead of ministers - to hold those powers at all times, Mr Shanmugam said: "Why shouldn't it be ministers? You are accountable to the electorate; you are accountable to Parliament. The civil servants are not.

"If anything goes wrong, I'm responsible, right? I cannot say that it's decided by somebody else. We are responsible, we are accountable in Parliament, we are responsible to the electorate, we take the decisions."

Also, the courts will be given the powers to review the ministers' decisions on appeal, he said. "So the courts decide finally and there is also judicial review."


"We want to scope down the Government's powers because the Select Committee showed there are major problems that societies face as a result of falsehoods. We wanted that debate and new legislation that is targeted narrowly at this problem rather than use the existing broad powers," said Mr Shanmugam.

"Today we can also ask for corrections. If you refuse to carry the correction, I'll just take it down, right? So I'll have the ultimate power. So I can ask for lesser remedies. But we are now targeting it very precisely. And targeting the tech companies.

"You have a specific problem, it's good that Government puts out a legal framework that targets the problem, narrows the powers, gives greater supervision to the courts. This is a voluntary action by the Government in that way."

The Bill has been described by some as far-reaching and broad. When asked to comment, Mr Shanmugam said: "Whatever concerns you have, they cannot be increased by this Bill. Because the Bill is narrower than the current law. If you look at the Broadcasting Act, the definitions of when one can intervene are broader and the powers of the Government are greater."

In France, the law against fake news is limited to mostly election meddling. When asked why Singapore did not consider doing the same, he said: "The evidence the Select Committee received showed the problems start well before the elections, which are not the main, primary concern. It is the destruction of institutions and societies. That's the primary concern."


The new law will not affect most people as it does not apply to people who forward fake news without knowing if it is true, Mr Shanmugam said.

"Most people don't sit at a computer and type out falsehoods that are intended to affect public interest."

But, he added: "Free speech by definition should not include falsehoods. The whole idea of free speech and the marketplace of ideas is that of contending ideas coming through. People debate but that should be based on facts.

"If you have falsehoods circulating, it corrupts the whole environment and prevents people from coming to sensible conclusions, prevents the public discourse from taking place properly."

On academic research, Mr Shanmugam said such work, which involves challenging an existing set of conclusions based on research, will not come within the Bill.

Acknowledging the concerns of academics, he said the Bill will not affect their work unless they manufacture underlying data. Even then, the Government will have to show that the work affects public interest before it can take action, he added.

"If they challenge existing data, put forward a different methodology, or they use a specific set of facts to come to a conclusion, and they make clear what their methodology is, it is part and parcel of academic work," he said, adding that Education Minister Ong Ye Kung will speak about it in Parliament.

On whether the Bill could have the unintended effect of self-censorship, he said: "We need to educate them that it applies only to people putting out falsehoods."

He added that various ministries, like the Education Ministry, is working on public education in this area.

Facebook rolls out fact-checking service in Singapore to combat fake news
By Lester Wong, The Straits Times, 4 May 2019

Facebook has announced the extension of its third-party fact-checking service to Singapore, days before the parliamentary debate on proposed fake news legislation is set to take place next week.

The social media giant is working with international news agency Agence France-Presse (AFP) to provide the service.

From Thursday, AFP started reviewing and rating the accuracy of stories in English, Chinese and Malay on Facebook in Singapore, including photos and videos.

The agency said it will have one fact-checking reporter at its Singapore bureau supported by a regional team in Hong Kong.

Stories can be flagged to AFP by either a Facebook algorithm or the user community. AFP fact-checkers also work to proactively identify false news content.

Facebook provides its fact-checkers with nine rating options.

Stories rated as "false", "mixture" or "false headline" by a fact-checker will be bumped down in users' Facebook news feeds, reducing their distribution.

Users who try to share content falling into any of the above three categories will also be notified of the fact-checker's rating.

AFP is committed to exposing and debunking disinformation around the world, said the agency's Asia Fact Check editor Karl Malakunas.

He added that AFP has fact-checking operations in more than 20 countries worldwide. Singapore becomes the sixth in the Asia-Pacific region after the Philippines, Indonesia, India, Pakistan and Australia.

