The Human Right to Citizenship a Slippery Concept Pdf -review -Book Review

— Marcus Teo, Sheridan Fellow, National University of Singapore's Faculty of Police force

The threat that false news poses to gratis voice communication and democracy is now well-established, though less established is how Governments should accost it. Legislation which requires social media companies and intermediaries to remove or rebuff falsehoods posted on their platforms, similar Germany's Network Enforcement Act, are now no longer rarities,[1] though some countries like the U.s.a. continue to resist regulation. Even then, among states that practise regulate online falsehoods, it remains rare for laws to require individuals to accept responsibility for their statements. This responsibility is potentially very onerous, since individual statement-makers may lack the data or resources needed to testify the legitimacy of their statements.

Singapore'southward Protection from Online Falsehoods and Manipulation Human action 2019 (POFMA) is an example of such a law: it grants the Minister for Home Affairs power to issue Directions against argument-makers who make faux statements of fact deemed threatening to the public interest.[2] These Directions oblige statement-makers to either suspend a notice to their statements (which the Human activity calls "bailiwick statements") stating that they are fake,[three] or remove those statements entirely,[4] on pain of criminal penalties.[5] Websites which repeatedly post statements subject field to Directions may besides have access to them blocked or disabled by internet service providers or social media platforms.[six] POFMA, yet, does contain an artery of redress: argument-makers may appeal Directions to the High Court on several grounds, including that the subject statement was not a faux argument of fact, which the Court must assess de novo.[vii] A further right of appeal to the Courtroom of Appeal is also available with leave.[8]

Given POFMA's potential implications for individuals, the right to appeal POFMA Directions is of considerable importance. Yet, the text of POFMA itself leaves several important questions unanswered: is the Minister's ability to identify subject statements unfettered or guided past law? Who bears the burden of proving the truth or falsity of bailiwick statements in an appeal? And more than fundamentally, is POFMA consistent with the right to free speech enshrined in Article 14 of Singapore's Constitution? In The Online Denizen five Attoney-General,[9]its outset determination rendered on appeals from POFMA Directions, the Singapore Court of Appeal set out to address these questions.

Online Citizen involved ii appeals: in the showtime, an opposition party had published an online article and two Facebook posts containing statements alleging a ascension "proportion" of unemployment amongst "locals" in Singapore; in the second, an online news site in Singapore had published an article noting that a Malaysian homo rights group had declared that prison house guards had mistreated prisoners during their execution. Both applicants were issued Directions to "right" their "subject statements" with a notice that they were false and the Government's perspective on what the truth was ("Correction Directions"). The applicants challenged the Minister's interpretation of their articles and posts and his identification of subject statements therefrom, which they contended skewed the significant of their material and led to them unfairly existence labelled as false statements. The applicants also brought a more fundamental claiming to the constitutionality of the provisions of POFMA empowering the Minister to consequence Correction Directions, on grounds that they unjustifiably infringed the right to free speech contained in Article xiv of Singapore's Constitution.

The Court of Appeal upheld POFMA'south provisions every bit constitutional: they did non amount to restrictions of protected speech because they did not compel speech communication.[10] Though information technology was unclear whether compelled voice communication amounted to a speech restriction under Article xiv, even if it did, merely an obligation to assert a item perspective "as truthful", and not an obligation to merely "communicate" information technology, amounted to compelled voice communication;[eleven] because POFMA Directions did the latter non the former, POFMA did not compel speech communication.[12] Having established POFMA's constitutionality, the Courtroom then fix out a v-pace framework to address appeals of Correction Directions, under which the Courtroom had to determine:[xiii]

• First, what the Minister intended to identify as the subject area statement;
• Second, whether the material published by the applicant could reasonably comport the Minister's intended meaning;
• 3rd, whether the subject statement was a statement of fact and not of opinion;
• Fourth, whether the subject field statement was false; and
• Finally, whether the subject statement was communicated in Singapore.

