Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
On Appeal Contracts Expression
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The Singapore High Court dismissed an application by The Online Citizen (TOC), an independent media website, to set aside an order for it to post a correction notice or “Correction Direction” (CD) pursuant to the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The Correction Direction was issued issued by the Home Affairs Minister following the publication of an article by TOC where it quoted from a Press Statement made by a Malaysian NGO, Lawyers For Liberty (LFL), alleging the use of illegal judicial execution methods at Changi Prison in Singapore. The Court rejected TOC’s “reporting defense”, that it “merely reported in an evenhanded way” about allegations made by a third party and had taken no position on the truthfulness of the Press Statement. The Court further interpreted the Act to require the applicant to bear the burden to verify the truthfulness of the impugned statement, and it determined that TOC had failed to prove either that the statement was not a statement of fact or that it was true. Applying the reasonable person test, the Court found that the impugned statement would be understood as a statement of fact, and that according to POFMA the maker of a false statement of fact “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 Court reasoned that the CD did not inhibit free speech because it did not restrict the original text, but only required posting additional information as a mechanism to counter the spread of false information on the internet.
In September 2020, a five-judge Court of Appeal heard combined legal challenges to the Protection from Online Falsehoods and Manipulation Act (Pofma), brought on by the Singapore Democratic Party (SDP) and socio-political website The Online Citizen (TOC). The judgment is still pending as of April 2021.
On 16 January 2020, Lawyers for Liberty (LFL), a Malaysian non-governmental organisation, published a Press Statement titled “Disclosure of the brutal & unlawful hanging methods in Changi prison—brutal kicks inflicted to snap prisoners’ necks.” LFL alleged in this statement that Singapore Prison Service (SPS) officers in Changi prison adopted illegal methods of executing prisoners on death row. An anonymous SPS officer working at Changi prison’s execution chamber purportedly provided LFL with the details of hanging methods used. On the same day, the appellant, The Online Citizen (TOC), published an article on their website titled “M’sian human rights group alleged ‘brutal, unlawful’ state execution process in Changi Prison.” The article quoted the allegations made by LFL in the Press Statement, including that prison officers must “kick the back of the neck of the prisoner with great force in order to break it.” [p. 3] The chief editor of TOC also sent an e-mail to the Ministry of Home Affairs seeking a comment on the allegations that same day.
On 22 January 2020, the chief editor of TOC was issued with a Correction Direction (CD) by the Competent Authority pursuant to s 11 of the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The CD required the statement-maker to insert a “correction notice” within its published material, directing viewers to a competing account of facts published by the government. The impugned “subject statement” of the article was the quoted claims from LFL that detailed the unlawful hanging method.
The appellant, TOC, subsequently made an application to the Home Affairs Minister under s 19 of the POFMA to cancel the CD. Their grounds for cancellation were that the report does not “affirm the authenticity of the claims made by the non-government entity mentioned in the report”, that “[a] query has been sent to MHA for its response in regards to the claim”, and that “MHA has not responded to the publication in regards to the query”. [p. 4]
On 24 January 2020, the Home Affairs Minister rejected TOC’s cancellation application under s 19 of the POFMA.
TOC then applied to the High Court to set aside the CD pursuant to s.17(5)(b) of the POFMA, which empowers the High Court to set aside a CD if “the subject statement is not a statement of fact, or is a true statement of fact.” [p. 5]
Justice Belinda Ang Saw Ean delivered the opinion of the Singapore High Court.
The primary issue before the court was whether the appellant had sufficiently shown that “the subject statement is not a statement of fact, or is a true statement of fact”, so as to allow the court to set aside the CD under s.17(5)(b) of the POFMA. This would relieve the appellant of its obligation to insert a correction notice within its published article.
The Court first recalled that TOC relies on s.17(5)(b) of the POFMA, under which the High Court may set aside a CD if “the subject statement is not a statement of fact, or is a true statement of fact.” [p. 5] S. 2(2)(b) of the POFMA further sets out 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.” [p. 5-6] However, under s. 11(4) of the POFMA, if a statement is false, it is irrelevant if the “person does not know or has no reason to believe that the statement is false.” [p. 6]
Onus of proof to set aside a Correction Direction
The Court began their analysis by considering whether the “onus of proof” in an appeal lies with the appellant or the respondent. Justice Belinda Ang Saw Ean first noted that, regardless of her decision, “the outcome in this decision would be the same” as TOC takes no position regarding the veracity of the Subject Statement. [p. 7] In addressing this question, the Court contradicted the previous authority (Singapore Democratic Party v Attorney-General  SGHC 25), which held that the onus of proof in setting aside an application under s.17(5) falls on the appellant, not the respondent. Therefore, the onus was on the appellant to prove that the statement was not a statement of fact or that it was true.
