Archive for May, 2019|Monthly archive page

POFMA: The G should “chill” too

In News Reports on May 10, 2019 at 4:04 am

So I asked the people on my Facebook timeline how they would interpret the word “activist”. Most of the 70-plus people who responded related it to championing for political or social causes or agitating for change of some sort. Of course, some pointed out that you could be a “green” activist, or even a “tennis” activist. There were also those who put in a requirement that activists should not just “talk” but invest time and energy to actively seek change in some way.

Is being labelled an activist a good or bad thing? Let’s just say from my sense of the feedback sought that an activist is not as good a label as “advocate”. I suppose we take our cue from the G and the MSM which sort people into various boxes. I am generalising here, but I think it’s more likely that those in trouble for their views or actions are more likely to be known as  “activists” than “advocates”.

I asked a second question, which is whether they would consider me an activist. Most of them said no. Those who said yes said I champion the cause of better journalism and transparency in governance. But there were also quite a few who said that I crossed the line from commentary into activism when I put up a petition template for people to write in to their MPs to ask for a delay in the passage of the Protection from Online Falsehoods and Manipulation Bill.  (Definitely didn’t work)

Why am I concerned about such labels? It’s because I teach part-time at the National University of Singapore as an Adjunct Professor. At a stretch, this former  journalism practitioner can be called an academic. And it’s also because I continue to report and write, sometimes copiously when I am seized with an issue, such as the proposals to amend the elected presidency in 2017 and the current POFMA fuss.  So I looked long and hard at what Education Minister Ong Ye Kung said about academic/activists when he joined in the POFMA debate in Parliament on Wednesday. He was referring to a letter signed by more than 120 academics both in Singapore and outside asking for assurances that their research work would not be compromised by POFMA.

An excerpt of what they said:

Wide dissemination of ongoing research—which may be considered “facts in dispute”—is a global public good facilitated by the borderless internet.  Our concern is that POFMA’s wide reach, both “in and outside Singapore”, its broad definition of Singapore’s “public interest” (e.g. covering matters deemed related to “Singapore’s friendly relations with other countries”), its holding “internet intermediaries” responsible for all items posted on their platforms, and its severe penalties of large fines and long prison terms for deemed violations, will discourage this for an indeterminately wide range of subjects and individuals. These provisions may have unforeseen consequences for Singapore’s ability to serve as a global hub of first-rate academic research and technological innovation.

Under these circumstances, POFMA is likely to make many academics hesitant to conduct or supervise research that might unknowingly fall afoul of POFMA, or refer colleagues or students to faculty positions in Singapore’s respected universities.

They suggested that the result would affect Singapore’s standing as an international hub for research and scholarship.

Academics have weighed in on other forums. Singaporean economist Linda Lim, a professor at the University of Michigan in the United States and a signatory to the letter, told University World News that academics had already asked the government to put protections for academic freedom in the law “but they have not done that”.

“The whole thing is very vague. The public interest is very broadly defined and it also applies to people publishing outside Singapore and putting it online,”  she added. “If it has relevance to Singapore that might damage Singapore’s public interest, it might not even be about Singapore – so it’s the broadest definition,” she said.

Dr Teo You Yenn, associate professor and head of sociology at Nanyang Technological University  in Singapore, had a commentary in the same publication asserting that academic work is “circumscribed by the government’s desires”. The G has multiple levers, including publicly shaming academics or by curtailing funding of research work, she said. Although her book, This is what inequality looks like, is a bestseller and she remains in academia, “none of this diminishes my anxiety about the future of my scholarship and that of others”.

“The social and political context which makes my book an anomaly has not changed,” she added.

Mr Ong’s response should lay some of their concerns to rest. He acknowledged that academic work goes through a rigorous process of peer reviews, empirical evidence and citations. There is a rigorous self-checking mechanism. Academic work would not even clear the first gate of “false statement of fact” under the law – unless the data used to support conclusions had been fabricated, much less cross into the second gate of public harm. Likewise, academic work which present theories and hypotheses are “opinions” which do not come under the Bill, said the minister.

He answered the point on challenges to academic conclusions based on “incomplete data” – a big bugbear of academics and which had led to a high-level rebuke for two academics in 2003. There was a difference between the G using POFMA against falsehoods, and disagreeing with academics’ opinions, he said. Academics must expect the G to come down robustly if it disagrees with them. In other words, academics shouldn’t be thin-skinned when their opinions (not facts) are challenged.

