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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?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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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.

Ouch!

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.

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Our young people make me proud

In News Reports on April 26, 2019 at 3:04 am

I am proud of our young people.

I am proud that they cared enough to attend a town hall meeting to give their point of view. I am proud of Monica Baey, who took it upon herself to fly back from Taiwan to be at the meeting even though it would be an uncomfortable exercise for her. I am even proud of Nicholas Lim, for speaking up about what he did and putting himself under the spotlight.

I can’t say the same for my employer, National University of Singapore, for, first, its inept handling of Monica’s complaint, and second, its inept handling of the aftermath.

I have often told undergraduates that they are an apathetic lot, who prefer to merely put their names on online petitions than taking the time and energy to speak up for a cause. But over the past week,  they have turned their eyes away from the computer screen, even though examinations are due next week, and decided to tackle the university authorities on fundamental issues  regarding safety of the premises, support for victims and the disciplinary framework it has used over the years.

I wasn’t at the town hall yesterday and am basing my opinions on what has been reported and what undergraduates have told me.

The town hall was universally panned as too short (time), too small (space) and extremely uninformative (content). I gather there was much laughing and groaning among the audience who were reacting to comments made by the panel, with many shouted utterances. The panel didn’t seem ready to give information, just merely to hear out grievances and listen to suggestions and issue the appropriate apology at the appropriate time.

What wasn’t appreciated by the audience was how the panel appeared to be pushing the issue to the newly set-up review committee. Yet no one on the committee was present. Students were, however, assured that their comments would be referred to the committee and to write an email if they had more to say. Of course, that didn’t go down well either (cue groans). A call to extend the town hall for a half hour was rejected.

The meeting was rather more colourful than what I have described above (and got rude at times – which I don’t condone), but I should leave this to eye-witnesses to detail.

What’s more important is whether the university and the students cleared the bad air between them and came to some kind of understanding on how to move forward. At times, it seemed that both sides were talking at cross-purposes – the panel asking for suggestions on how to improve disciplinary methods and the students replying that the onus was on the authority to lay them out – not for students to do so.

Perhaps, the panel thought it would be inappropriate to jump the gun before the review committee got down to work. Even so, I think there was scope for the panel to talk about past disciplinary cases, rationale for the action taken and whether its “two strikes and you’re out” policy was ever carried out.

News reports said there were 26 cases of sexual offences in the past three years, 17 of which were cases of voyeurism, mainly filming or taking photographs.

TODAY, for example, reported that even though some were committed by repeat offenders, none of the cases resulted in the culprits being expelled from NUS. In most cases, the offenders were suspended for one to two semesters, issued an official reprimand, made to attend mandatory counselling, required to submit a statement of reflection or apology, and fined up to S$1,000. Are these the “manifestly inadequate’’ penalties that Education Minister Ong Ye Kung talked about? What model did NUS refer to when it set up the framework? Has it stayed the same for too long a time?

Acknowledging inadequacies in the framework is the first step towards healing.

And there are some things that don’t need a review committee to answer for, such as the state of campus security. The panel said it would be beefed up but didn’t say what aspects. Even if it was not ready with details, current manpower numbers, number of CCTVs and number of patrols are surely not confidential information that can’t be disseminated for students to mull over?

There was one student who made a point about university resources that I think deserves attention. The university is full of smart people, experts in all sorts of areas, she noted. Its resources are formidable, yet it doesn’t seem able to tap on this pool to deal with issues. I agree. I am sure we have experts on sexual offences, penalty regimes, behavioral change, crisis communications and even on environmental safety!

It seems to me that the university administration is carrying a load that can be shared by its expert faculty, who are probably more in touch with the sentiments of students. It might be a good idea if the review committee headed by Madam Kay Kuok, a member of the NUS Board of Trustees, to add faculty members to help in the overhaul.

One lesson from the town hall that I can discern: don’t call one unless you have something more to say than sorry and some scripted remarks. You’re just generating more heat than light. And those quiet students who attend lectures can get riled up too. They can get emotional, passionate and, yes, maybe even unreasonable.

But I am glad. It means they care about something.

 

An editor’s confession (added)

In News Reports on April 25, 2019 at 2:42 am

A lawyer passed me some information after I wrote this post, which I thought I should share so that readers will have a more complete picture of what happened. Essentially, it is about the contents of a Court of Appeal judgement that revealed  the people who authorised the release of the police report to the media, and how re-publication in the media affects the quantum of damages. 

I am adding this so that more facts are surfaced and fewer “spins” about the event can be effected. See the bolded parts. I have also appended the relevant parts of that judgment. 

I love reading books by journalists about their career in journalism. I look to them for inspiration and insights. I have just finished reading Alan Rusbridger’s Breaking News – The Remaking of Journalism and Why it matters now. He’s the ex-editor of The Guardian, which published the Snowden Files in 2013.

