High Court judge disagrees with fellow judge, says onus not on Govt to prove statements are false in Pofma cases

SINGAPORE – A High Court judge has given a different opinion from a fellow judge on whether it is the Government that has to prove a statement is false, in an appeal under Singapore’s law against fake news.

Justice Belinda Ang, in a judgment issued on Wednesday (Feb 19), said the onus is not on the Government to do so.

Rather, the person who made the statement must show that it is true.

The judge made her finding while dismissing an appeal by The Online Citizen (TOC) to set aside a correction direction, which was issued over an article alleging unlawful execution methods in Singapore prisons.

The case was the second involving the Protection from Online Falsehoods and Manipulation Act (Pofma).

In the first case, Justice Ang Cheng Hock had found that the burden should fall on the Government to prove a statement is false, because in issuing correction directions, it is curtailing the right to free speech which is protected by the Constitution, among other things.

Disagreeing, Justice Belinda Ang said a correction direction under Pofma does not constrain free speech as it does not require the removal of the original statement.

In fact, she said, it is “one mode of tackling the unique difficulties associated with refuting false factual claims on the Internet”.

She added that a person’s only obligation under such a direction is to put up the Government’s take alongside his statement, so that viewers can compare the competing accounts of facts and make their own decisions.

Also, she said, Article 14 of the Constitution protects the right to communicate information and not misinformation. As such, falsehoods are not one of the categories of protected speech.

“It is observed that while the law must be vigilant against attempts to check the expressions of tastes and opinions contrary to our own, there is no public interest in preserving a right to disseminate falsehoods,” she added.

The judge also said that based on the way the law is worded, the burden of proof should fall on the person making the statement rather than the Government.

For instance, Section 17(5) of the law, which deals with the grounds under which a correction direction can be set aside, states the legal elements that must be satisfied in relation to the person who made the statement.

In other parts of the law, legal elements are stated on what the minister has to do.

Noting this, Justice Belinda Ang said that if Parliament had intended for the Government to bear the burden of proof, the law would have been worded differently.

This interpretation of the law was also in line with the legislative purpose of preventing the spread of falsehoods, she added.

She also addressed the issue of information asymmetry, brought up by Justice Ang Cheng Hock in his judgement.

He had said that Parliament could not have intended for the person making the statement to prove its veracity, given that the Government could marshal much more resources to produce the relevant evidence.

Justice Belinda Ang said Parliament had not expressed any position on this during the debate on the law, adding: “From the outset, I question the propriety of reconstructing legislative intent on the basis of a concern that Parliament did not articulate.”

She added there was nothing in the parliamentary debates that indicates how the court should balance a person’s interest in relation to the Government’s interest in avoiding disclosures of sensitive information.

She said that once a person is able to show prima facie evidence of the statement’s truth, the evidential burden will shift to the Government to show otherwise.

In the first instance, a Minister would have had to ensure there is sufficient evidence in making the administrative decision to issue a correction order, she added.

However, Justice Belinda Ang noted that while both TOC and the Government had argued on the issue of burden of proof, the question did not come up in this case.

This was because TOC had repeatedly stressed that it was not taking a position on whether the allegations it carried by Malaysian rights group Lawyers for Liberty (LFL) were true.

TOC, in its argument, had said it was merely reporting in an even-handed way what LFL had said the statements were neither opinions nor facts, but hearsay.

Justice Belinda Ang, however, said Pofma only pertains to facts or opinions, and TOC cannot create its own category of statements.

She found that a reasonable reader would understand the statements – claiming, among other things, that prison officers were instructed to kick and break the neck of prisoners when the rope used in executions break – to be statements of facts.

TOC also argued it was merely doing what journalists do in covering court stories, that is to report the fact that allegations have been made.

But Pofma applies whether or not TOC has verified the statements, since it is also meant to address falsehoods that are spread unknowingly, said Justice Belinda Ang.

“Pofma not only seeks to capture those tale-makers who author falsehoods, but also implicates tale-bearers who receive false information and forward it to others without taking a position on the truth of the content,” she added.

In dismissing the appeal, she said that since TOC had repeatedly said it was not taking any position on whether the statement is true, and also did not produce any evidence to prove it is true, it has failed to discharge its burden of proof.

She also gave the Government one week to write in if it was seeking costs. TOC will have one week thereafter to reply in writing.

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