COMMENT: Who is the fake news law meant to protect, exactly?

Singapore’s Parliament. (File photo: Reuters/Edgar Su)

On the surface, I don’t think that I, as a writer, would have a problem with the Protection from Online Falsehoods and Manipulation legislation. It’s been drummed into me for years that errors must be corrected and apologised for. Of course, the online space makes rectification of errors easier – a few clicks and the offending remarks are gone.

Some people don’t even think they need to alert readers that an amendment has been made. I think this is wrong and readers deserve to be told that there was a mistake. It also holds out the (slim) hope that a reader who had read the “wrong” stuff might return to see the change made.

Errors of fact seem pretty clear to me. You said $1m when it should $1b. Careless mistake. Correction. Apology. Of course, the greater the number of corrections, the more the reputation of the writer/organisation suffers. Fewer and fewer people think it worth their time to read you.

There’s no need for the law to push this on organised media because there are ethical codes for those in the business of reporting the facts. Now, however, everyone can be in the communication business (paid or unpaid). And the role of communication is not just about reporting the facts, but asking questions, pointing out the lack of facts, making arguments based on available facts and giving opinions, which sometimes aren’t based on facts.

In fact, the process of determining if something is wrong and in need of correcting can be time-consuming. It requires investigation, an acknowledgement of the error and an agreement on a form of words on both sides before a correction sees daylight. It’s a worthwhile process if only to ensure that the mistake does not occur again. Contrast this, however, with the powers given to ministers under the Bill. Any minister can “deem” something that comes under his domain false and order a correction or a take-down. This, we are told, is in the interest of speed, that is, to prevent an untruth from going viral.

It’s a process that brooks no argument. You are guilty as charged.

Sure, you can appeal. To the same minister who made the decision, not a separate or higher body. Some people have likened this to appealing to ministers over matters under their purview, like to the National Development Minister about getting a HDB flat. I agree that the minister can always use his discretion over an issue his officers dealt with, but how likely is he to be moved to revise a decision he himself made?

Nor do I find comforting the oft-heard argument that the courts are really the final arbiter – simply because the judicial process is the last of a lengthy process under this massive legislation.

I am not a lawyer, but I don’t think anyone should need a lawyer to understand a True or False question.

Nevertheless, I won’t even try to understand the definition of what is a statement of fact.

This is what the Bill says: A statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact.

The way I have always understood it is that the “fact” must either be of “the sun rises in the east” genre, or attributed to a trusted or authoritative source. (I suppose I can include REACH surveys here.)

As for what is fake, here’s the definition: A statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.

The best way to see how things work is to give examples. Professor Cherian George gave one here, referring to a news agency’s headline on a minister’s reply.

Let me try another.

Say Workers’ Party Sylvia Lim had written on Facebook that the G’s announcement on raising the Goods and Services Tax was an electoral ploy or a trial balloon (which is what she said in Parliament), would Finance Minister Heng Swee Keat issue a takedown order because he deemed such a suspicion false and without basis? You can read about the saga here.

Does the second condition – the minister’s action must be in the public interest – make the law any clearer? Some people have applauded the move to expand on what is in the public interest. Here is how the Bill expands on the term:

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.

You can see that in the case of the example, ministers can possibly cite (f) as an action in the public interest.

No one can argue against first principles, such as acting in the public interest (unless you want to argue about what exactly is the public interest – to which the G will point to its electoral mandate). I agree the G must have some executive discretion, especially when it comes to maintaining peace and stability, but I worry that the fake news legislation will result in sanitised public discussion – or very little discussion – that is always in the G’s favour.

Why do I say that?

Because OB markers work very well in Singapore. In recent years, they have got tighter if you consider acts taken against various individuals. Perhaps, each action has a specific basis but the cumulative effect is, to use a well-worn word, chilling. You can read my post here.

Fake news laws will pull them further in simply because people don’t understand where the line is. How can they? So they will self-censor in the interest of self-preservation. Truth to tell, even journalists find it difficult to traverse this territory.

The reiteration that the law will not punish opinion isn’t illuminating. If you look at the Ms Lim’s example, she argued that she was merely articulating an opinion or what some people feel. But the PAP was strenuous about wanting her to retract a false statement.

Couple the fake news legislation with the debate on hate speech which all happened on the same day and you get people wondering if even the truth/facts will get you into trouble if it is mildly offensive. This is despite the G making clear that no new regulations on hate speech is on the horizon.

Methinks most people have trust and confidence in the G and its institutions. I do. But with every succeeding generation, there will be calls for more clarity and more checks.

I worry, for example, about inconsistent treatment under the law and lack of clarity. I have touched on these issues here and here. Now, because any minister can issue a correction or take down order, I worry that different ministers will have different yardsticks on what they “deem” real or fake. Unless they too have a “code” or guideline, we can expect there will be different levels of tolerance, whether for “degree of falsity” or”the person propagating it”.

I worry that by the time an aggrieved party gets to the stage of a judicial review, his or her reputation would have been irreparably damaged. It doesn’t help that the Bill seems to give the judges limited grounds to overturn a directive either.

That there is not much public traction over the Bill (except among the usual suspects) shows how much trust people place in the G. But while we can place our trust in individualities and personalities in charge of the system, we must still ensure that our system is robust enough to withstand not-so-good men and women. The People’s Action Party government acknowledged this when it introduced the elected Presidency in 1988 to counteract a future rogue government. Before it dismisses detractors of this Bill, it should consider that it had its own misgivings about power being in the “wrong” hands some three decades ago. This reservation should still apply today.

I take heart in the G’s assurance that the modus operandi will be “correction orders” rather than “take-down” directives. This still leaves room for the public to exercise their own brain cells on whether the correction is legitimate or not. Perhaps, it might lead to public debate, unless people are worried that simply talking about something fake is spreading it. (See how complicated it gets?)

I suppose there will be more support for the Bill if the G sells it as protecting the vulnerable from fake news about fake rice, medical remedies and what is poisonous or not. That’s the good part about the Bill. Then again, the Protection from Harassment Act was sold at first as a recourse for individuals affected by cyber-stalking – until you see even the Defence Ministry resorting to it – unsuccessfully. You can read about it here.

I guess now, the Defence Minister can simply order the offending/erroneous statements out of sight. Which reminds me – is the G going to go over everything that has been published to deem what is fact or fiction? Or is there a start date?

But, hey, I am getting ahead of myself. The Bill has only been introduced, not yet passed.

So I have two questions:

For the G: How does this legislation demonstrate that it has taken in the views of those who gave feedback to the Parliamentary Select Committee last year?

For parliamentarians: Given that there seems to be confusion about the details of the Bill, should there be a break after Second Reading to allow another Parliamentary Select Committee to scrutinise the details?

I wrote this last year lamenting that we did the whole feedback process of what constitutes fake news the wrong way round.

I am even more convinced now.

Related stories:

Singapore’s law ministry refutes Human Rights Watch criticism of proposed fake news laws: report

Edwin Tong disagrees with view of fake news law’s ‘chilling effect’ on political discussions

Parliament: Draft bill proposes up to 10 years’ jail for individuals who deliberately spread fake news

Facebook, rights groups hit out at Singapore’s fake news bill