About the fake news Bill (Oops! I mean law)

While I was sleeping, the Protection against Online Falsehoods and Manipulation Bill was passed. I thought the debate would enter into its third day, but no. Our tireless parliamentarians sat till 10.20pm. So the legislation went through its second and third readings and a division vote was called which had all People’s Action Party MPs saying aye, all Workers’ Party MPs saying nay. There were three abstentions – the Nominated MPs who had tried in vain to amend the legislation to include, among some things, principles that would make clear that “material” falsehoods only were being targeted.

I am disappointed, to put it mildly.

I had hoped that the G would  delay the legislative process with a Select Committee to scrutinise the text of the Bill to insert more checks and balances. Instead, more details would be put into subsidiary legislation.

I wasn’t in the public gallery watching the marathon debate all the time, but I caught some of it that made me upset with the PAP MPs. Almost no one had any reservations about any part of the Bill. You wonder about how firmly the Whip was in place. But while there were the usual stock phrases in the PAP echo chamber about Singapore’s vulnerability and variations of “fake news is bad”, there were a few who actually advanced the case for the Bill quite well.

MP Murali Pillai, for example, noted that when  it came to a dispute over a minister’s correction or take down order, the courts would look at subsidiary legislation as well as the primary legislation to come to a decision. So those who believe that the judiciary’s hands will be tied by the wording of the main law shouldn’t worry, he said.

He didn’t, however, move on to the  point made by the Nominated MPs that it is the G who writes subsidiary legislation – and can re-write them without Parliament oversight. (Nominated MP Walter Theseira had quipped that the US Environment Protection Agency’s position on climate science depended on who the President is.)

May I will now humbly suggest to the Ministry of Law that it makes public such regulations when they are ready so that everyone can have a look before the law is enacted. Not everyone monitors the government gazette.

Mr Murali, a lawyer,  was quite compelling when he argued that the  access to judicial review is a guard against the oft-heard argument that the Bill allows a rogue government to exercise its powers willy-nilly. He also responded to opposition MPs who had argued that the legal burden was on the person who wrote the offending statement to prove that it was not false, not the minister who issued the correction order. He noted that the minister had first to give his reasons for the order (which will be in subsidiary legislation), and that this would be open to public scrutiny.  Even when a person is compelled to comply with the order, there is nothing to stop him from going public about what he deems is a “wrong” order, he said.

So you can still argue, but whether you have the courage to do so is a different matter. This has been a key plank in the Workers’ Party outright rejection of the Bill: That people wouldn’t want to risk saying anything for fear of crossing some red line under a broadly-worded law.

I believe in the “chilling effect”, no matter how many times ministers and MPs dismiss it. They say that the fear is unfounded because only false statements that harm public interest is targeted. But this debate has been all about what is a false statement and what is the public interest. The fear might be unfounded, but it is real.

Methinks the chilling effect is a by-product of the society we have become: one which treats the G as so all-powerful that it can solve any problem, quash any opponent and can rely on establishment players to do the needful (or  extra) even without having to tell them to. Like sack someone or put him in “cold storage”.

This might be unfair to the G. I myself have never been on the whacking end of the G stick but I have also always wondered if anything I write will earn a ferocious comeback that will scare the living daylights out of me, as well as the people associated with me. We’re remarkably thin-skinned, as I have said before.

So there’s another point in the debate that is worth elaborating on:  The difference between fact (which will come under POFMA) and opinion (which the G doesn’t have to agree with). POFMA will be used against “false” statements, and it must first be clear that the statement is indeed false. The education on what is fake new is really more needed on the government end, so that ministers and their ministries do not confuse opinion with fact, or label statements as untrue when they are merely disagreeable.

NMP  Theseira’s checks on how ministries consider the term “fake” in the G portal, Factually, is illuminating. In his speech yesterday, he said that there were 10 cases when ministries used language to dismiss statements as untrue when there were really disagreements about conclusions. For example, someone had said that the rise in ComCare assistance reflected the “worst poverty results” officially recorded, but the Ministry of Social and Family Development countered that this was “untrue”. It was due to more generous social welfare policies, the ministry said.

He advised that ministries exercise more caution in the words used because of the new powers that the Bill confers on them. He also made this point that sometimes, people have only partial information and not the full nor relevant information that the ministries’ hold.

WP chairman Sylvia Lim also referred to this in her speech, when she brought up the case of two economists in the Nanyang Technological University  who were castigated by then-Manpower Minister Ng Eng Hen in 2003 for saying that most newly created jobs went to foreigners. Their conclusion was based on information that was public available. But it transpired that the ministry had more data that led to a different conclusion. Dr Chen Kang and Dr Tan Khee Giap were labelled as “irresponsible” and “unprofessional”.

Both Ms Lim, NCMP Daniel Goh and NMP Theseira asked if the two would have been tagged with correction orders should POFMA have been in place then. Education Minister Ong Ye Kung said no. They had incomplete data. They didn’t fabricate data, which would have brought POFMA down on them. As for the stern rebuke from Dr Ng at that time, Mr Ong said disagreeing with the academics was “not equal” to running foul of POFMA. “It cannot be that just because it’s a research piece, we all have to shut up,” he said. He conceded, however, that the G should exercise more discipline in its choice of words. (Come to think of it, it might be better to  get the facts wrong and have them quietly corrected with more info than to get involved in a public disagreement over opinion with the G!)

And this brings me back to whether we have enough information or facts in the first place to say anything meaningful.

Calls for a Freedom of Information Act made by MP Louis Ng were turned down by Law Minister K Shanmugam who warned about ministries being deluged with absurd requests. Such a law would privilege some people more than others, he said, as it would be lawyers, businessmen and journalists (!) who ask for data. (He forgot academics).

He said MPs, including NMPs, can ask for any information they want.

I am really hoping that he was reported wrongly because I can see all sorts of walls being put up by ministries to requests for information. All they need to do is refer to what he said. It cannot be that ministries only respond to MPs’ queries and public discourse can only take place meaningfully in Parliament. The institution of the media, for example, has a big part to play in creating the infrastructure of fact. Academics need access as well or there would be a replay of what happened in 2003.

I recall NMP Theseira’s speech during the Budget debate when he spoke about strengthening institutions by, among other things, making information more available. He noted that half of last year’s 698 parliamentary questions were requests for data, and three-quarters were answered. “These answers show that much information held by the Government is of public interest, is readily available, and by release, poses no significant sensitivities.”

But that’s a column for another day.

For now, I just want to know if the law will be applied “retroactively”, that is, to fake news now currently floating around or have been floating around for years. I better go double-check my own stuff.