Facebook started partnering with third-party fact-checkers in December 2016 after coming under pressure around the world to stop the use of fake accounts and other types of deception to sway public opinion in the wake of the US elections that year.

"We believe that with this fact-checking programme, we can help build a more informed community in Singapore and look forward to exploring more opportunities to expand this programme locally," said Ms Anjali Kapoor, Facebook's Asia-Pacific director of news partnerships.

Facebook's announcement comes days before the Protection from Online Falsehoods and Manipulation Bill is debated in Parliament next week.

Protection from Online Falsehoods and Manipulation Bill
Small group crying wolf, but most citizens want strong laws
By Edwin Tong For The Straits Times, 6 May 2019

The Asia Internet Coalition (AIC) is a lobby group representing technology companies.

Mr Jeff Paine's op-ed of May 4 (How the online falsehoods Bill can be improved) should be read in that context. He is the managing director of AIC. His piece misstates the Protection from Online Falsehoods and Manipulation Bill in material respects. This is surprising, given the Government's extensive consultations with technology companies, not to mention our public explanations.

For instance, Mr Paine:

• Asserts that a court cannot review a minister's assessment of the "public interest". This is untrue. Judicial review under administrative law remains available - this has not been ousted by the Bill.

• Says it must be written into the Bill that the definition of "fact" excludes "opinion". As the Government has explained, the definition of "fact" is established in jurisprudence. Fact does not include opinion.

• Claims a minister can make decisions under the Bill without oversight from an objective independent body. That again is untrue. Directions issued under the Bill are subject to judicial oversight by the Supreme Court.

• Says that there are no timelines for ministers to respond. He has overlooked what the Government has said many times: timelines will be specified in law, before the Bill comes into force.

• Claims the Bill offers only "limited... judicial oversight". The Bill actually extends the courts' role, beyond the current legal position. The Government has explained this publicly.

• Proposes interposing various additional steps before a falsehood can be dealt with. This is consistent with some technology companies' delaying tactics seen over the years in many countries. Have we benefited from their failure to act? Online falsehoods against the public interest require immediate, decisive action. The Bill requires technology companies to take firm action, which they have hitherto refused to take. In some countries, people have died because of this.

• Urges "transparency" surrounding the Bill's exemption clause. I find this particularly surprising, for surely Mr Paine must be aware that this provision primarily benefits technology companies. Exemptions can be given where technical constraints impede compliance with the law. The clause appears in various other legislation, for the same reason. Of course, if Mr Paine's comments in this regard truly represent the views of his clients, the Government is prepared to consider removing this clause.

Mr Paine makes other inaccurate statements as well. The evidence presented to the Select Committee, the Select Committee's Report, the evidence of the damage that is being done to communities around the world through the abuse of technology platforms - abuse that the technology companies have finally acknowledged, albeit belatedly - have all been ignored by Mr Paine.

He wields the phrase "free speech" to defend Big Tech's commercial interests (as they have been doing around the world, to increasingly sceptical audiences). As if bots, trolls, fake accounts propagating fake news, have all got the right to free speech. (But they do make money for Big Tech.)

Mr Paine claims the overwhelming consensus in Singapore is that this Bill will impact freedom of expression. It is unclear how he concludes this.

The Government is confident that there is broad and deep support among an overwhelming majority of Singaporeans for laws to tackle online falsehoods. The Government believes, with good reason, that the overwhelming majority of Singaporeans want strong laws to deal with online falsehoods.

If the Bill becomes law, Singaporeans' rights of expression will not be affected. Only perpetrators of falsehoods will be affected. And of course technology companies, which benefit from such falsehoods, will see some of their profits go down.

The Government is confident that most Singaporeans understand the Bill's main thrust. The concerted attempts by a small group of persons to mislead have not got any traction among most Singaporeans. The small group of persons I have referred to, speak in a shrinking echo chamber, with increasing shrillness. Some take refuge in alarmist language (including comparisons with nuclear wars) in desperate attempts to get attention. That is the extent of the "overwhelming consensus" that Mr Paine refers to.

Similar attempts, by a similar group, were made in 2013, to oppose some technical legislation relating to the Internet - and Singaporeans saw for themselves that post-2013, nothing had really changed.