I am now reading Jill Abramson’s Merchants of Truth, an ambitious overview of the developments in The New York Times and Washington Post as internet upstarts Buzzfeed and Vice started biting into reader’s time. She’s the ex-editor of NYT.

When Mr Cheong Yip Seng, the former editor-in-chief of the Singapore Press Holdings English and Malay language news division,  wrote his OB Markers – My Straits Times story in 2012, I read it from start to end in more or less one sitting. He told stories that I thought journalists would take to their graves. Of phone calls and Istana meetings and dossiers compiled on so-called editorial transgressions. There was so much on the behind-the-scenes relationship between the G and the media. You can read my review here.

Mr Cheong was careful to characterize the relationship as a negotiation, rather than a master-slave relationship, although he was also clear about who had the upper hand. He ended on a positive note, perhaps too optimistically, that the media would be allowed to operate with less control under a political leadership which understood the demands and desires of an educated population plugged into the global information network. Note that he wrote the book in 2012.

Now I am looking forward to reading Mr P N Balji’s The Reluctant Editor, which will be out in June. The veteran journalist who has edited newspapers in both the SPH and Mediacorp stable has promised nuggets of information that had been kept from the public eye. He’s been giving interviews about his book including this one to Yahoo!

He told Yahoo that Mr Cheong’s OB Markers was his inspiration.  “It was the first book written by an established editor from SPH which actually said that there was government intervention, and he gave some examples,” he said. It annoyed the G to a great extent, he said, “because now it cannot tell people that we don’t intervene in the media”.

He added that if he could “bring some some more stories, expand on what Cheong Yip Seng has said, I think it would lead to a greater understanding of Singapore media and its interactions with the Singapore government”.

I think it’s very courageous of him to do so. I am less courageous.

A few months ago, he told my class of National University of Singapore undergraduates doing a module on Media Ethics about what transpired behind the scenes during the 1997 General Election, when The New Paper ran a front page story about Workers’ Party politicians Tang Liang Hong and JB Jeyaratnam filing police reports against People’s Action Party ministers. This incident was going to be in his book, he said. He was the editor then and I was his deputy.

I had suggested Chatham House rules, but Balji waved them away. Anybody was free to write anything.

It was another one of those stories that I thought journalists, at least the handful of us privy to it, would take to their graves. And no, it is not about the Toh Chin Chye saga in 1996, which was how I ended up being transferred from The Straits Times to TNP. Balji has said much about this boo-boo, which had led to front page apologies in every single SPH newspaper for a week. You can read about some of it here although I am sure there are more juicy details in his book.

First, some background: The 1997 GE was notable for the Tang Liang Hong affair. Mr Tang, now a fugitive in exile, had thrown his lot in with the Workers Party and stood for election, alongside the late J B Jeyaretnam, in Cheng San GRC. The PAP attacked Mr Tang  as anti-Christian Chinese chauvinist and clearly did not want to see the WP slate anywhere near Parliament. Several PAP leaders fired broadsides at him.

The day before Polling Day (there was no Cooling Off day at that time), the WP held a rally which ended dramatically with Mr Jeyaretnam holding up a few pieces of paper in his hand. He said that police reports had been filed against 11 members of the PAP. He left it at that.

So everyone was all agog about the contents of the police report. Unless Mr Jeyaretnam handed them over to the media himself, there was no way journalists could have obtained them from other sources. The police do not release police reports on request.

Yet in the early hours of the next morning on Polling Day, Balji said he received a telephone call suggesting that he obtain the police reports from Central Police Station. Ask and you shall be given. This was a strange offer of a scoop offered to TNP, a newspaper which at that time was sold at lunch-time. (Afternote: Balji has since told me the phone call was from Cheong, our editor-in-chief at that time.) 

Balji admits that the idea of a scoop stirred journalistic passions. Which editor would not welcome the chance to get one step ahead of its rivals, especially the broadsheet Straits Times, which had already gone to print by then? I was Balji’s deputy at that time, and actually called the cops for the reports. They said no. So, Balji made a telephone call and this time, we were told to wait by the facsimile machine. The clock was ticking away and we had already held the presses. So many of us crowded around the machine that morning to watch copies of the report slowly make their way into our presence. We printed them whole-sale on Page 1.

If Cooling Off Day was in place then, we would have breached so many rules and were at risk of libeling 11 people. To cut a long story short, we did not get into trouble, but Mr Tang and JBJ et al did. They didn’t win the election but did well enough to earn a non-constituency MP seat which JBJ took. But more importantly, JBJ was smacked with a massive law suit, 11 in all. That was when it began to dawn on us that we had been made use of to disseminate a supposed libel to an even wider audience, which could mean higher damages if the PAP side won.

The next event in this  saga was the court case which meted out what former Prime Minister Goh Chok Tong described as a “derisory’’ $20,000 in damages on JBJ for saying these words at that rally: “Mr Tang Liang Hong has just placed before me two reports he has made to the police against, you know, Mr Goh Chok Tong and his team”.

