Singapore Democratic Party v Attorney-General

• Jurisdiction: Singapore
• Judge: Ang Cheng Hock J
• Judgment Date: 05 February 2020
• Neutral Citation: [2020] SGHC 25
• Court: High Court (Singapore)
• Hearing Date: 29 January 2020,17 January 2020,16 January 2020
• Docket Number: Originating Summons No 15 of 2020
• Plaintiff Counsel: Chee Soon Juan
• Defendant Counsel: Deputy Attorney-General Hri Kumar Nair SC, Fu Qijing, and Amanda Sum (Attorney-General's Chambers)
• Subject Matter: Statutory Interpretation,Construction of statute,Protection from Online Falsehoods and Manipulation Act (No. 18 of 2019)
• Published date: 08 February 2020

Ang Cheng Hock J:

By this Originating Summons (“OS”), the appellant seeks to set aside three Correction Directions (“CDs”)¹ issued by the Minister of Manpower. All three CDs were issued on 14 December 2019 pursuant to s 10(1) of the Protection from Online Falsehoods and Manipulation Act 2019 (No. 18 of 2019) (“POFMA”). The appellant’s application is made under s 17(1) of the POFMA, which frames the application as an appeal. Section 17(4) of the POFMA gives the Court power to set aside the three CDs if certain prescribed circumstances are established.

Background

A brief chronology of the relevant facts is as follows.

On 8 June 2019, the appellant published an article (the “SDP Article”) on its online website titled “SDP Population Policy: Hire S’Poreans First, Retrench S’Poreans Last”.² This date of first publication is relevant to one of the arguments raised by the appellant because the POFMA only came into force on 2 October 2019. This issue is considered later in this judgment at [51] to [56].

On 30 November 2019, the appellant published a post (the “November Facebook Post”) on its Facebook page titled “Singapore Democratic Party (SDP)” with some text, an image and a hyperlink to the SDP Article.³ The posts on this Facebook page are accessible to the public.

On 2 December 2019, the appellant published a post (the “December Facebook Post”) on Facebook with some text and an image containing two graphical illustrations.⁴ There was also in this post a hyperlink to the SDP Article. This post was visible to certain users of Facebook as a sponsored post paid for by the appellant’s Vice-Chairman, John Tan Liang Joo.

On 14 December 2019, the POFMA Office of the Info-communications Media Development Authority, on the direction of the Minister for Manpower, issued three CDs to the appellant. One CD (“CD-1”) referred to the SDP Article, while the other two referred to the November Facebook Post (“CD-2”) and the December Facebook Post (“CD-3”). All three CDs stated that the material they referred to contained “a false statement of fact”, and directed the appellant to add correction notices at the top of the SDP Article, November Facebook Post and December Facebook Post respectively by no later than 4.00pm on 15 December 2019. The appellant complied with all three CDs.

On 3 January 2020, the appellant applied to the Minister of Manpower under s 19 of the POFMA for the cancellation of all three CDs. On 6 January 2020, the Ministry of Manpower rejected the said application.⁵ On 8 January 2020, the appellant filed the present OS to set aside the three CDs.

The statutory framework

Under s 10(1) the POFMA, a CD may be issued if a false statement of fact (referred to in Part 3 of POFMA as the “subject statement”) has been or is being communicated in Singapore, and a Minister is of the opinion that it is in the public interest to issue the CD.

The subject statement is identified based on the material against which the CD is issued. It refers to a false statement of fact which is reasonably discerned from the material. Identifying the appropriate subject statement therefore requires examination of the material and the meaning (or meanings) which that material conveys.

In these proceedings, parties have referred to the subject statement in a whole range of ways. It has been described as being, inter alia, the “meaning” of the material in question,⁶ the “interpretation” to be drawn from the material,⁷ and even the “appropriate meaning” of the material. The respondent has also used the term “false statement of fact” to specifically refer to the subject statement(s).⁸ These definitions, while varied, do generally illustrate what the subject statement is. In short, it is an interpretation, drawn from the material in question, which the Minister asserts is a false statement of fact. Given the differing terminology used on this point, I should explain that the references to “meaning”, “interpretation”, the “false statement of fact” and the “subject statement” in this judgment should be understood in this same way.

In my view, there are thus two questions the Court must examine in relation to the subject statements in each case: First, can the subject statement be reasonably interpreted from the material in question? Second, is that subject statement false?

