Introduction

The Protection from Online Falsehoods and Manipulation Act 2019 (POFMA), more commonly known as Singapore’s “fake news law”, came into effect on 2 October 2019 and is aimed at providing the government with powers to act against online falsehoods to protect the public interest.

One of the measures put in place against online falsehoods is the government’s authority to issue a correction direction (CD) under Part 3 of the POFMA. Under section 10 of the POFMA, a minister may instruct the appointed competent authority to issue a CD if the following conditions are met:

1. a false statement of fact has been or is being communicated in Singapore; and
2. a minister is of the opinion that it is in the public interest to issue the CD.

A CD, as defined under section 11(1) of the POFMA, is a direction that requires a statement-maker to communicate a notice that contains one or both of the following:

1. a statement that the subject statement contains a false statement of fact;
2. a specified statement of fact or a reference to a specified location where the specified statement of fact may be found.

A statement-maker who is not satisfied with the issuance of a CD against him must first make an application to the minister to vary or cancel the CD under section 19(2)(b) of the POFMA. Pursuant to section 17(2) of the POFMA, the statement-maker can only make an application to the High Court to set aside the CD if the application to the minister was refused in whole or in part. Seen in this light, such applications to court are, in effect, appeals against the minister’s refusal to vary or cancel the CD.

In this regard, section 17(5) of the POFMA provides that there are only three grounds on which the High Court may set aside a CD:

1. the person did not communicate in Singapore the subject statement;
2. the subject statement is not a statement of fact, or is a true statement of fact; or
3. it is not technically possible to comply with the direction.

To date, there have been two High Court decisions relating to the application to set aside such CDs issued by the government: Singapore Democratic Party v Attorney-General [2020] SGHC 25 (SDP v AG) and The Online Citizen Pte Ltd v Attorney-General [2020] SGHC 36 (TOC v AG).

In SDP v AG, the CDs were primarily in relation to the subject statement “Local PMET retrenchment has been increasing” whereas in TOC v AG, the CDs addressed the contents of an article about the allegedly brutal and unlawful state execution process in Changi Prison.

Although in both cases the applications to set aside the CDs were dismissed, what is of particular interest is the courts’ differing decisions on where the burden of proof lies in these appeals.

SDP v AG

In SDP v AG, the Honourable Justice Ang Cheng Hock (Ang J) held that the attorney general bears the burden of proof. His reasons for this finding are as follows:[1]

1. Firstly, section 103(1) of the Evidence Act[2] requires the attorney general to prove that the statement is false because it is the minister who desires the court to give judgment that an individual’s right to freedom of speech and expression under Article 14 of the Constitution of the Republic of Singapore be curtailed.
2. Secondly, if the burden of proof rests with the statement-maker, the court’s discretion to scrutinise the minister’s earlier decision in issuing the CD would be fettered, and this would not be consistent with the requirement under rule 5 of the Supreme Court of Judicature (Protection From Online Falsehoods and Manipulation) Rules 2019 (S 665/2019) (POFMA rules) that the court should approach the matter “by way of rehearing.”
3. Thirdly, Parliament could not have intended for the statement-maker to bear the burden of proof due to the information asymmetry that exists between the minister and the statement-maker.

Ang J further held that there is no statutory duty on the minister to provide evidence to show that he is justified in issuing a CD, although he is required to give the basis for a subject statement being found to be a false statement of fact.[3] Accordingly, in the hypothetical situation where the minister or attorney general “completely fails to provide any evidence of the falsity of a particular subject statement, the [attorney general] could still succeed in having the appeal under section 17(1) of the POFMA dismissed”.[4] (Emphasis added.)

TOC v AG

In the later case of TOC v AG, decided 14 days after SDP v AG, the Honourable Justice Belinda Ang Saw Ean (Belinda J) disagreed with Ang J’s decision and found that it was the statement-maker, not the attorney general, who bore the burden of proof in an application to set aside the CD. Belinda J’s reasons for her decision are summarized below:[5]