The PAP side appealed for more damages, and in July 1998, damages were upped to $100,000 plus S$20,000 in court costs.

In a November 1997 judgement that concerned a separate set of PAP law suits against Mr Tang, a Court of Appeal comprising Justices M Karthigesu, L P Thean and G P Selvam noted  that Mr Tang was not responsible for giving the media copies of the police reports, which would have compounded his libel. PAP lawyers had told the judges when it came to assessing damages that they were instead released by then Prime Minister Goh Chok Tong and the late PM Lee Kuan Yew.

The judges said: “They (the PAP lawyers) would have offered the court all the relevant facts, but it did not occur to them at the time, as the matter was never raised. We accept their explanation. It is quite clear that the oversight was unintentional.” 

As for the PAP’s act of making public the police reports, the court said:  “It seems to us that it was a matter of political exigency to the PAP leaders that the reports should be made public to neutralise whatever effect Mr Tang sought to make out of them so that the voters could make their choice on an informed basis.” 

Since neither Mr Tang (nor JBJ) had made public the reports, he can’t be responsible for the dissemination of the contents. The judges lowered the damages for the PAP leaders who had cited the police reports as aggravating factors in their suit against Mr Tang. 

But as far as the JBJ court case was concerned, he had still defamed the PAP leaders by his announcement that police reports had been made.  On appeal, the court awarded PM Goh $100,000 in damages in July 1998, citing among other factors how the earlier $20,000 award was “disconsonant” with past defamation cases.  

The other 10 PAP leaders got onto the bandwagon later. But in April 2002, after Mr JBJ apologised to them, they accepted his apology and waived damages and cost.  

There was no way JBJ could have paid them anything anyway. He had been declared a bankrupt the year before (he couldn’t pay damages for another law suit) and consequently had to quit his  NCMP post. 

All this time, Balji said, he wondered if he would be called to the stand by the defence to declare how he had obtained the reports. But JBJ’s lawyers didn’t summon him. Nobody talked about the content of the reports; just its announcement.

Some 20 years have passed since and the event still grated on him. It grated on me too. I was in court for the trial to do a “watching’’ brief, in case the newsroom was implicated in some way. It was an ache that I have carried all these years. Balji said the book gave him a chance to finally get it off his chest. Like some form of atonement.

Playing it back, I wondered if we could have said no. Our journalistic instincts, scoop mentality and deadline pressure overwhelmed our ethics. We wanted to be first with the story. But we found that the fleeting euphoria was nothing compared to the stone that had been lodged in our hearts since.

You can read it in greater detail in Balji’s book. I recall a review Balji wrote about another ex-editor’s book, Mano Sabnani’s Marbles, Mayhem and My Typewriter published in 2017, which he had described as a “let down’’. Mr Sabnani was brief when he could have been more expansive about the run-ins he had with the G, especially during Mr Sabnani’s three-year editorship of TODAY.

“That in itself is a sad indictment of the Singapore journalism story where many editors take their tales to their graves. Some, like Sabnani, have bucked the trend but are still only prepared to tell an incomplete story and leave readers wanting more. Isn’t our journalism also like that, leaving many to wonder if the bottle is half full or half empty?’’

Balji isn’t taking much to his grave.

I actually wrote most of this column right after Balji gave his talk but I balked at publishing it. I was worried about affecting his impending book publication and was too much of a coward to print the truth. I thought it best to wait till his book was out.

Why have I changed my mind? Because at this time when the national discussion is about the publication of truth and falsehoods and with an important Bill up for debate this month, I thought more people might like to have a better understanding about the relationship between the G and the media.

And before you ask, I’m still thinking about it.

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From Singapore Law Report

Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576; [1997] SGCA 52

Republications by the media

We turn next to the claim for damages occasioned by the republications of the police report by the media; the report appeared in the various newspapers, including The New Paper, The Straits Times and theLianhe Zaobao. The Lianhe Zaobao article was also made available on the Internet through the Lianhe Zaobao Online Home Page AsiaOne which was accessible to worldwide users.

All the plaintiffs in their respective statements of claim averred, in substance, that in making the police report MrTang intended the republications of the report by the media or that the republications by the media were the natural and probable consequence of his report. Thus, all three of them attributed to Mr Tang the republications of the police report by the media.

In fact, what had transpired was that on the eve of the polling day Mr Tang made two police reports, and at the WP rally in the evening of the same day Mr Jeyaretnam, who was the running mate of Mr Tang in Cheng San GRC, at the instance of Mr Tang announced that Mr Tang had lodged two police reports against the PAP leaders. But, Mr Jeyaretnam did not repeat the content of either of the police reports to the crowd. It is accepted that subsequently Mr Goh obtained a copy each of the police reports and authorised Mr Lee to release them, and they were released to the media by Mr Lee’s press secretary. Hence, on the basis of these facts Mr Gray argues that Mr Tang was not responsible for the republications and no damages should be awarded for such republications.