On the issue of whether a subject statement has been “communicated” in Singapore, the ambit of a “communication” for the purposes of a CD is set out in s 3(1) of the POFMA. Under this provision, a statement or material is communicated in Singapore if it is made available to one or more end-users in Singapore on or through the internet.

If a CD is issued, the recipient of the CD may be required to communicate, in a specified form or manner, by a specified time, a notice (referred to in the POFMA as a “correction notice”). The correction notice will contain one or both of the following: A statement that the subject statement is false, or that the material contains a false statement of fact; and/or A specified statement of fact, or a reference to a specified location where the specified statement of fact may be found, or both.

Section 17(5) of the POFMA makes clear that the High Court may only set aside a CD on the following grounds: the person did not communicate in Singapore the subject statement; the subject statement is not a statement of fact, or is a true statement of fact; and it is not technically possible to comply with the CD.

The ground relied on by the appellant in the present case as the basis for setting aside all three CDs is the latter limb of s 17(5)(b) of the POFMA, that is, each subject statement is “a true statement of fact”.

The Correction Directions

CD-1 pertains to the SDP Article, and identifies the subject statement from the SDP Article as being that “Local PMET retrenchment has been increasing”. “PMET” is an acronym for professionals, managers, executives and technicians. The basis for identifying this subject statement was further explained in the respondent’s reply affidavit as being primarily a reference to the first sentence in the eighth paragraph of the SDP Article (in bold below), read in context of the entire Article. For ease of reference, the relevant portions of the SDP Article which the parties have referred to be as being relevant and providing the proper context are as set out below:

SDP POPULATION POLICY: HIRE S’POREANS FIRST, RETRENCH S’POREANS LAST

The SDP pushed for reform of the immigration policy which it says allows in too many foreign workers into Singapore to displace local PMETs.

The party made this proposal when it launched its alternative population and immigration policy Building A People: Sound Policies for a Secure Future at its office in Ang Mo Kio this afternoon.

The proposals, introduced by a new face in the party Ms Joyce Tan, would take a more measured approach towards allowing foreigners to work in Singapore.

One idea is to adopt a points-based system called the Talent Track Scheme where foreign PMETs wishing to work in Singapore have to apply to. The applications will be assessed based on their qualifications, skills, and experience.

Only those who meet the required number of points will qualify for a list of potential employees.

Employers will then be allowed to hire foreigners from this pool but will have to demonstrate that no Singaporean is available or qualifies for the position before that.

‘This will prevent firms hiring foreigners based solely on their ability to accept lower wages,’ said Ms Tan, a communications professional who has held executive positions in local and international corporations. She currently works in a regional company.

The SDP’s proposal comes amidst a rising proportion of Singapore PMETs getting retrenched. Such a trend is partly the result of hundreds of local companies continuing to discriminate against local workers.

(emphasis added)

CD-2 takes issue with the November Facebook Post on the basis that the said post includes a hyperlink to the SDP Article, which is itself the subject of CD-1. The subject statement identified is thus the same as that in CD-1.

CD-3 identifies two subject statements. The first, which relates to a graphical illustration on the bottom left hand side of the December Facebook Post showing a downward pointing arrow on a graph titled “Local PMET Employment”, is that “Local PMET employment has gone down”. The December Facebook Post also includes a hyperlink to the SDP Article (the subject of CD-1). Thus, the second subject statement identified is the same as that in CD-1.

As is clear from the above, the defensibility of CD-1 is closely intertwined with that of the other two CDs. All three CDs relate, at least in part, to the SDP Article.

The correction notices in all three CDs also included links to a government website (the “Factually Website”) setting out, inter alia, data on the number of local PMETs from 2015 to 2019, the number of local retrenchments and local PMET retrenchments from 2015 to 2018, the number of Employment Pass holders from 2015 to June 2019, and the number of retrenched local PMETs per 1,000 local PMET employees from 2015 to 2018.⁹

Both sides are in agreement that the subject statements identified in the CDs are interpretations of the Minister for Manpower, in the sense that the subject statements are the meanings she has identified from the SDP Article, the November Facebook Post and the December Facebook Post. Both sides are also in agreement that it is for the Court to decide whether the Minister’s interpretations can indeed be derived from the words and graphical illustrations used in these published material.

Issues

As outlined at [11] above, the issues that the court has to decide in relation to each CD are as follows: On a proper interpretation of the SDP Article, the November Facebook Post and the December Facebook Post (“the...