Crying wolf repeatedly gets no attention. In saying this, I am not referring to some academics who have expressed concerns - their concerns are based on a misunderstanding of the Bill, and that will be explained in Parliament.

Nor am I referring to some middle-ground Singaporeans who have genuine questions about the Bill. Those questions will continue to be answered. The Government will continue its public education efforts so that there is an even better understanding of the Bill. Correcting misleading statements like Mr Paine's is part of that effort.

Edwin Tong is Senior Minister of State for Law and Health.

How the online falsehoods Bill can be improved
By Jeff Paine, Published The Straits Times, 4 May 2019

Over the last few weeks, members of the Asia Internet Coalition (AIC) have carefully reviewed the Protection from Online Falsehoods and Manipulation (Pofma) Bill that was tabled in Parliament on April 1. The response from diverse stakeholders to date is heartening, suggesting a strong, shared interest in Singapore's safety and security in this digital age.

As an industry voice for Internet policy in the Asia-Pacific, the AIC recognises that the perpetration of deliberate online misinformation is a serious and highly complex issue.

We share the Singapore Government's commitment to addressing the problem and commend its wide-ranging efforts over the last two years in bringing together diverse stakeholders to jointly develop solutions.

Ahead of the Bill's debate in Parliament next week, we hope that the following observations and recommendations from the AIC will be considered in the same spirit of multi-stakeholder collaboration.

While we support the intentions of the Bill, we have strong reservations on specific provisions - reservations that are shared by veteran journalists, legal experts, academics and human rights representatives.

The overwhelming consensus is that this Bill will impact freedom of expression and curtail the rights of individuals, Singaporean or otherwise, to freely express opinions and participate in informed discussions, even debates, that are necessary to ensure executive transparency and accountability.

In its current form, the Bill's vague definition of fundamental terms, such as "statement of fact", "false statement" and "public interest", creates room for a highly subjective application of the law.

The broadness of these prescribed definitions, as well as the breadth of the Bill's scope to cover virtually all kinds of communication, gives rise to a very real possibility of misuse by the authorities charged with its implementation.

We are also concerned with the lack of specific protections for the expression of opinion and criticism. While the Singapore Government has provided verbal assurances that criticism, opinion, satire and parody will not be covered within the scope of Pofma, it is a striking omission that these kinds of popular speech are not explicitly addressed or protected in the Bill.

Under Pofma, any minister, without oversight from ministerial colleagues or from an objective, independent body, will be able to issue a correction or take-down order for anything he deems to be a "false statement of fact" if he feels it is in the "public interest" to do so.

This puts an extraordinary amount of power in the hands of individual ministers, without a yardstick or consistent criteria to determine how ministers, who could come from different ministries and be issuing orders across a range of different types of publications, will reach or justify their decisions.

The limited scope of judicial oversight and the lack of robust safeguards in the appeal process are also worrying.

A ministerial review of the merits of an appeal as the first stage of recourse, is not, and cannot be considered an independent mechanism, nor impartial, if the appeal must be made to the minister who first ordered it.

An appeal to the court can be made only after an appeal to the minister who first ordered it has been made and rejected (and there are no requirements on how quickly a minister must respond to, or resolve, an appeal).

Assuming the appellant then has the resources to make a court appeal, the court can review an order only on very limited grounds. Most notably, the court cannot examine a minister's justification in citing "public interest" as a justification.

The Pofma Bill is an important piece of legislation that will significantly alter the way individuals in Singapore express their opinion and participate in debates that are of social, political and civic importance. With this in mind, the AIC is calling for smart regulation that strikes the right balance between reducing harm and protecting netizens' rights to meaningful expression.

