Darren Grayson Chng, our Singapore Correspondent, reports on the background and passage of Singapore’s controversial fake news law which has extra territorial consequences
POFMA. That is the acronym for Singapore’s anti-fake news law, passed in Parliament on 8 May 2019. Its full name is quite a mouthful – the Protection from Online Falsehoods and Manipulation Act, and it has far-reaching powers with extra-territorial application.
Since the Bill was first tabled in Parliament in April, the Singapore Government has been trying to help Singaporeans understand POFMA and its implications. It even got local celebrity Michelle Chong of Orange Is The New Black fame, to interview Singapore’s Law and Home Affairs Minister K. Shanmugam.
The article traces the inception of POFMA, provides a quick overview of its provisions, and reports on local reactions to it.
Select Committee on Deliberate Online Falsehoods
The process began in January 2018, when the Singapore Parliament voted unanimously for the formation of a Select Committee to look into the problem of deliberate online falsehoods.1
The Committee’s Terms of Reference were to examine and report on:
(a) the phenomenon of using digital technology to deliberately spread falsehoods online;
(b) the motivations and reasons for the spreading of such falsehoods, and the types of individuals and entities, both local and foreign, which engage in such activity;
(c) the consequences that the spread of online falsehoods can have on Singapore society, including to our institutions and democratic processes; and
(d) how Singapore can prevent and combat online falsehoods, including:
(i) the principles that should guide Singapore's response; and
(ii) any specific measures, including legislation, that should be taken.
170 written representations were received by the Committee,2 in response to its invitation to the general public to submit written representations on any matter falling within the Committee’s Terms of Reference.
Public hearings were held in March 2018. Oral evidence was heard from 65 individuals and organisations over eight days, including local and foreign academics and experts, religious and community religious groups, technology and media companies, and civil society activists. Representatives from Facebook, Twitter and Google also appeared before the Committee. Facebook’s vice-president of public policy for Asia-Pacific Simon Milner was questioned for about three hours by Minister Shanmugam.
If I may digress for a moment, those three hours were packed with tense exchanges (but juicy and every reporter’s dream) between Shanmugan and Milner.3 At one point in time, Milner said:
This committee is looking into the issue of deliberate online falsehoods here in Singapore. Myself and my colleague and other people on this panel have come here prepared to answer questions about it and to help the committee understand it. I don’t think it’s fair to ask me detailed questions about evidence given by my colleague to a different parliament in a different country about activities associated with that country. I really would like the chairman to consider whether this line of questioning is appropriate.
Shanmugam explained politely that “the questions before the UK Parliament were very relevant in exploring the degree to which … Facebook can be trusted to answer questions when asked, Facebook can be trusted to be a reliable partner, that the Government of Singapore can depend on Facebook to tell us the truth … in proceedings where the witnesses are sworn”.
Of course, the hostilities did not end there. After further resistance over the next few minutes, Shanmugam simply said:
If you are embarrassed about being confronted with answers that your colleagues have given to other parliaments, you can say so. If you feel unable to support them, of course you can say so. But I think you will leave the relevance of the questions to me, and for me to be directed by the chair. Can we move on?
Milner moved his microphone and opened his mouth to respond. And before he could, Shanmugam said: “I don’t need an answer from you”.
Back to the topic. In September 2018, the Committee submitted a 176-page report to Parliament on its findings. It proposed 22 recommendations to tackle the scourge of fake news. These included:
The Government accepted in-principle the recommendations, and said that it would work with stakeholders to roll out the non-legislative and legislative measures recommended by the Committee.4 It said that those measures would be geared towards: (a) nurturing an informed public; (b) reinforcing social cohesion and trust; (c) promoting fact-checking; (d) disrupting online falsehoods; and (e) dealing with threats to national security and sovereignty.
Protection from Online Falsehoods and Manipulation Bill
The Bill was introduced in Parliament on 1 April 2019. Singapore’s Ministry of Law stated that the Bill sought to protect society against damage from online falsehoods created by malicious actors, and was a necessary part of a multi-pronged response to deal with the problem.
The key features of the Bill were:
After the Bill’s introduction, three Nominated Members of Parliament (NMPs) proposed amendments to the Bill, saying that there was significant concern that the grant by the Bill to the Executive of far-reaching powers to control online communications could be used by the Executive and future governments to suppress or chill debate and expression for political purposes. They said that the Bill did not contain assurances that limited how the Bill’s power could be used, and contained broadly worded clauses defining what is a false statement and what constitutes public interest.