He also said there was a difference between research and activism and the two should not be conflated. He speculated that some of the signatories were more concerned about their activist role being stifled, than about being able to pursue their academic work freely. (I would like to add that that is his opinion, not a fact.)

“Academics are well-respected members of society. We hold academics to “conduct professorial” – high standards of integrity, in their teaching, their research, and the validity of their views put forward in public. This is especially so when they speak or make social media posts on current affairs while bearing the title of a professor in a publicly-funded local university.

“So you can put out an opinion that Singapore’s growth model has failed, meritocracy has failed, that the education system is elitist, our social welfare does not work and it does more harm than good. POFMA will not apply to you because that is your opinion. But in the interest of open debate and given your stature in society and position in a publicly-funded university, please expect Government agencies, if we do not agree with you, to put out the data, put out our arguments, and to convince the public otherwise. If that has a chilling effect, please chill.”

So it is precisely because academics have stature and their views will be well-regarded by members of the public that they should expect a more robust response from the G when they use their scholar credentials to move into political territory. In other words, there will be no change to the status quo with POFMA. The G will give as good as it gets.

I would like to add that the G has to chill too, because what any G member opines in public could have a far greater impact than any quiet correction order. The G may assert all it wants about not having a hand in the appointments or career progression of academics in Singapore’s autonomous universities, but it’s a rather big pill to swallow given its omnipresence in every part of Singapore life.

Dr Teo said this in her commentary: “Among academics in Singapore, it is an open secret that work is circumscribed by the government’s desires. At conferences and workshops, academics awkwardly and regularly ‘joke’, tilting their heads to glance over shoulders, about their remarks being heard by ‘the government’. Students and younger scholars regularly ask if they should avoid certain topics because of ‘sensitivities’.”

I can testify to this. I would go further and posit that foreign academics are rather more afraid than locals about contravening those unseen OB markers.

I think the right way for journalists and academic activists to handle POFMA is to stand their ground if they believe they have the facts. So correct  or clarify them because you have to, but append a note like news agencies do, if you have cause to feel aggrieved.

And if the facts are incomplete, keep bugging the newsmaker, usually the Government agencies, to release them if they don’t want to go through the trouble of issuing corrections. Or, if you’re desperate enough, get your MPs to file a question in Parliament. You’re supposed to get your answers there.

I think the G should expect that there would be more, not fewer, requests for information in this POFMA age. Too many corrections to fill in information gaps don’t look good on it either.

As for public disagreements with academics over opinions, I would like to think academics are made of sterner stuff than laymen. Their scholarly work and intellect should be their shield against the “chilling effect”. Take it as engagement in the political discourse, not a shaming or a rebuke. Make it an argument between equals. Remember that the G isn’t so stupid as to alienate members of the intelligentsia.

Oh dear! Did I just cross into activism?

















About the fake news Bill (Oops! I mean law)

In News Reports on May 9, 2019 at 3:27 am

While I was sleeping, the Protection against Online Falsehoods and Manipulation Bill was passed. I thought the debate would enter into its third day, but no. Our tireless parliamentarians sat till 10.20pm. So the legislation went through its second and third readings and a division vote was called which had all People’s Action Party MPs saying aye, all Workers’ Party MPs saying nay. There were three abstentions – the Nominated MPs who had tried in vain to amend the legislation to include, among some things, principles that would make clear that “material” falsehoods only were being targeted.

I am disappointed, to put it mildly.

I had hoped that the G would  delay the legislative process with a Select Committee to scrutinise the text of the Bill to insert more checks and balances. Instead, more details would be put into subsidiary legislation.

I wasn’t in the public gallery watching the marathon debate all the time, but I caught some of it that made me upset with the PAP MPs. Almost no one had any reservations about any part of the Bill. You wonder about how firmly the Whip was in place. But while there were the usual stock phrases in the PAP echo chamber about Singapore’s vulnerability and variations of “fake news is bad”, there were a few who actually advanced the case for the Bill quite well.

MP Murali Pillai, for example, noted that when  it came to a dispute over a minister’s correction or take down order, the courts would look at subsidiary legislation as well as the primary legislation to come to a decision. So those who believe that the judiciary’s hands will be tied by the wording of the main law shouldn’t worry, he said.

