High Court dismisses SDP appeal against fake news law directives

SINGAPORE — The High Court on Wednesday (5 February) dismissed an appeal by the Singapore Democratic Party (SDP) to reverse correction orders issued under the Protection from Online Falsehoods and Manipulation Act (POFMA).

It was the first appeal against a directive under POFMA, a controversial anti-fake news law,

In dismissing the appeal, Justice Ang Cheng Hock ruled that there was a proper basis for all three correction directions directed against SDP, as the statements made by the opposition party were “false in the face of statistical evidence against them”.

The party thus cannot remove the correction notices it was required to put up alongside the relevant online posts.

In a statement released later on Wednesday, SDP said it is "very disappointed" with the verdict and is "considering appealing the decision".

“We reiterate our case which we argued in Court: POFMA must only be applied to clear cut cases of falsehoods, not for interpretations of statistical data,” it said in the statement.

Background on the case

The subject of contention: an article on SDP’s official website, and two posts on SDP’s Facebook page linking to the article.

In the article dated 8 June 2019 and titled "SDP Population Policy: Hire S'poreans First, Retrench S'poreans Last", SDP said that it was setting out its population policy “amidst a rising proportion of Singapore PMETs getting retrenched”.

The party put up a Facebook post on 30 November linking to the article, and another post on 2 December doing the same. The latter post also contained an infographic labelled "Local PMET employment", showing an arrow pointing downward.

On 14 December, the Ministry of Manpower (MOM) issued a correction direction under POFMA, saying that the article and the two Facebook posts falsely claimed that local PMET retrenchment has been going up and PMET employment has gone down.

The SDP subsequently applied to the MOM on 3 January this year to have the correction orders cancelled, but Manpower Minister Josephine Teo rejected it. The party then filed its court challenge on 8 January.

After a hearing on the case on 16 January, SDP told reporters that the party’s statements were made based on a “reasonable interpretation” of publicly available data that was provided by the MOM, and that the fake news law is meant to be applied only to “obvious, deliberate falsehoods”.

The government, represented by the Attorney-General's Chambers (AGC), argued that POFMA covers both express statements and implied statements.

Meaning based on what reasonable reader would understand

In dismissing SDP’s appeal, Justice Ang said that the meaning of the article and Facebook posts should be determined based on what a “reasonable reader would understand from the material in question”, and that the subjective intention of the statement-maker is not relevant.

As such, he deemed that the appropriate meaning of the SDP article is that the share of retrenched local PMETs as a proportion of all local PMET employees has been increasing.

The judge also noted that the SDP had not challenged the accuracy of the statistics cited by MOM, Instead, the party sought to critique it on other grounds, which he did not find convincing.

For instance, SDP said it had relied on Labour Market Survey statistics from 2010 to 2018 to come to its conclusions, and that the MOM had arbitrarily picked statistics from 2015 to 2018.

Justice Ang found this "problematic" in a few ways, saying that there was nothing in the SDP article that offered "any hint that the 'rising proportion of PMET retrenchment' should be understood with such a long timeframe rather than by reference to the most recent period of time".

He agreed with the AGC that an ordinary, reasonable person would interpret the article to be reflecting a present, troubling trend that the SDP’s population policy was aimed at addressing.

Burden of proof lies with government

In coming to its decision, the High Court had to establish which party bears the burden of proof, given that it was the first time an appeal against a correction direction issued under POFMA was launched.

It rejected Deputy Attorney-General Hri Kumar’s argument that the burden of proof fell on SDP to prove that its statements were true.

“The Court found that it was for the respondent (the Attorney-General, on behalf of the Minister), to bear the burden of proof,” Justice Ang said. “This was explicable in part on the basis of the fact that it was the Minister who was seeking to curtail the statement-maker’s right to free speech.

“Unlike the minister, who is able to rely on the machinery of state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources. For a statement-maker, who may be an individual, to bear the burden of proof would put him in an invidious position.”

Intention of parties ‘irrelevant’

Justice Ang emphasised that the role of the Court is to interpret the legislation, not to comment or adjudicate on the desirability of particular policies. In that sense, the Court is constrained by what the legislation compels.

He also insisted that the intentions of the parties are irrelevant when there is no question before the Court of any criminal liability.

“I pause here to highlight that both parties attempted to cast aspersions on each other’s intentions and motivations, with labels such as ‘disingenuous’ and ‘dishonest’ being bandied about,” he said.

“I underscore that the POFMA necessitates an objective approach... The issues are whether the subject statement(s) are borne out by the words and/or depictions in the communicated material, and then whether those subject statement(s) are true or false.”

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