Parliament will be preparing to debate a new piece of legislation, the Protection against Online Falsehoods and Manipulation Bill (POFMA) in the upcoming week.

The online discussion on the Bill is perhaps the most thought-provoking one in recent months, inspiring criticism and proposals for amendments, from journalists, academics and NMPs.

Senior Counsel speaks up

Lawyers are having their say too.

Senior Counsel Harpreet Singh Nehal wrote a piece in the Singapore Law Watch and highlighted "legitimate concerns" about the Bill.

While he said that there can be no "serious disagreement" that the government needs to deal with public misinformation, and that the government has given assurances about how the Bill will be implemented, Harpreet points out two issues.

The first was that the two key preconditions for the Bill's extensive powers to be used were "very widely defined".

Widely defined key terms

Harpreet was referring to the terms "false statement of fact" and "public interest", which is subject to a Minister's subjective determination.

He noted that "false statement" extended to any misleading statements too, "...whether in whole or in part,

and whether on its own or in the context in which it appears."

He also noted that "public interest" went beyond the traditional definitions of:

• National security
• Public health
• Foreign relations
• Race relations
• Integrity of national elections

Instead, it also extends to the diminution of public confidence in the performance of any duty, function or power of any power of the government, organ of state, or statutory board.

To improve the Bill, Harpreet proposed four recommendations.

1. A Minister's order should be supported by stated reasons, to promote trust.
2. Proportionality, or that any order should be proportionate to the degree of harm to the public interest and the nature of falsehood.
3. Clarify how the Bill will treat opinions, or a mix of opinions, criticism and facts.
4. Annual review conducted by Parliament.

Ministry of Law answers Harpreet

However, the Ministry of Law (MinLaw) came out to rebut Harpreet's arguments.

In a letter shared with the media on May 2, Teo Wan Gek, the Press Secretary to Law Minister K Shanmugam, said the Ministry thanked Harpreet for his views, and that they would help in a "constructive debate" on the Bill.

However, they wished to point out a few things.

First, Teo said that Harpreet had already held discussions with the Ministry on the Bill. With regards to the definitions of "fact" and "public interest", Teo said Harpreet was informed that the Bill's definitions were "calibrated" and "most workable", given the existing jurisprudence.

Second, in reference to "proportionality", Teo said that this was already included in the Bill.

Teo also said that the need for a regular review of the Bill will be considered and dealt with in Parliament.

MinLaw: Bill narrows government's powers in key areas instead of extending them

She also commented on the scope of the Bill's powers. Said Teo:

"Mr Singh would also be aware that the powers proposed to be given to the Government under the Bill, and the public interest grounds on which the Government can exercise its powers, are actually narrower than the Government’s existing powers.

And the Bill proposes greater oversight for the Courts than is the position under existing laws.

In key areas, the Bill narrows, rather than extends, the Government’s powers."

Senior Counsel Siraj Omar said Bill was narrower in its scope compared to existing laws

Separately, Senior Counsel Siraj Omar pointed out how the Bill was narrower in its scope, compared to the Broadcasting Act and other legislation.

In a piece published by the Straits Times on May 1, Omar said that under existing laws, the government already has far wider powers than those of the Bill, such as the ability to block access to certain sites and order that certain materials be taken down.

Additionally, failure in compliance can result in criminal penalties.

Omar cited the block of the States Times Review website as an example of such powers being used.

Limited by the provision for a proportionate response

Omar stated that a close reading of the Bill already provides a requirement of proportionality, which addresses the concern that a minister is empowered to take action against an entire article, even if the falsehood is just a small part of the whole.

Ministers who issue Directions against a false statement of fact must weigh whether it's in the public interest, and whether it is necessary or expedient to the issue at hand.

Limited by the provision for a right of appeal to the High Court

Omar added that the Bill provides for an appeal to the High Court against a minister’s decision, unlike existing laws.

A person can appeal a minister’s decision, as one would appeal a court judgment. It isn't held to the higher standards of judicial review applications.

This supposedly leads to greater judicial oversight which limits the scope of the government's powers.

Some suggestions to concerns

Omar provided suggestions to concerns that an aggrieved person may be deterred from going to court.

One was the lack of a deadline for a minister to respond to a person’s appeal before they can turn to the High Court.

Another was the deterrence of the court process, due to the time and costs involved.

Omar suggested that for the former, a deadline should be set out in subsidiary legislation and kept short to minimise undue delay.

For the latter, appeals could be expedited, with possible legal or financial aid from the government to help with legal costs.

Ministry of Law thanks Omar for his remarks and feedback

In response to Omar’s piece, Teo stated that Omar was correct in highlighting the various limitations of the Bill for the government, something other commentators had apparently overlooked.

Teo further stated that it did indeed have built-in proportionality requirements as recognised by Omar, like it did in its response to Harpreet.

She added that it would consider the other suggestions he made.

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Top image from Clifford Chance Asia and RPC.co.uk.