Justice Ang based this decision on the statutory language of s.17(5), in particular the legal elements that must be satisfied for a CD to be set aside. The Court interpreted the three grounds in s.17(5)(a)–(c) for setting aside a Correction Direction as “[characterizing] the legal elements in terms of the positive case that the statement-maker has to meet”, thus placing the onus on the statement-maker to prove them. [p. 12] This stands in contrast to s.10 of the Act, which “states the legal elements in terms of the conditions that the respondent has to satisfy.” [p. 12] Sub-subsection (b), for example, requires it to be shown that the statement was “true”, rather than that it was “false”. Therefore, to lay the burden on the respondent to prove the untruth of a statement would contradict the clear language of s.17(5)(b) and would effectively “read into the provision a statutory presumption in favour of TOC that is simply not there”. [p. 13] The statutory language has “primacy” over the common law maxim codified in ss.103 and 105 of the Evidence Act (Cap 97, 1997 Rev Ed) that “he who asserts must prove.” [p. 14] (SCT Technologies Pte Ltd v Western Copper Co Ltd  1 SLR 1471 at ) Furthermore, Justice Ang determined that this construction supports the legislative purpose of prevention, as expressed in s. 5(a) of the POFMA: the purpose of the Act is “to prevent the communication of false statements of fact in Singapore.” [p. 15]
Justice Ang further opposed the reasoning in Singapore Democratic Party v Attorney-General that the issuance of a CD restricts the right to free speech under Article 14(1) of the Singaporean Constitution. The Court argued that the “nature of the speech in question is not in the categories of speech covered by Art 14.” [p. 15] Referencing the Singapore Court of Appeal in Attorney-General v Ting Choon Meng and another appeal  1 SLR 373 , the Court noted that the right to free speech “does not extend to a wholly unrestricted right to deceive or to maintain a deception.” [p. 15] The Court additionally cited the English House of Lords in Reynolds v Times Newspapers Ltd and others  2 AC 127 in their assessment that free speech applies to the communication of “information not misinformation.” [p. 15] Justice Ang concluded that “there is no public interest in preserving a right to disseminate falsehoods.” [p. 15] On the contrary, “purveying as facts statements which are not true is destructive of the democratic society.” (Reynolds ).
Addressing the relevance of free speech to a Part 3 CD in particular, the Court found that such a measure “does not inhibit free speech because it does not prevent the statement-maker from maintaining the original text of its published material.”  Rather, it only requires the insertion of a “Correction Notice” to allow viewers “to compare the competing accounts of facts and make an individual assessment based on the available evidence”. [p. 16] The issuance of the Correction Direction “promotes observance of the principle of audi alteram partem (hear the other side), in service of a balanced inquiry, which is a safeguard against its antithesis, a self-satisfied ignorance” (quoting Thio Li-Ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) at para 14.013). The Court argued that s. 11(4) of the PODMA, which addresses the statement-maker’s subjective belief on the truth of the statement, is a useful method of “tackling the unique difficulties associated with refuting false factual claims on the internet.” [p. 16]
Furthermore, the Court found that the imposition of the burden of proof on the Minister in a s. 17 application on the basis of the Minister’s decision to issue a CD would be “problematic.” Justice Ang argued that Part 3 of the Act “clearly bifurcates the Minister’s responsibilities under s.10(1) from the court’s powers under s.17(5)”, based on the statutory language. [p. 16] If the burden of proof is laid on the respondent, that would effectively conflate “two distinct regimes” and, in any case, appear to violate the “presumption against surplusage [i.e.] a canon of construction that operates to prefer an interpretation of the statute that avoids redundancy.” [p. 17]
Finally, Justice Ang disagreed with the reasoning in Singapore Democratic Party v Attorney-General that Parliament could not have intended for the statement-maker to bear the burden of proof due to the “information asymmetry between the parties.” [p. 18] Justice Ang argued that legislative intent should not be reconstructed on the basis of a concern (information asymmetry) that was not addressed by Parliament. Rather, placing the burden on the statement-maker (TOC) would not be “oppressive” because “once the statement- maker adduces prima facie evidence of the statement’s truth, the evidential burden subsequently shifts to the respondent to demonstrate otherwise.” [p. 19]
On this basis, Justice Ang concluded that the legal burden of proof rests on the statement-maker in an application made under s. 17(5) of the POFMA to set aside a CD. The Court subsequently turned to the two main issues in dispute: whether the Subject Statement is a “statement of fact” and whether it is “true” under s. 17(5)(b) of the POFMA.
Issue 1: Is the “subject statement” a statement of fact under s. 17(5)(b) of the POFMA?