He didn’t, however, move on to the  point made by the Nominated MPs that it is the G who writes subsidiary legislation – and can re-write them without Parliament oversight. (Nominated MP Walter Theseira had quipped that the US Environment Protection Agency’s position on climate science depended on who the President is.)

May I will now humbly suggest to the Ministry of Law that it makes public such regulations when they are ready so that everyone can have a look before the law is enacted. Not everyone monitors the government gazette.

Mr Murali, a lawyer,  was quite compelling when he argued that the  access to judicial review is a guard against the oft-heard argument that the Bill allows a rogue government to exercise its powers willy-nilly. He also responded to opposition MPs who had argued that the legal burden was on the person who wrote the offending statement to prove that it was not false, not the minister who issued the correction order. He noted that the minister had first to give his reasons for the order (which will be in subsidiary legislation), and that this would be open to public scrutiny.  Even when a person is compelled to comply with the order, there is nothing to stop him from going public about what he deems is a “wrong” order, he said.

So you can still argue, but whether you have the courage to do so is a different matter. This has been a key plank in the Workers’ Party outright rejection of the Bill: That people wouldn’t want to risk saying anything for fear of crossing some red line under a broadly-worded law.

I believe in the “chilling effect”, no matter how many times ministers and MPs dismiss it. They say that the fear is unfounded because only false statements that harm public interest is targeted. But this debate has been all about what is a false statement and what is the public interest. The fear might be unfounded, but it is real.

Methinks the chilling effect is a by-product of the society we have become: one which treats the G as so all-powerful that it can solve any problem, quash any opponent and can rely on establishment players to do the needful (or  extra) even without having to tell them to. Like sack someone or put him in “cold storage”.

This might be unfair to the G. I myself have never been on the whacking end of the G stick but I have also always wondered if anything I write will earn a ferocious comeback that will scare the living daylights out of me, as well as the people associated with me. We’re remarkably thin-skinned, as I have said before.

So there’s another point in the debate that is worth elaborating on:  The difference between fact (which will come under POFMA) and opinion (which the G doesn’t have to agree with). POFMA will be used against “false” statements, and it must first be clear that the statement is indeed false. The education on what is fake new is really more needed on the government end, so that ministers and their ministries do not confuse opinion with fact, or label statements as untrue when they are merely disagreeable.

NMP  Theseira’s checks on how ministries consider the term “fake” in the G portal, Factually, is illuminating. In his speech yesterday, he said that there were 10 cases when ministries used language to dismiss statements as untrue when there were really disagreements about conclusions. For example, someone had said that the rise in ComCare assistance reflected the “worst poverty results” officially recorded, but the Ministry of Social and Family Development countered that this was “untrue”. It was due to more generous social welfare policies, the ministry said.

He advised that ministries exercise more caution in the words used because of the new powers that the Bill confers on them. He also made this point that sometimes, people have only partial information and not the full nor relevant information that the ministries’ hold.

WP chairman Sylvia Lim also referred to this in her speech, when she brought up the case of two economists in the Nanyang Technological University  who were castigated by then-Manpower Minister Ng Eng Hen in 2003 for saying that most newly created jobs went to foreigners. Their conclusion was based on information that was public available. But it transpired that the ministry had more data that led to a different conclusion. Dr Chen Kang and Dr Tan Khee Giap were labelled as “irresponsible” and “unprofessional”.

Both Ms Lim, NCMP Daniel Goh and NMP Theseira asked if the two would have been tagged with correction orders should POFMA have been in place then. Education Minister Ong Ye Kung said no. They had incomplete data. They didn’t fabricate data, which would have brought POFMA down on them. As for the stern rebuke from Dr Ng at that time, Mr Ong said disagreeing with the academics was “not equal” to running foul of POFMA. “It cannot be that just because it’s a research piece, we all have to shut up,” he said. He conceded, however, that the G should exercise more discipline in its choice of words. (Come to think of it, it might be better to  get the facts wrong and have them quietly corrected with more info than to get involved in a public disagreement over opinion with the G!)

And this brings me back to whether we have enough information or facts in the first place to say anything meaningful.

Calls for a Freedom of Information Act made by MP Louis Ng were turned down by Law Minister K Shanmugam who warned about ministries being deluged with absurd requests. Such a law would privilege some people more than others, he said, as it would be lawyers, businessmen and journalists (!) who ask for data. (He forgot academics).