At the second reading of the Bill on 7 May, Minister Shanmugam5 said that a pillar of democracy is public discourse, which can only take place when there is free, responsible speech. And free, responsible speech has to be founded on facts. Shanmugam said that in other countries, the media has played a highly corrosive role in eroding trust in many ways. It has the power to destroy institutions, and it has done so. New media can and has been weaponised to spread falsehoods to mislead. The Bill was not a silver bullet, but was still an attempt to “help support the infrastructure of fact and promote honest speech in public discourse”.
After a two-day debate, the Bill was passed in Parliament on 8 May with a majority of 72 to nine, and the three NMPs abstaining. The proposed amendments by the NMPs were voted against.
A quick breakdown of POFMA
Section 5 says that POFMA’s purpose is:
(a) to prevent the communication of false statements of fact in Singapore and to enable measures to be taken to counteract the effects of such communication;
(b) to suppress the financing, promotion and other support of online locations that repeatedly communicate false statements of fact in Singapore;
(c) to enable measures to be taken to detect, control and safeguard against coordinated inauthentic behaviour and other misuses of online accounts and bots; and
(d) to enable measures to be taken to enhance disclosure of information concerning paid content directed towards a political end.
Section 2(2)(b) defines a false statement as one that “is false or misleading, whether in wholly or in part, and whether on its own or in the context in which it appears.
Section 4 sets out a non-exhaustive definition of “in the public interest”, saying that “it is in the public interest to do anything if the doing of that thing is necessary or expedient:
(a) in the interest of the security of Singapore or any part of Singapore;
(b) to protect public health or public finances, or to secure public safety or public tranquillity;
(c) in the interest of friendly relations of Singapore with other countries;
(d) to prevent any influence of the outcome of an election to the office of President, a general election of Members of Parliament, a by-election of a Member of Parliament, or a referendum;
(e) to prevent incitement of feelings of enmity, hatred or ill-will between different groups of persons; or
(f) to prevent a diminution of 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.”
Part 2 of POFMA criminalises the communication of false statements of fact in Singapore in certain circumstances, and acts which enable or facilitate the communication.
Section 7 provides that a person must not do any act in or outside Singapore in order to communicate in Singapore a statement knowing or having reason to believe that:
(a) it is a false statement of fact; and
(b) the communication of the statement in Singapore is likely to:
(i) be prejudicial to the security of Singapore or any part of Singapore;
(ii) be prejudicial to public health, public safety, public tranquillity or public finances;
(iii) be prejudicial to the friendly relations of Singapore with other countries;
(iv) influence the outcome of an election to the office of President, a general election of Members of Parliament, a by-election of a Member of Parliament, or a referendum;
(v) incite feelings of enmity, hatred or ill-will between different groups of persons; or
(vi) 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.
Individuals who contravene section 7(1) face a fine of up to $50,000 and/or imprisonment for up to 5 years. Organisations face a fine of up to $500,000. The punishment is enhanced if an unauthentic online account or a bot is used to communicate the statement and for the purpose of accelerating the communication.
Section 8 prohibits the “making or altering” of bots with the intention of using it to communicate a false statement of fact in Singapore, or enabling another person to do so.
Section 9 makes it an offence to solicit, receive, or agree to receive a benefit for providing a service which the person knows is or will be used to communicate a false statement of fact in Singapore, if the service is in fact used in the communication.
Part 3 of POFMA allows any Minister to issue a Part 3 Direction to deal with communication in Singapore of a false statement of fact, if the Minister opines that it is in the public interest to do so.
The Correction Direction6 is a direction to the communicator of the false statement. It requires the communicator to communicate in Singapore a “correction notice” consisting (a) a notice that the statement communicated was false, and/or (b) a specified statement of fact, and/or a specified location where the statement may be found.
The Correction Direction may also require the communicator to place the correction notice in a specified proximity to every copy of the false statement of fact, and to publish the correction notice in a Singapore newspaper or other publication.
The Stop Communication Direction7 is a direction to the communicator of the false statement to stop communicating it in Singapore. It may also require the communicator to put up a correction notice.
A person to whom a Part 3 Direction is issued, may appeal to the High Court of Singapore against the Direction.8 The High Court may only set aside the Direction if (a) the person did not communicate in Singapore the statement, or (b) the statement is not a statement of fact or is a true statement of fact, or (c) it is not technically possible to comply with the Direction.
