Court of Appeal dismisses SDP bid to take Pofma appeal further

The SDP had been issued a Pofma correction direction on July 4, 2020. ST PHOTO: KELVIN CHNG

SINGAPORE - The Singapore Democratic Party has lost in its bid to appeal against a High Court decision on a Protection from Online Falsehoods and Manipulation Act case, with the Court of Appeal ruling that 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, said the Court of Appeal in a judgment on Monday (July 25).

This is supported by both 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."

The SDP had been issued a Pofma correction direction on July 4, 2020, during the campaigning period for the general election, over 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 High Court declined to set aside the correction direction, ruling that it is clear SDP had deliberately made the claim about the population figure "knowing it was false".

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

In dismissing the SDP's application on Monday, 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 SDP had argued that its appeal would have thrown up questions of general principle or importance.

One such question is what principles apply to applications for permission to appeal against Pofma decisions, the SDP said.

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

The SDP had also said that its case would shed light on when Pofma appeals should be heard in open court.

The appeal to the High Court was heard in Chambers behind closed doors, and the SDP had contended that it should be held in open court as the issue was of public interest.

But the High Court had ruled that there was no special reason to have an open court hearing just because an issue was of public interest or raised a constitutional point, since the Rules of Court state that all originating summonses shall be heard in chambers unless the court directed otherwise.

Agreeing with the lower court's decision, the Court of Appeal said whether there are special reasons for cases to be heard in open court will depend on the facts of each case, and no general answer can be given.

The court added that this issue would not have come up even if a further appeal to the apex court was allowed, since the SDP was clearly out of time to pursue this point further. It would have had to file an appeal on this point by Sept 18, 2020, within seven days from the High Court's decision on the matter.

The SDP had also argued that its case dealt with whether an analytical framework set out in another 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 even if the 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 the SDP's question about what constitutes an opinion under Pofma, the Court of Appeal said 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 the SDP would not have arisen for determination in an appeal and would not shed light on larger principles, the SDP failed to establish the grounds for an appeal to the apex court, the Court of Appeal said.

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

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