Judge: Onus not on Govt to prove statement is false in Pofma cases

The judge made her finding while dismissing an appeal by The Online Citizen to set aside a correction direction. PHOTO: ST FILE

A High Court judge has given a different opinion from a fellow judge on whether it is the Government that has to prove a statement is false, in an appeal under Singapore's law against fake news.

Justice Belinda Ang, in a judgment issued yesterday, said the onus is not on the Government to do so. Rather, the person who made the statement must show it is true.

She made her finding while dismissing an appeal by The Online Citizen (TOC) to set aside a correction direction, issued over an article alleging unlawful execution methods in Singapore's prisons. The case was the second before the courts involving the Protection from Online Falsehoods and Manipulation Act (Pofma).

In the first case, Justice Ang Cheng Hock found that the burden should fall on the Government to show a statement is false, because in issuing correction directions, it is curtailing the right to free speech which is protected by the Constitution.

Disagreeing, Justice Belinda Ang said such a direction does not constrain free speech as it does not require the removal of the original statement. She said a person's only obligation is to put up the Government's take alongside his statement, for people to compare the competing accounts of facts and make their own decisions.

Also, she said, Article 14 of the Constitution protects the right to communicate information and not misinformation. As such, falsehoods are not among the categories of protected speech. "It is observed that while the law must be vigilant against attempts to check the expressions of tastes and opinions contrary to our own, there is no public interest in preserving a right to disseminate falsehoods," she added.

She also said that based on the working of the law, the burden of proof should fall on the one making the statement rather than the Government.

For instance, Section 17(5) of the law, which deals with the grounds under which a correction direction can be set aside, states the legal elements that must be satisfied in relation to the person making the statement. In other parts of the law, legal elements are stated in relation to what the minister has to do.

Noting this, Justice Belinda Ang said the law would have been worded differently if Parliament had intended for the Government to bear the burden of proof. This interpretation was also in line with the legislative purpose of preventing the spread of falsehoods, she said.

In his judgment, Justice Ang Cheng Hock also said that Parliament could not have intended for the statement-maker to bear the burden, given that the Government could marshal much more resources to produce the relevant evidence.

But Justice Belinda Ang said Parliament had not expressed any position on this during the debate on the law, adding: "From the outset, I question the propriety of reconstructing legislative intent on the basis of a concern that Parliament did not articulate."

She said there was nothing in the debates that indicates how the court should balance a person's interest in relation to the Government's interest in avoiding disclosures of sensitive information. Also, she said, once a person is able to show prima facie evidence, the evidential burden will shift to the Government to show otherwise.

However, Justice Ang noted that while both TOC and the Government had argued on the issue of burden of proof, the question did not come up in this case since TOC had repeatedly stressed it was not taking a position on whether the allegations it carried by Malaysian rights group Lawyers for Liberty (LFL) were true. In its argument, TOC said it was merely reporting hearsay and the statements were neither opinions nor facts.

Justice Ang, however, found that a reasonable reader would understand the statements - claiming, among other things, that prison officers were instructed to kick and break the neck of prisoners when the rope breaks during an execution - to be statements of fact.

She said Pofma applies whether or not TOC has verified the statements. "Pofma not only seeks to capture those tale-makers who author falsehoods, but also implicates tale-bearers who receive false information and forward it to others without taking a position on the truth of the content," she added.

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A version of this article appeared in the print edition of The Straits Times on February 20, 2020, with the headline Judge: Onus not on Govt to prove statement is false in Pofma cases. Subscribe