As we have narrated, two police reports were made by Mr Tang but only one of them gave rise to the claims by the three plaintiffs in the three actions respectively, and it was not claimed that the other report was defamatory. Hence, for the purpose of this appeal, we are concerned only with the offending report that gave rise to the three actions.

Before us, counsel for BG Lee, Dr Tan and Mr Lee Yock Suan respectively submit that the republications of the police reports by the media were the natural and probable consequence of Mr Tang’s original publication to the police. The thrust of their contention is that Mr Goh and Mr Lee had to release the reports to the press, and the release was necessary to avoid any erroneous public impression that there was something to hide. Mr Jeyaretnam had, after all, on the urging by Mr Tang, announced the lodging of the police reports. Hence, the police reports had to be released to the media “to contain the harm”, and to defend themselves (that is, the PAP leaders), it was decided that the public should know what had been alleged by MrTang. Thus, the republications flowed from MrTang’s original publication. Alternatively, it is argued that since Mr Tang had made the reports in those circumstances and having indicated at the rally that he made the police reports, he must also have intended the republications.

As we see it, the police reports were lodged by Mr Tang on the eve of polling day, and the purpose was apparently to boost his electoral chances. It seems to us that it was a matter of political exigency to the PAP leaders that the reports should be made public to neutralise whatever effect Mr Tang sought to make out of them so that the voters could make their choice on an informed basis. Of course, Mr Tang must have known that the press and public would be interested in knowing what allegations had been levelled at Mr Goh, Mr Lee and the other PAP leaders. He also must have known that the media would try to obtain a copy each of the police reports. However, it does not follow that by reason of this, the republications of the contents of the reports were the “natural and probable consequence” of his original publication to the police. Nor can it be said that by acting in the way he did he intended the republications by the media.

We find the decision of Hallett J in McWhirter v Manning The Times (30 October 1954) of some assistance here. In that case the plaintiff sued Mr Manning and others for defamation in respect of a speech made by Mr Manning at an annual meeting of the National Union of Journalists which was subsequently published. It was held that Mr Manning was only liable for the slander, and not for the libel occasioned by the publication. It was reported as follows:

 

His Lordship, giving judgment, said that on the issue of libel it was argued that, because Mr Manning knew that there were reporters at the meeting and that a report of what he said might and probably would appear in the printed report, he must be taken as having caused the publication of the defamatory words in the report.

His Lordship referred to the authorities, and said that, on the facts, it was plain that once the words had flown out of Mr Manning’s mouth he did nothing further whatever to procure publication of those words, or some or any of them, in a printed form. From then onwards it was other people who got them into print. There was no evidence which warranted a finding that the first defendant published the libel as distinct from publishing the slander, and he (his Lordship) so held. It followed that the first defendant was not liable in respect of the libel.

It was further reported that the learned judge held as follows:

But in the present case the printers were not employed by the first defendant. If one asked the question, ‘Was Manning the cause or a cause of the libel being published?’ the answer seemed to be No. He was a causa sine qua non in the sense that if he had never made the speech there would have been no speech to report; but he was certainly not the causa causans and did not cause the publication of the libel. The responsibility for producing the libel was quite clearly on the union and the printers whom they employed, and there was no case against the printers.

The fact remains that Mr Tang never procured the republication of his police reports, apart from asking Mr Jeyaretnam to announce to the crowd at the rally that he had lodged two police reports against the PAP leaders. At the highest, and this is purely speculative, it might be said that Mr Tang intended the content of the police report to be released to the media by the police since he had filed the report with the latter. But, since Mr Goh and Mr Lee had obtained a copy each of the reports and authorised their release to the press on their own volition, it cannot be said that in those circumstances the republications were the natural and probable consequence of the original publication. Nor can it be said that Mr Tang intended the republication of the reports by the media.

In assessing the damages in these three cases, Chao Hick Tin J held at [46] of his judgment ([5] supra):

The police report was released to the media through the Secretary General of the WP at a rally that evening and it was carried in the media on 2 and 3 January 1997. Mr Tang knew and intended that the report would be so published.

 

In all probability, the learned judge reached the above conclusion on the basis of the statements of claim. Counsel for all three respondents in these actions, as well as counsel for Mr Lee and Mr Goh, were quick to inform this court that at the time of the assessment of damages before the learned judge, they did not deliberately suppress the fact concerning who released the police reports to the media. They would have offered the court all the relevant facts, but it did not occur to them at the time, as the matter was never raised. We accept their explanation. It is quite clear that the oversight was unintentional.

