This article is written by Pratyush Bhattacharjee, a student of Symbiosis Law School, Noida. The article discusses the Protection from Online Falsehoods and Manipulation Act of Singapore and its various provisions along with the concerns it brings over free speech.
Table of Contents
Background
Addressing the spread of false information has always been a challenge for governments around the world. With the internet becoming widely accessible to the general population since the last decade, this challenge of appropriately regulating the spread of information without endangering freedom of speech has become more difficult due to the transfer and accessibility of information becoming easier. False information or as it is commonly known as “fake news”, refers to fabricated information without actual facts baking them up. Such news is believed to be capable of causing turmoil among the population along with posing a threat to national security.
In most countries, the government’s response to the spread of such information has ranged from fines and imprisonment to actual shutdowns of internet services. Singapore on the other hand decided to introduce legislation in 2019, called the Protection from Online Falsehoods and Manipulation Act (POFMA) with the objective of tackling the propagation of false information through the internet. The inception of the Act first began in 2017 with the speech delivered by the then Minister of Law and Home Affairs, K Shanmugam, who sought to bring the issue of fake news into the public eye. He reasoned that fake news can prove to be significantly detrimental to innocent people since it creates chaos and often leads to the authorities chasing ghost trials which eventually leads to a waste of emergency resources which could divert the attention and resources from legitimate emergencies. The Bill was subsequently tabled for the first time in the parliament in 2019 and finally enacted on 3rd June 2019.
Purpose of the Act
Section 5 of the POFMA clearly defines the purpose for which the Act has been created. The primary purpose it serves is to prevent false statements of fact from being communicated in Singapore and to enable the government to take countermeasures against such communication. The Act also seeks to put an end to the financing, promotion, and other forms of support of online locations that are involved in the communication of false information in Singapore. It also enables the authorities to take measures that are required to locate and control coordinated activities involving the communication of false statements and also deal with the usage of online accounts and bots for such purposes. Lastly, the Act allows the use of measures to be taken to.
The procedure laid down by the Act
The salient provisions pertaining to the procedure established by the Act are mentioned in Parts 3, 4, 5, and 6 of the POFMA.
Part 3 of the Act deals with the issuing of directions by the competent authorities to the person who communicated the statement of the subject in Singapore. The provisions listed under this Part are essentially the same under Part 4, the main difference being that the former deals with the individual directly communicating the statement and the latter is for the intermediary through which the communication is made. Section 10 allows any minister to instruct the competent authority to issue a Part 3 direction provided the subject material contains a false statement of fact. The non-compliance with the direction may call for a fine of up to $20,000 or imprisonment for a term not exceeding 12 months or both in the case of an individual. In any other case, a fine not exceeding $500,000 can be imposed.
In a situation where 3 or more separate statements that are the subject of one or more active Part 3 or Part 4 Directions are being communicated in Singapore, the location from which the statements of the subject have emanated can be declared as an ‘online location’ provided the statements were made within 6 months of the declaration. Once the declaration has been made, the competent authority must publish a notice in the Gazette stating that a declaration has been made under Section 32 and provide a copy of the same to the person operating the online location. If the operator of the location fails to comply with the requirements, a fine not exceeding $40,000 or imprisonment for a term of a maximum of 3 years, or both, maybe imposed in case of an individual and a maximum fine of $500,000 in any other case.
Part 6 of the Act deals with inauthentic online accounts and coordinated inauthentic behaviour. Inauthentic accounts are created by people other than the ones representing the account for the purpose of misleading other users. Similarly, coordinated inauthentic behaviour means the use of 2 or more online accounts created with the intent of misleading end-users in Singapore.
When such accounts are identified with the spread of false statements of fact or inauthentic behaviour, the competent authority with the instruction of any minister can issue a direction to the internet intermediary through which the activity was carried out, requiring it to stop the services for the subject accounts or disallowing any person from using one or more specified online accounts to interact with any others users of the intermediary service in Singapore.
Codes of practice for tech companies
Part 4 of the POFMA explains the provisions for directing the internet service providers and mass media services.
Any Minister has the power to instruct the competent authority to issue the directions mentioned under part 4 of the POFMA, provided the following conditions are satisfied:
- The subject material must include a false statement and has to be communicated in Singapore.
- The minister is of the opinion that it is necessary to issue a direction to protect the public interest.
Directions listed under Part 4
Three directions can be provided to the tech intermediaries under Sections 21, 22, and 23 of Part 4 of the POFMA.