If a Part 3 Direction is not complied with, the Minister may direct the Infocomm Media Development Authority of Singapore (IMDA) to order an internet access service provider (ISP) to take reasonable steps to disable local access to the online location where the false statement of fact is communicated.9
Part 4 of POFMA allows any Minister to issue a Part 4 Direction to internet intermediaries and providers of mass media services, in relation to any material containing a false statement of fact that is communicated in Singapore, if the Minister opines that it is in the public interest to issue the Direction.
Three Directions are available in this toolbox:
The Targeted Correction Direction is a direction to the internet intermediary whose service is used in communicating the material in Singapore.10 It requires the internet intermediary to communicate a correction notice to end-users in Singapore who access the material.
The Disabling Direction requires the internet intermediary to disable local access to the material, by a specified time.11 It may also be required to communicate a correction notice.
The General Correction Direction requires prescribed internet intermediaries, providers of mass media services, and other prescribed persons, to communicate in Singapore, publish, broadcast, transmit, or give to specified persons, a correction notice.12
Section 24 requires Part 4 Correction Notices to be “easily perceived”. This means that:
(a) the notice must be conspicuous;
(b) it must be easy to read, view or listen to, and not easy to miss;
(c) it (not being an audio recording) must be placed near the false statement, and in a location where viewers are likely to look; and
(d) the viewer or listener must not be required to refer to a separate online location or any other thing in order to read, view, listen to, or understand the notice.
Again, any person to whom a Direction is issued, or who communicated the material in Singapore, may appeal to the High Court of Singapore against the Direction.13
Under Part 5 of POFMA, a Minister may declare an online location as a “declared online location” if it was used to communicate in Singapore at least three false statements of fact which were the subject of a Part 3 or Part 4 Direction.14
A Declaration may require the owner or operator of the online location to communicate to any end-user in Singapore who accesses the online location, a notice that that location is the subject of a Declaration.15
The owner or operator of the declared online location, or any person with editorial control over it, may appeal to the High Court of Singapore against the Declaration.16
Sections 33 and 34 allow the Minister to direct the IMDA or a Competent Authority to take reasonable steps to order that an ISP or internet intermediary disable local access to a declared online location. The Minister may make such a direction if (a) paid content on the location is communicated in Singapore after a prescribed period, and (b) the location was accessed locally after the Declaration came into effect.
Section 36 makes it an offence for a person to solicit, receive, or agree to receive any benefit for operating a declared online location.
Section 37 requires a service provider or digital advertising intermediary to take reasonable steps to ensure that any paid content on the declared online location, is not communicated in Singapore on that location. These parties must also ensure that they do not facilitate the communication in Singapore of any paid content that publicises or promotes the location.
Section 38 makes it an offence to expend or apply property knowing, or having reason to believe, that it supports, helps, or promotes the communication in Singapore of false statements of fact on a declared online location.
Part 6 of POFMA provides for directions which “counteract inauthentic online accounts and coordinated inauthentic behaviour”.
The Account Restriction Direction allows any Minister to instruct a Competent Authority to issue a direction to a prescribed internet intermediary, requiring it to disallow its services from being used to communicate statements in Singapore through a specified online account, or to disallow any person from using specified online accounts to interact with local users.17
Section 43 allows the Minister to direct the IMDA to order that an ISP take reasonable steps to disable local access to an online location, if the internet intermediary fails to comply with the Account Restriction Direction. Among other things, the false statement of fact must have been communicated in Singapore on the location, or the coordinated inauthentic behaviour must have taken place on the location.
The prescribed internet intermediary to whom the Part 6 Direction was issued, or the holder or controller of the specified online account, may appeal to the High Court of Singapore against the Direction.18
Part 7 of POFMA provides for other measures to carry out the purposes of the Act.
Section 47 requires a prescribed digital advertising intermediary or internet intermediary to take reasonable steps to ensure that they do not facilitate the communication in Singapore of any paid content that publicise or promote an online location, that includes material that is the subject of a Part 3 or 4 Direction.
Section 48 allows the Competent Authority to issue codes of practice applicable to prescribed digital advertising intermediaries and internet intermediaries. If the Competent Authority opines that they have not complied with any part of the code, the Competent Authority may give them a notice directing them to remedy the non-compliance.19
Part 8 of POFMA contains special provisions for election and specified periods.
Part 9 of POFMA contains miscellaneous provisions. One of them, section 60, provides that where a person commits outside Singapore a POFMA offence with extra-territorial application, the person will be dealt with as if the offence had been committed within Singapore.