Under s. 2(2)(a) of the POFMA, “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.” [p. 5]
The appellant, TOC, argued that the court should set aside the Part 3 CD on the ground that the “subject statement” is “not a statement of fact” because it is neither a fact nor an opinion “but rather a report based on hearsay.” [p. 19] TOC claimed that it has never claimed that the Subject Statement is factually correct or that the events described ever took place. As the Ministry of Home Affairs has neither responded to TOC’s questions nor conducted an investigation, TOC argued that the Subject Statement cannot qualify as a fact. Nor did TOC argue that the Subject Statement was an opinion; rather, it was “merely reported in an even-handed way that LFL had made certain allegations.” [p. 19-20]
The respondent, the Attorney-General, argued that the Subject Statement published by TOC is within the ambit of s. 11(4) of the POFMA.
Justice Ang rejected TOC’s argument for two key reasons. Firstly, the Court determined that TOC erred in introducing the category of “hearsay” when only two categories of statement exist under s. 17 of the POFMA: “facts” and “opinions.” By characterizing their Subject Statement as a “hearsay statement”, the Court interpreted an “implicit acceptance” that TOC had made a “statement of fact.” Furthermore, a statement that is “verifiable or capable of being proved is usually a statement of fact, regardless of whether the statement is true or false.” [p. 21] Finally, the Court applied the “reasonable person” test under s. 2(2)(a) of the POFMA, concluding that a reasonable person reading the Subject Statement would regard the statement as a “statement of fact.”
Issue 2: Is the “subject statement” “true” under s. 17(5)(b) of the POFMA?
Section 2(2)(b) of the POFMA holds 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.” [p. 5-6]
The appellant, TOC, also argued that the Subject Statement is a “true statement of fact” under the second limb of s. 17(5)(b) because their statement was that the LFL had made a Press Statement, which is true. Considering the context of the Article, including the use of quotation marks, Justice Ang agreed that LFL had made such allegations and “TOC simply reported that fact alone.” [p. 22]
The respondent submitted that the Minister directed the January 2020 CD against the Subject Statement itself, rather than TOC’s statement that LFL had made the impugned allegations. The Court found that the appellant’s argument was inconsequential, as the Minister confined the relevant “subject statement” to the quoted sections identified in the CD. As the appellant did not take a position regarding the truth of the statement, they failed to discharge its burden of proof that the statement is true.
The Court proceeded by considering TOC’s “reporting defence”. The Court found that this defence was untenable for two key reasons. Firstly, their “reporting defence” is premised on a “misconstruction” of the subject statement under s. 17(5)(b) of the POFMA. The fact that LFL made the allegations is irrelevant, as the inquiry is concerned with whether the quoted “subject statement” identified in the CD is true. TOC had already conceded during the hearing that the “subject statement” in question is the extract identified in the January 2020 CD. As such, the appellant cannot contest the definition of the “subject statement.” Secondly, Justice Ang held that the defense is not viable in light of s.11(4), which provides that the maker of a false statement of fact “may be issued a Correction Direction even if the person does not know or has no reason to believe that the statement is false.” [p. 23] Even if the appellant does not know whether or not the subject statement is true, that is “ultimately an immaterial consideration.” Recognition of the defense would also “frustrate the legislative purpose of prevention,” intending to capture also “tale-bearers who receive false information and forward it to others without taking a position on the truth of the content.” [p. 24] Accordingly, the appellant failed to establish that the subject statement was true as a basis for setting aside the Correction Direction.
For the above reasons, TOC’s application under both limbs of s. 17(5)(b) of the POFMA failed to overturn the Correction Direction issued by Attorney-General.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by imposing the burden of proof on the veracity of a fact on the statement-maker, contrary to a previous High Court ruling. The ruling also creates a greater burden for news organizations to avoid an enforced Correction Direction by the authorities, especially given that cases that reach this stage will have had their initial request to the Minister to vary or cancel the CD rejected (section 19(2); see – of judgment).
Furthermore, the failure of the appellant’s arguments pertaining to the “reporting” character of its speech as “hearsay” has significant potential to chill speech. In particular, even if a “hearsay” statement is taken as a “statement of fact”, the rejection of the applicant’s second argument that it was “true”—the fact that the allegations having been made by LFL being true, rather than the allegations themselves being true— has significant implications. This decision would require members of the public to verify the truth of allegations made by the original statement-authors before they publicize it on their own media. Given the express provision in section 11(4) that the statement-maker need not have known or had reason to believe that the statement was false in order to be issued a Correction Direction, members of the public will feel the burden of assurances they have to personally make before they share statements without risking a Correction Direction from the authorities. This chilling effect is grave especially for the kind of case in issue where allegations are made against government authorities by anonymous citizens to an international organisation: such speech is particularly difficult to verify before sharing, and the chilling of such communication is particularly detrimental for democracy.
That said, it is true—as Ang J highlighted—that a Correction Direction does not restrict the text content of the speech in question; rather, it requires the issuance of a notice containing “one or both of the following: (a) a statement, in such terms as may be specified, that the subject statement is false, or that the specified material contains a false statement of fact; (b) a specified statement of fact, or a reference to a specified location where the specified statement of fact may be found, or both” (section 11(1)).
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