In our opinion, as MrTang was not responsible for the republications, it must follow that the damage occasioned by the republications of the police report in question by the media cannot be attributed to Mr Tang. This is a very material fact in the assessment of damages. A useful case which illustrates this point is Gorman v MuddTranscript No 1076 of 1992 (15 October 1992) referred to in the judgment of Sir Thomas Bingham MR in John v MGN Ltd ([120] supra). In that case, the plaintiff was a member of Parliament and she sued one of her constituents for a libel contained in a mock press release. The publication was made only to 91 people, but they were “prominent, influential, local and knowledgeable members of the constituency party”. The defendant pleaded justification and persisted in this defence. The plaintiff alleged express malice. The jury rejected the defence of justification and found express malice on the part of the defendant. They awarded damages in the sum of £150,000. On appeal the Court of Appeal held that the award was grossly excessive and in exercise of its power reduced the amount to £50,000. One of the factors that played a part in the reduction of damages was the limited audience. Russell LJ in his judgment said, at 12 of the transcript:

A very important consideration must always be the extent of publication and in my view this case is not to be compared with a libel appearing in a national newspaper. It is a fact of life that many people believe everything they read in newspapers, so that defamatory material can attract a very wide audience in a particular damaging way for the victim.

There is also an old local case bearing on the same point which is of some assistance: Tan Chee Kong v Lee Ee Liat [1949] MLJ 277. There, the defendant sent a letter by post to the plaintiff, and outside the envelope he inserted the words “Ex-Informer – Kempeitai” just after the name of the plaintiff. The latter sued the defendant for damages for libel and it was held that the words were defamatory of him. A point was raised by the defendant that there was no publication as the postal employees were sworn to secrecy. Taylor J who heard the case rejected this argument, but held that since the publication was limited to the postal employees, it materially reduced the damages. He said, at 278:

Though there was publication it was limited in extent and the matter is much less serious than publication in a newspaper or in any other form which would ordinarily reach a large number of people on whom no obligation of secrecy rested. This materially reduces the damages.

 

Reverting to these cases before us, we think the circulation of the report was very limited. The report was published to a few police officers at most, and there was certainly no evidence of a wide circulation of the reports even among the officers. In view of this, the amounts awarded below obviously cannot stand and must be considerably reduced.

NUS rule book : Make it an open book

In News Reports on April 23, 2019 at 2:48 am

I feel sorry for Nicholas Lim, who has been outted as the peeping Tom who tried to film a female undergraduate who was taking a shower. Now everyone knows who he is: a National University of Singapore Chemical Engineering student who has been suspended for one semester. They now know he has a girlfriend, and how he quit as a financial representative of Great Eastern Life before, I am guessing here, it could take the step to show him the door.

I feel sorry for my alma mater and employer NUS, which has been in the news for the wrong reasons in recent time. It has been in crisis management mode since the weekend started, after realizing that its demonstrable lack of empathy for the undergraduate who was the victim is earning itself the opprobrium of the public.

I don’t feel sorry for Monica Baey. She got what she wanted: the perpetrator has been named and shamed to such a degree that even incarceration might not be too bad an option. More importantly, she got the university to face up to the inadequacies of its penalty system which, in her case, was deemed “manifestly inadequate’’ by Education Minister Ong Ye Kung.

I asked a few female undergraduates why Ms Baey, 23, a communications student, didn’t take the route that I would have taken if this happened to me 30 years ago in university: tell some seniors about the matter and have them deal with it. I did so when I was bothered by a lascivious lad who made me cry with his lewd attentions. I don’t know what the seniors did, but I got what I wanted: the boy never so much as looked me again after that.

Every undergraduate was disconcerted by the question I posed. It sounded like I was suggesting some form of street justice. What they said next floored me: everyone said that their seniors would never want to get involved, because it might get them into trouble too. I suppose the days when gentlemen would guard a maiden’s honour is dead and gone.

Instead everyone goes by the Singapore book: make a police report and complain to the right authorities. Then the agencies go by the book too, investigate and decide on the outcome – without explaining how they reached the journey’s end. If the outcome is satisfactory, at least to the victim, that would be the end of the story. But if not, the victim who lashes back at the big, bad agencies will always receive public sympathy.

The police decision to mete out a one-year conditional warning hasn’t gone down well with Ms Baey. Depending on which lawyer you speak to, you will have differing views on whether this is a rare action on the part of the authorities which have thrown the book at other first-time voyeurs in the past. Beyond the authorities, no one knows how the decision is made and whether there were extenuating circumstances which led them to give Mr Lim a slap on the wrist. The discussion so far has been one-sided, with Ms Baey giving her account on Instagram and to media, and Mr Lim staying out of sight.

The university, sticking with protocol, started its own disciplinary proceedings after the police investigation was concluded. No one knows too how it decides on the sanctions although it has maintained that it has its own framework to refer to. You can only surmise that the “slap on the wrist’’ played a part in the decision to suspend him for a semester (which undergraduates will say is more like taking a leave-of-absence), instead of the ultimate penalty of expulsion. Its bid to have Mr Lim write a letter of apology to Ms Baey has backfired. It looked like it was written by a very bad PR firm.

