Court of Appeal says Pofma is constitutional in key ruling

In a landmark judgment on Singapore's law against fake news, a five-judge Court of Appeal yesterday upheld the constitutionality of the Protection from Online Falsehoods and Manipulation Act (Pofma).

The court rejected arguments by the Singapore Democratic Party (SDP) and sociopolitical website The Online Citizen (TOC) that Pofma was unconstitutional as it curtails the constitutional right to free speech. SDP had appealed against three correction directions issued by the Manpower Minister, while TOC had appealed against a correction direction issued by the Home Affairs Minister.

The apex court partly allowed SDP's appeal and set aside half of one correction direction, because the Manpower Minister's interpretation of the word "local" differed from what would be construed by the party's Facebook post.

The appeals against the other correction directions were dismissed.

The 154-page judgment, delivered by Chief Justice Sundaresh Menon, made clear it was the court that makes the final determination as to whether a statement is false.

The court disagreed with the Attorney-General's argument that a statement is false because the minister has identified it to be so.

"We regard this as untenable. The minister may, after all, be mistaken," said the court, which also comprised justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong.

"Truth and falsehood are ultimately matters to be determined by a court based on the evidence."

The court said a statement that has been identified as false under Pofma continues to enjoy protection under Article 14(1)(a) of the Constitution - until it has been determined by the court to be indeed false. Article 14(1)(a) gives every citizen the right to freedom of speech and expression. The court said a correction direction did not restrict the right to freedom of speech because the recipient could continue to publish the alleged falsehood, and was required to only put up a notice highlighting the alleged falsehood.

The judgment also set out a five-step analytical framework on the approach to be taken by the court in dealing with applications to set aside correction directions issued under Pofma.

This includes ascertaining the minister's intended meaning in respect of the statement identified as false; whether it was a "statement of fact" as defined under Pofma; and whether the statement is false.

The Court of Appeal also clarified the question of burden of proof in such proceedings, an issue that has seen two conflicting High Court decisions. The apex court ruled the burden of proof lies from the outset on the recipient of the correction direction. The evidential burden will shift to the minister only if the recipient succeeds in making out an arguable case for the direction to be set aside, said the court.

SDP was issued three correction directions on Dec 14, 2019, over an article and two Facebook posts on the employment of PMETs (professionals, managers, executives and technicians). TOC was issued a correction direction on Jan 22 last year over an article that carried allegations by Malaysian non-governmental organisation Lawyers for Liberty (LFL) claiming that "brutal and unlawful hanging methods" were being used at Changi Prison.

After failing in their applications to the respective ministers to cancel the correction directions, SDP and TOC each started proceedings in the High Court to set them aside. SDP's application was dismissed in February last year by Justice Ang Cheng Hock, while TOC's application was dismissed by Justice Belinda Ang later that month. The appeals against these decisions were heard in September last year.

Yesterday, the apex court noted the correction directions issued to SDP involved two statements that had been identified as false. The court found the first, that "local PMET retrenchment has been increasing" was false, as data showed a decline, rather than an increase, in local PMET retrenchment.

On the second statement, that "local PMET employment has gone down", the court noted the Manpower Minister intended "local" to refer to Singapore citizens or permanent residents. However, the court said it was unlikely that any appreciable segment of the potential readership of the post would have understood the word "local" to mean anything other than "Singaporeans". Thus, the court set aside half of the third direction, as the minister's intended meaning was not contained in SDP's post.

The apex court said there was no basis to set aside the correction direction issued to TOC and found that the allegations it reproduced were false and baseless. "No evidence was even proffered to attempt to convince us that they were true," said the court.

The Ministry of Home Affairs (MHA) said the court noted LFL's false allegations were "categorically refuted" by evidence produced by the Singapore Prison Service.

"The court also dismissed all arguments that Pofma is unconstitutional, and held that it was 'clear beyond doubt' that Parliament considered Pofma to be 'necessary or expedient' in the interests of national security and public order," MHA said. "The Court of Appeal also said that Pofma contained a proportionality test, as the minister had said in Parliament, both during the Pofma debate and the recent Fica - Foreign Interference (Countermeasures) Act - debate."

Law firm Eugene Thuraisingam, which acted for SDP and TOC, welcomed the judgment, saying: "It sets the precedent for how future courts will interpret the relevant provisions in the statute relating to the setting aside of correction directions issued by the Government."