Judge wrong in placing burden of proof on Government in Pofma cases: AGC

The Attorney-General's Chambers said the onus should be on the party making the assertion to prove that the statements are true. PHOTO: ST FILE

SINGAPORE - The Attorney-General's Chambers (AGC) argued on Thursday (Feb 6) that a High Court judge was wrong in ruling that the Government must prove the falsity of a statement when its corrections orders are challenged in court.

The onus, instead, should be on the party making the assertion to prove that the statements are true, it said in presenting its argument in The Online Citizen's (TOC) appeal under the Protection from Online Falsehoods and Manipulation Act (Pofma).

A day earlier, High Court judge Ang Cheng Hock had issued his ruling in the Singapore Democratic Party's appeal against Pofma.

In it, he said the Government bears the burden of proof because correction orders under Pofma seek to curtail free speech that is protected under the Constitution.

The judge also questioned if Parliament could really have intended to place such an onerous burden on those whose statements are being challenged, given the Government can marshall much greater resources to produce the relevant evidence .

On Thursday, TOC, in defending its article on execution methods used in Singapore prisons, had cited Wednesday's judgment, saying the Government had not discharged its burden of proof to show the article's claims were false.

Among other things, the article, quoting Malaysian rights group Lawyers For Liberty, had claimed that Singapore's prison officers were instructed to kick the back of a prisoner's neck with great force to break it if the rope broke during a hanging.

The AGC, in rebutting TOC's use of the earlier judgment, said a correction order under Pofma does not constrain a person's freedom of speech because the original article does not have to be taken down and remains accessible to anyone who wants to read it.

There are also no penalties or financial sanctions that come with such correction orders, it added.

The AGC also said it is commonplace that the party that asks the court to make a ruling carries the burden to prove.

In a Pofma appeal, this would be the person who received the correction orders.

On Parliament's intention, the AGC said "it is contended in the strongest possible terms that... Parliament could not have intended for the burden of proof to fall on the minister".

Placing the burden of proof on the Government could open the door for anyone to make a false assertion without any basis or evidence, just to extract information from the Government, the AGC added.

This would mean the Government could be compelled to disclose even information to do with sensitive security matters, it said, adding that this could not have been Parliament's intention.

Instead, the AGC suggested that to shift the burden of proof to the Government, the person challenging the correction orders must at least have some prima facie evidence.

"This shifting of the evidential burden of proof would also go some way to addressing any concerns of information asymmetry alluded to by the honourable judge," it said.

In his judgment, Justice Ang had also given a hypothetical scenario in which the Government would always be able to get a Pofma appeal dismissed if the burden of proof were to fall on the other side.

In his example, both sides could decide not to produce any evidence and there would be no basis for the court to adjudicate on whether a statement is true or false.

The judge said this in effect means the court is limited by the Government's original decision to issue a correction order.

He added that this would be in contradiction with the rules of Pofma, which requires the court to hear Pofma appeals afresh and not be bound by previous decisions, or what is legally termed a rehearing.

But the AGC said there was "nothing exceptional" in a situation where the Government succeeds in a court challenge if a person cannot prove his case.

This is also what happens in, say, judicial reviews, if a person challenging the Government's decision on some matter cannot prove that the Government has been unreasonable.

The AGC also said that just because an appeal is by way of a rehearing, that does not determine on which side the burden of proof falls.

TOC, in arguing its case, said the Government had not adequately proved that the statements on judicial executions are false.

It added in its submissions that the Government "has only provided bare assertions that the practices asserted... never existed".

More evidence would be needed, it said, "including but not limited to official communications, statistics, reports, standard operating procedure guidebooks referred to by prison officers, independent verification and so on".

OTHER ARGUMENTS

In defending its article, TOC also said the statements in question could not be considered statements of fact and that a reasonable reader would not have construed it as such.

Since it was merely reporting allegations made by Lawyers For Liberty, TOC added, the statements can only be considered hearsay.

"The reasonable reader would inevitably recognise that the 16 January 2020 article was, quite blatantly, reporting on hearsay," said TOC.

Further, it had "exercised an abundance of caution to ensure that readers were aware that the... statement contained mere allegations".

It cited, for instance, that it had used the words "alleged" and "allegations" "no less than six times", and had also indicated it had contacted the Ministry for Home Affairs for comments.

As such, TOC said , it had not taken any position on whether the statements were true or false.

To this, the AGC noted TOC did not dispute the Government's position that the claims by Lawyers for Liberty are false.

The AGC said it is irrelevant that TOC did not present the claims as its own because the falsehoods would still cause harm to society.

Whether or not TOC had taken a position on the falsehoods was also irrelevant, since Pofma corrections orders apply "even if the person does not know or has no reason to believe that the statement is false", it said.

TOC also had an alternative argument: that the statements are, in fact, true statements of fact.

It argued that it had made only one statement of fact in its article, and that is that Lawyers for Libery had made the claims.

"Fair reporting of certain yet-to-be verified information passed down by third parties does not accord with this common-sensical understanding of 'fake news'," said TOC.

"Pofma was never intended to catch even-handed reports of allegations made by third parties."

The AGC, however, said "this completely misses the point".

The correction order was not directed at TOC's claims that Lawyers for Liberty had said certain things, but was rather directed at what Lawyers for Liberty had said, it added.

The AGC said TOC may have misunderstood the issuance of a correction order as an exercise in fault-finding and felt it had to seek vindication in court.

But this is not the case, as a person repeating a falsehood made by another party can also be asked to correct it, added the AGC.

Such orders are aimed at protecting the public from falsehoods, it said.

The AGC also said no public interest is served in spreading falsehoods, whether it is through new media outlets, the mainstream media, or otherwise.

A journalist who disagrees he has communicated a falsehood can always challenge the Government's decision in court, it added.

Justice Belinda Ang, who heard the TOC appeal, will give her judgment at later date.

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