First court challenge against fake news law fails; High Court dismisses SDP's appeal

A photo taken on Jan 16, 2020, showing Singapore Democratic Party secretary-general Chee Soon Juan (left) and vice-chairman John Tan leaving the Supreme Court. PHOTO: ST FILE

SINGAPORE - The High Court has dismissed the Singapore Democratic Party's (SDP) appeal to reverse the correction order against it under the fake news law, in a case that is set to define the way in which such challenges are brought the court.

It ruled that in such a court challenge, the Government has to prove a statement is false, after it has ordered a correction under the Protection from Online Falsehoods and Manipulation Act (Pofma).

The court's judgment released on Wednesday (Feb 5) said statistics cited by the Ministry of Manpower showed the SDP's statements about Singaporean professionals, managers, executives and technicians (PMETs) were indeed false.

Contrary to the SDP's claim, the number of local PMETs retrenched has gone down from 2015 to 2018, and the number of local PMETs employed, in absolute numbers, had been rising steadily in the same period, according to the MOM's figures.

Hence, Justice Ang Cheng Hock said, the SDP's statements "are in fact false in the face of the statistical evidence against them".

The party thus cannot remove the correction notices it was required to put up alongside the relevant online posts.

What the case is about

The case revolved around two Facebook posts and an article on the SDP website.

In the June 8, 2019 article titled "SDP Population Policy: Hire S'Poreans First, Retrench S'Poreans Last", the SDP set out its population policy, adding that it comes "amidst a rising proportion of Singapore PMETs getting retrenched".

The party later put up a Facebook post on Nov 30 linking to the article, and another post on Dec 2 doing the same. The later post also contained an infographic labelled "Local PMET employment", showing an arrow pointing downward.

In issuing the correction notices on Dec 14, the MOM said the article and posts falsely claim local PMET retrenchment has been going up and PMET employment has gone down.

On Jan 3, the SDP applied to the MOM to have the correction orders cancelled. Manpower Minister Josephine Teo rejected it. The party then filed its court challenge on Jan 8.

After the closed-door hearing on the case, the SDP told reporters it had argued that the fake news law was wrongly used to dispute the party's interpretation of statistics.

The party had contended that there could be many possible interpretations of statistics. It also said it had relied on Labour Market Survey statistics from 2010 to 2018 to come to its conclusions, and the MOM had arbitrarily cherry-picked statistics from 2015 to 2018.

The Government, represented by the Attorney-General's Chambers, argued that Pofma covers both express statements and implied statements.

It also said a reasonable reader would understand the SDP's statement to mean the increase in retrenched Singaporean PMETs is a current or recent situation, and not one stemming from 2010.

Why SDP statements are false

In dismissing the SDP's appeal, Justice Ang said the meaning of the articles and posts should be determined based on how a reasonable member of the public would understand the published material.

Given this, the appropriate meaning of the SDP article is that the share of retrenched local PMETs as a proportion of all local PMET employees has been increasing.

He noted the SDP had not challenged the accuracy of the statistics cited by the MOM, Instead, it sought to critique it on other grounds, which he did not find convincing.

Justice Ang agreed with the AGC that an ordinary reasonable person reading the material would interpret it to be reflecting a present troubling trend that the SDP's policy proposals were aimed at addressing.

He also said the SDP had no basis to rely on data stretching back to 2010.

Just because the party chose not to label the time period for its graph does not mean it "should have carte blanche to assert any timeframe of its choosing as being the applicable one", he added.

On the other hand, he said, the AGC had "a reasonable basis... to focus on a more recent time frame", since the SDP had used the word "amidst" to describe the retrenchment trend, signalling that it is still ongoing.

Who bears the burden of proof

In its decision, the court also established it is the Government that bears the burden of proof in a court appeal under Pofma.

The SDP had argued it was incumbent on the Government to prove the statements are false, while the AGC argued the onus was on the SDP to prove its assertions are true.

Justice Ang noted the Pofma had not specified who should bear the burden of proof.

But based on Section 103(1) of the Evidence Act "(w)hoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist", he said.

So since the Government in issuing a correction order seeks to curtail the right to free speech protected under the Constitution, the onus then is on the Government to prove the statements are false, he added.

He also said that if the burden of proof were to fall on the other side, the Government would succeed in a court challenge under Pofma simply and solely by virtue of having declared something to be false through issuing a correction direction.

This is because if neither party provides any evidence of truth or falsity, there is no basis for the court to decide on whether a false statement had indeed been made, he added.

"In that sense, the Court would in effect be fettered by the Minister's earlier decision in issuing the CD (correction direction)," he said, and this would contradict the rules of Pofma which state that the Court should hear Pofma appeals afresh and not be bound by previous decisions made.

The judge also noted there is a "clear information asymmetry" between the Government and those whose statements are being challenged under Pofma.

"Unlike the Minister, who is able to rely on the machinery of state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources," he said.

"For a statement-maker, who may be an individual, to bear the burden of proof would put him in an invidious position."

He added that this raises the question of whether Parliament could really have intended to place such an onerous burden on the statement-maker, noting that the parliamentary debate on the law had not shed light on the issue.

Intentions of parties irrelevant

In his judgment, Justice Ang also set out the issues which the Court has to consider in Pofma cases.

He said the court has to decide whether the statements, which are the subject of the correction order, are borne out by the words and depictions in the published material, and whether those statements are true or false.

He highlighted the fact that both sides had "attempted to cast aspersions on each other's intentions and motivations, with labels such as 'disingenuous' and 'dishonest' being bandied about".

But that is irrelevant, he said, as the Court has to take an objective approach towards Pofma cases based on the wording of the material in question.

"The intentions of the parties in relation to the Pofma are thus, sensu stricto, irrelevant when there is no question before the Court of any criminal liability," he said, using the Latin phrase for "strictly speaking".

He also stressed that the court's role in such cases is to interpret the legislation, not to comment or adjudicate on the desirability of particular policies.

"In that sense, the Court is constrained by what the legislation compels. Where there is doubt as to the precise ambit and contours of the legislation, the ordinary rules of statutory interpretation apply."

MOM, SDP respond

Responding to the judgment, the MOM said on Wednesday the court had found, contrary to SDP's statements, that "there is in fact no rising trend in local PMET retrenchments as a proportion of all local PMET employees" and local PMET employment had increased.

It added: "Since Correction Directions were issued, the SDP has tried to confuse and mislead the public by suggesting several different meanings to its statements. The SDP has also tried to confuse by saying that it was 'interpreting' statistics, when it was actually purveying falsehoods, as found by the court."

In a Facebook post, the SDP said it was very disappointed in the verdict and added: "We reiterate our case which we argued in court: Pofma must only be applied to clear-cut cases of falsehoods, not for interpretations of statistical data."

The party said it is considering appealing against the decision.

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