POFMA - Constitutional Orthodoxy or Heresy?

By Joshua Ng

Source: https://unsplash.com/photos/2TS23o0-pUc

The Protection from Online Falsehoods and Manipulation Act 2019 (“POFMA”) is now in its third year of operation. The initial uproar surrounding the Act has largely died down; it is arguable that POFMA has been overshadowed by the recent controversy surrounding its younger brother, the Foreign Influence Countermeasures Act, in the Singapore government’s ongoing fight against information warfare. [1] That said, the constitutional issues surrounding POFMA do not wane with public interest. Two questions remain. Firstly, is POFMA constitutional? Secondly, even if it is, is POFMA constitutional only in the Singaporean context (i.e.: unique to Singapore’s political arrangements), or can it find some backing even in other jurisdictions, such as the United Kingdom?


Is POFMA Constitutional?

The first question can be answered easily enough. The Singapore Court of Appeal (SGCA) deemed POFMA constitutional on four grounds in The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96.


Firstly, the Court held that POFMA did not violate the constitutional protection on freedom of speech. This was because the freedom of speech was only valuable and protected insofar as society could derive a benefit from it and there was no discernible benefit from the spread of false speech. Accordingly, false speech was not protected and POFMA was constitutional because the courts were allowed to objectively ascertain whether a statement was factual.


Secondly, the Court held that POFMA did not impose an obligation for someone to express a view that was not their own. In doing so, the Court applied the doctrine of compelled speech. Because a publisher was free to express disagreement on legal grounds with the POFMA Correction Direction put up on their article, they were not compelled to express someone else's view.


Thirdly, the Court held that the power to issue a Correction Directions under POFMA was constitutionally justified. This was because the Singapore Constitution allowed for the restriction of freedom of speech if it was in the interests of "public order"; and the "public interest" test provided in Section 4 of POFMA aligned with this "public order" justification. The Court went further to assess that it was in fact in the public interest to issue a Correction Direction under POFMA.


Fourthly, the Court held that the test for proportionality was provided for in the assessment of whether a Correction Direction would be in the public interest, and did not have to be read into the statute.



Is the constitutionality of POFMA uniquely Singaporean?

Now for the more contentious part of the analysis. Is the conclusion reached by the Court of Appeal constitutionally orthodox? Can POFMA be defended against critics calling it another addition to a long line of "draconian" Singapore laws like the ban on chewing gum?


The conclusion reached by the Court in the first ground of judgement is not novel. In fact, the Court of Appeal cited Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127 in reaching this conclusion. Indeed, as a “general proposition going far beyond the mere protection of reputations”, Lord Hobhouse does in fact state that there is no human right to spread falsehood. The Singapore Court of Appeal is hardly a pioneer in considering false speech as not being covered under the right to freedom of speech.


The Court of Appeal is, however, uniquely conservative in the second ground of judgement; it acknowledges as much by rejecting Lee v Ashers Baking Co Ltd and others [2018] UKSC 49 (which advances an unqualified rule that an individual should not be compelled to express a view they disagree with) and adopting the dissenting judgement in Wooley v. Maynard 430 U.S. 705 (1977), as explained above. In doing so, the Singapore Court of Appeal adopts an extremely strict reading of the term “compelled”. The Court interprets the term as requiring, negatively, one having no avenue at all to express a contrary viewpoint. This is in addition to the positive requirement of expressing a view that one disagrees with. The United Kingdom Supreme Court (“UKSC”) does not qualify the positive requirement with an additional negative one, and might very well reach the opposite conclusion. As such, the UKSC may in fact deem POFMA unconstitutional.


The third ground of judgement is not novel in the least. The protection of freedom of speech is never unrestricted — it is always qualified. For example, necessary restrictions on the freedom of expression are provided for in the European Convention on Human Rights. In Article 10 of the Convention, restrictions on the freedom of expression may be justified if they are, inter alia, "necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime [or] for the protection of the reputation or rights of others" . It might be argued (as Minister Shanmugam did in Parliament) that POFMA is necessary for national security, as it prevents the undermining of public trust in public institutions. In fact, the Court of Sessions in Steele, Petitioner [2021] CSOH 65 considered the prevention of the undermining of public confidence in the police a proper reason for the restriction of an individual’s Article 10 right (albeit because it would interfere with public safety and the prevention of disorder or crime). In this sense, the Court of Appeal was not breaking new ground by holding that restriction of the freedom of speech could be justified by certain factors.


However, the fourth ground of judgement sees the Court of Appeal adopting an unorthodox conservative stance once again. For one, the test of proportionality is not usually held to be part of the public interest test; the two are usually addressed separately as in Steele. In the alternative, even if the two tests were merged, the Court of Appeal showed no indication of explicitly addressing proportionality when applying the public interest test. By appearing to abandon the notion of proportionality altogether, the Court of Appeal appears to reach a constitutionally novel conclusion by pioneering an unorthodox, conservative approach to judicial review. That said, this might be explained using Singapore’s unique political context - the Singaporean system is characterised by a high degree of trust in the Government. Therefore, there may be a strong political and cultural presumption toward the executive self-regulating and exercising its statutory powers in a responsible and proportionate manner.



“Ownself check ownself?”

It is thus clear that certain elements of the conclusion reached by the Court of Appeal in The Online Citizen Pte Ltd are entirely novel, and uniquely Singaporean. The trust in the Government to self-regulate might be expressed in the (Singaporean) political joke “ownself check ownself”. This might be contrasted against the UK’s system, where the historical background of executive excess in the form of the monarchy underpins intense scrutiny of the executive. It might conceivably be argued that courts in jurisdictions like the UK would take a less conservative approach to the review of POFMA, if not deem it unconstitutional outright. Hence, POFMA cannot be defended with the argument that other jurisdictions would also deem it constitutional. That said, whether the Court of Appeal’s approach and conclusion is in fact desirable requires examination of the proper scope of judicial review (in the case of the fourth ground of judgement) and policy (in the case of the second ground). This is a legal and political debate best left for another day.






References:

[1] Ministry of Law, Second Reading Speech by Minister for Law, K Shanmugam on The Protection from Online Falsehoods and Manipulation Bill, [115] https://www.mlaw.gov.sg/news/parliamentary-speeches/second-reading-speech-by-minister-for-law-k-shanmugam-on-the-protection-from-online-falsehoods-and-manipulation-bill (accessed 10 Dec 2021)


[2] The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96, [61]


[3] Ibid, [72] and [76]


[4] Ibid, [100] - [102]


[5] Ibid, [112]


[6] Amnesty International, ‘Singapore: Social media companies forced to cooperate with abusive fake news law’, https://www.amnesty.org/en/latest/news/2020/02/singapore-social-media-abusive-fake-news-law/, (accessed 11 Dec 2021)


[7] The Online Citizen Pte Ltd (no 2), [58]


[8] Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127, 238


[9] J. Rowbottom, ‘Cakes, Gay Marriage and the Right against Compelled Speech’, U.K. Const. L. Blog, https://ukconstitutionallaw.org/, (accessed 11 Dec 2021)


[10] The Online Citizen Pte Ltd (no 2), [72]


[11] European Convention on Human Rights Article 10


[12] Ministry of Law (no 1), [122]


[13] Steele, Petitioner [2021] CSOH 65, [41]


[14] Ibid, [43]


[15] Grace Ho, ‘Singaporeans have high level of confidence in Government but politically uninterested: IPS study’, The Straits Times (Singapore: 24 March 2021), https://www.straitstimes.com/singapore/politics/singaporeans-have-high-level-of-confidence-in-government-but-politically , accessed 18 Dec 2021