Protection from Online Falsehoods: A More Balanced Recommendation

Parliamentary Speech: 8 May 2019

Agreeing with the Legislative Intent of the Bill

Mr Speaker, may I have your permission to address the amendments standing in my name indicated in the Order Paper Supplement with this second reading debate as well please? Thank you, Sir.

First, please let me thank Minister Shanmugam for his comprehensive reminder of the legislative intent for this Bill. I wish to state plainly that I support the legislative intent of the Bill because I agree that online falsehoods can distort and demean public debate in our secular democracy by inciting polarisation and populism for all the reasons that Minister has outlined. I also agree and appreciate that the Government has a responsibility to protect harmony, social cohesion and the integrity of public institutions and political processes against online falsehoods.

Singapore joins robust democracies like Australia, France, Germany, New Zealand and United Kingdom seeking to use legislative measures to curb online falsehoods. This Bill has added first-in-the-world features such has Corrections Directions.

However, the Bill currently grants far reaching powers to the Government on online communication which raises significant concerns across different segments of our society that these tools may be used — intentionally or otherwise — to suppress or chill debate for political purposes. Associate Professor Walter Theseira, Ms Irene Quay and I submitted a motion of amendment to this Bill as indicated in the Order Paper Supplement. The proposed amendments seek to mitigate these concerns by ensuring there is discipline in the way the Act would be utilised while ensuring that Government has the ability to deal with the full range of threats posed by deliberate online falsehoods. The proposed amendments were, as part of our robust parliamentary process, vetted by the Attorney-General’s Chambers. (Clarification: The proposed amendments were vetted by the parliament secretariat on procedure.)

Mr. Speaker, I will now address specific issues of concerns and corresponding proposed amendments. For any avoidance of doubt, I want to state plainly that my debate here is once again not about ‘why’ we have this Bill — I reiterate that I agree online falsehoods should be legislated — but about ‘how’ the Bill can realise its full function with these amendments.

Definition of Fact and False

A major area of contention, as the House has heard, is the definition of “fact” and “falsehood” under the Bill. A statement of fact is defined as “a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact” while a statement is false “if it is false and misleading, whether wholly or in part, and whether on its own or in the context in which it appears”.

I understand that the use of the phrase “a reasonable person” is common in legalese, and is used as shorthand for a hypothetical individual who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability. In the eyes of the court, this “reasonable person test” is one that is objective. However, it appears broad, imprecise and highly subjective to the ordinary citizen who would rightly be concerned with a chilling fear that giving an opinion could be wrongly construed as a false statement of fact.

Many non-governmental organisations (or NGOs) are also understandably concerned with such an unclear definition because it is common for NGOs to rely on firsthand accounts of the individuals they represent. They often craft reports, public awareness campaigns and make recommendations on issues with these accounts as the primary source material. However, these accounts may conflict with official interpretations of data by policymakers or are challenged as inaccurate, especially with the information asymmetry.

For instance, MOM has issued a total of 21 newsroom releases of a corrective nature that it refers to as ‘Fact Checks’ since September 2017. 18 of those 21 ‘fact-checking’ press releases, addressed NGO-published content about MOM’s priorities, processes and practice. Many of these may technically be considered as opinions to most rather than facts yet MOM presents these instances as a “fact check”, and formats these refutations with author’s “Claim” which is then countered by MOM’s “Fact”.

Let me share another illustration that is not entirely hypothetical. A sexual assault victim might feel uncomfortable sharing the full details of his/her assault experience with the police but might later disclose important details to case workers, counsellors, and researchers. If the NGO grounds its recommendations to legislation on evidence from such accounts, would the Government reject the basis for such recommendations because the accounts do not align with their official records of those cases? Would the findings of the NGO be invalidated if they conflict with what the Government has on record as the “facts” of the case?

Besides the ordinary citizen and civil society, Mr. Speaker, the concern with the definition of fact and false as drafted is also shared by arts and media practitioners, academics and researchers. To mitigate this definitional concern and without meddling with matters of jurisprudence, we propose that a new section called the Principles of the Act be included in the body of the Act. One of the proposed clauses in this section states explicitly that the Bill “targets materially false statements and does not apply to “opinions, comments, critiques, satire, parody, generalisations or statements of experiences”. I thank the Minister for agreeing with our intent for this amendment. Mr. Speaker, what we are proposing here is certainly not new — we have similar legislative precedents for guiding principles on implementation and administration in the Mental Capacity and Vulnerable Adults Acts. Associate Professor Walter Theseira will elaborate further on this proposed amendment in his speech.

Accountability and Transparency: Public Interest and Justification of Directions

The Government has explicitly assured the public that this Bill is not intended to stifle or chill free speech, debate, and criticism, and in fact aims to ensure such debate can occur without the corrosive presence of online falsehoods. However, the Bill as written when tabled does not contain such assurances that limit how the Bill’s powers can be used.