He said MPs, including NMPs, can ask for any information they want.

I am really hoping that he was reported wrongly because I can see all sorts of walls being put up by ministries to requests for information. All they need to do is refer to what he said. It cannot be that ministries only respond to MPs’ queries and public discourse can only take place meaningfully in Parliament. The institution of the media, for example, has a big part to play in creating the infrastructure of fact. Academics need access as well or there would be a replay of what happened in 2003.

I recall NMP Theseira’s speech during the Budget debate when he spoke about strengthening institutions by, among other things, making information more available. He noted that half of last year’s 698 parliamentary questions were requests for data, and three-quarters were answered. “These answers show that much information held by the Government is of public interest, is readily available, and by release, poses no significant sensitivities.”

But that’s a column for another day.

For now, I just want to know if the law will be applied “retroactively”, that is, to fake news now currently floating around or have been floating around for years. I better go double-check my own stuff.























Shan’s case for fake news Bill: narrower, sharper, faster

In News Reports on May 7, 2019 at 1:43 pm

Here’s how Mr K Shanmugam argued the case for fake news laws: What are you grumbling about? Don’t you know the Telecommunications Act and the Broadcasting Act already let the minister or regulator penalise you for transmitting falsehoods? In fact, the law can kick in even if your statement is true. The Broadcasting Act can block you off because you said something  “objectionable” and against the public interest. And, guess what? Contravening the Telecoms Act can make you a criminal!

Okay, that wasn’t how the Law Minister said it but the frustration in his voice was palpable when he called on everyone, as well as MPs, to be “better informed” before knocking the Protection against Online Falsehoods and Manipulation (POFMA) Bill which was  debated earlier today.

It is a recent argument that has surfaced in favour of POFMA – that it is narrower in scope than other laws, calibrated in approach and you can appeal over the head of the minister to the judiciary. That’s judicial “oversight”, more than the judicial review that is applied to other laws.

I recall that in 2013, when the G wanted to introduce the licensing of news sites which cover local developments, it made a similar argument about the Broadcasting Act, noting that all websites come under an automatic Class Licence which can be revoked if the internet code of conduct was breached. So what was the big deal about licensing websites and issuing take down orders to them? The G didn’t even think it needed to amend the law for this, just new regulations will do.

That argument was, ahem, ignored by everyone, but it’s likely that the G will now place it front and centre in its defence against criticisms that POHMA gives the G too much discretion to decide between truth and falsity.

It’s true that there hasn’t been much grumbling about the current laws that touch on speech which are more draconian and wider  than POFMA.

My own take: I think it’s because the laws have seldom been used and are pretty ancient tools.  If they were introduced  or amended in some way today, I should think that more noise will be emitted. Over time, however, they have gone under the radar. There’s also an implicit understanding that they won’t be used frequently, because it’s like wielding a nuclear weapon.

POFMA, however, is in vogue. Fake news is being dealt with the world over in many different ways and involves not just governments but tech companies, publishers and end users. POFMA is perceived as dealing with anything said, intentionally or not, by anyone online. Hence, the immense public interest. As I wrote earlier, it’s about giving ministers hand guns to stun or wound, not a nuclear missile to obliterate you from the surface of the earth. I would like to add here, however, that getting stunned or wounded would still hurt. 

So why the need for a new law when the G could simply amend the old ones? He said the G wanted a law to deal specifically – and speedily – with online falsehoods, and actually tied its own hands by extending judicial oversight over executive decisions. To placate those who complained about delays and court expenses, he went into great detail on the timelines imposed for ministerial appeals and court action that would go into subsidiary legislation. You can read about it here.

Score 1 to Mr Shanmugam. Now it remains to be seen how many handguns will be fired at how many people. And whether making a racket would make people pipe down (cue chilling effect)

He didn’t go into detail about what constituted a “false statement of fact”, beyond pointing out that the phrase was in the Telecommunications Act too (!) and lawyers and judges have a great deal of experience in this area. Instead he reiterated that the Bill works not just on the basis that statement is false but also whether the public interest was affected.

In fact, a large chunk of his speech was devoted to the contentious (f) clause on public interest, regarding whether the false statement diminishes “public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board”.

