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The Protection from Online Falsehoods and Manipulation Bill (aka “fake news” Bill) was presented to Singapore’s Parliament for its first reading on 1 April 2019. It’s ostensibly meant to address the problem of “fake news” and online misinformation. The Bill is expected to have its second and third reading in May 2019.
What’s the problem with it?
The Bill grants any government Minister unprecedented and sweeping powers to act against anything deemed to be “false” and against the public interest—both very broadly defined.
Under this Bill, one’s recourse to the courts only comes at the end of the process, not the beginning, essentially allowing Ministers to decide what is true or false in the first and second instance.
Given the track record of various People’s Action Party administrations of clamping down on dissent and freedom of expression, there are concerns that such a wide-ranging Bill with so much state overreach is giving the PAP sweeping powers to further control public discourse in Singapore—particularly as the next general election approaches.
Surely it’ll be okay as long as we all just stick to the facts?
It’s not always that easy to differentiate between a statement of fact and opinion.
2(2)(b) says 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 is vague, at best.
Equally, your post could be completely accurate and factual, but could be deemed “misleading” because you omitted a fact (accidentally or otherwise). Given that it is impossible to include every single fact about any issue (especially if you are writing to a word limit), this guarantees that virtually anything can be deemed “misleading”.
2(1) of the Bill also considers as a “statement” potentially “any word (including abbreviation and initial), number, image (moving or otherwise), sound, symbol or other representation, or a combination of any of these”. This means the determination of whether your “statement” is true could be entirely up to interpretation.
How does it work?
Under the Bill, any Minister can:
- Order you to put up a notice—as dictated by the government—saying that a “statement” (be it a Facebook post, blog post, tweet, SMS, MMS, message on WhatsApp/Telegram/Viber, etc.) you communicated is false [Part 3, 11(1)(a)]
- Order you to put up a correction—as dictated by the government [Part 3, 11(1)(b)]
- Order you to put a correction on whichever online location they want [Part 3, 11(2)]
- Order you to place the correction in proximity of the “false statement”, or any other statement that is “substantially similar” [Part 3, 11(3)(a)]
- Order you to publish the correction notice in a specified way in a particular newspaper or print publication with a presence in Singapore—and make you pay for it [Part 3, 11(3)(b) & 13(6)]
(According to the Singapore Press Holdings’ ratebook, if you want to publish in the Notice section of the paper, the base rate is $76 per column centimetre. But if you’re publishing an actual ad, a front page 15cm, six-column ad on the front page of The Straits Times on a Monday will set you back $26,000.)
- Order you to remove your post and/or stop making statements that are “substantially similar” [Part 3, 12(1) & (2)]
- Order you to remove your post and publish a notice—as dictated by the government in any manner they choose, including in any print publication with a presence in Singapore of their choice (at your expense) [Part 3, 12(3) & 13(6)]
- Order the Info-communications Media Development Authority [IMDA, the regulatory authority for the media] to ask internet service providers to block access to the account/site that made the “false statement” from Singapore, if you fail to comply with a direction [Part 3, 16(2) & Part 5 33(3)]
- Order social media platforms like Facebook or Twitter (or other services like Google, WhatsApp, or YouTube) to push to their users in Singapore a notice—as dictated by the government—that a statement on their platform is false [Part 4, 21(1)(a)]
- Order social media platforms to publish a specified correction to all their users in Singapore [Part 4, 21(1)(b)]
- Order social media platforms to disable access to content [Part 4, 22(1)]
- Order social media platforms, print publications, broadcasters, websites to issue a notice—as dictated by the government—to all users/in the print publication/audiences [Part 4, 23(1) & (2)]
- Order the IMDA to get internet service providers to block access to online locations containing “false” material that do not comply with their directions [Part 4, 28(2)]
- Declare your website, Facebook page, Twitter page, etc. a “declared online location”, as long as there were at least three statements on that page subject to Part 3 or Part 4 directions in the last six months. Once declared as such, it is a criminal offence to earn money from your page, whether it’s through advertising or selling access to any part of the site (e.g. if you have a paywall). It is also a criminal offence for anyone to financially “support, help or promote the communication of false statements of fact” on your page. The precise parameters of financial support (such as donations) to your page are unclear [Part 5, 32 & 36 & 38]
- Order the owner of a “declared online location” to tell any user in Singapore, in a manner specified by the government, that they’ve been subject to this declaration [Part 5, 32(3)(f)]
- Order a social media platform to disable access to your page (if it’s a “declared online location”) [Part 5, 34(3)]
- Order prescribed social media platforms to disallow its services from being used by particular accounts if there is “coordinated inauthentic behaviour” [Part 6, 40]
- Appoint a public officer before an election period to act as an “alternate authority”—this authority will be able to exercise powers including issuing Part 3 and Part 4 directions (see above) and declaring online locations [Part 8, 52]
- Appoint a public officer to be an “alternate authority” during any other period [Part 8, 53]
- Appoint police officers, public officers or statutory board employees as authorised officers to administer the law, subject to the Minister’s directions [Part 9, 55]
- Allow authorised officers to exercise powers related to police investigations as specified in the Criminal Procedure Code as set out in the Schedule (even if they aren’t actually police officers, which means they could be untrained and not subject to internal codes of conduct that govern the police force) [Part 9, 56]
- Exempt anyone they want from this law [Part 9, 61]
How does the Minister decide whether to issue an order?
