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ABSTRACT
In Singapore, the introduction of the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) generated considerable debate and feedback. One of the main concerns was whether the law would unduly restrict the freedom of expression. In focusing on the provisions of POFMA that could possibly apply to hate speech, this paper situates the criticisms within the larger framework of international human rights law and international practices and proposes some ways forward to improve the regulatory framework for online hate speech.
KEYWORDS:
Acknowledgement
I thank Natalia Beadle for her extensive help in the preparation of this article. All errors remain mine.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Correction Statement
This article has been corrected with minor changes. These changes do not impact the academic content of the article.
Notes
1 The government has also stated that efforts in improving media and information literacy and promoting fact-checking would be taken as well. Indeed, simply developing an appetite for longform debates would go some way in neutralising simplified soundbites on, say, power structures and identity politics that seed the ground for online hate speech. In November 2022, the Singapore government also proposed to introduce a bill that would require intermediaries to take more proactive steps in removing ‘harmful content’. A discussion of that bill will have to be a subsequent endeavour.
2 The result was a 317-page report.
3 This is defined in section 3(2) as a statement that is made available to one or more end-users in Singapore on or through the Internet, MMS, or SMS.
4 Cf section 3(1)(e) of the Sedition Act 1948. Note, however, that the Sedition Act 1948 has been repealed: see Sedition (Repeal) Act 2021.
5 Cf section 8(1)(a) of the Maintenance of Religious Harmony Act 1990.
6 In recent times, the link between the two has manifested in its most violent form in debates on immigration policy and refugee policy (UN Human Rights Council Citation2018b).
7 Commentators have added that ‘[POFMA] does not provide a deadline within which the minister must decide. This should be expressly set out in subsidiary legislation (as is usually the case), and should ideally be kept short so as to enable the aggrieved person to have recourse to the courts without undue delay.’ (Omar Citation2019). The Ministry of Law later said it would consider this suggestion (Shanmugam Citation2019). This eventually translated to regulation 14 of the Protection from Online Falsehoods and Manipulation Regulations 2019.
8 See also the government powers under the Broadcasting Act 1994.
9 It has also been suggested that POFMA can be applied in a preventive way that focuses on the intent to do harm, without harm necessarily materialising (Tham Citation2019b).
10 Mainly, the issue of whether a statement is a fact or an opinion for the purposes of setting aside a correction direction or stop communication direction under section 17(5)(b) of POFMA has been repeatedly raised and discussed: see for instance Singapore Democratic Party v Attorney-General [2020] SGHC 25 at [24]–[32]; The Online Citizen Pte Ltd v Attorney-General [2020] SGHC 36 at [46]–[51]; The Online Citizen Pte Ltd v Attorney-General [2022] SGHC 177 at [35]–[39]. Moreover, the notion that the courts remain the arbiter of truth and falsity, ie, that the Minister’s assessment that a false statement of fact has been made is subject to a final determination by the court as to whether or not it is correct (The Online Citizen Pte Ltd v Attorney-General [2021] 2 SLR 1358 at [60]–[61]).
11 Indeed, the ambiguities present in POFMA extends even to terms that have been defined – ‘in the public interest’ being the prominent example – the definition seems circular when we compare the language between sections 4 and 10 (or 11, 12, 20, 21, 22, and 23 for the matter).
12 Though in a different context, article 16 of the General Data Protection Regulation (2019) Directive 95/46/EC has shown that the concept of incomplete accounts of information is difficult to ascertain and adjudicate upon.
13 The Online Citizen Pte Ltd v Attorney-General [2021] 2 SLR 1358 at [158]–[159].
14 See for instance Salov v Ukraine App No 65518/01 (ECtHR, 6 September 2005) at [113].
15 Singapore Democratic Party v Attorney-General [2022] SGHC 100 at [55].
16 Singapore Democratic Party v Attorney-General [2022] SGHC 100 at [56].
17 Chen Cheng and another v Central Christian Church [1998] 3 SLR(R) 236 at [34].
18 Singapore Democratic Party v Attorney-General [2022] SGHC 100 at [59]–[60]. While this case went on appeal, this finding was not disturbed by the Court of Appeal: see Singapore Democratic Party v Attorney-General [2022] SGCA 56 at [57]–[58].