As someone who has been working with undergraduates over the past six years, I know that the university prefers to take a rehabilitative rather than a punitive approach to miscreants. My private sector instincts to “sack” or give a student a failing grade have always been met with consternation by other academics. I have been told too many times that the subjects are young people, bright people, who always deserve a second chance or even a third. Contrary to what undergraduates think, it’s harder to fail a student than to award the student a distinction.

In the field of behavior, it seems a similar concept is applied. A suspension is deemed a heavy punishment because it delays the process of getting a full degree. Except that these days, unless students belong to households pressed for money, the suspension might well be viewed as a “gap’’ year for them to take a break from studies. I gather that this is one reason undergraduates view Mr Lim’s suspension with such misgivings.

What is more unsettling is what NUS vice-provost (Student Life) Florence Ling told The Straits Times about the university’s policy on sexual misconduct. You have to be a repeat sexual offender to be expelled.

“For first-time offenders, because we are an educational institution, we want to give the students a chance. Student offenders who appear before the Board of Discipline for the first time are given a range of punishments, but not immediate expulsion,” she said.

It makes me wonder if NUS disclosed this “two-strikes and you’re out’’ policy because it believed that this would assure the public that the university is a safe place.

But just hours later, the university said it was reviewing this two strikes policy. NUS President Tan Eng Chye said: “NUS will take a hard stand on offences that impact the safety of our students. We must make our campus safe and supportive for all members of our community.”

Even Minister Ong weighed in: “From here on, for offences that affect the safety of students on campus, we have to take a tough stand, and send a strong signal to everyone. Two strikes and you are out cannot be the standard application. NUS has to make its campus safe for all students, especially female students.”

The Vice-Provost, it seemed, mis-spoke.

In fact, my view is that the punishment must fit the crime. Undergraduates are adults who shouldn’t be treated differently from other working youths if they are guilty of misbehavior. That this might mean extinguishing a bright future, a lost chance at a First Class Honours degree, or dashing a parent’s dream shouldn’t count as mitigating factors unless sufficient remorse is shown. If other less intellectually endowed youths in the working world have overcome setbacks, so can young people cocooned in the education institutions.

NUS did not say how long the review would take but I am  sure the university will be pressured into making public its new and improved “penal code’’ for a range of misconduct. I think it is a good thing to be transparent, even though it limits the scope for discretion on the part of university authorities. There will, for example, be less debate about “favoritism’’ or “parental influence’’.

I sometimes wish for a return to the old days when the community policed itself and set its own standards of behavior, instead of always turning to an outside agency.  It’s not so much about taking the law into your own hands, then about setting markers on acceptable conduct.

But if everyone wants to go by the book, then the book must be an open one.

 

 

 

Fake news law – to protect who exactly?

In News Reports on April 3, 2019 at 9:57 am

On the surface, I don’t think that, as a writer, I would have a problem with the Protection from Online Falsehoods and Manipulation legislation. It’s been drummed into me for years that errors must be corrected and apologised for. Of course, the online space makes rectification of errors easier – a few clicks and the offending remarks are gone.

Some people don’t even think they need to alert readers that an amendment has been made. I think this is wrong and readers deserve to be told that there was a mistake. It also holds out the (slim) hope that a reader who had read the “wrong” stuff might return to see the change made.

Errors of fact seem  pretty clear to me. You said $1m when it should $1b. Careless mistake. Correction. Apology. Of course, the greater the number of corrections, the more  the reputation of the writer/organisation suffers. Fewer and fewer people think it worth their time to read you.

There’s no need for the law to push this on organised media because there are ethical codes for those in the  business of reporting the facts. Now, however, everyone can be in the communication business (paid or unpaid). And the role of communication is not just about reporting the facts, but asking questions, pointing out the lack of facts, making arguments based on available facts and giving opinions, which sometimes aren’t based on facts.

In fact, the process of determining if something is wrong and in need of correcting can be time-consuming. It requires investigation, an acknowledgement of the error and an agreement on a form of words on both sides before a correction sees daylight.  It’s a worthwhile process if only to ensure that the mistake does not occur again. Contrast this, however, with the powers given to ministers under the Bill. Any minister can “deem” something that comes under his domain false and order a correction or a take-down. This, we are told, is in the interest of speed, that is, to prevent an untruth from going viral.

It’s a process that brooks no argument. You are guilty as charged.

Sure you can appeal. To the same minister who made the decision, not a separate or higher body. Some people have likened this to appealing to ministers over matters under the purview, like to the National Development Minister about getting a HDB flat. I agree that the minister can always use his discretion over an issue his officers dealt with, but how likely is he to be moved to revise a decision he himself made?

Nor do I find comforting the oft-heard argument that the courts are really the final arbiter – simply because the judicial process is the last of a lengthy process under this massive legislation.

I am not a lawyer, but I don’t think anyone should need a lawyer to  understand a True or False question.

Nevertheless, I won’t even try to understand the definition of what is a statement of fact.

