Is Government a person? Court rules on anti-harassment law provision

In rare split decision, court rules that Govt cannot invoke law that lets persons stop publication of false statements

Chief Justice Sundaresh Menon was the sole dissenting judge, in a case that hinged on the narrow legal question of whether the Government could be considered a "person" under Section 15 of the Protection from Harassment Act. PHOTO: ST FILE

In a rare split decision, the Court of Appeal ruled, 2-1, that the Government cannot invoke an anti-harassment law that allows persons to stop the publication of false statements against them.

Chief Justice Sundaresh Menon was the sole dissenting judge, in a case that hinged on the narrow legal question of whether the Government could be considered a "person" under Section 15 of the Protection from Harassment Act.

Under the provision, a person who is a victim of a false statement can seek relief by asking the court to order that the statement not be published unless it drew attention to the truth.

In a written judgment released yesterday, Judges of Appeal Chao Hick Tin and Andrew Phang ruled that the law applied only to human beings.

However, Chief Justice Menon disagreed. He concluded that the Government does fall within the scope of "person" under the law and is able to apply under the provision for relief.

  • CJ's dissenting judgment

  • In his dissenting judgment, Chief Justice Sundaresh Menon found that non-natural persons, such as the Government, can invoke Section 15 of the Protection from Harassment Act (Poha) as a remedy against false statements.

    He based this on the ordinary meaning of the words in the provision, which refer to falsehood being made about "any person".

    CJ Menon referred to the Interpretation Act, which states that "person" can include "any company or association or body of persons, corporate or unincorporated".

    Turning to parliamentary debates, CJ Menon noted that in response to a question by an MP as to whether "person" included corporations, Law Minister K. Shanmugam had replied that the definition in the Interpretation Act would apply.

    The Chief Justice found that Section 15 provides a standalone remedy to deal specifically with false statements, distinct from the other provisions in the Act.

    He found that Dr Ting Choon Meng's false statement, alleging that the Ministry of Defence (Mindef) was deliberately delaying court proceedings, was a serious one. Even though The Online Citizen had published Mindef's statement, CJ Menon said this was insufficient to draw attention to the falsehood and the true facts.

    He noted that the nub of Mindef's complaint is the false statement that it was conducting the litigation in an oppressive manner.

    "This was untrue for the simple reason that the litigation involving Dr Ting was in fact controlled not by Mindef, but by its contractor," he said.

    Given the seriousness of the false statement and that the publication of a notice stating that Dr Ting's statement has been adjudged to be false was a "low- level restriction", he said he would have granted the order sought by Mindef.

  • Selina Lum

  • Law Ministry's response

  • In response to the Court of Appeal's split decision, the Ministry of Law said the Government's policy intent was to allow natural persons, as well as the Government and corporations, to rely on Section 15 of the Protection from Harassment Act (Poha).

    A Law Ministry spokesman noted that The Online Citizen (TOC) had published falsehoods about the Ministry of Defence (Mindef). On the advice of the Attorney-General's Chambers, Mindef had asked TOC to report corrections to the falsehoods.

    "We note that the Court of Appeal has confirmed that TOC had indeed published falsehoods," said the spokesman.

    But the majority ruled that only natural persons can rely on the provision, which requires those who have published falsehoods to also publish corrections and the true facts. Therefore, the Government cannot ask for corrections under Poha.

    The spokesman noted that "fake news" has become a major problem for many societies.

    "As recent events elsewhere show, the spreading of false and misleading information can be highly destructive of the institutions of democracy."

    He added: "The Government notes the dissenting judgment of the learned Chief Justice, and the reasons the Chief Justice has given for his views.

    "The Government will study the judgment, and consider what further steps it should take to correct the deliberate spreading of falsehoods."

The decision arose in a case in which the Attorney-General had invoked the law against five individuals who ran socio-political site The Online Citizen (TOC) as well as Dr Ting Choon Meng, co-founder of medical device firm MobileStats Technologies.

MobileStats had sued the Ministry of Defence (Mindef) in 2011 for infringing its patent for a mobile emergency medical station. The suit was eventually dropped.

In January 2015, TOC published an interview with Dr Ting, in which he made various allegations against Mindef.

The ministry responded on its Facebook page, refuting his allegations that it had knowingly infringed his patent and that it had dragged out court proceedings to wear him down financially.

TOC published Mindef's statement in full and provided a link to it from the offending article.

The next month, the A-G sought a court order that the allegations cannot be published without a notification that they were false and that Mindef's statement gave the truth.

In May 2015, a district judge found Dr Ting's statements to be false and granted the A-G's ap- plication.

TOC, represented by Mr Eugene Thuraisingam, and Dr Ting, represented by Mr Choo Zheng Xi, appealed to the High Court, arguing that Mindef cannot apply for such an order as the Government is not a "person" under the provision.

Judicial Commissioner See Kee Oon agreed, ruling that only human beings are entitled to apply for such court orders.

The A-G then appealed to the Court of Appeal, Singapore's highest court, arguing that there was no clear parliamentary intent to exclude the Government from the protection of the Act.

The A-G argued that the objective of the provision was to deal with false statements and not merely harassment, so the Government and corporate entities have the right to invoke the law.

Delivering the court's majority decision, Justice Phang referred to parliamentary debates in which Law Minister K. Shanmugam talked about giving people a "lower tier" remedy against falsehoods.

Justice Phang said it was clear that the minister's focus was solely on human beings, pointing to the many references to "victims" and "harassment" in his speech.

No references were made with regard to the rights of other entities, he noted.

Justice Phang added that even if the majority accepted that the law applies to Mindef, they did not think it was "just and equitable" to grant an order against TOC and Dr Ting.

He noted that TOC had provided a balanced view.

"Additionally, Mindef was anything but a helpless victim. It is a government agency possessed of significant resources and access to media channels."

Through his lawyer Mr Choo, Dr Ting said he was glad that this episode was concluded.

Mr Thuraisingam said his clients are "happy that the position they have taken has been vindicated by the High Court and the majority of the Court of Appeal".

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A version of this article appeared in the print edition of The Straits Times on January 17, 2017, with the headline Is Government a person? Court rules on anti-harassment law provision. Subscribe