He went round the world and back, with real-life examples, numbers and academic work, to show that online falsehoods attack the “infrastructure of facts” which underpin  democratic public discourse. This, in turn, destroys trust in institutions thereby allowing the growth of populist politics and fracturing society into opposing groups with their own version of reality.

His rendering was near-apocalyptic, although he was also quick to say that in Singapore, trust in the G was still high, as Edelman’s annual Trust barometer has consistently shown.

He also gave “real life” examples of the difference between fact and opinion, which isn’t covered by the Bill.

He didn’t give names but you might recall that there was some fuss over whether celebrity vlogger Nas Daily had obtained a Public Order permit for his meeting with fans at the Botanic Gardens last month.

Police said he needn’t as his event wasn’t “cause-based”. Instead he got a Public Entertainment Licence because recorded music was being played.

Mr Shanmugam said that if someone had accused police of having double standards because there were different permits for different events, that would be considered opinion. But it would not if the accusation was about how police were biased in choosing who to give the same permit to. That is, the police had different standards for the same permit regime. It would be considered a false statement of fact, he said, and should be remedied by a correction.

According to news reports at that time, the police said it was aware of false claims that “double standards applied for the granting of permits”.  “These allegations which suggest that the police have been biased and shown favouritism are untrue and baseless, and maliciously seek to undermine confidence in public institutions.”

It seems that the language of the Bill is being used. Not only are the police saying that the statement is false, but they had also thrown in the “public interest” factor of diminishing confidence in public institutions”. If things go according to the Bill, freelance journalist Kirsten Han would be given a Correction order to comply with.

True to form, Mr Shanmugam was hard on those whom he thought had misled people about the Bill. He said one academic had told Civicus, an international NGO, that the Bill was tautological – allowing the G to decide what was false based on its definition of public interest. The academic had conflated the two separate points. You can read the interview here. The academic was one of several local and foreign academics who signed a letter stating that the law, if approved, would affect academic work. He said that if a local academic could make such a basic mistake, it’s understandable if foreigners did so too.


The debate continues tomorrow.






Aloysius Pang’s death: The trouble with “get on with it”

In News Reports on May 6, 2019 at 10:14 am

Defence Minister Ng Eng Heng used one phrase repeatedly when he gave Parliament more details about how Corporal First Class (NS) Aloysius Pang was crushed in the Howitzer while on a military exercise in New Zealand on January 19.

CFC Pang and the two soldiers with him in the Howitzer’ cabin had just wanted to “get on with it”, he said. CFC Pang, the gun commander and the regular technician  had to adjust the bearing of the gun by replacing an interface card in the cabin. They wanted to “get on with it” – even though the gun barrel hadn’t been lowered yet.

They wanted to “get on with it” so much that…

a. The technical officer, who holds the rank of Military Expert 2, didn’t check that CFC Pang had moved away from the path of the gun barrel after telling him to do so.

b. CFC Pang actually replied that he didn’t think the gun would hit him and remained in position with his back to the barrel, unscrewing a box which housed the card.

c. The gun commander, who holds the rank of Third Sergeant, shouted the requisite commands, saw that CFC Pang wasn’t in the clear but thought he would have time to get out of the way.

All three wanted to “get on with it”  so much that they threw safety processes to the wind. While CFC Pang was being wedged between the barrel and the cabin interior, the other two men panicked and “acted irrationally”. The technical officer tried to stop the barrel from moving with his bare hands, while the gun commander tried to de-activate the mechanism from the main controls. Both men didn’t think to hit the emergency stop button.

CFC Pang, 28, a MediaCorp actor, died  from his injuries four days later, on Jan 23.

Dr Ng had a wry look on his face whenever he used the phrase. I will hazard a guess: Isn’t so terribly Singaporean to “get on with it”? Speed and efficiency are traits built into the Singapore psyche. We “get on with it” rather than get on with it “safely”.

Dr Ng’s recital filled in many blanks that were in his preliminary report to Parliament in February, such as whether the gun commander had shouted “clear away” and “standby” and whether the three emergency buttons in the cabin had been pushed. You can read my column here.

We now know that the answer is yes and no. Today, Dr Ng also mentioned a “miscalculation” of the time it would have taken for the barrel to be lowered but didn’t elaborate. Previously, Parliament was told that the gap was nine seconds.