This is what the Bill says: a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact.”

The way I have always understood it is that the “fact” must either be of “the sun rises in the east” genre, or attributed to a trusted or authoritative source. (I suppose I can include REACH surveys here.)

As for what is fake, here’s the definition: a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.

The best way to see how things work is to give examples. Professor Cherian George gave one here, referring to a news agency’s headline on a minister’s reply.

Let me try another.

Say Workers’ Party Sylvia Lim had written on Facebook that the G’s announcement on raising the Goods and Services Tax was an electoral ploy or a trial balloon (which is what she said in Parliament), would Finance Minister Heng Swee Keat issue a takedown order because he deemed such a suspicion false and without basis? You can read about the saga here.

Does the second condition – the minister’s action must be in the public interest – make the law any clearer? Some people have applauded the move to expand on what is in the public interest. Here is how the Bill expands on the term:

a.  in the interest of the security of Singapore or any part of Singapore;

b.  to protect public health or public finances, or to secure public safety or public tranquillity;

c. in the interest of friendly relations of Singapore with other countries;

d. to prevent any influence of the outcome of an election to the office of President, a general election of Members of Parliament, a by-election of a Member of Parliament, or a referendum;

e. to prevent incitement of feelings of enmity, hatred or ill-will between different groups of persons; or

f. to prevent a diminution of 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.

 

You can see that in the case of the example, ministers can possibly cite (f) as an action in  the public interest.

No one can argue against first principles, such as acting in the public interest (unless you want to argue about what exactly is the public interest – to which the G will point to its electoral mandate). I agree the G must have some executive discretion, especially when it comes to maintaining peace and stability, but I worry that the fake news legislation will result in sanitised public discussion – or very little discussion – that is always in the G’s favour.

Why do I say that?

Because OB markers work very well in Singapore. In recent years, they have got tighter if you consider acts taken against various individuals. Perhaps, each action has a specific basis but the cumulative effect is, to use a well-worn word, chilling. You can read my post here.

Fake news laws will pull them further in simply because people don’t understand where the line is. How can they? So they will self-censor in the interest of self-preservation. Truth to tell, even journalists find it difficult to traverse this territory.

The reiteration that the law will not punish opinion isn’t illuminating. If you look at the Ms Lim’s example, she argued that she was merely articulating an opinion or what some people feel. But the PAP was strenuous about wanting her to retract a false statement.

Couple the fake news legislation with the debate on hate speech which all happened on the same day and you get people wondering if even the truth/facts will get you into trouble if it is mildly offensive. This is despite the G making clear that no new regulations on hate speech is on the horizon. 

Methinks most people have trust and confidence in the G and its institutions. I do. But with every succeeding generation, there will be calls for more clarity and more checks.

I worry, for example, about inconsistent treatment under the law and lack of clarity.  I have touched on these issues  here and here . Now, because any minister can issue a correction or take down order, I worry that different ministers will have different yardsticks on what they “deem” real or fake. Unless they too have a “code” or guideline, we can expect there will be different levels of tolerance, whether for “degree of falsity” or “the person propagating it”.

I worry that by the time an aggrieved party gets to the stage of a judicial review, his or her reputation would have been irreparably damaged. It doesn’t help that the Bill seems to give the judges limited grounds to overturn a directive either.

That there is not much public traction over the Bill (except among the usual suspects) shows how much trust people place in the G. But while we can place our trust in individualities and personalities in charge of the system, we must still ensure that our system is robust enough to withstand not-so-good men and women. The People’s Action Party government acknowledged this when it introduced the elected Presidency in 1988 to counteract a future rogue government. Before it dismisses detractors of this Bill, it should consider that it had its own misgivings about power being in the “wrong” hands some three decades ago. This reservation should still apply today.

I take heart in the G’s assurance that the modus operandi will be “correction orders” rather than “take-down” directives. This still leaves room for the public to exercise their own brain cells on whether the correction is legitimate or not. Perhaps, it might lead to public debate, unless people are worried that simply talking about something fake is spreading it. (See how complicated it gets?)

I suppose there will be more support for the Bill if the G sells it as protecting the vulnerable from fake news about fake rice, medical remedies and what is poisonous or not. That’s the good part about the Bill. Then again, the Protection from Harassment Act was sold at first as a recourse for individuals affected by cyber-stalking – until you see even the Defence Ministry resorting to it – unsuccessfully. You can read about it here.

I guess now, the Defence Minister can simply order the offending/erroneous statements out of sight. Which reminds me – is the G going to go over everything that has been published to deem what is fact or fiction? Or is there a start date?

But, hey, I am getting ahead of myself. The Bill has only been introduced, not yet passed.

So I have two questions:

For the G:  How does this legislation demonstrate that it has taken in the views of those who gave feedback to the Parliamentary Select Committee last year ?

