FAKE NEWS, FREE SPEECH AND FINDING CONSTITUTIONAL CONGRUENCE

Date01 December 2020
AuthorDavid TAN PhD, LLB, BCom (Melbourne), LLM (Harvard); Professor and Vice Dean (Academic Affairs), Faculty of Law, National University of Singapore. Jessica TENG Sijie LLB (Hons) (National University of Singapore), BA (Hons) (Yale-National University of Singapore).
Published date01 December 2020
Citation(2020) 32 SAcLJ 207

In September 2018, the Select Committee on Deliberate Online Falsehoods issued a report that recommended new legislation to address the harms of online falsehood or “fake news”. After much vigorous debate in Parliament, the Protection from Online Falsehoods and Manipulation Act (Act 18 of 2019) (“POFMA”) was passed on 8 May 2019 and came into effect on 2 October 2019. As expected, POFMA, like any legislation which attempts to curtail the spread of fake news, has attracted much criticism. As the business models of social media platforms such as Facebook and Twitter thrive on community engagement and user-generated content, such technology companies lack the incentive to curb the virality of fake news under a voluntary self-regulation regime. At the same time, fake news laws can overreach and significantly restrict the constitutional right to freedom of speech. This article surveys the efficacy of the legislative landscape pre-POFMA in combating fake news and suggests that an umbrella legislation like POFMA is necessary. This article concludes that POFMA, even if perceived to be draconian, is congruent with Art 14 of the Singapore Constitution (1999 Reprint). Nevertheless, such plenary powers are subject to potentially powerful political limits in the electoral process. The final test for the legitimacy of POFMA really lies in how the Government enforces this new law.

I. Introduction

1 In September 2018, the Select Committee on Deliberate Online Falsehoods in Singapore (“Select Committee”) denounced online falsehoods as a threat to the “cornerstones of a well-functioning and democratic society”,1 a sentiment that has been expressed by government figures in the UK, France, Germany, the Philippines, Malaysia, and elsewhere.2 Stressing that there is “no one silver bullet”, the Select Committee recommended new legislation as part of a multi-pronged approach to counter online falsehoods.3

2 The Select Committee justified the need for legal intervention on two grounds. First, indirect measures such as raising media literacy, promoting quality journalism and implementing fact-checking initiatives cannot overcome the “cognitive biases” of human psychology that make individuals susceptible to fake news.4 Second, technology companies are not incentivised to take active steps against the promulgation of online falsehoods under a voluntary self-regulation regime.5 For example, Facebook requires a post to meet a high threshold of imminent harm; mere falsity is insufficient grounds for removal.6

3 Subsequently the Protection from Online Falsehoods and Manipulation Bill7 was passed in Parliament on 8 May 2019 with a majority of 72 to nine (all opposition Members of Parliament (“MPs”) voted against), with three Nominated Members of Parliament abstaining. The bill was accompanied by the Protection from Harassment (Amendment) Bill,8 which extended the s 15 remedy to private entities and provided the courts with expanded powers to order the falsehood's removal.9 Taken together, the two bills implement measures that address the harms posed by all categories of falsehoods discussed in this article. Significantly, the Minister for Law has clarified that the correction mechanism under the Protection from Online Falsehoods and Manipulation Bill is intended to be the “primary tool” to address the harms of online falsehoods; criminal

sanctions and takedown mechanisms are reserved for situations where the falsehood poses an elevated harm to public interest.10

4 Thus the Protection from Online Falsehoods and Manipulation Act11 (“POFMA”) was enacted and it came into force on 2 October 2019. Unsurprisingly, POFMA was the target of significant criticism, with the chief concern that it was a serious threat to civil liberties.12 At the time of writing, there have been eight Correction Directions issued under POFMA: against opposition politician Brad Bowyer of Progress Singapore Party (25 November 2019),13 Alex Tan Zhi Xiang at States Times Review (29 November 2019),14 the Singapore Democratic Party (14 December 2019),15 opposition politician Lim Tean (16 December 2019),16 Malaysia-based non-governmental organisation Lawyers for Liberty (22 January 2020)17 and, in the wake of the Wuhan coronavirus outbreak, against Hardwarezone.com (27 January 2020),18 AB-TC City News website and Alex Tan Zhi Xiang at States Times Review (31 January 2020).19 It is expected that some of the Correction Directions will be

challenged in court.20 In light of the recent invocation of orders under POFMA, government officials and some commentators have defended its quintessential role in stopping the ill effects of the virulent spread of misinformation.21 Despite assurances by the Law Minister K Shanmugam that “free speech should not be affected by this bill”, and that the law is aimed at tackling “falsehoods, bots, trolls, and fake accounts”, there is still much scepticism whether the “clear oversight mechanism” in place in POFMA to prevent possible abuse of power by the Singapore government was a sufficient safeguard in practice.22 There is also some measured optimism that the Singapore government will be able to strike an appropriate balance:23

