The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 08 October 2021
• Neutral Citation: [2021] SGCA 96
• Docket Number: Civil Appeals Nos 47 and 52 of 2020, and Summonses Nos 72, 97 and 98 of 2020
• Subject Matter: Constitutional provisions,Freedom of speech,Constitutional Law,Construction of statute,Statutory Interpretation,Fundamental liberties
• Published date: 13 October 2021
• Defendant Counsel: Tan Ruyan Kristy SC, Fu Qijing and Amanda Sum Yun Qian (Attorney-General's Chambers),Hui Choon Kuen, Pang Ru Xue, Jamie and Teo Meng Hui, Jocelyn (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 21 December 2020,17 September 2020
• Plaintiff Counsel: Eugene Singarah Thuraisingam and Joel Wong En Jie (Eugene Thuraisingam LLP),Nair Suresh Sukumaran and Joel Yeow Guan Wei (PK Wong & Nair LLC) (instructed), Eugene Singarah Thuraisingam and Joel Wong En Jie (Eugene Thuraisingam LLP)

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The appellants in these appeals are The Online Citizen Pte Ltd (“TOC”) and the Singapore Democratic Party (“SDP”). They were issued Correction Directions (“CDs”) under s 11 of the Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) (“the POFMA”), requiring them to insert correction notices at the top of certain articles and Facebook posts that they had published online. Their respective applications under s 19 of the POFMA to the Minister for Home Affairs (in TOC’s case) and the Minister for Manpower (in SDP’s case) to cancel the CDs were unsuccessful. They then each commenced proceedings in the High Court under s 17 of the POFMA to set aside the CDs.

The appellants’ respective applications to set aside the CDs were both dismissed by the High Court. In so doing, however, the High Court arrived at conflicting decisions on the question of on whom the burden of proof lies in proceedings to set aside a CD under s 17 of the POFMA. The appellants now appeal against the decisions of the High Court. They have also raised questions pertaining to the constitutionality of the POFMA: specifically, whether, and if so, the extent to which, the POFMA impinges on the right to freedom of speech conferred by Art 14(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”, which expression also denotes, where applicable, the corresponding predecessor version of the Constitution as it currently stands).

The present appeals provide the first opportunity for this court to consider the interpretation and application of the POFMA, which came into force on 2 October 2019, as well as its constitutionality. We set out below the brief factual background to the appeals before framing the issues in dispute. It should be noted that the version of the POFMA that we are concerned with for the purposes of these appeals is the POFMA as it stood prior to the amendments introduced by the Supreme Court of Judicature (Amendment) Act 2019 (Act 40 of 2019), which came into effect on 2 January 2021. Pursuant to those amendments, proceedings to set aside a CD under s 17 of the POFMA are now to be brought in, specifically, the General Division of the High Court, and all the references to the “High Court” in the provisions of the POFMA that are cited in this judgment now read as the “General Division of the High Court” instead.

Background

The appellant in CA/CA 47/2020 (“CA 47”) is TOC. It is the local news agency behind the eponymous website, The Online Citizen, and is owned and controlled by its chief editor, Mr Xu Yuan Chen @ Terry Xu. TOC’s appeal is against the decision of Belinda Ang Saw Ean J (as she then was) in The Online Citizen Pte Ltd v Attorney-General [2020] SGHC 36 (“TOC v AG”). In the rest of this judgment, we refer to CA 47 as “the TOC appeal” where appropriate to the context.

The appellant in CA/CA 52/2020 (“CA 52”) is SDP, a non-profit political association. SDP’s appeal is against the decision of Ang Cheng Hock J in Singapore Democratic Party v Attorney-General [2020] SGHC 25 (“SDP v AG”). We refer to CA 52 hereafter as “the SDP appeal” where appropriate to the context.

Given the sequence of the events which led to the issuance of the CDs to SDP and TOC, we set out the facts relating to the SDP appeal first, before turning to the facts of the TOC appeal.

The SDP appeal The article and Facebook posts published by SDP

On 8 June 2019, SDP published an online article titled “SDP Population Policy: Hire S’poreans First, Retrench S’poreans Last” (“the SDP Article”). The article stated that SDP had launched its “alternative population and immigration policy”. This was aimed at reforming the Government’s prevailing policy, which, in SDP’s view, allowed too many foreign workers to work in Singapore, and, consequently, displaced “local PMETs” (meaning professionals, managers, executives and technicians). The article stated that one of SDP’s proposals was to launch a points-based system for foreign PMETs wishing to work in Singapore, and that this would help to ensure that firms were not hiring foreigners based solely on their willingness to accept lower wages. The SDP Article then went on to state:

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]

Some months later, on 30 November 2019 at 11.06am, SDP published a post on Facebook (“the November Facebook post”). The post advocated the need for more protection of Singaporeans in the labour market who were being or had been “displaced from their PMET jobs by foreign employees”, and contained a hyperlink to the SDP Article after the text. The post was accompanied by an image bearing SDP’s logo, with the lines:

LOCAL PMET UNEMPLOYMENT Has Increased

The number of FOREIGN PMETS HAS ALSO INCREASED

Coincidence? We think not.

