The Online Citizen Pte Ltd v Attorney-General

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 19 February 2020
• Neutral Citation: [2020] SGHC 36
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 118 of 2020
• Year: 2020
• Published date: 22 February 2020
• Hearing Date: 14 February 2020,06 February 2020
• Plaintiff Counsel: Eugene Thuraisingam (Eugene Thuraisingam LLP)
• Defendant Counsel: Hui Choon Kuen, Pang Ru Xue Jamie and Teo Meng Hui Jocelyn (Attorney-General's Chambers)
• Subject Matter: Statutory Interpretation,Construction of statute,Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019)
• Citation: [2020] SGHC 36

Belinda Ang Saw Ean J:

Originating Summons No 118 of 2020 (“OS 118”) is filed by the appellant, The Online Citizen Pte Ltd (“TOC”), to set aside a Part 3 Correction Direction (“Part 3 CD”), which was issued by the Competent Authority on the instruction of the Minister of Home Affairs (“the Minister”) on 22 January 2020 pursuant to s 11 of the Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) (“POFMA”). This Correction Direction is hereafter referred to as “the January 2020 CD”.

The focus of OS 118 is on s 17(5)(b) of the POFMA. The crux of the matter is whether the POFMA is engaged because TOC published an article reporting that Lawyers For Liberty (“LFL”) had made a press statement (“Press Statement”). The question is whether a Part 3 CD can be set aside notwithstanding that TOC takes no position on either the veracity or falsity of LFL’s Press Statement.

A related provision is s 11(4) of the POFMA, which addresses TOC’s subjective belief that it does not know whether LFL’s Press Statement contains false statements of fact. While TOC is indifferent towards the truth or falsehood of LFL’s Press Statement, it nonetheless continues to share an extract of LFL’s Press Statement on its news website in Singapore with its viewers. Against this backdrop, the question for determination is whether s 11(4) of the POFMA applies to TOC who publishes an extract of the Press Statement on its news website in Singapore without verifying the truth of the content but merely states that it has contacted the Ministry of Home Affairs for comments.

In addition to the two statutory provisions outlined above, this Judgment will address an ancillary matter regarding the legal burden of proof in a s 17(5) setting aside application. This concerns a significant feature of s 17(5)(b) which, as a matter of statutory construction, requires TOC to prove the truth of a statement rather than the respondent its untruth.

Events leading up to the filing of OS 118

On 16 January 2020, LFL, a Malaysian non-governmental organisation, published the Press Statement in writing titled “Disclosure of the brutal & unlawful hanging methods in Changi prison – brutal kicks inflicted to snap prisoners’ necks”.¹ The Press Statement claims that officers from the Singapore Prison Service in Changi prison utilised an unlawful hanging method to execute prisoners on death row.² It also discloses the specifics of this hanging method based on information purportedly given by an anonymous officer who had served at Changi prison’s execution chamber.³

On the same day, TOC published an article titled “M’sian human rights group alleges ‘brutal, unlawful’ state execution process in Changi Prison” (“the Article”), which repeats most of the allegations made by LFL in its Press Statement.⁴ In particular, the Article directly refers to LFL’s Press Statement through quotations of various lengths.⁵ The relevant portion of TOC’s Article that quotes LFL’s Press Statement (the quoted section being italicised) is reproduced here for ease of reading and reference:⁶

Citing an unnamed former Singapore Prison Services (SPS) officer’s account, LFL advisor N Surendran said that the former officer and other prison officers were ‘instructed to carry out the following brutal procedure whenever the rope breaks during a hanging, which happens from time to time’: a) The prison officer is instructed to pull the rope around the neck of the prisoner towards him. b) Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction. c) The first officer must then kick the back of the neck of the prisoner with great force in order to break it. d) The officers are told to kick the back of the neck because that would be consistent with death by hanging. e) The officers are told not to kick more than 2 times, so that there will be no tell-tale marks in case there is an autopsy. f) Strict orders are also given not to divulge the above to other prison staff not involved in executions.

[emphasis added]

Also that same day, TOC’s chief editor sent an e-mail to the Ministry of Home Affairs’ Feedback channel to solicit comments on the claims made in LFL’s Press Statement.⁷

On 22 January 2020, the Competent Authority, on the instruction of the Minister, issued the January 2020 CD addressed to TOC’s chief editor pursuant to s 11 of the POFMA.⁸ The January 2020 CD identifies the “subject statement” under s 17(5) of the POFMA as being the italicised portions of the extract reproduced in [5] above starting with the words “prison officers” (“the Subject Statement”).⁹ TOC accepts that the Subject Statement is the extract identified in the January 2020 CD.