Mr Speaker, the Ministers are granted powers to issue Part 3 and 4 Directions based on (1) the statement is false and (2) it affects public interest. Section 4 of the Bill defines “public interest” and the circumstances under which it is justified to take action. However, Clause 4(f) is again broadly-worded and states:

action is justified under the Bill if the falsehood would prevent a diminution of public confidence in the the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board.

This definition is reminiscent of but broader than existing laws such as Section 11(4) of the Computer Misuse Act where the words “serious harm” and “disruption” prefaces and qualifies the basis of a diminution of public confidence.

The concern is, with such a overreaching scope coupled with the broad and subjective definition of ‘fact’ and ‘false’, that any criticism of the Government could be considered a statement that would diminish public confidence as stated in the Bill. When does a statement cross the threshold from inconsequential personal expression to a threat to public confidence? Would someone opining that the Government is incompetent on Facebook be subject to a Correction Direction if their post gains enough shares or likes to be considered capable of influencing public confidence? In the case of the death of NSF Dominique Lee, Facebook recent posts by his mother critical of the Government received viral status and revived attention to the three year old case in 2016. Would her posts be targeted because they contributed to a wave of diminished public confidence in the Government?

Mr. Speaker, we seek to amend Clauses 13 and 25 of the Bill which set out the provisions for the two Directions, by adding the requirement that each Direction must be publicly justified by the Minister. This means that for each Direction that has been issued, the Government should publicly explain or demonstrate three things: 1) evidence that demonstrates the falsehood, OR the evidence setting forth the true facts, 2) the public interest objectives of this Direction, and 3) why this Direction is suitable to achieve those public interest objectives.

I am heartened that the Minister agrees with the need for Ministers to provide more specific reasons on falsity and on public interest since this is currently not in the Bill when it was tabled. He assured this House that this will now be set out in subsidiary legislation. Subsidiary legislation, however, can be amended without coming before Parliament. So, our intent with the amendments Clauses 13 and 25 remains unchanged — that this amendment will ensure that any future Minister and/or Government would have to first change the primary legislation — that is tabling it in Parliament, therefore a higher barrier to clear.

Appeals Process: Swift and Low-Cost

The appeals process in Clauses 17, 29 and 35 could potentially limit the ability of appellants to seek judicial oversight because all appeals must be made first to the respective domain Minister. Currently, no time frame is provided in the Bill for a decision on the appeal to be made when the Bill was tabled. We seek to amend the clauses to state that the Minister shall do everything reasonable to ensure the appeals process is expeditious and low-cost.

Again, I am grateful that Minister Shanmugam has agreed that this provision that we have proposed is needed and clarified in his speech that this shall be addressed in subsidiary legislation with details. And again, Mr Speaker, our intent with Clauses 17, 29 and 35 remains unchanged — that this amendment will ensure that any future Minister and/or Government that attempts to use subsidiary legislation or internal practice to unnecessarily delay the appeals process would have to first change the primary legislation.

Independent Oversight: Creating an Independent Council

Mr Speaker, the Select Committee’s report contained an extensive list of recommendations derived from 170 written representations and their own deliberations. They highlighted and I quote, that “there is no one silver bullet to combat this complex problem, and a multi-pronged approach is necessary”. Indeed we must refrain from viewing legislation alone as a “silver bullet” that will sufficiently address this complex issue of online falsehoods. The Select Committee report listed 5 areas of proposed countermeasures, (i) nurture an informed public, (ii) reinforce social trust and cohesion, (iii) promote fact-checking, (iv) disrupt online falsehoods and (v) deal with threats to national security and sovereignty.

We propose that an independent council be set up to give effect to these Select Committee recommendations to be called Independent Council on Online Falsehoods (I refer to this henceforth as ‘The Council’). The Council’s primary objective is to assure the public that the Government is accountable for the routine exercise of powers under the Act. It ensures that regardless whether Parliament takes an active interest in the exercise of powers under this Act, there will still be routine independent oversight. The Council is empowered to evaluate the actions of the Government under this Act, evaluate other measures taken by Government to address online Falsehoods, and make recommendations to the Government on the exercise of powers under the Act. The Council is accountable to Singaporeans, in our amendment in Clause B(5)(i), the Council will publish annual reports of its activities, findings and recommendations. I do hope I clarified for Mr. Christopher de Souza on his misunderstanding yesterday of the Council as taking over the Ministerial function — we had shared this in the Explanatory Notes which were sent out with the Notice of Amendment on 30 April 2019.

I am glad that the Minister also shared in his speech that he agrees with the intent of the independent council. I believe that councils for such a purpose do not lead to unnecessary bureaucracy because we have numerous precedents to cite in support of this. The National Council on Problem Gambling set up in 2005 in conjunction with the Casino Control Act to address the social issue of problem gambling. Casinos were introduced to Singapore for the first time then — we may have been able to clearly justify the economic benefits of this new legislation at that time yet we could not know with certainty the collateral issues and damage, social or otherwise, that may result. The impetus to set up the Independent Council on Online Falsehoods is the same as that of the National Council on Problem Gambling: a recognition that a dedicated independent council is best suited to undertake the national responsibility of assessing the impact of a new legislation and significant development for the country and providing specific expertise to advise the Government on the effectiveness of current measures.