If it is to be successful, ethical safeguards need to be ensured. Any [law] that gives the government sweeping power must be carefully monitored, but if there's a country that could pull this rigid law off it's certainly Singapore. The only thing that can be done now is wait; time will tell whether this law is a step in the right direction or a step towards a true authoritarian dictatorship.

5 Singapore's move towards legislation is consistent with the approach taken in an increasing number of countries, such as Germany and Malaysia, which have implemented legislation to combat fake news. Although the Select Committee proposed comprehensive measures that run the gamut from the regulation of funding for online political campaign advertisements to demonetisation regimes that prevent purveyors of online falsehoods from reaping digital advertising revenue,24 a close scrutiny of these measures and their implementation in POFMA is outside the scope of this article. This article will instead focus on key provisions of POFMA that (a) impose criminal sanctions on purveyors of online falsehoods; and (b) provide mechanisms for the removal of online falsehoods.

6 The rationale for focusing on these two areas is that criminal sanctions and takedown laws strike at the heart of the right to freedom of speech under Art 14(1) of the Singapore Constitution.25 Although it has been convincingly argued that falsehoods are not worthy of protection,26 the question of how legislators can draft laws that address the harms of falsehoods without creating a “chilling effect” on other types of “worthy” speech remains to be answered — a concern the Select Committee was cognisant of when it called for a “calibrated approach”.27

7 The circumstances surrounding Malaysia's Anti-Fake News Act28 present a cautionary tale for Singapore. The law, which came into effect a month before the 14th General Election,29 has been overshadowed by mistrust and is widely perceived to be motivated by then Prime Minister Najib's desire to silence corruption allegations.30 The politicised nature of the law can be seen from the efforts by the Mahathir-led government to repeal the law, which were countered by the opposition-led Senate's attempts to block the repeal. It has since been repealed on 9 October 2019.31 In Singapore, where one party enjoys an overwhelming majority in Parliament, there is a heightened risk that POFMA will be perceived as a backdoor to suppressing political criticism. Thus, the credibility and legitimacy of POFMA rests on how one strikes an appropriate balance between the competing interests of freedom of speech and the harms of falsehoods.

8 The importance of a well-drafted fake news law is even more pressing in light of Singapore's judicial climate of a perceived deference to Parliament when public order issues are involved. David Tan observes that courts have generally exhibited strong deference to the Legislature in relation to the interpretation of Art 14 compared to other constitutional rights.32 He posits that this is primarily due to the wording of Art 14(2), which unambiguously confers on Parliament the role of balancing

constitutional free speech with other competing rights and interests.33 In a consistent line of cases since the 1990s, the Singapore Court of Appeal has interpreted Art 14 with deference to the “government's assessment of the needs of public order without requiring that the restrictions be informed by substantive standards of reasonableness, proportionality, or necessity within a democratic society”.34 Hence, the balancing exercise in relation to the regulation of online falsehoods must happen at the legislative stage.

9 The rest of this article is divided into four parts. Part II provides a brief overview of the substantive provisions of POFMA.35 Part III presents some of the legal justifications for regulating online falsehoods and demonstrates the extensive nature of Parliament's powers to restrict speech in Singapore.36 Part IV surveys Singapore's legal landscape and addresses the claims that our current framework is sufficient to contain the harms of fake news.37 It illustrates the limitations of existing laws and makes a case for why these gaps can only be overcome by enacting new laws such as POFMA that are specifically directed at online falsehoods. Part V concludes with a summary of key findings and a note on what lies ahead for the regulation of fake news in Singapore.38

II. Overview of the Protection from Online Falsehoods and Manipulation Act

10 As POFMA was only passed on 8 May 2019 and came into force on 2 October 2019, there has been no substantive academic commentary published on it. However, there is extensive media coverage and Internet postings on its passage and subsequent...

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