Like he did in February, Dr Ng thinks the Singapore Armed Forces has a cultural problem which it hopes to solve with the newly-installed  Inspector-General’s Office. Among the changes implemented are “emergency drills” so that, presumably, soldiers, airmen and sailors will know where all the right buttons are, among other things.

It must be tough for the Defence Minister to have to recount again the events that led up to CFC Pang’s death. It was a more detailed report this time because it came from the Committee of Inquiry set up to investigate the incident. The five-member COI said all three men had contributed to the tragedy, by breaching safety procedures right from the start – the gun was supposed to have been in a locked or standby position first before maintenance work started

Said Dr Ng: “It is sad but undeniable that the direct cause determined by the COI that resulted in the death of CFC (NS) Pang was preventable had there been compliance to safety rules. It was not for lack of knowledge of these rules or inexperience of personnel working on the SSPH (Singapore Self-Propelled Howitzer) gun.”

You almost wish that the howitzer was at fault – but it was inspected both in Singapore and New Zealand. The SAF had used howitzers for 15 years without a mishap.  You almost wish that the three men didn’t know enough about the work they have to do. But they did. The regular technician has 16 years of service while CFC Pang had been briefed about the exercise earlier and had worked on at least 10 howitzers. The gun commander was on his eighth in-camp training exercise.

Then  you realise that at the bottom of it all, the cause was human frailty, doing things in a hurry and thinking that there is no danger attached to maintenance work compared to, say, live firing exercises. Dr Ng lamented that all that was needed to avert the tragedy was “a few seconds of waiting” for CFC Pang to get out of the way or for any one of the three to observe safety rules. There was no “operational” reason to finish the job fast, he said in reply  to MP Vikram Nair. They just wanted to “get on with it”, he added.

I wonder how the two men are faring these days. It must be hard knowing that they could have saved a fellow soldier’s life if they took more care to adhere to standard operating procedures. The New Zealand authorities have waived their right to investigate the case and it is now in the hands of the SAF military prosecutors and the Special Investigation Branch.

It looks like a court martial is in the offing.




Fake news: A re-run

In News Reports on May 5, 2019 at 11:42 pm

I don’t recall a time when a Minister has given such comprehensive replies to questions on a Bill that has yet to be debated in Parliament. It seems that Law Minister K Shanmugam believes that the questions about the proposed Protection Against Online Falsehoods and Manipulation legislation that have surfaced deserves answers before Parliament sits to debate the Bill today. MPs will have to start coming up with fresh ideas lest they sound dated.

It looks like that the Bill go through. He has said there are no plans to change the Bill. He would answer concerns in Parliament so that a record of intent is available should the judiciary have cause to refer to it in adjudicating disputes. He would have processes and details put into subsidiary legislation, something which the G had intended to do anyway, he said.

The three Nominated MPs’ call for amendments has been politely turned down, with the minister emphasising common areas of agreement rather than conflict. I think my idea for a Parliamentary Select Committee to scrutinise the text of the Bill in further detail before presenting it again in Parliament is dead in the water. You can read my earlier piece here.

The G has been in a massive public relations over-drive over the past two weeks, with different ministers reiterating the good intentions behind the Bill and allaying concerns that it would amount to executive over-reach. But the G had a stuttering start, when right from the get-go on April 1, when the Bill was introduced, commentators started weighing in on aspects that they thought were too wide or too vague.  Even the Singapore Press Holdings group of newspaper publications called  for an independent body to handle falsehoods in a statement after the Bill’s introduction. But it rather unaccountably  changed its mind a few days later.

At the bottom of all the angst is the  idea that a minister – a politician interested in his longevity or that of his political party – could act as the arbiter of truth and falsehood. This is a bone which sticks in the throat of those who believe that it would be used less to shed light on the truth, and more to shield truths that would be inconvenient for the G.

Nevertheless some light has been shed on aspects of the Bill since its introduction which go some (only some)  way to alleviate concerns. I’ll try to summarise them here and include more recent (newish) material or explanation for them.

On the definition of a false statement of fact 

Does everyone understand the definition? Or will only lawyers and the legally trained know? What is  a statement of fact is “one that a reasonable person perceiving it would consider to be a representation of fact”?

I suppose this hypothetical example should suffice:  The $20 billion Singapore is spending to buy aircraft is way too much and would be perceived as a threat by neighbouring states.