However, Mr Speaker, I would like to highlight that — unlike councils stipulated in other legislations — we are proposing that members of the Council are to be appointed by a Select Committee of Parliament, not by a Minister. We believe that this ensures that the Council stands as a separate and independent body from the Government. So yes, we agree with the Minister that the Executive is accountable to the Parliament, and all Singaporeans. But the Council serves more than the role of oversight.

If there’s one thing this House agrees unanimously on through this debate so far, it would be the importance of public education in our war on online falsehoods. Minister Iswaran has announced that a national framework to build information and media literacy will be launched by June 2019, jointly developed by the Ministry of Communications and Information, the National Library Board, Infocomm Media Development Authority and the Cyber Security Agency of Singapore. The Ministry of Education will also be rolling out a New Media Literacies toolkit to all primary and secondary schools, as well as junior colleges. The expertise and knowledge provided by the Council will help enrich these cross agency and whole of nation efforts.

Conclusion

Mr. Speaker, I understand that we are the first country to enact such a complex legislative intervention against online falsehoods which could only mean that this will be a steep learning curve for us. If I may, Mr. Speaker, I would like to request that Singaporeans be given a review of all exercise of powers under the Bill by way of a Ministerial Statement in Parliament a year from the implementation of the Bill, with the findings and recommendations from the Independent Council on Online Falsehoods.

The best antidote against the potential harms brought about by fake news is an educated and discerning citizenry. An informed citizenry can only be created and sustained if the Government remains open to debate and criticism in an increasingly complex world. Mistrust in public institutions also facilitates the uptake of falsehoods.

DPM Heng recently stated that the biggest “unknown” challenge that Singapore will face is the “nature of politics”. I understand that to be a question of whether Singapore — that is, the people and its Government — will be able to collectively wield sufficient political consensus for the best interests of the country in the long term. I agree with DPM Heng and believe for that to happen, we need the basis of trust between the Government and the people to be grounded in a climate of psychological security, one which allows all citizens to participate actively in the future of Singapore from a place of safety and responsibility, not fear of punitive consequences.

I acknowledge that it is in the interest of Government to maintain and further public trust. This would mean using executive powers to protect society and limiting the use of these same powers when they may discourage or chill robust criticism. As the Minister has shared, this Bill seeks to scope down and calibrate the Government’s powers compared to existing laws including the Broadcasting Act, Telecoms Act and so on. I would therefore sincerely urge the Government to consider reviewing these existing, harsher laws to honour the intent with this Bill of scoping down executive powers.

Mr. Speaker, the Minister is right that we are no lawyers and so yes, this last month has been a rich yet steep learning curve for me especially without the benefit of an institutional apparatus but thankfully with the support of a community of lawyers and concerned stakeholders. I would like to humbly remind members that Parliament has the final authority to approve any laws proposed by the Government. Parliament must meaningfully exercise that authority to further public confidence in our robust parliamentary processes. Minister Shanmugam has said that Ministers exercising their powers under this Bill will be accountable to Parliament and the public, and I believe that process starts with the consideration of these proposed amendments that we have put forth to the Bill, for an inclusive and thriving society that we will and can be.

Finally, I also want to second Ms. Irene Quay’s call yesterday for the Whip to be lifted. I urge members of this House to review the amendments set out in the Order Paper Supplement. Your vote for the specific amendments does not mean you are standing against the legislative intent of the Bill to curb online harms from falsehoods. It means you believe in this parliamentary process to register your, and your constituents’, concerns with the Bill and to ensure that this and future governments are bound to the intent of the Bill.

Thank you, Mr. Speaker.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Anthea Ong is a Nominated Member of Parliament. (A Nominated Member of Parliament (NMP) is a Member of the Parliament of Singapore who is appointed by the President. They are not affiliated to any political party and do not represent any constituency. There are currently nine NMPs in Parliament.)

The multi-sector perspective that comes from her ground immersion of 12 years in different capacities helps her translate single-sector issues and ideas across boundaries without alienating any particular community/group. As an entrepreneur and with many years in business leadership, it is innate in her to discuss social issues with the intent of finding solutions, or at least of exploring possibilities. She champions mental health, diversity and inclusion — and volunteerism in Parliament.

She is also an impact entrepreneur/investor and a passionate mental health advocate, especially in workplace wellbeing. She started WorkWell Leaders Workgroup in May 2018 to bring together top leaders (CXOs, Heads of HR/CSR/D&I) of top employers in Singapore (both public and private) to share, discuss and co-create inclusive practices to promote workplace wellbeing. Anthea is also the founder of Hush TeaBar, Singapore’s 1st silent teabar and a social movement that aims to bring silence, self care and social inclusion into every workplace, every community — with a cup of tea. The Hush Experience is completely led by lovingly-trained Deaf facilitators, supported by a team of Persons with Mental Health Issues (PMHIs).