To that end, we strongly advocate for the following:

• The provision of a specific process, detailed criteria and guidelines for ministers, in order to publicly justify the reasons and conditions for the issuance of a correction or take-down order;

• To ensure checks and balances, an impartial and independent body or mechanism must be put in place to assess a minister's request before any order can be issued;

• To ensure that freedom of expression and speech is protected and guaranteed in the long term, the Government's assurance that criticism, opinion, satire and parody will be exempt from the Bill must be codified in the language of the law;

• To ensure basic fairness in the Bill's application, we strongly urge the Government to provide transparency around any application of the exclusion clause, which allows "any person or class of persons" to be exempted;

• It is paramount that this Bill provides for clear and well-defined language and scope, targets very specific offences, and, critically, has full and independent judicial oversight and right to appeal available in a timely manner. In view of Singapore's track record of openness to feedback, and its measured, proportionate approach in policy and legislation in general, the AIC strongly urges the Singapore Government to give its utmost consideration to the input it has received in the last few weeks from diverse stakeholders, including these views and recommendations from industry.

Jeff Paine is the managing director of the Asia Internet Coalition, an industry association comprising leading Internet and technology companies. Formed in 2010, it seeks to promote the understanding and resolution of Internet policy issues in the Asia-Pacific.

NMPs agree on major points of Falsehoods Bill: Shanmugam
By K. Shanmugam, Published The Straits Times, 3 May 2019

Senior Counsel Siraj Omar and Harpreet Singh have published Opinion pieces in The Straits Times (May 1) on the Protection from Online Falsehoods and Manipulation Bill.

Three Nominated Members of Parliament have filed a Notice of Amendment in Parliament, with an explanatory note.

I have read all these pieces.

Both SCs and the three NMPs make some key points. They:

• Accept the need for the Bill.

• Accept that the Government needs to deal with the serious problem of online falsehoods.

• Accept that the Government needs to have the power to move quickly to deal with the problem.

• Accept that the Executive will have to make the decisions first.

Courts can thereafter review that decision if the decision is challenged.

These are central points, the heart, of the Bill.

Senior Counsel Omar also makes a very important point: The Bill gives less powers than the Government already has, under existing legislation, and at the same time, the Bill gives greater oversight to the courts.

Mr Singh makes the point that what is fact and what is opinion could be unclear. He has also set out some views on the definition of "public interest" in the Bill.

Mr Singh discussed the matter with me. I explained to him why the definitions in the Bill were the most workable, and that they were based on existing jurisprudence. I also told him that if he can come up with better definitions on the two aspects, I will be happy to consider them.

We have since also spoken with Mr Singh. Mr Singh explained that his Op Ed acknowledged the need for wide definitions of "fact" and "public interest" to address the risks posed to the national interest.

The approach taken in the Bill is consistent with the current law. Opinion is different from fact. The courts recognise that. The Bill relies on that jurisprudence. And it has been made clear by the Government that the definition of fact in the Bill will not include opinion, and will be restated during the debate in Parliament.

The three NMPs (in their explanatory note), and Mr Omar, recognise that it will be unwise to try and change the definitions of "fact" and "public interest" in the Bill.

Mr Singh and the three NMPs suggest that the Bill recognise the need for proportionality, in respect of directions to be issued under the Bill. As Mr Omar points out, the Bill already builds in the concept of proportionality.

Mr Omar and the three NMPs have suggested that, in terms of timeliness and cost, applications to courts be made fast and inexpensive.

Mr Omar has suggested that these be in subsidiary legislation, while the NMPs want some reference to this point (but not the details), in the Bill itself. The Government agrees with this point, in principle, and has said that it will set this out in legislation. The usual approach is to have these matters set out in subsidiary legislation.

The three NMPs suggest that a minister, when giving directions, be required to give his reasons, as to why a statement of fact is false. The Government intends to do this. It will be prescribed in law (through regulations).

The NMPs have proposed some amendments to the Bill, based on their suggestions. As will be seen from the above, in principle, there is no substantial disagreement on their proposals - between what they have set out (referred to above), what the Bill provides, and what the Government intends to prescribe further. There may be differences as to what level of detail should be prescribed in legislation, and what should be in primary legislation as opposed to subsidiary legislation.

In addition, the NMPs have made two other suggestions.

They have suggested that the Bill contain a statement of principles. Several of the points they make in their statement of principles are unexceptionable. The question again is the extent to which these need to be reflected in the Bill.

Those of the principles which are accepted by the Government during the second reading of the Bill in Parliament will be legally relevant for future interpretation of the legislation.

