Apex court dismisses SDP bid to appeal against Pofma ruling

The Singapore Democratic Party (SDP) has lost in its bid to appeal against a High Court decision on a Protection from Online Falsehoods and Manipulation Act (Pofma) case, with the Court of Appeal ruling it is not automatic for such cases to go on to the highest court of the land.

Cases under the fake news law do not fall under a special category and must pass the same legal tests before permission to appeal to the apex court is granted, the Court of Appeal said in a judgment yesterday.

This is supported by the wording of the relevant laws and their legislative history, the court added.

The Court of Appeal, comprising judges Tay Yong Kwang and Steven Chong, said: "No justification has been shown for creating this special category of cases for the purpose of determining whether permission to appeal should be granted."

SDP had been issued a Pofma correction direction on July 4, 2020, during the campaigning period for the general election, for its Facebook post asserting that Singapore was targeting to grow its population to 10 million by 2030.

After its application to cancel the correction direction was rejected, the party appealed to the High Court. In May, the court declined to set aside the correction direction, ruling that it was clear SDP had deliberately made the claim about the population figure, "knowing it was false".

SDP then asked for permission to appeal to the apex court.

In dismissing SDP's application yesterday, the Court of Appeal said permission to appeal will be granted only if one or more of three well-established grounds for appeal were shown: that there was an error in the High Court decision, that a question of general principle will be decided for the first time in the appeal, or that a question of importance would be aired to the advantage of the public when the matter is considered in a higher court.

It ruled that the SDP had failed to cross the hurdle.

The party had argued its appeal would have thrown up questions of general principle or importance, such as what principles apply to applications for permission to appeal against Pofma decisions.

But the court said this question would already be addressed in considering the application itself.

The SDP also argued its case dealt with whether an analytical framework set out in a separate Pofma case involving The Online Citizen - on how the court should approach applications to set aside correction directions - would apply.

In its Facebook post, the opposition party had quoted former Housing Board chief executive Cheong Koon Hean as saying that Singapore's "population density" would go up from 11,000 to 13,700 people per sq km by 2030, although Dr Cheong was referring to "living density", which takes into account only land for urban areas, and excludes land used for ports and airports, among others.

The party submitted that its Facebook post was not false since "population density" and "living density" could reasonably be taken to mean the same thing.

Rejecting this argument, the Court of Appeal said that even if SDP believes it had accurately reported what Dr Cheong had said, the fact is that the statement is objectively false and the analytical framework would apply.

As to SDP's question about what constitutes an opinion under Pofma, the apex court said that since the decision on Pofma cases turned ultimately on the specifics of each case, there could be no set formula to determine whether a statement was an opinion or statement of fact.

Since these questions by SDP would not have arisen for determination in an appeal and would not shed light on larger principles, the party had failed to establish the grounds for an appeal to the apex court, the Court of Appeal said.

It ordered SDP to pay the Attorney-General costs fixed at $6,000.