Finally, the Court recognised that, on the tertiary to fifth steps, the statement-maker diameter the brunt of proving that the subject statement was either not one of fact, true or non communicated in Singapore.[xiv] This, however, was merely a burden to prove a prima facie case of reasonable suspicion; thereafter, the evidential burden would shift to the executive to rebut it, with the Court making the final decision on a balance of probabilities.[15]

On the facts, the online news site'south appeal failed, because the identified argument, that prison guards had mistreated prisoners during their executions, could reasonably be borne by the published commodity, and the statement was a demonstrably simulated statement of fact communicated in Singapore.[16] The opposition party'due south entreatment, withal, succeeded in office: while the Government minister believed the party had declared that employment for both Singaporean citizens and permanent residents had declined, this statement was non reasonably borne by the published commodity and posts, where the party had obviously bars itself to Singaporean citizens; the Minister's identified "subject statement" was thus not communicated in Singapore.[17]

Iii aspects of Online Denizen are noteworthy. First, the 2nd stride of the Court's v-step framework for addressing appeals of Correction Directions reasserts the judiciary'due south role as the final arbiter of truth under POFMA. This is a rejection of a position taken by i of the courts below that it was up to the Minister to identify a "subject statement" from the statement-maker'south published materials, fifty-fifty if that meant ignoring the context in which the identified statement was published, and impugn that "subject statement" equally false on that footing.[18] Were this position correct, the Minister could misconstrue a statement-maker's words and allege that she had fabricated a false statement on that basis. The Court'southward five-step framework, still, makes it clear that the Government minister'southward identified statement must be i reasonable interpretation of the statement-maker's published fabric: the Minister could only read a subject area argument "out of context" if an "observable segment" or "course" of potential readers could reasonably be expected to do so as well,[19] every bit might exist the instance with "clickbait" articles or articles using "deceptive headlines".[20] But it remains for the court, non the Minister, to consider on an "objective approach" whether the Minister's identified argument is a reasonable interpretation of the published material.[21]

2d, the Courtroom'south decision on the burden of proof sought to strike an appropriate balance between the individual statement-maker and the public interest in combatting falsehoods.[22] Although the burden is nominally placed on the statement-maker, it is a low one, which only filters out "frivolous or vexatious" challenges.[23] More importantly, the Court also affirmed that the Minister had a prior obligation, when issuing the Direction, to disclose "the reason(s) underlying the determination that that bailiwick statement is a false statement of fact, including the grounds upon which the determination is made."[24] This prior duty to give reasons, coupled with the lowering of the standard of proof, goes a long style to mitigating data asymmetries that argument-makers would otherwise face. Information technology is also a considerable innovation within the context of Singapore public police force: there is presently no constitutional or statutory correct to data, and the Regime does not habitually brand official records publicly available.[25] The duty to give reasons for Directions inside POFMA's framework therefore does more than than equip applicants to discharge their burdens of proof; it likewise ensures that the Government cannot legally quash assertions of fact without demonstrating why it believes those assertions false.

Third and finally, the Court's reasoning that the issuance of Correction Directions does not restrict complimentary speech represents Singapore police force's first attempt to grapple with the doctrine of compelled oral communication in costless speech constabulary. The Court's approach was a markedly conservative 1: information technology drew its stardom between obligations to assert perspectives equally true and obligations to merely communicate perspectives from the dissenting judgements of Rehnquist and Blackmun JJ in the Us Supreme Courtroom's decision in Wooley five Maynard.[26] The Courtroom also cited the Great britain Supreme Courtroom's recent decision of Lee 5 Ashers, where Baroness Hale had reasoned that the right to freedom of expression in the European Convention of Human Rights would be prima facie restricted if individuals were "required to express a message with which they deeply disagreed".[27] This, however, was not what POFMA Directions did: argument-makers could yet qualify themselves by saying that the "Correction Direction [is] existence challenged under s 17 of the POFMA, and that whether there [are] whatsoever grounds for setting it aside pursuant to south 17(5) remain[southward] subject to judicial determination."[28]

The Court's reasoning hither, however, is not particularly persuasive even on its own terms, considering the distinction between obligations to affirm perspectives and to communicate them is slippery: when does a communication turn into an assertion? Since a Direction requires statement-makers to communicate "a statement … that the subject statement is simulated",[29] non a find that the Government believes that the subject argument is false, isn't it an obligation to assert rather than merely communicate a position? Moreover, the Court'south contemplated permitted qualification is not a clear disavowal of that obliged assertion: a statement that the statement-maker is challenging the Direction is at nearly a argument that the argument-maker believes that the subject statement is true, not that it is true. If Online Denizen is Singapore's outset venture into the doctrine of compelled speech communication, it is non a particularly promising one; but by recognising the doctrine itself, information technology does hold out the hope for future potentially richer developments.

