Here’s how Mr K Shanmugam argued the case for fake news laws: What are you grumbling about? Don’t you know the Telecommunications Act and the Broadcasting Act already let the minister or regulator penalise you for transmitting falsehoods? In fact, the law can kick in even if your statement is true. The Broadcasting Act can block you off because you said something “objectionable” and against the public interest. And, guess what? Contravening the Telecoms Act can make you a criminal!
Okay, that wasn’t how the Law Minister said it but the frustration in his voice was palpable when he called on everyone, as well as MPs, to be “better informed” before knocking the Protection against Online Falsehoods and Manipulation (POFMA) Bill which was debated earlier today.
It is a recent argument that has surfaced in favour of POFMA – that it is narrower in scope than other laws, calibrated in approach and you can appeal over the head of the minister to the judiciary. That’s judicial “oversight”, more than the judicial review that is applied to other laws.
I recall that in 2013, when the G wanted to introduce the licensing of news sites which cover local developments, it made a similar argument about the Broadcasting Act, noting that all websites come under an automatic Class Licence which can be revoked if the internet code of conduct was breached. So what was the big deal about licensing websites and issuing take down orders to them? The G didn’t even think it needed to amend the law for this, just new regulations will do.
That argument was, ahem, ignored by everyone, but it’s likely that the G will now place it front and centre in its defence against criticisms that POHMA gives the G too much discretion to decide between truth and falsity.
It’s true that there hasn’t been much grumbling about the current laws that touch on speech which are more draconian and wider than POFMA.
My own take: I think it’s because the laws have seldom been used and are pretty ancient tools. If they were introduced or amended in some way today, I should think that more noise will be emitted. Over time, however, they have gone under the radar. There’s also an implicit understanding that they won’t be used frequently, because it’s like wielding a nuclear weapon.
POFMA, however, is in vogue. Fake news is being dealt with the world over in many different ways and involves not just governments but tech companies, publishers and end users. POFMA is perceived as dealing with anything said, intentionally or not, by anyone online. Hence, the immense public interest. As I wrote earlier, it’s about giving ministers hand guns to stun or wound, not a nuclear missile to obliterate you from the surface of the earth. I would like to add here, however, that getting stunned or wounded would still hurt.
So why the need for a new law when the G could simply amend the old ones? He said the G wanted a law to deal specifically – and speedily – with online falsehoods, and actually tied its own hands by extending judicial oversight over executive decisions. To placate those who complained about delays and court expenses, he went into great detail on the timelines imposed for ministerial appeals and court action that would go into subsidiary legislation. You can read about it here.
Score 1 to Mr Shanmugam. Now it remains to be seen how many handguns will be fired at how many people. And whether making a racket would make people pipe down (cue chilling effect)
He didn’t go into detail about what constituted a “false statement of fact”, beyond pointing out that the phrase was in the Telecommunications Act too (!) and lawyers and judges have a great deal of experience in this area. Instead he reiterated that the Bill works not just on the basis that statement is false but also whether the public interest was affected.
In fact, a large chunk of his speech was devoted to the contentious (f) clause on public interest, regarding whether the false statement diminishes “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”.
He went round the world and back, with real-life examples, numbers and academic work, to show that online falsehoods attack the “infrastructure of facts” which underpin democratic public discourse. This, in turn, destroys trust in institutions thereby allowing the growth of populist politics and fracturing society into opposing groups with their own version of reality.
His rendering was near-apocalyptic, although he was also quick to say that in Singapore, trust in the G was still high, as Edelman’s annual Trust barometer has consistently shown.
He also gave “real life” examples of the difference between fact and opinion, which isn’t covered by the Bill.
He didn’t give names but you might recall that there was some fuss over whether celebrity vlogger Nas Daily had obtained a Public Order permit for his meeting with fans at the Botanic Gardens last month.
Police said he needn’t as his event wasn’t “cause-based”. Instead he got a Public Entertainment Licence because recorded music was being played.
Mr Shanmugam said that if someone had accused police of having double standards because there were different permits for different events, that would be considered opinion. But it would not if the accusation was about how police were biased in choosing who to give the same permit to. That is, the police had different standards for the same permit regime. It would be considered a false statement of fact, he said, and should be remedied by a correction.
According to news reports at that time, the police said it was aware of false claims that “double standards applied for the granting of permits”. “These allegations which suggest that the police have been biased and shown favouritism are untrue and baseless, and maliciously seek to undermine confidence in public institutions.”
It seems that the language of the Bill is being used. Not only are the police saying that the statement is false, but they had also thrown in the “public interest” factor of diminishing confidence in public institutions”. If things go according to the Bill, freelance journalist Kirsten Han would be given a Correction order to comply with.
True to form, Mr Shanmugam was hard on those whom he thought had misled people about the Bill. He said one academic had told Civicus, an international NGO, that the Bill was tautological – allowing the G to decide what was false based on its definition of public interest. The academic had conflated the two separate points. You can read the interview here. The academic was one of several local and foreign academics who signed a letter stating that the law, if approved, would affect academic work. He said that if a local academic could make such a basic mistake, it’s understandable if foreigners did so too.
The debate continues tomorrow.