The NMPs have also suggested that Parliament should be kept informed of the state of online falsehoods in Singapore through a new body to be set up - there is a question as to whether this is the most appropriate way.

These and the other points will be dealt with in Parliament, during the debate.

The NMPs' position, in terms of the substantive aspects of the Bill, are similar to the Government's position. The very few differences on the proposed directions regime and remedies are mainly in matters of process.

K. Shanmugam SC is the Minister for Law and Minister for Home Affairs.

Protection from Online Falsehoods and Manipulation Bill: A more calibrated approach
By Siraj Omar, Published The Straits Times, 1 May 2019

The Government introduced the Protection from Online Falsehoods and Manipulation Bill in Parliament on April 1 this year. The Bill's express objective is, among other things, to "prevent the electronic communication in Singapore of false statements of fact" and to "suppress support for and counteract the effects of such communication".

The Bill has sparked some debate and discussion among segments of Singapore society. While there is broad consensus on the urgent need for legislative measures to combat so-called "fake news", there appears to be some unease about specific provisions in the Bill.

I would like to contribute to this debate by highlighting a few points.


The Bill's ambit must be considered against the existing legal context.

The Government already has broad powers (under the Broadcasting Act and other legislation) to deal with online content deemed contrary to the public interest. These powers include the ability to block access to specific sites and to order that certain material be taken down.

Non-compliance with directions under the current laws could result in criminal penalties. These powers have been used occasionally, one recent example being the blocking of the States Times Review website. In comparison, the Bill appears to take a narrower and more targeted approach to the regulation of online content.

One key limiting factor is that the scope of content covered is restricted to false statements of fact. The Bill also seeks to introduce more targeted tools such as Correction Directions and de-monetisation measures. These powers are significantly narrower than those already in the Government's armoury.

The Bill also provides for an appeal to the High Court against the minister's decision on the question of whether something is, in fact, a "false statement of fact". The right of judicial review is also not ousted and continues to subsist. There is no such right of appeal under the existing legislation.

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.

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.

The Bill, therefore, appears to represent a shift in approach, with the Government attempting a more measured and calibrated approach to the problem.


The issue of what amounts to a "statement of fact" has also generated some debate, with some observers questioning how this is to be distinguished from an expression of opinion.

The concern is that the Bill may effectively stifle criticism and curtail free speech by blurring the lines between the two. Such concern, in my view, is unfounded, given the well-established definition of this phrase in law.

The Bill expressly defines a "statement of fact" as "a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact". It is an objective standard that applies, not the minister's subjective view.

It bears highlighting that this definition appears to draw directly from the approach of Singapore's highest court, the Court of Appeal, as to what amounts to a "statement of fact". This is significant. The distinction between "fact" and "opinion" is one that the courts have dealt with and refined in many decisions over the years.

The fact that the Bill appears to adopt the definition used by the courts suggests that the Legislature is not departing from the wealth of judicial authority on this distinction.


Another area of concern that has been voiced is that the minister appears to be empowered to take action against an entire article even if the falsehood is merely an immaterial part of the article. Some have argued that the Bill ought to mandate a requirement of proportionality in the minister's response. However, a close reading of the Bill suggests that such a requirement already exists.

Under the Bill, a minister can issue a Direction only if it is in the public interest to do so. The Bill goes on to state (at Clause 4) that an act is in the "public interest" if it is "necessary or expedient" in pursuance of various stipulated objectives. This added constraint of necessity or expediency essentially embeds an assessment of proportionality into the analysis.

For example, in deciding whether to issue a Correction Direction in response to a false statement of fact relating to public health, the minister must first ask whether it is in the public interest to do so, and in answering this question, must assess whether such a Direction is necessary or expedient to protect public health.

The Bill sets out a range of measures that the minister can take. Which measure is ultimately deployed depends on what would be "necessary or expedient" in the particular circumstances.


Some concern has also been voiced about who will be the arbiter of whether a statement of fact is false.

The Government has given the assurance that this is the role of the courts. In order for this to be so, it is important that access to the courts is not merely illusory. I would venture two suggestions on how this can be done.

First, the Bill provides that anyone dissatisfied with the issuance of a Direction must appeal to the minister in the first instance. It is only if the minister declines to vary or cancel the Direction that the aggrieved party can turn to the courts.