1. The statutory language of section 17(5) of the POFMA supports the finding that the burden of proof is borne by the statement-maker:
   1. The grounds of section 17(5) characterise the legal elements in terms of the positive case that the statement-maker has to make;
   2. The legal elements in section 17(5) are worded differently from the language of section 10(1), which states the legal elements in terms of the conditions that the  attorney general has to satisfy;
   3. The procedure for filing evidence under the POFMA rules require the statement-maker to present its evidence first. If the legal burden of proof is on the  attorney general, the court would be forced to read into the provision a statutory presumption in favour of the statement-maker that is simply not there, either explicitly or implicitly.
2. Section 103 of the Evidence Act is a red herring; section 2(1) of the Evidence Act makes clear that section 103, which is under Part III of the Evidence Act, shall apply to all judicial proceedings but not to affidavits presented to any court. Notwithstanding the underlying common law principle that “he who asserts must prove,” greater weight must be given to the language of section 17(5) of the POFMA in assigning the legal burden of proof.
3. The issuance of a CD does not constrain the freedom of speech under Article 14 of the Constitution as it does not prevent the statement-maker from maintaining the original text of its published material, but only requires the statement-maker to insert a correction notice within its published material.
4. Further, imposing the burden of proof on the minister is problematic because Part 3 of the POFMA bifurcates the minister’s responsibilities under section 10 of the POFMA from the court’s powers under section 17 of the POFMA. In this regard, section 17(5) of the POFMA does not permit the statement-maker to appeal on all of the legal elements under section 10(1) of the POFMA. Nonetheless, it is incumbent upon the minister to ensure there is sufficient evidence in his or her administrative determination to issue a CD, as the minister’s direction would have to show “on the face of it” that the statement in question is false.
5. Lastly, Parliament could not have intended, and did not express, for the attorney general to bear the burden of proof owing to the information asymmetry between the parties. Even if information asymmetry is a relevant concern, placing the burden on the statement-maker is not oppressive because once the statement-maker adduces prima facie evidence of the statement’s truth, the evidential burden subsequently shifts to the attorney general to demonstrate otherwise.

Commentary

The consequences of the different findings on the burden of proof are not insignificant. In determining the truth of the subject statements identified by the issued CDs, Ang J dismissed the application in SDP v AG on the basis that the attorney general had proved its case on a balance of probabilities by adducing sufficient evidence in the form of statistics from the Ministry of Manpower. Belinda J dismissed the application in TOC v AG because the statement-maker simply did not produce any evidence to prove the truth of the subject statement.

While the POFMA does not clearly state who bears the burden of proof in appeals to the High Court, Belinda J’s interpretation of the statutory language in the POFMA and the POFMA rules is persuasive in placing the burden of proof on the statement-maker. Indeed, the language in section 17(7) of the POFMA, which expresses that it is the statement-maker who must establish “a prima facie case that it is technically impossible to comply with the Direction,” further supports Belinda J’s holding that the burden of proof lies with the statement-maker in establishing the grounds of appeal under section 17(5) of the POFMA.

Following Belinda J’s observations that section 103 of the Evidence Act was a red herring and that the issuance of a CD does not constrain the statement-maker’s constitutional right to freedom of speech, Ang J’s holding that the attorney general should bear the burden of proof on this basis appears a little strained. Further, Belinda J had rightly pointed out that there was no express parliamentary intent that the attorney general was to bear the burden of proof simply on the basis of information asymmetry.

Nonetheless, Ang J’s holding remains attractive as it serves as a practical check on any minister who instructs the competent authority to issue CDs. Notwithstanding Belinda J’s observation from the parliamentary debates that a minister would have to show sufficient evidence “on the face” of the CD issued that the subject statement is false, Ang J had rightly pointed out that the minister has no statutory obligation to do so. Hence, if the burden of proof lies on the statement-maker, the minister’s prior administrative decision would be correct by default in the absence of any evidence of the truth of the subject statement. This was precisely what happened in TOC v AG, even though Belinda J did go on to examine the attorney general’s evidence in respect of truth of the subject statement.

Yet even in this regard, Belinda J’s decision is to be ultimately preferred over Ang J’s holding. As highlighted by Belinda J, placing the burden of proof on the statement-maker would not be oppressive as the evidential burden would shift to the attorney general once the statement-maker raises a prima facie case. Further, if the statement-maker is not even able to raise a prima facie case, or refuses to take a position regarding the truth of the subject statement (as in the case of TOC v AG), it is difficult to see how the CD was incorrectly issued in the first place.

While Ang J was of the view that the court’s discretion would be fettered in such a situation and that this would be contrary to POFMA rule 5, the better view is that there is actually no fettering of the court’s decision. Interestingly, this was not specifically addressed in Belinda J’s judgment. Nonetheless, as argued by the attorney general in TOC v AG, the fact that the appeal is brought by way of rehearing under POFMA rule 5 only means that “the court may receive any evidence and exercise its discretion without being influenced by the prior decision.”[6] As further argued by the attorney general in TOC v AG, Ang J’s holding that the burden of proof does not lie with the statement-maker is also not supported by POFMA rule 5, which “speaks nothing about the burden of proof.”[7]

At present, both High Court decisions are equally authoritative on this issue of burden of proof in appeals to the court to set aside a CD under the POFMA. Given that both the Singapore Democratic Party and The Online Citizen have since appealed against the High Court decisions, it remains to be seen whether the apex court of Singapore would prefer Belinda J’s decision or Ang J’s decision on the burden of proof, or come up with an entirely different framework altogether.

Notes