- ‘Targeted Correction Direction’ is defined under section 21 and is issued to the internet intermediary responsible for providing the service through which the subject material has been or is being communicated in Singapore. Under this direction, the intermediary would be required to communicate notice to all end-users in Singapore who have accessed the subject content through their services, which contains a statement of the communicated content being false and/or a specified statement of fact, or a reference to a specified location where the specified statement of fact may be found, or both.
- Section 22 defines a ‘Disabling Direction’ which is issued to the internet intermediary through which the subject material has or is being communicated in Singapore, requiring them to disable access to the subject material by the users of the service in Singapore. The intermediary may also be required to communicate a correction notice to the users who have accessed the subject material. The competent authority is required to publish a notice in the Gazette upon delivering the Disabling Direction.
- A ‘General Correction Direction’ under section 23, requires a person mentioned in subsection (1) to deliver a correction notice, the mode communication of which relies upon the position of the specific person under subsection (1).
- Section 25 states that all Direction or Remedial Orders under Part 4 can be issued to a person residing in or outside Singapore and such a person may be required to do an Act mentioned under Part 4 of the Act. It further states that the direction must clearly identify the material of concern and the statement it carries.
- In case a person to whom a Direction or Remedial Order under Part 4 is issued, fails to comply with it in the absence of a reasonable excuse, the person shall be liable for an offense under Section 27, for which the punishment shall be a maximum fine of $20,000 or imprisonment for a period of 12 months or both in the case of an individual and a fine of up to $1 million in any other case. The fine may extend up to $100,000 for every day or part of a day during which the offence continues after conviction in case of a continuing offence.
- POFMA through Section 28 allows the IMDA upon the order of a minister to block access to the subject content in situations where the internet intermediary fails to comply with a Direction/Remedial Order under Part 4, the subject material containing the false statement is being communicated in Singapore on an online location, and if the Minister has reason to believe that the online location has been accessed by one or more end-users through an Internet Service Provider. In case of non-compliance with such a blocking order, the service provider shall be guilty of an offence for which a fine up to $20,000 can be imposed each day upon non-fulfillment of the order which can accumulate up to a total of $500,000.
Criticism of the law
The largest criticism of the Act is regarding its ability to impede free speech. Facebook in 2019 displayed their concern over the Act by saying that the Act grants broad powers to the Singaporean government allowing them to remove the content they deem to be false by simply delivering a government notification to its users. This was expressed by Facebook after several of their posts had to be removed owing to the new guidelines.
Perhaps the most striking flaw in the Act is the vagueness of the definition of the term “false statement of fact” which the entire Act is centered around. According to the definition given in Section 2 of the Act, the validity of a statement of fact relies on the perspective of a reasonable person which gives rise to ambiguity since it is not clear what could constitute as being reasonable and the same would also differ according to the context. Furthermore, although the Act seeks to suppress false statements and not mere opinions, the line between opinions and false statements is not always distinct and this creates a risk of people’s opinions being misinterpreted.
Since any minister has the power to issue directions under Section 10 of the Act to disable or correct any particular content they view as hate speech or false statements, the power being abused is a legitimate concern. Furthermore, the law has also been criticized due to the fact that the POFMA is not consistent with other laws since it is not subjected to judicial process and instead relies on the executive. It has been suggested that the executive should file a request to the courts who will then assess whether or not it is necessary to issue directions against the subject content which would make the process more transparent and fair.
Another important concern over the Act is with respect to Section 61 of the Act which enables the minister to exempt a person or class of persons from any provision of this Act. This leaves a possibility that in case the law is abused by government officials, they would not be held accountable for their actions. This provision also opens up the risk of the incumbent government spreading false information for election purposes and not having to worry about consequences.
Conclusion
Fighting fake news is by no means an easy challenge. However, successfully dealing with fake news without suppressing free speech is an even greater challenge for the government.
The Protection from Online Falsehoods and Manipulation Act offers the government of Singapore a wide arsenal of measures for the purpose of dealing with false information quickly. However, this amount of control has left the power with the government to decide what is fact and what isn’t. Companies such as Facebook and Twitter who have offices in Singapore have expressed concern over the Act since they have had to remove content from their websites which the government claims are against public interest and not complying with the order would invite severe penalties.
It can clearly be inferred that while the Act allows the government to Act swiftly against false information and the people communicating it, the law itself has proven to be authoritarian and carries the risk of being used as a tool for censorship.
References
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