The Bill at present does not provide a deadline within which the minister must decide. This should be expressly set out in subsidiary legislation (as is usually the case), and should ideally be kept short so as to enable the aggrieved person to have recourse to the courts without undue delay.

Second, there has been some concern that an aggrieved person may be deterred from going to court because of the time and costs involved. This is a legitimate concern and steps should be taken to ensure that the right of appeal is not merely a token one.

The Legislature may want to consider mandating a simplified or expedited process for such appeals, and the Government might consider the availability of legal or financial aid to prevent legal costs from becoming a deterrent.

Siraj Omar is Senior Counsel and a director at Premier Law LLC.

* Simplifying and expediting court process

We refer to Senior Counsel Siraj Omar's views on the Protection from Online Falsehoods and Manipulation Bill (A more calibrated approach, May 1).

Mr Omar agrees with the purposes and need for the Bill.

He is correct to note that the Bill:

- Gives narrower powers to the Government, compared with powers the Government already has, under existing legislation;

- Gives greater oversight to the courts, compared with existing legislation; and

- Represents a shift in the Government's approach, with the Government adopting a more measured and calibrated approach.

These points have been overlooked by some commentators. The Bill does seek to scope down and calibrate the Government's powers in key areas.

The Bill has also built in proportionality requirements (as recognised by Mr Omar) when the Government issues directions.

He suggests that the Government consider mandating a simplified and expedited process for appeals to court.

We thank Mr Omar for his views, which we believe will contribute to a constructive debate on the Bill. We will also consider the suggestions he has made.

Teo Wan Gek
Press Secretary to Minister
Ministry of Law
ST Forum, 2 May 2019

* Govt's powers narrower under proposed law

We thank Senior Counsel Harpreet Singh for his views on the Protection from Online Falsehoods and Manipulation Bill (Practical suggestions to strengthen Bill, May 1). His views will help in a constructive debate on the Bill.

Mr Singh recognises the need for the Bill, saying that there can be "no serious disagreement" that the Government needs to be "adequately equipped".

He raises some points on the Bill's language. He says the line between fact and opinion could be unclear. Mr Singh, and other lawyers, will know that there is jurisprudence on this. If there is a dispute, ultimately the courts will have to decide whether a statement was factual or an opinion.

Indeed, Mr Singh has had constructive discussions with the Ministry of Law on the Bill. On "fact" and "public interest", he was told that the definitions in the Bill had been calibrated and were the most workable, given the existing jurisprudence.

With this in mind, Mr Singh has suggested that the Bill expressly set out the requirement for proportionality when the Government issues directions. As Senior Counsel Siraj Omar points out (A more calibrated approach, May 1), a close reading of the Bill will show that it already contains the proportionality requirement.

Mr Singh would also be aware that the powers proposed to be given to the Government under the Bill, and the public interest grounds on which the Government can exercise its powers, are actually narrower than the Government's existing powers. And the Bill proposes greater oversight for the courts than is the position under existing laws. In key areas, the Bill narrows, rather than extends, the Government's powers.

Mr Singh made an additional point about regular review of the Bill. This will be considered and dealt with in Parliament.

Teo Wan Gek
Press Secretary to Minister
Ministry of Law
ST Forum, 2 May 2019

Protection from Online Falsehoods and Manipulation Bill: Practical suggestions to strengthen Bill
By Harpreet Singh Nehal, Published The Straits Times, 1 May 2019

Parliament will debate the Protection from Online Falsehoods and Manipulation Bill next week. There can be no serious disagreement that governments need to be adequately equipped to deal with public dangers posed by online disinformation campaigns.

However, the Bill as currently drafted gives reason for pause.

The Government has given various assurances to assuage concerns over the Bill: It targets falsehoods, not opinions and criticisms; corrections, not take-down orders, will be the primary action; criminal sanctions will apply only to malicious actors; and the courts will be the final arbiters of what is false.

Legitimate concerns remain.

The two key preconditions to exercise the extensive powers under the Bill, a "false statement of fact" and a minister's subjective determination of the "public interest", are both very widely defined. 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".