Subsequently, TOC made an application to the Minister under s 19 of the POFMA to cancel the January 2020 CD on the grounds set forth below:¹⁰

The report does not affirm the authenticity of the claims made by the non-government entity mentioned in the report.

A query has been sent to MHA for its response in regards to the claim to be included in the report.

MHA has not responded to the publication in regards to the query, even till the point where the Corrective Direction is issued by the Minister.

On 24 January 2020, the Minister rejected TOC’s cancellation application made under s 19 of the POFMA.¹¹ By OS 118, TOC applies to set aside the January 2020 CD.

Preliminary points

As stated earlier, TOC relies on s 17(5)(b) of the POFMA as its sole ground to set aside the January 2020 CD. To be clear, TOC makes no challenge in respect of the matters sets out in subsections (a) and (c) of s 17(5) of the POFMA. Section 17(5) of the POFMA reads as follows: (5) The High Court may only set aside a Part 3 Direction on any of the following grounds on an appeal: (a) the person did not communicate in Singapore the subject statement; (b) the subject statement is not a statement of fact, or is a true statement of fact; (c) it is not technically possible to comply with the Direction.

The first limb of s 17(5)(b) of the POFMA allows the court to set aside a Part 3 CD on the basis that the “subject statement” is not a “statement of fact”. Section 2(2)(a) of the POFMA provides that “a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact”.

The second limb of s 17(5)(b) of the POFMA empowers the court to set aside a Part 3 CD on the ground that the “subject statement” is a “true statement of fact”. Section 2(2)(b) of the POFMA states that “a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.”

This leads me to s 11(4) of the POFMA, which deals with the communication of a false statement of fact on the internet regardless of the subjective motivations behind the communication. Section 11(4) of the POFMA reads as follows: (4) A person who communicated a false statement of fact in Singapore may be issued a Correction Direction even if the person does not know or has no reason to believe that the statement is false.

The statutory language of s 11(4) is plain. So long as the statement of fact is false, any person who circulates a false statement of fact in Singapore by posting or reposting it on the internet may be issued a Part 3 CD regardless of that person’s awareness (or lack thereof), subjective knowledge or belief as to the truth or falsity of the statement of fact. Section 11(4) of the POFMA is intended to prevent and stop the spread of falsehoods and misleading information when information is posted online without prior verification and thought, be it deliberate or otherwise. The Part 3 CD is a countermeasure to debunk stories (in this case a story of the brutal execution of prisoners in Changi prison) where the Minister considers the facts therein to be false and also regards the continued circulation of the misinformation as being inimical to the public interest.

With the above analysis of s 11(4) in mind, the heart of the matter in OS 118 is whether TOC’s application to set aside the January 2020 CD satisfies either of the two legal elements set out in s 17(5)(b). As alluded to earlier, a significant feature of s 17(5)(b) derived from the language of the subsection requires TOC to prove the truth of a statement rather than the respondent to prove its falsehood. I will elaborate on this view below. Suffice to say for now that proof of a necessary legal element for the purposes of s 17(5)(b) resides within the framework of s 17 of the POFMA alone and recourse to the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) is, in my view, a red herring.

The onus of proof to set aside a Part 3 CD

I now turn to the question of where the onus of proof lies in an appeal made to set aside a Part 3 CD. I must again point out that although both parties argued the question at length in written submissions, this question actually distracts from the material issues in OS 118 given TOC’s position. To elaborate, even assuming ad arguendo that the onus lies on the respondent to prove the falsehood of a factual statement, the outcome in this decision would be the same for the simple reason that TOC has repeatedly affirmed that it takes no position regarding the truth of the Subject Statement and therefore does not argue that the Subject Statement is “true” in the context of s 17(5)(b) of the POFMA. TOC’s other contention that the Subject Statement is not a statement of fact because it is a hearsay statement is equally meaningless. Nevertheless, I will address the debate on the onus of proof since parties have submitted on this matter. More importantly, my views on the onus of proof are quite different from those espoused in Singapore Democratic Party v Attorney-General [2020] SGHC 25 (“SDP”), which held that the onus of proof in a setting aside...