Fake news: A re-run

I don’t recall a time when a Minister has given such comprehensive replies to questions on a Bill that has yet to be debated in Parliament. It seems that Law Minister K Shanmugam believes that the questions about the proposed Protection Against Online Falsehoods and Manipulation legislation that have surfaced deserves answers before Parliament sits to debate the Bill today. MPs will have to start coming up with fresh ideas lest they sound dated.

It looks like that the Bill go through. He has said there are no plans to change the Bill. He would answer concerns in Parliament so that a record of intent is available should the judiciary have cause to refer to it in adjudicating disputes. He would have processes and details put into subsidiary legislation, something which the G had intended to do anyway, he said.

The three Nominated MPs’ call for amendments has been politely turned down, with the minister emphasising common areas of agreement rather than conflict. I think my idea for a Parliamentary Select Committee to scrutinise the text of the Bill in further detail before presenting it again in Parliament is dead in the water. You can read my earlier piece here.

The G has been in a massive public relations over-drive over the past two weeks, with different ministers reiterating the good intentions behind the Bill and allaying concerns that it would amount to executive over-reach. But the G had a stuttering start, when right from the get-go on April 1, when the Bill was introduced, commentators started weighing in on aspects that they thought were too wide or too vague.  Even the Singapore Press Holdings group of newspaper publications called  for an independent body to handle falsehoods in a statement after the Bill’s introduction. But it rather unaccountably  changed its mind a few days later.

At the bottom of all the angst is the  idea that a minister – a politician interested in his longevity or that of his political party – could act as the arbiter of truth and falsehood. This is a bone which sticks in the throat of those who believe that it would be used less to shed light on the truth, and more to shield truths that would be inconvenient for the G.

Nevertheless some light has been shed on aspects of the Bill since its introduction which go some (only some)  way to alleviate concerns. I’ll try to summarise them here and include more recent (newish) material or explanation for them.

On the definition of a false statement of fact 

Does everyone understand the definition? Or will only lawyers and the legally trained know? What is  a statement of fact is “one that a reasonable person perceiving it would consider to be a representation of fact”?

I suppose this hypothetical example should suffice:  The $20 billion Singapore is spending to buy aircraft is way too much and would be perceived as a threat by neighbouring states.

Let’s say $20billion is false. It is actually $20million or $2m. But reading the statement as it is will lead the reader to assume that the writer has his facts right, which is why he said it was too much and could be misinterpreted by other states. Let’s put it down to a “typo” without any malicious intent. It should be corrected simply because it is wrong. Here’s where other online players can play a role in calling out the error without the need for any official notice.

Anyway, should  (or can) the G step in? Only if the false statement meets another test – that it is prejudicial to the public interest. I suppose if the statement goes viral and citizens and neighbouring states alike start speculating on whether the country is gearing up for offence or defence, then the public interest factor would kick in. Only then can the G do either of two things –  correct the error or ask that the whole statement be taken down.

But let’s say the writer is a pacifist who doesn’t believe in armed conflict, so that even $20m would be too much. The statement is corrected to say: That $20 million Singapore is spending to buy aircraft is way too much and would be perceived as a threat by neighbouring states.

I suppose that would go into the realm of opinion (which the Bill doesn’t cover). It’s for the reader then to see if there is evidence for this opinion that $20m is too much, such as past defence spending or comparing them with  other countries. Or perhaps, people wouldn’t even bother about whether it’s $20b or $20m – and just latch on to how it might be perceived as a threat by neighbouring countries. This goes viral and causes consternation. What then? Should a heavier, weightier law kick in because it could raise tensions inside and out?

Some people will say I am just nit-picking. Maybe I am. But I do so like laws which are clear and where I don’t have to guess if I am crossing some line. For example, what does this other definition spelt out in the Bill mean: A false statement of fact is “one that is false or misleading whether wholly or in part and whether on its own or in the context in which it appears”. I am still trying to wrap my head around this.

The difference between fact and opinion

The G keeps reiterating that it isn’t interested in policing opinion.

Mr Shanmugam gave an interesting run-down in the media: “If you were to say, ‘Government standards are slipping; our Government’s to be blamed for rising inequality; our Government is not giving back my CPF (Central Provident Fund); or Singapore’s policies are elitist; or cost of living is rising; or HDB (Housing and Development Board) prices are too high; or our COE (Certificate of Entitlement) prices are too high; or the ban of events is arbitrary; or human rights in Singapore is being curtailed; or we can’t hold protests in Singapore’, all those are opinions and it doesn’t get caught by this Bill.”

I found it rather amusing because that’s what a lot of people say on the Internet. I consider them rants, not opinions. But what if it is an informed opinion which, unfortunately, is premised on a few wrong facts or unavailable data?

To this end, I like Senior Counsel Harpreet Singh’s suggestion that the Bill should be “amended to expressly provide that it shall not apply to opinions or criticisms unless an underlying statement of fact is false and is material to the opinion as a whole. An opinion that has several premises and which can stand even if one of the premises is faulty should not be impugned.”

I think it is a reasonable suggestion to counter the fear is that the G will order a correction or take down because it could pick on one small error to dismiss the credibility of an argument it does not like.

In Saturday’s ST, Mr Shanmugam took a shot at addressing fears that the legislation would hamper academic work, especially those based on challenging conventional wisdom.

He gave the description of Barisan Sosialis leader Lim Chin Siong as a “communist” to illustrate his point.