Let’s say $20billion is false. It is actually $20million or $2m. But reading the statement as it is will lead the reader to assume that the writer has his facts right, which is why he said it was too much and could be misinterpreted by other states. Let’s put it down to a “typo” without any malicious intent. It should be corrected simply because it is wrong. Here’s where other online players can play a role in calling out the error without the need for any official notice.

Anyway, should  (or can) the G step in? Only if the false statement meets another test – that it is prejudicial to the public interest. I suppose if the statement goes viral and citizens and neighbouring states alike start speculating on whether the country is gearing up for offence or defence, then the public interest factor would kick in. Only then can the G do either of two things –  correct the error or ask that the whole statement be taken down.

But let’s say the writer is a pacifist who doesn’t believe in armed conflict, so that even $20m would be too much. The statement is corrected to say: That $20 million Singapore is spending to buy aircraft is way too much and would be perceived as a threat by neighbouring states.

I suppose that would go into the realm of opinion (which the Bill doesn’t cover). It’s for the reader then to see if there is evidence for this opinion that $20m is too much, such as past defence spending or comparing them with  other countries. Or perhaps, people wouldn’t even bother about whether it’s $20b or $20m – and just latch on to how it might be perceived as a threat by neighbouring countries. This goes viral and causes consternation. What then? Should a heavier, weightier law kick in because it could raise tensions inside and out?

Some people will say I am just nit-picking. Maybe I am. But I do so like laws which are clear and where I don’t have to guess if I am crossing some line. For example, what does this other definition spelt out in the Bill mean: A false statement of fact is “one that is false or misleading whether wholly or in part and whether on its own or in the context in which it appears”. I am still trying to wrap my head around this.

The difference between fact and opinion

The G keeps reiterating that it isn’t interested in policing opinion.

Mr Shanmugam gave an interesting run-down in the media: “If you were to say, ‘Government standards are slipping; our Government’s to be blamed for rising inequality; our Government is not giving back my CPF (Central Provident Fund); or Singapore’s policies are elitist; or cost of living is rising; or HDB (Housing and Development Board) prices are too high; or our COE (Certificate of Entitlement) prices are too high; or the ban of events is arbitrary; or human rights in Singapore is being curtailed; or we can’t hold protests in Singapore’, all those are opinions and it doesn’t get caught by this Bill.”

I found it rather amusing because that’s what a lot of people say on the Internet. I consider them rants, not opinions. But what if it is an informed opinion which, unfortunately, is premised on a few wrong facts or unavailable data?

To this end, I like Senior Counsel Harpreet Singh’s suggestion that the Bill should be “amended to expressly provide that it shall not apply to opinions or criticisms unless an underlying statement of fact is false and is material to the opinion as a whole. An opinion that has several premises and which can stand even if one of the premises is faulty should not be impugned.”

I think it is a reasonable suggestion to counter the fear is that the G will order a correction or take down because it could pick on one small error to dismiss the credibility of an argument it does not like.

In Saturday’s ST, Mr Shanmugam took a shot at addressing fears that the legislation would hamper academic work, especially those based on challenging conventional wisdom.

He gave the description of Barisan Sosialis leader Lim Chin Siong as a “communist” to illustrate his point.

“That’s an opinion based on certain evidence. Based on that evidence, other people can come to different conclusions. The body of research and historical opinion, historical evidence is there, you can choose to put weight on some and not others, and come to your view and somebody else can come to a different view. That would not be treated as a falsehood within the Bill,” he said.

So it would seem that historian P J Thum’s research about Mr Lim being an anti-colonialist rather than a communist can be considered academic work. The law would enter the picture  only if the evidence had been manufactured – that is, fake –  and also if the G believes that it is in the public interest to do so.

The “public interest” factor 

The G fleshed this point out in six statements from (a) to (f) – a lot more detail than in other legislation, as some people have noted. Beyond a minister asserting that the statement is false, he or she would have to satisfy one of the six definitions of public interest.

It is really the last  point (f)  that has tongues wagging: That the law kicks in if the false statement is likely to “diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board”.

So it is a more detailed version of the Sedition Act, for example, which talks about how a seditious tendency is “a tendency to bring into hatred or contempt or to excite disaffection against the Government”, among other types of tendencies.  How to measure hatred, contempt, dissatisfaction as well as lack of public confidence has yet to be tested. The Sedition Act has not been used for this purpose, but for exciting disaffection among races and religious groups. 

