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The Singapore Law Gazette

Message from Guest Editor of Theme Issue

Online Speech and the Law – Do You Say What You Mean or Mean What You Say?

It has been an absolute delight working with the contributors to bring you this special edition of the Singapore Law Gazette that spotlights online speech. The internet and social media platforms such as Twitter and Facebook have made it too easy for any individual to vent one’s irritation about any social observation, rant about government policies, engage in citizen journalism, spread rumours and falsehoods, and even incite ill-will against particular racial or religious groups. Since the onslaught of the COVID-19 pandemic, online falsehoods have come under intense scrutiny in Singapore, and the POFMA Office has had its hands full issuing various correction directions and other orders.1See POFMA Office (https://www.pofmaoffice.gov.sg/media-centre/).

Before the enactment of the Protection from Online Falsehoods and Manipulation Act (POFMA), there are already a panoply of legislation and common law offences that regulate online speech. They include various provisions in the Maintenance of Religious Harmony Act (MRHA), Sedition Act, Administration of Justice (Protection) Act (AJPA), Protection from Harassment Act (POHA), Defamation Act, Broadcasting Act, Telecommunications Act, and the Penal Code.2David Tan and Jessica Teng Sijie, ‘Free Speech, Fake News and Finding Constitutional Congruence’ (2020) 32 SAcLJ 207 at 228-237.

As POFMA was only passed on 8 May 2019 and came into force on 2 October 2019, there is scant significant academic commentary on this issue.3But see Tan and Teng, ibid. In this regard, Marcus Teo and Jonathan Hew are examining Context and Meaning in the Interpretation of Statements under POFMA, and casting a critical eye on the two cases POFMA has yielded so far – Singapore Democratic Party v Attorney-General4(2020) SGHC 25. and The Online Citizen v Attorney-General.5(2020) SGHC 36.

Defamation has always been a closely watched topic in Singapore; the lawsuits brought by the Prime Minister and Cabinet Ministers against opposition politicians and the media have spawned a distinctively Singaporean jurisprudence that stands apart from other First World democracies in Commonwealth common law jurisdictions.6E.g. David Tan, ‘Whither the Autochthonous Narrative of Freedom of Speech in Singapore?: A Guide to Defaming Politicians and Scandalising Judges in Singapore’ in Jaclyn Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 210; David Tan, ‘The Reynolds Privilege in a Neo-Confucianist Communitarian Democracy: Reinvigorating Freedom of Political Communication in Singapore’ (2011) SJLS 456. In “How the Internet is Reshaping Defamation Laws, Fong Wei Li and Nicholas Leong discuss how defamation law, when applied to online content, differs substantively and procedurally from its traditional roots. They analyse each element of the tort of defamation and postulate how each may be interpreted when dealing with defamation online.

Public confidence in the judiciary and the administration of justice is a fundamental tenet of any democratic society. The law on scandalising contempt has been codified in the AJPA which came into force on 1 October 2017. There is always a danger that the criminal offence of scandalising contempt will have a significant chilling effect on speech, especially speech that implicates public interest in the administration of justice by the courts. In 2011, the Court of Appeal had ruled that the Attorney-General had to prove that the publications pose a “real risk” of undermining public confidence in the administration of justice.7Shadrake Alan v Attorney-General (2011) 3 SLR 778 at (57). However, the AJPA subsequently required only a proof of “risk”. In “Lessons from the first case under the Administration of Justice (Protection) Act 2016”, Remy Choo Zheng Xi analyses the first prosecution brought under the AJPA and the Court of Appeal’s decision in Wham Kwok Han Jolovan v Attorney-General and other appeals8(2020) SGCA 16. which was handed down in March 2020.