“That’s an opinion based on certain evidence. Based on that evidence, other people can come to different conclusions. The body of research and historical opinion, historical evidence is there, you can choose to put weight on some and not others, and come to your view and somebody else can come to a different view. That would not be treated as a falsehood within the Bill,” he said.

So it would seem that historian P J Thum’s research about Mr Lim being an anti-colonialist rather than a communist can be considered academic work. The law would enter the picture  only if the evidence had been manufactured – that is, fake –  and also if the G believes that it is in the public interest to do so.

The “public interest” factor 

The G fleshed this point out in six statements from (a) to (f) – a lot more detail than in other legislation, as some people have noted. Beyond a minister asserting that the statement is false, he or she would have to satisfy one of the six definitions of public interest.

It is really the last  point (f)  that has tongues wagging: That the law kicks in if the false statement is likely to “diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board”.

So it is a more detailed version of the Sedition Act, for example, which talks about how a seditious tendency is “a tendency to bring into hatred or contempt or to excite disaffection against the Government”, among other types of tendencies.  How to measure hatred, contempt, dissatisfaction as well as lack of public confidence has yet to be tested. The Sedition Act has not been used for this purpose, but for exciting disaffection among races and religious groups. 

The worry is that a thin-skinned minister would resort to the fake news legislation to remove innocuous falsehoods or criticisms of his work, like pointing out that there were really  10 and not 15 people who raided the home of a civil society activist. Methinks any minister who uses reason (f) would have to be careful not to come across as paranoid and insecure. 

You can look at it this way: At least the fake news laws don’t criminalise the person who told a lie to rile the people, at least not in the first instance. Contravening the Sedition Act, however, is a weighty criminal offence. 

Some wags have described the current tools in the arsenal to combat bad, fake, dangerous speech as nuclear weapons, to be co-ordinated centrally, used sparingly and only in times of clear and present danger. That’s because the political fall-out could be costly. The fake news legislation, on the other hand, is about arming individual ministers  with machine guns, revolvers and bows and arrows to stun or wound.

Those who say that one more weapon in the arsenal shouldn’t matter especially since it has much less firepower than those already accumulated should turn the question around: Maybe those old laws need re-looking too as, like the fake news laws, they could be abused by a rogue G.

The difference between correction and take down orders

The “newish” point in this issue is that the minister who exercises his powers would have to explain why he is correcting the statement and how he sees it as acting in the public interest. That’s something good because a minister cannot willy nilly get away with correcting or censoring someone’s words. I have always thought that corrections are fine – better more information than bad information or no information. But no one has asked what would happen if false information is put out to make the G look good and it is not in its interest to correct or take down the fake news. Can we appeal to the relevant minister?

Another point that hasn’t been answered has to do with when a take down order is merited. It is assumed that this would be when correction orders are not obeyed or when the person is a recalcitrant offender. But this isn’t clarified in the Bill. I think this is worthy of insertion because a take down order is tantamount to a blackout. People should be told what was so egregious about the fake news that it had to be blacked out. (Although if you have to explain why something was taken down, then it quite defeats the purpose of the order right? Are we entangling ourselves in knots I wonder or is it just me?)

The courts as the “final” arbiter 

So the minister is the “first” arbiter, ordering corrections or take downs. You have to do so, or risk heavier penalties. You can still appeal to the minister who made the order and if this fails, you can go to court. It is usual, yes, to appeal to the minister/ministry to change a decision he or his staff has made in line with this or that policy. This is like appealing for an HDB flat after being rejected or giving mitigating circumstances for not paying parking fines. If you don’t get your flat or your parking fines waived, you just have to lump it.

There is no difference between the fake news laws and other regulations at this point. (Except that fake news legislation covers everything you write online and you don’t buy flats or pay fines all the time.)

Instead the G is making much of how under the proposed legislation, there is yet another recourse – you can appeal to the courts if you don’t like what the minister did. And as the days passed, the G became firmer and firmer about imposing timelines for appeals to the minister and promising simpler, cheaper legal access to the courts.

But it still hasn’t answered the question on what the courts should be able to refer to when it weighs the wrongness or rightness of a minister’s decision. The Bill only deals with the courts’ role  to judge  the truth or falsity of the statement in question, not the public interest element. Perhaps, this is what Mr Shanmugam is referring to when he said he would speak in Parliament on some concerns so that the courts could turn to Hansard to decipher Parliament’s intent.

So what will happen today?

I am certain that Mr Shanmugam will give a masterful performance. The litigator par excellence is hard to beat when it comes to grasp of detail, the law and making an argument that will be tough to pick apart. There will be an exposition of the principles behind the Bill which few people can argue against, and how the process will be in subsidiary legislation, or what is more commonly known as government regulations which do not need Parliamentary approval.

He will be convincing in debunking the usefulness of an independent committee (who picks the members in the first place?) whether to decide on truth or falsehood or to review G decisions annually as the NMPs suggested.  He will talk about how ministers are at least accountable at election time,  even though he must admit that a rouge government can do much damage between elections.

We can expect to hear phrases like “the devil is in the details” and “the proof of the pudding is in the eating” today. I wonder how many MPs will cite the “chilling effect”? It has been pooh-poohed by so many people that it’s making me hot under the collar. It is true that most people won’t be affected by the law per se. They are too busy making a living, or they just prefer to have such non-monetary decisions made for them. As for the rest, I bet my bottom dollar that they would guard their tongue, or fingers because, among other things, it is too troublesome to tangle with the G.

Just ask the mainstream media.

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