- Ministers can issue orders as long as
- your statement is false or misleading, wholly or in part (as decided by the Minister at this stage) [Part 1, 2(2) & Part 3, 10(1)(a) & Part 4, 20(1)(a)], and
- they are of the opinion that it’s in the public interest to do so [Part 1, 4 & Part 3, 10(1)(b) & Part 4, 20(1)(b)]
- Ministers can declare websites/accounts as declared online locations as long as
- there have been at least three different statements that have been subjected to correction or takedown orders within a six-month period [Part 5, 32(1)]
What happens if I don’t comply?
- If you don’t comply within the specified time given, you (if charged as an individual) face a fine of up to $20,000 and/or 12 months in jail; in any other case the fine could go up to $500,000 [Part 3, 15(1)]
- The Minister can order internet service providers to block access to your account/site at the risk of a fine of up to $500,000 [Part 3, 16(2) & (3) & Part 5, 33(3) & (4)]
- If you’re the owner of a “declared online location” and you fail to comply with an order to inform users in Singapore about this, you (if charged as an individual) could be fined up to $40,000 and/or jailed for up to three years; in any other case the fine could go up to $500,000 [Part 5, 32(6)]
- The Minister can order social media platforms or other internet intermediaries to disable access to your page at risk of a fine of up to $500,000 [Part 5, 34(3) & (5)]
What happens if tech companies don’t comply?
- If tech companies don’t comply with the Minister’s order, they could be fined up to $1 million [Part 4, 27(1)]
- If they continue not to comply, they could be subject to a further fine of up to $100,000 per day [Part 4, 27(1)]
- The Minister can also order internet service providers to block access to the social media (or other online information sharing) platform at risk of a fine of up to $500,000 [Part 4, 28(2) & (3)]
If I don’t agree with the order, what are my options?
- You must comply with the order first, regardless of whether you agree with it or intend to challenge it
- You can apply to the Minister to review or amend his order [Part 3, 17(2)]
- The Minister can take as long as he wants to consider your application (there is no time limit expressly stated in the Bill)
- If the Minister rejects your application, you can appeal to the High Court. You cannot appeal to the High Court unless the Minister has first rejected your application [Part 3, 17)]
A lawyer interviewed by TODAYonline suggested that it could cost between $5,000 to $20,000 to go to court, depending on the nature of the case.
- High Court can only decide in your favour if
- you prove that you did not communicate the statement in Singapore
- they find that the statement is just your opinion, or is actually true
- it’s not technically possible for you to comply [Part 3, 17(5)]
- If you lose the High Court case, it is possible that you’ll be ordered to pay the other party’s legal costs (on top of your own)
What else is there?
- If you’re charged and convicted with deliberately communicating a false statement that’s against the public interest, you can be fined up to $50,000 and/or jailed for up to five years [Part 2, 7]
- If you’ve used an “inauthentic online account” to accelerate the communication of such information, you can be fined up to $100,000 and/or jailed for up to 10 years [Part 2, 7(3)]
But didn’t the PAP say that the government won’t be the final arbiter of truth?
Technically, that’s true—the Bill does specify that the courts will have the final say. But that’s only after the Minister has issued the order and rejected your application to review his own order. Furthermore, going to the High Court is an expensive and time-consuming affair—it could likely cost you thousands, maybe even tens of thousands, of dollars.
In any case, the Bill also states that, even if you do intend to appeal all the way to the High Court, you still have to comply with the Minister’s order first (unless the order is technically impossible to carry out). As noted above, going to court is potentially very expensive.
So while the courts are the final arbiters of truth, the Minister is the arbiter in the first and second instance, and it’s unlikely that many cases will make it all the way to the courts.
The PAP says they won’t use the law to silence critics?
The PAP does not, historically, have a convincing track record in this regard. They said the same thing while passing other laws, including most recently the Public Order Act of 2009, the Protection against Harassment Act 2013, and the Protection of Justice (Administration) Act 2016. However, these laws have all been used against critics.
UPDATE (July 2020): Since the law was passed, a significant portion of the uses of POFMA have been against critics, including New Naratif. Please see POFMAed for a breakdown of the cases and The Show with PJ Thum Episode 8 (which was subject to a POFMA Correction Directive), Episode 8.5, and in particular Episode 9, which addresses this point specifically.
The Minister can exempt anyone they want from this law?
Yes, the Minister is permitted to “exempt any person or class of persons from any provision” of the law [Part 9, 61]. It is unclear why this clause has been inserted into the Bill, and who (if any) the PAP government intends to exempt from this law.
What questions have been left unanswered?
- Can the PAP administration pull up old articles and demand corrections or removal? Do PAP Ministers intend to do this?
- What avenues are open to ordinary citizens when it is the government, or specific government Ministers, who are perpetrating false and misleading information?
What can we do about this?
- We encourage everyone to read the Protection from Online Falsehoods and Manipulation Bill—you don’t have to just take our word for it, and it’s always good practice to verify information at the source.
- Contact your Member of Parliament and make your concerns known. Urge them to speak up about the Bill during the next reading.
- Start a parliamentary petition in accordance with the Standing Orders of Parliament, and get an MP to submit it for you.
- Talk about the Bill to your friends and family—highlight the issues and show them this FAQ!