The courts in Singapore have generally exhibited strong deference to the legislature in relation to the interpretation of Art 14 of the Singapore Constitution compared to other constitutional rights.9 David Tan, ‘Walking the Tightrope Between Legality and Legitimacy’ (2017) 29 SAcLJ 743 at 752. I have previously intimated that this is primarily due to the wording of Art 14(2), which unambiguously confers on Parliament the role of balancing constitutional free speech with other competing rights and interests.10 Ibid at 764 and 771; Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal (2010) 1 SLR 52 at (270) (‘Review Publishing’). In a consistent line of cases since the 1990s, the Court of Appeal has interpreted Art 14 with deference to “government’s assessment of the needs of public order without requiring that the restrictions be informed by substantive standards of reasonableness, proportionality, or necessity within a democratic society”.11 Thio Li-ann, “Singapore: Regulating Political Speech and the Commitment ‘to Build a Democratic Society”’ (2003) 1 International Journal of Constitutional Law 516 at 516.

Generally the arguments for free speech do not extend to the protection of online falsehoods. The courts in Singapore have repeatedly repudiated the applicability of the marketplace of ideas theory to statements that are verifiably false, as such statements do not advance the pool of knowledge for society’s benefit.12 Review Publishing (2010) 1 SLR 52 at (282); Lee Hsien Loong v Roy Ngerng Yi Ling (2016) 1 SLR 1321 at (99); Attorney-General v Ting Choon Meng (2017) 1 SLR 373 at (115) (‘Ting Choon Meng’). In fact, the argument from democracy presents a more compelling case for the regulation of online falsehoods as the proper functioning of a democratic society is contingent on society being well-informed, or more narrowly, enabling voters to exercise an informed choice at elections (which is the basis of the Australian implied constitutional freedom of political communication);13 David Tan, ‘The Reynolds Privilege in a Neo-Confucianist Communitarian Democracy: Reinvigorating Freedom of Political Communication in Singapore’ (2011) SJLS 456 at 462-464, 468-471. but misinformation or falsehood is “destructive of the democratic society”.14 Review Publishing (2010) 1 SLR 52 at (284); Reynolds v Times Newspaper Ltd (2001) 2 AC 127 at (238). In Review Publishing v Lee Hsien Loong, the Court of Appeal emphatically stated that the communication of false statements does not serve a public interest.15 Review Publishing (2010) 1 SLR 52 at (284). Falsehoods “erode people’s trust” in information sources and “discourage people from engaging in civic life”.16 Report of the Select Committee on the Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Parl 15 of 2018, 19 September 2018) at p 160. Falsehoods can influence voting behaviour and undermine confidence in the electoral process.17 Ibid at p 161. As the argument from democracy does not serve as a theoretical justification for protecting false statements as free speech, it is doubtful that online falsehoods would be considered constitutionally protected speech.18 Ting Choon Meng (2017) 1 SLR 373 at (117).

Even if, for the sake of argument, online falsehoods are constitutionally protected speech, Art 14(2)(a) qualifies the right to freedom of speech by stipulating eight grounds of derogation. The broad ground of “public order” can validly serve as a constitutional basis for legislation that restricts the communication of online falsehoods.19 Thio Li-ann, ‘Written Representation 55’, Report of the Select Committee on the Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Parl 15 of 2018, 19 September 2018) at p B283. In Chee Siok Chin v Minister of Home Affairs, then VK Rajah J affirmed that public order can be harmed by the dissemination of false information.20 Chee Siok Chin and others v Minister for Home Affairs and another (2006) 1 SLR(R) 582 (‘Chee Siok Chin’) at (135). More recently in Attorney-General v Ting Choon Meng, Sundaresh Menon CJ remarked in obiter that

The expression “public order” usually connotes the protection of a public physical space from disorder. But … the Internet “is dramatically shortening the globe’s communicative synapses”, expanding “the potential reach and impact of any individual idea or expression” and though empowering, “also portends abuse”. Given the modern context in which digital speech is exercised, especially where falsehoods can be rapidly disseminated in an unregulated Internet sphere and could conceivably threaten public order, there is no reason why false statements should not be justifiably restricted on the basis of the preservation of public order.21 Ting Choon Meng (2017) 1 SLR 373 at (119) (citing Lee Hsien Loong v Review Publishing Co Ltd (2007) 2 SLR(R) 453 at (1)).

