In the case of Singapore Democratic Party v Attorney-General  SGHC 25, the Honourable Justice Ang Cheng Hock made some important observations on the Protection from Online Falsehoods and Manipulation Act 2019 (No. 18 of 2019) (“POFMA”). The Court’s key findings were that the burden of proof in such appeals falls upon the Minister to prove the falsity of a statement that has been made the subject of a Correction Direction (“CD”), that a CD is not a penal remedy, that the applicable standard of proof is the balance of probabilities, and that the meaning that the statement maker intended is in its strict sense irrelevant as the Court takes an objective approach to construction of the impugned statements.
On 8 June 2019, the Singapore Democratic Party (“SDP”) published an article (the “SDP Article”) on its online website titled “SDP Population Policy: Hire S’Poreans First, Retrench S’Poreans Last”. On 30 November 2019, SDP published a post (the “November Facebook Post”) on its Facebook page with some text, an image and a hyperlink to the SDP Article. On 2 December 2019, SDP published a post (the “December Facebook Post”) on Facebook with some text and an image containing two graphical illustrations. There was also in this post a hyperlink to the SDP Article.
On 14 December 2019, the POFMA Office of the Info-communications Media Development Authority, on the direction of the Minister for Manpower, issued three CDs to the SDP, one each in respect of the SDP Article and the two Facebook posts. The CDs shall be referred to as CD-1, CD-2 and CD-3 respectively.
On 3 January 2020, SDP applied to the Minister of Manpower under s 19 POFMA for the cancellation of the CDs. On 6 January 2020, the Ministry of Manpower rejected the application. On 8 January 2020, SDP filed its appeal against the CDs. The SDP’s ground of appeal was that each of its statements was a true statement of fact under s 17(5)(b) POFMA.
CD-1 identified the subject statement from the SDP Article as being that “Local PMET retrenchment has been increasing” (the “Subject Statement”). This statement however did not appear in the SDP Article. The Attorney General’s Chambers (“AGC”), however, argued that the statement arose in the context of the SDP Article and out of the following sentence which did appear in the article: “The SDP’s proposal comes amidst a rising proportion of Singapore PMETs getting retrenched” (the “Statement”). CD-2 and CD-3 both arose at least partly out of the hyperlink to the SDP Article in the Facebook Posts.
The CDs all included links to a government website which set out data that the Minister considered accurate.
All parties agreed that the Subject Statement identified in the CDs was an interpretation of the Minister for Manpower, in the sense that it was a meaning that she derived from the SDP Article and the Facebook posts.
The Court’s findings
The Court dismissed the SDP’s appeal.
In coming to His Honour’s decision, the learned Judge made some very important findings of law.
First, the learned Judge found that the burden of proof in POFMA appeals falls on the Minister and not the statement maker. In this regard, the learned Judge observed that it was the Minister who was, by the CDs, seeking to constrain the statement maker’s constitutional right to free speech, and held that it was thus for the Minister to prove the existence of the facts warranting such curtailment. The learned Judge also observed that that under s 17 POFMA, appeals were to be by way of rehearing, and that Parliament did not appear to have intended that the statement maker should bear the burden of proof, given the information asymmetry of the Minister on the one hand (who is able to rely on the machinery of the state to procure evidence of falsity), and the maker of the statement on the other.
As for the standard of proof, the learned Judge held that although POFMA has certain provisions which specifically create criminal liability, the obligation to put up a correction notice was not penal in nature. The learned Judge also drew an analogy to the obligation under s 15 of the Protection from Harassment Act (Cap 256A)(“POHA”) to publish a notification bringing attention to a falsity and to the fact that under s 15(3) of POHA the standard of proof is the balance of probabilities.
On these bases, the learned Judge decided that the applicable standard of proof was the balance of probabilities.
The learned Judge then considered the meaning of the Subject Statement, and decided that the test to be applied was an objective one and not a subjective one. The Court did not have to consider whether the statement maker had deliberately made a false statement. Rather the question was how the statement would be perceived by a reasonable reader. Applying this test, the learned Judge held that a reasonable reader would perceive that the Subject Statement bore one of two possible meanings attributed to it by the AGC, and that that meaning was false on the basis of statistics that had been provided by the Ministry of Manpower. The learned Judge noted that the SDP did not challenge the veracity of the statistics put forward by the AGC as evidence of falsity. The learned Judge therefore declined to set aside the CDs.
It appears that a CD may be issued not only for a statement that is literally made, but for the interpretation that may be put upon it by a reasonable reader. Hence, if a CD is to be avoided, the statement maker must be able to establish the truth not only of the intended meaning of his statement, but of the truth of the meaning that reasonable third parties may impute to the statement.
In a welcome defence of the constitutional right to freedom of speech, the learned Judge held that the burden of proof must be on the Minister to demonstrate that the impugned statement is indeed false. Finally, the Court found that the standard of proof is the balance of probabilities as the obligation to publish a correction notice is not penal in nature.