Additionally, the definition of "public interest" in the Bill goes beyond traditional categories to the diminution of public confidence in the performance of any duty, or any function, or any power of the Government, or even a statutory board. These requirements set a very low bar for a minister's exercise of the extensive powers under the Bill.

Given the risks posed to the national interest by disinformation campaigns, there is something to be said for crafting the legislation in wide language. Yet, with such broad statutory powers, it is prudent to consider incorporating express requirements of proportionality and a statutory duty for ministers to give reasons for any orders made. This is particularly so given that one cannot vouch for how anyone, much less a future government or minister, might exercise these wide powers in any given case.

Additionally, 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.

It is, therefore, essential to calibrate the Bill in a way that more appropriately balances the need for the Government to act in legitimate cases and yet provide strong safeguards and oversight to ensure that the wide powers under the Bill are fairly and reasonably exercised. This can be practically achieved.

REASONS: The legislation should expressly require a minister's order to be supported by reasons. 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. For the more onerous take-down orders or disabling directions, there should be reasons explaining why a lesser measure will not suffice.

The duty to give reasons will promote greater trust in and public acceptability of the relevant orders, and engender greater rigour in decision-making by the relevant minister and his officials, knowing that the basis for their orders will be subject to public, and possible judicial, scrutiny.

Absent an express requirement under the Bill to give reasons, there is no general duty under the law for officials to give reasons for their decisions, and the ability of our courts to have effective and meaningful oversight over ministerial orders under the Bill will be substantially curtailed. Specifying the scope of reasons also ensures that orders do not simply comply perfunctorily with the statutory formula.

PROPORTIONALITY: The legislation should also expressly require any order to be proportionate to the nature of the falsehood and the degree of harm to the public interest. It is difficult to see any reasoned basis to permit an order that is either disproportionate or unnecessary to meet the exigencies of any case. As with reasons, adding a proportionality requirement in the Bill will enhance the potential for more effective judicial oversight.

Parliament has two options. It could keep the Bill as it is and give a minister the current wide powers with no specified limit on how these powers are to be exercised once the preconditions of "false statement of fact" and "public interest" are satisfied. Alternatively, it could put some boundary on these wide powers and require, for example, that any order made "shall be reasonable and proportionate to the nature of the falsehood and the degree of harm to the public interest".

The degree of judicial control over ministerial orders will depend on the limit Parliament puts on these powers. If Parliament imposes no requirement of reasonableness or proportionality, the court's role in reviewing a ministerial order is very narrowly confined. On the other hand, if the legislation requires orders to be reasonable and proportionate, the courts would have a greater latitude of supervision over a minister's orders.

In the absence of both reasons and proportionality requirements in the statute, a court will have no meaningful basis upon which to review a ministerial order. For the courts to be an effective final arbiter, the legislation should empower them to play that role. The Bill should enable greater, not lesser, judicial oversight.

This twin proposal on proportionality and a duty to give reasons ought not to cause the Government undue alarm, given that the courts will give a proper margin of deference to a minister's assessment of what the public interest requires. No question of judges being asked to substitute their views for that of the Executive arises. While primary responsibility for these decisions will continue to remain with the elected Government, the courts will be effectively enabled to review whether those decisions are reasonable and proportionate.

OPINIONS AND CRITICISMS: To ensure robust public discourse on matters of public interest, Parliament should clarify the application of the Bill to statements of opinion or mixed statements of opinion and fact. To remove any ambiguity, the Bill should be amended to expressly provide that it shall not apply to opinions or criticisms unless an underlying statement of fact is false and is material to the opinion as a whole. An opinion that has several premises and which can stand even if one of the premises is faulty should not be impugned. Absent this clarification, the Bill could be wielded to curtail otherwise legitimate criticism of the Government.

ANNUAL REVIEW: Given it is uncertain how the legislation will pan out in practice, it would also be desirable to provide an annual review by Parliament for the first five years. As part of this process, the Government should provide an annual summary of the ministerial orders issued, the facts and circumstances of each case, the reasons for the specific orders, the number of appeals against ministers' orders, and the outcome of the appeals (whether to the minister or to court). This review would enable Parliament to decide if the law is properly achieving its stated legislative aims and how its operation can be improved.