Reactions to POFMA
Before the Bill was passed in Parliament, two Senior Counsel published opinions with the newspapers. One of them, Harpreet Singh Nehal, opined that the two key preconditions to exercise the extensive powers under the Bill, a “false statement of fact” and a minister’s subjective determination of the “public interest”, were very widely defined.
He said that the legislation should require any order to be proportionate to the nature of the falsehood and the degree of harm to the public interest. For the more onerous take-down orders or disabling directions, the legislation should require the minister to explain why a lesser measure would not suffice. This would give the courts a greater latitude of supervision over a minister’s orders.
He also took the view that an opinion which can stand even if one of its several premises is faulty, should not be impugned; the Bill should be amended to expressly provide that it would not apply to opinions or criticisms unless an underlying statement of fact was false and was material to the opinion as a whole.
The other, Siraj Omar, noted that the Government already possessed wider powers than those under the Bill. He said however that an aggrieved person may be deterred from going to court because of the time and costs involved. He suggested a simplified or expedited process for appeals to the courts, and that the Government consider the availability of legal or financial aid.
(Note: Minister Shanmugam responded to the NMPs’ and the two Senior Counsel’s points in an op-ed.)
An opposition party with members in parliament opposed the Bill. Its secretary-general Pritam Singh said during the parliamentary debates that the Executive should not be the initial decision maker on what constitutes false statements of fact.
He highlighted that when the Select Committee was convened a year ago, representors had raised concerns about whether Executive action would be credible, and that Executive directions would not be able to deal with falsehoods spread by the Executive.20 Representors had identified the courts, an independent council, or ombudsman as other potential decision-making bodies.21
Senior Minister of State for Law, Edwin Tong, said however that the process of a minister first issuing a direction, and an avenue for an appeal to be made to the High Court to set aside the direction, was “the best way to be effective, while ensuring adequate judicial oversight”, and that even an expedited court process might not be fast enough to deal with the virality of falsehoods. The process could achieve the objective of “breaking virality by being effective in a matter of hours”.
Another member of the opposition party, Sylvia Lim, said during the parliamentary debates that the grounds for appeal to the High Court were “very tightly scoped”. She said that the court could not inquire into the merits of the decision and ask for example whether the directions were excessively onerous and harsh, or whether public interest required the direction to be issued.
It was reported that 124 local and foreign academics had sent a letter to Education Minister Ong Ye Kung, stating their concerns that POFMA could curb their research. They were also concerned that conjectures or hypotheses assumed for research purposes could violate POFMA if they turned out to be false or misleading. During the parliamentary debates, Ong said that POFMA would only come into play if the research used false observations or data to begin with, which would prevent public discourse from taking place properly.
Journalist Liying Lee, who has been following the development of POFMA since the days of the Select Committee hearings, said that POFMA adds a new layer of complexity and challenge for journalists reporting on issues in Singapore. Reporters often grapple with incomplete information as they may not be privy to key insights like national statistics or the nuances of policy considerations, which the Government may choose not to reveal. Separately, investigative pieces are wrought with hazards given that the full picture takes time to be borne out, and newly revealed facts could change a narrative completely. She said that journalists would have to be more careful when working around such constraints as misleading statements, whether wholly or in part, might constitute a falsehood under POFMA.
1 The Green Paper presented to Parliament on "Deliberate Online Falsehoods: Challenges and Implications" (Misc. 10 of 2018), can be found here.
2 Those representations selected by the Committee for publication can be found here.
3 A YouTube clip published by the Singapore Government can be found here.
4 Joint Press Statement by Ministry of Communications and Information and Ministry of Law (accessed 11 May 2019).
5 A recording of his full speech can be found on YouTube here.
6 See section 11, POFMA.
7 See section 12, POFMA.
8 See section 17, POFMA.
9 See section 16, POFMA.
10 See section 21, POFMA.
11 See section 22, POFMA.
12 See section 23, POFMA.
13 Section 29, POFMA.
14 See section 32, POFMA.
15 See section 32(3)(f), POFMA.
16 See section 35, POFMA.
17 See section 40, POFMA.
18 See section 44, POFMA.
19 See Section 50, POFMA.
20 See Part A of the Report of the Select Committee on Deliberate Online Falsehoods – Causes, Consequences and Countermeasures (Report) at para 364b.iii..
21 See Part A of the Report at para 364a. and c..