Online Citizen is a remarkable judgment: it sets out a nuanced and well-calibrated framework for addressing appeals of POFMA Directions; even if information technology does non satisfactorily address constitutional questions arising from POFMA itself. The decision thus provides an instructive example of how fake news laws could operate in practice, and how even onerous obligations imposed thereunder can be subject to and tempered by detailed and principled legal frameworks. More than broadly, Online Denizen reaffirms the comparative insight that, in dominant party democracies, courts tend to resolve public police issues at the sub-constitutional level, perhaps to avoid a direct confrontation with the legislature.[30] Yet, the Court'due south judgmentis also proof of how such sub-constitutional developments can be effective means of restraining country power and preserving individual rights, even as increased threat sensitivity among Governments on fake news spark fears of regulatory overreach worldwide.

Suggested citation: Marcus Teo, Giving Substance to Singapore's Faux News Constabulary: Online Denizen, Int'l J. Const. Fifty. Web log, Nov four, 2021, at: http://www.iconnectblog.com/2021/11/giving-substance-to-singapores-fake-news-law-online-citizen/

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[1] For an overview, run into Alberto Alemanno, How to Counter False News: A Taxonomy of Anti-Fake News Approaches, 9 Eur. J. Hazard Reg. 1 (2018).

[2] POFMA, ss. 10 and iv.

[3] Id., south. 11.

[4] Id., s. 12.

[5] Id., due south. 15.

[6] Id., ss. 32-34.

[seven] Id., s. 17(5)(b).

[8] Id., s. 17(5)(8).

[nine] The Online Citizen v Attoney-General [2021] S.G.C.A. 96.

[ten] Id., [79]. And even if they did, the Court reasoned in obiter that those restrictions were justifiable, since POFMA'due south provisions had an objective "nexus" with "public society", which was a legitimate purpose contained in Article 14's limitation clause (Id., [81]-[105]).

[eleven] Id., [71]-[72], [76].

[12] Id., [78].

[13] Id., [117], [163].

[14] Id., [183].

[15] Id., [183].

[xvi] Id., [235]-[244].

[17] Id., [217]-[234].

[18] See the give-and-take in The Online Citizen v Attorney-Full general [2020] SGHC 36, [52]-[55]. For a criticism, see Marcus Teo and Jonathan Hew, Context and Pregnant in the Interpretation of Statements Under POFMA, Singapore Police Gazette, June 2020, available at https://lawgazette.com.sg/characteristic/estimation-pofma/ (accessed 22 Oct 2021).

[19] Online Citizen, supra notation 9, [136].

[twenty] Id., [157].

[21] Id., [136].

[22] For a discussion of the competing approaches adopted in the courts below, come across Marcus Teo and Kiu Yan Yu, Burden of Proof and False Statements of Fact under the Protection from Online Falsehoods and Manipulation Human activity 2019, 33 Sing. Ac. L.J. 760 (2021).

[23] Online Citizen, supra note 9, [184].

[24] Id., [182].

[25] Come across Tee Zhuo, Parliament: Simply 8% of two million public government records searchable on National Athenaeum online portal, The Straits Times, September 4, 2019, available athttps://www.straitstimes.com/politics/parliament-just-160000-of-two-million-public-government-records-have-metadata-on-nas-web (accessed 4 March 2020).

[26] 430 U.Due south. 705, 720-722 (1977).

[27] Online Denizen, supra note 9, [54].

[28] Id., [77].

[29] POFMA due south. eleven(1)(a), emphasis added.

[30] See Po Jen Yap, Constitutional Dialogue in Common Law Asia ch. 5 (2015).

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Source: http://www.iconnectblog.com/2021/11/giving-substance-to-singapores-fake-news-law-online-citizen/

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