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The Court of Appeal (CA) has allowed the Singapore Democratic Party's (SDP) appeal against part of a correction direction (CD) issued under the Protection from Online Falsehoods and Manipulations Act (POFMA) to proceed, according to a judgement by the court in question.

However, the CA upheld two other CDs against SDP, as well as the other part of the third correction direction.

The Ministry of Manpower (MOM) has issued a statement on the judgement of the appeal, noting that the CA upheld all three CDs in respect of the first subject statement.

Meanwhile, the appeal by The Online Citizen (TOC) against POFMA correction directions issued against it for an article in Jan. 2020 was dismissed.

Landmark judgment on Singapore's law against fake news

The 156-page judgment, delivered by Chief Justice Sundaresh Menon, provided the first opportunity for the court to consider the interpretation and application of the POFMA, as well as its constitutionality.

The judgement said that it was the court that makes the final determination as to whether a statement is false.

Chief Justice Menon also disagreed with the Attorney-General (AG)'s argument that a falsehood remains a falsehood even before a court determines it is false. He regards that it is "untenable" that a statement is declared false because the minister has identified it to be so.

"The Minister may, after all, be mistaken. Truth and falsehood are ultimately matters to be determined by a court based on the evidence", the judgement noted.

Hence, Chief Justice Menon thinks it is more appropriate to characterise the Minister’s action in issuing CD "as the exercise of a power to identify statements of fact that he regards as false, and to act upon that belief in the interest of arresting their swift online spread". 

What were the SDP's article and Facebook posts about?

In June, November and December of 2019, the SDP put up an article and two posts that touched on the issues of local PMET employment and foreign PMET employment.

In a statement on Dec. 14, 2019, the MOM said that it had issued three correction directions against the aforementioned posts.

The ministry clarified:

"There is no rising trend of local PMET retrenchments. The number of local PMETs retrenched in 2018 was, in fact, the lowest since 2014. Local PMETs retrenched as a proportion of all local PMET employees, has also declined since 2015.

The Singapore economy is continuing to create jobs despite the economic headwinds. Local PMET employment has increased consistently. There is no rising trend of retrenchment, whether amongst PMETs or otherwise."

The Court of Appeal noted that the corrected directions had been issued over specific phrases within the SDP's article and posts.

According to the court, it is the interpretation of the word "local" within the Dec. 2019 graphic that is a matter of dispute in the SDP appeal.

Does "local" in SDP's Dec. 2019 post refer to Singapore citizens & PRs or just the former?

According to a press release by Eugene Thuraisingam LLP, the Court of Appeal has set aside the first half of the correction direction that was issued against the Dec. 2019 post, which specifically identified that "Local PMET employment has gone down".

The law firm noted that the main "bone of contention" was whether the word “local PMET” referred to both Singapore citizens and Singapore permanent residents, or only Singapore residents.

Here, the Attorney-General had submitted that it was "straightforward and obvious" that the word “local” referred to both Singapore citizens and Singapore permanent residents, while the SDP contended that the ordinary reasonable reader would have construed "local" as referring to Singapore citizens only.

As for the CA, upon examining the Facebook post and all the relevant circumstances, it held that, on a balance of probabilities, the potential readership or audience of the post in Singapore would have understood the phrase “local PMET employment” to mean Singapore citizens only.

As such, the CA found that the Manpower Minister’s interpretation "was not made or contained in the graphical illustration" within the post and that this statement was therefore not “communicated in Singapore” for the purposes of POFMA.

It is therefore on this basis that the CA has set aside the first half of the correction direction of the Dec. 2019 post, and will allow the SDP appeal to this extent, the court added.

Meanwhile, the other correction directions against SDP will be upheld.

MOM: SDP's statement "still completely false"

However, MOM argued in its press statement that even if one was to consider only the employment of Singapore citizens in PMET jobs, "SDP’s statement that such employment has gone down is still completely false".

MOM explained that the number of Singapore citizens employed in PMETs jobs has increased steadily from 2015 to 2019.

What was TOC's article about?

In January 2020, TOC published an article containing allegations from Malaysian-based Lawyers For Liberty (LFL) about Singapore's execution methods.

LFL alleged that, "Prison officers were instructed to carry out the following brutal procedure whenever the rope breaks during a hanging, which happens from time to time."

LFL then stated how this was done.

1. The prison officer is instructed to pull the rope around the neck of the prisoner towards him.
2. Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction.
3. The first officer must then kick the back of the neck of the prisoner with great force in order to break it.
4. The officers are told to kick the back of the neck because that would be consistent with death by hanging.
5. The officers are told not to kick more than 2 times, so that there will be no tell-tale marks in case there is an autopsy.
6. Strict orders are also given not to divulge the above to other prison staff not involved in executions."
7. LFL also asserted that Singapore government approved of these “unlawful methods” to be used if the rope breaks during executions.

In response, the Ministry of Home Affairs (MHA) rebutted LFL, stating the allegations were "completely unfounded".

The ministry added: "No effort is spared to ensure that all judicial executions in Singapore are carried out in strict compliance with the law."

"For the record, the rope used for judicial executions has never broken before, and prison officers certainly do not receive any 'special training to carry out the brutal execution method' as alleged."

MHA then instructed the POFMA office to issue correction directions to TOC for its article, as well as Singaporean activist Kirsten Han whose Facebook post shared LFL's statement, and Yahoo Singapore which published a Facebook post, which shared an article that contained the allegations.

TOC's argument dismissed as "irrelevant"

In response, TOC added a correction notice to the top of the article on its website, as directed by the order.

However, it applied to Shanmugam for a cancellation of the CD.

On Jan. 24, MHA announced in a press release that Shanmugam had declined to cancel the Direction, stating that the application "did not disclose any grounds to the contrary."

TOC was notified of the decision.

Also on Jan. 24, TOC announced in a Facebook post that it will make an application to challenge the POFMA order in court.

CNA reported that this was dismissed by the High Court in Feb. 2020.

Subsequently, TOC was given the go-ahead by the High Court to bring its challenge to the Court of Appeal, according to The Straits Times.

In its judgement, the CA noted that TOC's argument was that as long as a false statement of fact made by another party is reproduced in the form of neutral reporting, then the statement be beyond the reach of POFMA.

This argument was dismissed by the CA on the grounds that it was "irrelevant" as the reproduction of the allegations in a neutral report did not take it beyond the reach of POFMA.

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Top collage left photo from Terry Xu Facebook, right photo by Mothership