The worry is that a thin-skinned minister would resort to the fake news legislation to remove innocuous falsehoods or criticisms of his work, like pointing out that there were really  10 and not 15 people who raided the home of a civil society activist. Methinks any minister who uses reason (f) would have to be careful not to come across as paranoid and insecure. 

You can look at it this way: At least the fake news laws don’t criminalise the person who told a lie to rile the people, at least not in the first instance. Contravening the Sedition Act, however, is a weighty criminal offence. 

Some wags have described the current tools in the arsenal to combat bad, fake, dangerous speech as nuclear weapons, to be co-ordinated centrally, used sparingly and only in times of clear and present danger. That’s because the political fall-out could be costly. The fake news legislation, on the other hand, is about arming individual ministers  with machine guns, revolvers and bows and arrows to stun or wound.

Those who say that one more weapon in the arsenal shouldn’t matter especially since it has much less firepower than those already accumulated should turn the question around: Maybe those old laws need re-looking too as, like the fake news laws, they could be abused by a rogue G.

The difference between correction and take down orders

The “newish” point in this issue is that the minister who exercises his powers would have to explain why he is correcting the statement and how he sees it as acting in the public interest. That’s something good because a minister cannot willy nilly get away with correcting or censoring someone’s words. I have always thought that corrections are fine – better more information than bad information or no information. But no one has asked what would happen if false information is put out to make the G look good and it is not in its interest to correct or take down the fake news. Can we appeal to the relevant minister?

Another point that hasn’t been answered has to do with when a take down order is merited. It is assumed that this would be when correction orders are not obeyed or when the person is a recalcitrant offender. But this isn’t clarified in the Bill. I think this is worthy of insertion because a take down order is tantamount to a blackout. People should be told what was so egregious about the fake news that it had to be blacked out. (Although if you have to explain why something was taken down, then it quite defeats the purpose of the order right? Are we entangling ourselves in knots I wonder or is it just me?)

The courts as the “final” arbiter 

So the minister is the “first” arbiter, ordering corrections or take downs. You have to do so, or risk heavier penalties. You can still appeal to the minister who made the order and if this fails, you can go to court. It is usual, yes, to appeal to the minister/ministry to change a decision he or his staff has made in line with this or that policy. This is like appealing for an HDB flat after being rejected or giving mitigating circumstances for not paying parking fines. If you don’t get your flat or your parking fines waived, you just have to lump it.

There is no difference between the fake news laws and other regulations at this point. (Except that fake news legislation covers everything you write online and you don’t buy flats or pay fines all the time.)

Instead the G is making much of how under the proposed legislation, there is yet another recourse – you can appeal to the courts if you don’t like what the minister did. And as the days passed, the G became firmer and firmer about imposing timelines for appeals to the minister and promising simpler, cheaper legal access to the courts.

But it still hasn’t answered the question on what the courts should be able to refer to when it weighs the wrongness or rightness of a minister’s decision. The Bill only deals with the courts’ role  to judge  the truth or falsity of the statement in question, not the public interest element. Perhaps, this is what Mr Shanmugam is referring to when he said he would speak in Parliament on some concerns so that the courts could turn to Hansard to decipher Parliament’s intent.

So what will happen today?

I am certain that Mr Shanmugam will give a masterful performance. The litigator par excellence is hard to beat when it comes to grasp of detail, the law and making an argument that will be tough to pick apart. There will be an exposition of the principles behind the Bill which few people can argue against, and how the process will be in subsidiary legislation, or what is more commonly known as government regulations which do not need Parliamentary approval.

He will be convincing in debunking the usefulness of an independent committee (who picks the members in the first place?) whether to decide on truth or falsehood or to review G decisions annually as the NMPs suggested.  He will talk about how ministers are at least accountable at election time,  even though he must admit that a rouge government can do much damage between elections.

We can expect to hear phrases like “the devil is in the details” and “the proof of the pudding is in the eating” today. I wonder how many MPs will cite the “chilling effect”? It has been pooh-poohed by so many people that it’s making me hot under the collar. It is true that most people won’t be affected by the law per se. They are too busy making a living, or they just prefer to have such non-monetary decisions made for them. As for the rest, I bet my bottom dollar that they would guard their tongue, or fingers because, among other things, it is too troublesome to tangle with the G.

Just ask the mainstream media.