For parliamentarians:  Given that there seems to be confusion about the details of the Bill, should there be a break after Second Reading to allow another Parliamentary Select Committee to scrutinise the details?

I wrote this last year lamenting that we did the whole feedback process of what constitutes fake news the wrong way round.

I am even more convinced now.

 

 

 

 

 

 

 

 

 

 

I am NOT “nasty, opportunistic and dangerous”

In News Reports on April 2, 2019 at 3:31 am

I am someone who reads stuff carefully, even the footnotes. So you can bet that I went over Law and Home Affairs Minister K Shanmugam’s ministerial statement on hate speech yesterday with a fine tooth comb. There were two references to what I wrote in my blog, Bertha Harian, on March 13 which was re-produced in Yahoo News.

You can read the blog post, Watain: Do Unto Others? here.

The first reference was on Page 59, when Mr Shanmugam said that he recognised that some Singaporeans disagreed with the G’s decision to stop the black metal band, Watain, from performing here.

For example, Ms Chew Wei Shan, a former teacher, has set out
her views articulately in a post. There were also others. They say
the Government is “self-righteously” trying to govern other people’s
lives and decisions. They say the audience can listen to metal
music without being influenced by a band’s beliefs. NCCS and
churches can advise their members not to go to the concert, so no
need for a ban.

The footnote to this paragraph is this: Chew Wei Shan’s Facebook Page. 2019. Facebook, 7 Mar 2019; The Online Citizen article
“Watain Ban: Rock Music or Religious Cult against our Public Order?” by Joe Sekular, 9 Mar 2019;
Facebook post by Andrew Loh, 13 Mar 2019; Facebook Comment by Marc Wang in response to
CNA report titled “’I can’t see how we could have agreed to it’: Shanmugam on Watain performing
in Singapore”; Facebook post by Khan Osman Sulaiman, 11 Mar 2019; Facebook post by Martyn
See, 11 Mar 2019; Facebook post by Ravi MRavi, 11 Mar 2019; Facebook Post by Joshua Ip, 12
Mar 2019; “Watain: Do unto others?”, Bertha Henson, Hertha Harian, 13 March 2019; Facebook
Post by Mint Kang on 8 Mar 2019, subsequently shared by All Singapore Stuff, 11 Mar 2019.

Beyond the fact that it got the name of my blog wrong, I couldn’t see where in my blog post I had said that the G was being “self-righteous” about the band.

But it was the reference on Page 68 that really got me riled up. This is what Mr Shanmugam said in his speech:

Now, some commentators online have also made dark suggestions of a Christian conspiracy. “They have a hold on the Government, the Government bows to their power, and there is an over-representation of Christians in institutions of power”. They tried to turn it into a “Christians versus Others” debate. These people are nasty, opportunistic, and dangerous. 

This is the footnote for the above paragraph:

Facebook post by Andrew Loh, 13 Mar 2019; Facebook Comment by Marc Wang in response to CNA report titled “’I can’t see how we could have agreed to it’: Shanmugam on Watain performing in Singapore”;

Facebook post by Khan Osman Sulaiman, 11 Mar 2019;

Facebook post by Martyn See, 11 Mar 2019;

Facebook post by Ravi MRavi, 11 Mar 2019;

Facebook Post by Joshua Ip, 12  Mar 2019;

“Watain: Do unto others?”, Bertha Henson, Bertha Harian, 13 Mar 2019.

Now, I am not someone who likes being called nasty things. I took a good hard look at my column to see if I had made “dark suggestions” of a Christian conspiracy.

This, I thought, was the closest:

Online, the reaction is mainly negative. The prevailing view is that the G had succumbed to hysterical moral panic from conservative Christians. The band, after all, would be playing to a small crowd of 150 people, aged 18 and above, and it had agreed to strictures set by the IMDA. You can be sure the lyrics would have been sanitised to be inoffensive and the performance would be sans carcasses and blood.

Maybe I was wrong to report the prevailing view. People would think that I shared the view too. (I don’t. I think the G should have pulled the plug even earlier)

Still, I don’t think I can be described as “nasty, opportunistic and dangerous”. (I would like to make clear that I am only speaking for myself and not the rest named in the footnote.)

I am not someone who takes such comments lying down, even if they are opinions. Opinions must be based on the facts or an ordinary man’s reading of the article in question.

So  I asked Mr Shanmugam this morning why was there a reference to me.

He looked at it and said it was an error to have referred to me. He had originally, in his speech had referred to something I had said in my blog, and responded to it. But then in the final speech, he decided that it was not necessary to do so. He thus took out his response to me from the text of the speech. But the footnote referring to me was ( erroneously) not taken out. So I was unfortunately lumped with others whom he specifically responded to.

The Minister  apologised to me for the error. He said none of his comments were intended to refer to me.

Well, that was gracious!

I have always prided myself on taking the middle ground in my columns and to be more centrist in my arguments. I thank the minister for his response and would like to ask that this post be shared liberally to clarify the matter.