Clarifications on POFMA in Singapore Democratic Party's appeal to the Court of Appeal

By Neal Kok



Source: https://www.channelnewsasia.com/singapore/pofma-sdp-appeal-partially-upheld-2230361


In December 2019, Singapore Democratic Party received three correction directions from the Ministry of Manpower for three related posts: (i) an online article titled ‘SDP Population Policy: Hire S’poreans First, Retrench S’poreans Last’, published in June 2019; (ii) a Facebook post in November 2019 linking to the above article; (iii) a Facebook advertisement containing a link to the article and a graph with a downward-pointing arrow titled Local PMET Employment, posted in December 2019. [1]


The three correction directions issued by the Ministry of Manpower stated that the graph showing plunging employment of local professionals, managers, executives and technicians (PMETs) was false, and that the claim made by SDP that its proposals came “amidst a rising proportion of Singaporean PMETs getting retrenched” was also false. [2] The correction directions identified the subject statement (false statement) that was said to have arisen from the SDP article as “Local PMET retrenchment has been increasing”. Since the second and third posts contained a hyperlink to the SDP article, the second and third correction directions were based on the same subject statement. The third correction direction included an additional subject statement, which was that “Local PMET employment has gone down”. [3]


The correction directions required SDP to insert the following notices at the top of the article and Facebook posts.


CORRECTION NOTICE (1 and 2):

This post contains a false statement of fact. There is no rising trend of local PMET retrenchment. Local PMET employment has in fact increased consistently and continues to do so today. For the correct facts, click here: https://www.gov.sg/factually/content/corrections-on- falsehoods-posted-by-SDP


CORRECTION NOTICE (3):

This post contains false statements of fact. Local PMET employment has in fact increased consistently and continues to do so today. There is no rising trend of local PMET retrenchment. For the correct facts, click here: https://www.gov.sg/factually/content/corrections-on- falsehoods-posted-by-SDP


The SDP unsuccessfully applied to the Minister for Manpower to cancel the correction directions and was also subsequently dismissed in their application to the High Court. It was only in the Court of Appeal judgement, released on 8 October 2021, that SDP partially succeeded in their appeal. This was to do with the interpretation of the word “local”, which was held to be understood as Singapore citizens, and not Singapore citizens or Singapore permanent residents, as the minister had suggested. [4]


However, what was of particular interest were the clarifications provided by the court on a five-step analytical framework to determine whether the High Court may set aside a Part 3 Direction under s.17(5)(a) and/or s.17(5)(b). This provides an authority and guidance for future courts to follow. [5] Another finding of particular importance was concerning the burden of proof. SDP had argued that the burden on proof should fall on the Attorney-General to justify the issuance of the correction directions. It was instead held that upon receipt of the correction direction, the burden of proof lies on the recipient to show a prima facie case that one or more of the grounds for having the direction set aside is satisfied, after which the burden on proof shifts to the minister to show that none of the grounds relied upon were made out. [6] The valid grounds for appeal are set out in s.17(5) of the Protection from Online Falsehoods and Manipulation Act 2019, and include:


(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.


This landmark case has thus proven to be of significant importance in clarifying the legal position of a recipient of a correction direction, and has provided stability and certainty in the law concerning online falsehoods and manipulation by providing guidance for future courts to follow.






References:

[1] The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96, [7]-[9]

[2] CNA, ‘ Court of Appeal partially allows SDP's POFMA appeal in landmark judgment; other correction directions upheld’ (8 October 2021), < https://www.channelnewsasia.com/singapore/pofma-sdp-appeal-partially-upheld-2230361> accessed 5 January 2022

[3] The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96, [10]

[4] CNA, ‘ Court of Appeal partially allows SDP's POFMA appeal in landmark judgment; other correction directions upheld’ (8 October 2021), < https://www.channelnewsasia.com/singapore/pofma-sdp-appeal-partially-upheld-2230361> accessed 5 January 2022

[5] The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96, [163]

[6] The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96, [165]-[176]