These decisions show that the courts in Singapore have adopted a “capacious understanding” of “public order” that goes beyond threats of physical violence to encompass attacks on the nation’s fundamental values and processes.22 Thio Li-ann, ‘Written Representation 55’, Report of the Select Committee on the Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Parl 15 of 2018, 19 September 2018) at p B284. The “public order” ground can therefore be used to justify the restriction of online falsehoods that seek to undermine trust in democratic institutions (organs of state) and processes.23 Ibid.

The Art 14 jurisprudence clearly has been taken into account in the drafting of POFMA. The diminutive role of the judiciary as a fetter on Parliament’s power in restricting the freedom of speech, coupled with the strong presumption of legislative constitutionality,24 Chee Siok Chin (2006) 1 SLR(R) 582 at (49). means that laws against online falsehoods, even if perceived to be draconian, will be constitutionally permissible in Singapore as long as a rational nexus between the derogation grounds and the object of the law can be made out. POFMA is such a law. Nevertheless, Parliament remains subject to potentially powerful political limits in the form of the electoral process.

I hope you will enjoy reading the articles in this special edition!

Endnotes

1See POFMA Office (https://www.pofmaoffice.gov.sg/media-centre/).
2David Tan and Jessica Teng Sijie, ‘Free Speech, Fake News and Finding Constitutional Congruence’ (2020) 32 SAcLJ 207 at 228-237.
3But see Tan and Teng, ibid.
4(2020) SGHC 25.
5(2020) SGHC 36.
6E.g. David Tan, ‘Whither the Autochthonous Narrative of Freedom of Speech in Singapore?: A Guide to Defaming Politicians and Scandalising Judges in Singapore’ in Jaclyn Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2016) 210; David Tan, ‘The Reynolds Privilege in a Neo-Confucianist Communitarian Democracy: Reinvigorating Freedom of Political Communication in Singapore’ (2011) SJLS 456.
7Shadrake Alan v Attorney-General (2011) 3 SLR 778 at (57).
8(2020) SGCA 16.
9 David Tan, ‘Walking the Tightrope Between Legality and Legitimacy’ (2017) 29 SAcLJ 743 at 752.
10 Ibid at 764 and 771; Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal (2010) 1 SLR 52 at (270) (‘Review Publishing’).
11 Thio Li-ann, “Singapore: Regulating Political Speech and the Commitment ‘to Build a Democratic Society”’ (2003) 1 International Journal of Constitutional Law 516 at 516.
12 Review Publishing (2010) 1 SLR 52 at (282); Lee Hsien Loong v Roy Ngerng Yi Ling (2016) 1 SLR 1321 at (99); Attorney-General v Ting Choon Meng (2017) 1 SLR 373 at (115) (‘Ting Choon Meng’).
13 David Tan, ‘The Reynolds Privilege in a Neo-Confucianist Communitarian Democracy: Reinvigorating Freedom of Political Communication in Singapore’ (2011) SJLS 456 at 462-464, 468-471.
14 Review Publishing (2010) 1 SLR 52 at (284); Reynolds v Times Newspaper Ltd (2001) 2 AC 127 at (238).
15 Review Publishing (2010) 1 SLR 52 at (284).
16 Report of the Select Committee on the Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Parl 15 of 2018, 19 September 2018) at p 160.
17 Ibid at p 161.
18 Ting Choon Meng (2017) 1 SLR 373 at (117).
19 Thio Li-ann, ‘Written Representation 55’, Report of the Select Committee on the Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Parl 15 of 2018, 19 September 2018) at p B283.
20 Chee Siok Chin and others v Minister for Home Affairs and another (2006) 1 SLR(R) 582 (‘Chee Siok Chin’) at (135).
21 Ting Choon Meng (2017) 1 SLR 373 at (119) (citing Lee Hsien Loong v Review Publishing Co Ltd (2007) 2 SLR(R) 453 at (1)).
22 Thio Li-ann, ‘Written Representation 55’, Report of the Select Committee on the Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Parl 15 of 2018, 19 September 2018) at p B284.
23 Ibid.
24 Chee Siok Chin (2006) 1 SLR(R) 582 at (49).

David Tan is Vice Dean (Academic Affairs) (since 2015) and Deputy Director of the Centre for Technology, Robotics, Artificial Intelligence & the Law at NUS Law. The views expressed in this article are his personal views.