These proposals will help give substance to the Government's assurances as to the purposes of the Bill and the manner in which the wide powers given to the Government will be exercised.

Harpreet Singh Nehal is Senior Counsel.

Nominated MPs propose four amendments to fake news Bill
By Adrian Lim, Political CorrespondentThe Straits Times, 1 May 2019

The proposed legislation to fight fake news should set out the key principles under which it will be applied, and require the Government to publicly explain its decisions when exercising its powers, three Nominated Members of Parliament have suggested.

An independent council should also be set up to review the Government's actions in tackling online falsehoods, and for parties making appeals against government decisions to have an expeditious and low-cost process to do so.

These are four amendments to the Protection from Online Falsehoods and Manipulation Billthat NMPs Anthea Ong, Irene Quay and Walter Theseira have submitted to Parliament.

In a joint statement yesterday, the trio said they agree with the legislative intent of the Bill, and that "the speed with which online falsehoods spread and threaten public interest cannot be addressed effectively by a slow judicial process, and requires decisive executive action".

They also noted that the Government has explicitly assured the public that the Bill is not intended to stifle or chill free speech, debate and criticism.

However, it does not contain such assurances that limit how its powers can be used, and contains broadly worded clauses defining what is a false statement and what constitutes public interest, they said.

In coming up with the proposed amendments, the NMPs consulted representatives from online media, civil society activists, lawyers and academics.

Since it was introduced in Parliament on April 1, the Bill has triggered concerns among the public that it could lead to self-censorship and limit free speech.

Under the draft law, ministers are given powers to order corrections or removals of online falsehoods, and also ask for sites spreading such falsehoods to be blocked, if they harm the public interest. These decisions can be challenged in court, which will be the final arbiter, if appeals to the ministers are rejected.

The NMPs said spelling out key principles in the legislation "codifies some of the explicit assurances" that the Government has given over the past few weeks as to how the laws will be used.

The principles they proposed include the aim to target online falsehoods that are against the public interest, and not "opinions, comments, critiques, satire, parody, generalisations, or statements of experiences".

The principles also state, among other things, that well-informed, free and critical speech is necessary for a well-functioning democracy.

"So the Act should be applied carefully to avoid chilling such speech," the NMPs said.

On establishing an independent council, Associate Professor Theseira said this will "institutionalise the process of monitoring falsehoods and how the Government uses powers under the Bill".

The NMPs envision this body - whose members will be appointed by a Select Committee of Parliament - to be given the powers to issue public reports and recommendations. Ms Quay said the cases collated from the annual report can serve as case studies for media literacy education and ensure good governance.

"This will help to build trust in our system and to establish consistency across ministries to refine policy-making processes," said Ms Quay, president of the Pharmaceutical Society of Singapore.

On the proposed amendment that ministers should publicly justify their actions when using the law, Ms Ong said: "We should have clear explanation why the direction is taken, including the evidence setting forth the true facts or evidence demonstrating falsehoods, which part of public interest is being compromised in the falsehood, and the reasons why the action taken is suitable."

Because the Government is required to publicly justify its actions, the affected party "knows exactly why the direction was issued, why the Government believes their facts to be false, and what the public interest reason is", said Prof Theseira, an economist with the Singapore University of Social Sciences.

Should the party be unsuccessful in his appeal to the High Court, the case could be referred to a judicial review, and the court can then consider whether the principles were upheld in the Government's decision to use the fake news law, he added.

The NMPs also explained why they did not suggest amending certain definitions in the draft law, such as a clause which specifies public confidence in the Government as part of the public interest. They noted that this clause has been criticised, as it grants the Government broad discretion to exercise powers under the proposed law.

However, an amendment to remove this section entirely would "remove a graduated tool for addressing online falsehoods that undermine confidence".

"Without this tool, we believe the Executive may have to use provisions in other laws that may be more draconian, or rely on conventional media methods, which may not be effective," they said.

Without a better definition of public confidence in the Bill, such concerns are best handled with reference to key principles they proposed, they added.

The NMPs' amendments are slated to be debated during the Bill's second reading in Parliament next week.

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