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Court dismisses SDP's appeal against Pofma order

Court dismisses SDP's appeal against Pofma order

Source: Straits Times
Article Date: 06 Feb 2020
Author: Tham Yuen-C

MOM statistics show party's statements about PMET employment numbers were false.

The High Court has dismissed the Singapore Democratic Party's (SDP) appeal to reverse the correction order against it under the fake news law, in a case that is set to define the way in which the court will look at such challenges.

It ruled that in such a court challenge, the Government has to prove a statement is false, after it has ordered a correction under the Protection from Online Falsehoods and Manipulation Act (Pofma).

The court's judgment released yesterday said statistics cited by the Ministry of Manpower (MOM) showed SDP's statements about Singaporean professionals, managers, executives and technicians (PMETs) were indeed false.

Contrary to SDP's claim, the number of local PMETs retrenched went down from 2015 to 2018, and the number of local PMETs employed, in absolute numbers, had risen steadily in the same period, according to MOM figures.

As such, Justice Ang Cheng Hock said SDP's statements "are in fact false in the face of the statistical evidence against them".

The party thus cannot remove the correction notices it was required to put up alongside the relevant online posts.

The case centred on an article and two Facebook posts by the SDP, which MOM had said falsely claimed local PMET retrenchment has been going up and PMET employment has gone down.

In dismissing SDP's appeal, Justice Ang said the meaning of the published material should be determined based on how a reasonable member of the public would understand it.

Such a person would think that the share of retrenched local PMETs as a proportion of all local PMETs has been rising, he added.

He also said SDP's preferred interpretation of its own material was untenable.

Among other things, the party had said it was referring to only Singaporean PMETs and not "local" PMETs, which would include permanent residents.

It also cited two news articles from The Straits Times and Yahoo News as the basis for its claim.

However, the judge said, the party did not cite the two news articles in its own article.

Also, he added, the ST article cites numbers on local PMETS, so the party cannot possibly claim to have relied on it, then say in the same breath that its article should be seen as referring to only Singaporeans.

The judge also rejected one of the Government's two interpretations, which said a reasonable person would take the SDP material to mean that local PMET retrenchment has been increasing in absolute numerical terms.

This is because the SDP article had used the phrase "amidst a rising proportion of Singapore PMETs getting retrenched". So agreeing with the Government's argument would have entailed ignoring the word "proportion", he said.

Both SDP and Attorney-General's Chambers had also relied on Labour Market Survey statistics to prove their case.

Though the SDP did not state this in its published material, it said it was relying on numbers from 2010 to 2018. The Government, on its part, cited figures from 2015 to 2018.

On this point, the judge said there was "a reasonable basis... to focus on a more recent timeframe", since SDP had used the word "amidst" to describe the retrenchment trend.

Thus, an ordinary, reasonable person would interpret the SDP material to be reflecting a "present troubling trend" that the party's proposed policy aims to address.

He added that just because the party chose not to label the time period for its graph does not mean it "should have carte blanche to assert any timeframe of its choosing as being the applicable one".

He also noted that SDP had not challenged the accuracy of the statistics. Instead, it sought to critique it on other grounds, which he did not find convincing.

Justice Ang also highlighted the fact that both sides had "attempted to cast aspersions on each other's intentions and motivations, with labels such as 'disingenuous' and 'dishonest' being bandied about".

But that is irrelevant, he said, as the court has to take an objective approach towards Pofma cases and decide whether the statements are borne out by the words and depictions in the published material, and whether the statements are true or false.

He also stressed that the court's role is to interpret legislation, not to comment or adjudicate on the desirability of particular policies.

Responding to the judgment, MOM said SDP had tried to confuse and mislead the public by suggesting several different meanings to its statements and claiming it was interpreting statistics, "when it was actually purveying falsehoods, as found by the court".

SDP said in a Facebook post that it was very disappointed in the verdict and reiterated that "Pofma must only be applied to clear-cut cases of falsehoods, not for interpretations of statistical data".

The party said it is considering appealing against the decision.


About the case

The case revolved around two Facebook posts and an article on the Singapore Democratic Party (SDP) website on the unemployment situation facing professionals, managers, executives and technicians.

The article, published on June 8 last year, was promoted in two Facebook posts on Nov 30 and Dec 2. Titled "SDP Population Policy: Hire S'poreans First, Retrench S'poreans Last", the article set out SDP's population policy, adding that it comes "amidst a rising proportion of Singapore PMETs getting retrenched".

The party later put up two Facebook posts on Nov 30 and Dec 2 linking to the article.

The Dec 2 post contained an infographic labelled "Local PMET employment", which showed an arrow pointing downward.

On Dec 14, Manpower Minister Josephine Teo initiated three correction directions under the Protection from Online Falsehoods and Manipulation Act (Pofma).

The Ministry of Manpower said the article and posts falsely claim local PMET retrenchment has been going up and PMET employment has gone down.

On Jan 3, SDP applied to Mrs Teo to have the correction orders cancelled. She rejected it.

The party then filed its court challenge on Jan 8.

The High Court heard the case on Jan 16 and 17, and allowed SDP until Jan 22 to file further written responses to the Government's submissions.

Tham Yuen-C


Burden falls on Govt to prove statements are false

The High Court yesterday established that it is the Government that bears the burden of proof in a court appeal under Singapore's laws against fake news.

This means the Government must prove a statement is false to prevail in such cases.

In a judgment dismissing the Singapore Democratic Party's appeal against the Protection from Online Falsehoods and Manipulation Act (Pofma), Justice Ang Cheng Hock said there is a "clear information asymmetry" between the Government and those whose statements are being challenged under Pofma.

Noting that the parliamentary debates on the law had not shed light on the issue of where the burden of proof lies, he questioned if Parliament could really have intended to place such an onerous burden on the statement-maker.

"Unlike the minister, who is able to rely on the machinery of state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources," he said.

"For a statement-maker, who may be an individual, to bear the burden of proof would put him in an invidious position."

Justice Ang noted Pofma had also not specified who should bear the burden of proof.

But based on Section 103(1) of the Evidence Act "(w)hoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist", he said.

In issuing a correction order under Pofma, the Government is seeking to curtail the right to free speech protected under the Constitution, the onus then is on the Government to prove the statements are false, he added.

He also said if the burden of proof were to fall on the other side, the Government would be able to succeed in dismissing a court challenge under Pofma even if no evidence is provided by either side to prove whether something is true or false.

In such a hypothetical situation, he said there will be no basis for the court to decide on whether a false statement had indeed been made.

This would mean the Government can prevail simply and solely by virtue of having issued correction directions in the first place, he said.

"In that sense, the court would in effect be fettered by the minister's earlier decision in issuing the correction direction," he added, and this would contradict the rules of Pofma, which state that the court should hear Pofma appeals afresh and not be bound by previous decisions.

Tham Yuen-C

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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