On 2 December 2019 at 9.18pm, SDP published a sponsored post on Facebook that was paid for by SDP’s vice-chairman, John Tan Liang Joo. The text of this post (“the December Facebook post”) was substantially similar to that of the November Facebook post, and the post likewise contained a hyperlink to the SDP Article. In addition, the post was accompanied by a graphical illustration that sought to depict decreasing “[l]ocal PMET employment” and increasing “[f]oreign PMET employment”. The interpretation of this graphical illustration – specifically, the meaning of the term “[l]ocal” therein – is a matter in dispute in the SDP appeal, and we elaborate further on this aspect of the post in our subsequent analysis.

The CDs issued to SDP

On 14 December 2019, three CDs were issued to SDP pursuant to s 11 of the POFMA on the authority of the Minister for Manpower. We refer to these CDs collectively as “the SDP CDs” hereafter where appropriate to the context. The first CD (“SDP CD-1”) was directed at the SDP Article. The other two CDs (“SDP CD-2” and “SDP CD-3”) pertained to the November Facebook post and the December Facebook post respectively. In respect of these three publications, two false statements of fact – termed “subject statements” for the purposes of Part 3 of the POFMA (see s 10(1)(a) of the POFMA) – were identified by the Minister for Manpower: SDP CD-1 identified the subject statement that was said to have arisen from the SDP Article as the statement that “Local PMET retrenchment has been increasing” [emphasis added] (“the first subject statement”). Because the November Facebook post and the December Facebook post both contained a hyperlink to the SDP Article, SDP CD-2 and the second half of SDP CD-3 (which was that part of SDP CD-3 that was directed at the hyperlink to the SDP Article in the December Facebook post) were also issued on the basis of this subject statement. SDP CD-3 identified an additional subject statement that pertained only to the December Facebook post. This was the statement that “Local PMET employment has gone down” [emphasis added] (“the second subject statement”), and it formed the basis for the first half of SDP CD-3.

The SDP CDs directed SDP to insert correction notices at the top of the SDP Article, the November Facebook post and the December Facebook post by no later than 4.00pm on 15 December 2019. SDP complied with all three CDs (SDP v AG at [6]). The wording of each correction notice was similar. The correction notices in SDP CD-1 (in respect of the SDP Article) and SDP CD-2 (in respect of the November Facebook post) both read as follows:

CORRECTION NOTICE:

This post contains a false statement of fact. There is no rising trend of local PMET retrenchment. Local PMET employment has in fact increased consistently and continues to do so today. For the correct facts, click here: https://www.gov.sg/factually/content/corrections-on-falsehoods-posted-by-SDP

[underlining in original; emphasis added in italics]

As for the correction notice in SDP CD-3 in respect of the December Facebook post, it stated:

CORRECTION NOTICE:

This post contains false statements of fact. Local PMET employment has in fact increased consistently and continues to do so today. There is no rising trend of local PMET retrenchment. For the correct facts, click here: https://www.gov.sg/factually/content/corrections-on-falsehoods-posted-by-SDP

[underlining in original; emphasis added in italics]

The cancellation application and the appeal against the SDP CDs

On 3 January 2020, SDP applied to the Minister for Manpower to cancel the SDP CDs pursuant to s 19 of the POFMA. On 6 January 2020, the Minister for Manpower rejected the application. On 8 January 2020, SDP filed HC/OS 15/2020 (“OS 15”) in the High Court to set aside the SDP CDs under s 17 of the POFMA.

OS 15 was heard by Ang Cheng Hock J on 16 and 17 January 2020. His judgment in SDP v AG dismissing SDP’s application to set aside the SDP CDs was issued on 5 February 2020. We summarise the decision in SDP v AG together with the decision in TOC v AG later in this judgment.

The TOC appeal

At about the time that OS 15 was being heard, the events that formed the background to the TOC appeal were unfolding.

On 16 January 2020, a Malaysian non-governmental organisation known as Lawyers for Liberty (“LFL”) published a press statement titled “Disclosure of the brutal & unlawful hanging methods in Changi Prison – brutal kicks inflicted to snap prisoners’ necks”. The press statement (which we refer to hereafter as “the LFL press statement” where appropriate to the context) claimed that officers from the Singapore Prison Service (“SPS”) had been instructed to utilise a “brutal and unlawful” method to execute prisoners on death row, and disclosed the specifics of this alleged execution method based on information purportedly given by an...