19 This will be elaborated in the next section.
20 Even then, this potentially places intermediaries that operate in multiple jurisdictions between a rock and a hard place – while POFMA requires them to comply with directions as there is no defence of duty under law, other jurisdictions may sanction them for unduly restricting the freedom of expression of the person who posted the content.
21 See section 3(1)(e) of the Sedition Act; section 8(1)(a) of the Maintenance of Religious Harmony Act 1990.
22 Section 7(1)(a) of POFMA.
23 Section 15(1)(a) of POFMA.
24 Section 42(1)(b) of POFMA.
25 This is evinced by the UN’ Internet Governance Forum in 2018.
26 The International Bill of Rights comprises the ICCPR, the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (entry into force 3 January 1976) and the Universal Declaration of Human Rights, 10 December 1948, 217A(III).
27 Article 19(2) states that everyone ‘shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’
28 Cf article 19(1), which states that everyone ‘shall have the right to hold opinions without interference.’
29 Article 18(3), which pertains to the contiguous right of freedom of religion, similarly restricts religious expressions that might cause harm to public safety, order, health, morals, or the fundamental rights and freedoms of others. See also principle 6 of The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1995).
30 This has been the unanimous position across all international human rights bodies, be it the UN (see for instance Corinna Horvath v Australia UN Doc CCPR/C/110/D/1885/2009 (HRC, 27 March 2014) at [3.11]), the Strasbourg court (see for instance Avram v Moldova App no 41588/05 (ECtHR, 5 July 2011) at [24]), the Inter- American court (see for instance Tristán Donoso v Panama, Preliminary Objection, Merits, Reparations, and Costs Judgment (IACtHR, 27 January 2009) at [56]), or the African Human Rights court (see for instance Interights v Mauritania AHRLR 87 Comm no 242/2001 at [78]–[79]). See also UN Human Rights Committee, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 at [22]–[34].
31 See also article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (entry into force 4 January 1969).
32 This has been the case since the SCOTUS decision interpreting the Amendment I of the Constitution of the US in Brandenburg v Ohio, 395 US 444 (1969).
33 For instance, consider the Third Committee’s Experts recommendation that states must develop zero-tolerance policies towards white supremacy – and other extremist ideologies, hate speech and incitement to hatred (UN Citation2018).
34 See for instance Bédat v Switzerland App no 56925/08 (ECtHR, 29 March 2016) at [54]; Bierski v Poland App no 46342/19) (ECtHR, 20 October 2022) at [42] and [49]; Pavlov v Russia App no 31612/09 (ECtHR, 11 October 2022) at [75].
35 See for instance Ilmari Länsman v Finland UN Doc CCPR/C/52/D/511/1992 (HRC, 14 October 1993) at [9.4].
36 ETS 5 (4 November 1950). Having said that, there is no material difference between article 19 of the ICCPR and its equivalent in the ECHR in terms of the grounds in which the freedom of expression may be limited.
37 The European cases that have consistently upheld that speech that offends and shocks the conscience is permissible (see for instance Sürek v Turkey App no 23927/94 (ECtHR, 8 July 1999) at [58]). This should, likewise, be treated with some caution.
38 1155 UNTS 331 (entry into force 27 January 1980). Typical canons of interpretation are set out in article 31.
39 See for instance Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary App no 22947/13 (ECtHR, 2 May 2016) at [69]; Drousiotis v Cyprus App no 42315/15 (ECtHR, 5 October 2022) at [41]. The factors include the context of the comments, the measures applied by the intermediary company to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the applicant company. For the (similar) position under the European Court of Justice, see Google France, Google Inc v Louis Vuitton Malletier SA C-236/08 (CJEU, 23 March 2010) at [120].
40 Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015) at [142]–[156]. In that case, the contents in question were left online for no less than six weeks.
41 Active monitoring is, of course, only one step away from pre-emptive censorship and prior restraint.
42 See also Delfi AS v Estonia App no 40287/98 (ECtHR, 16 June 2015) at [27]–[31].
43 The French ‘Loi Avia’, a law aiming to regulate online hate speech, entered into force on 1 July 2020. However, the French Constitutional Court had earlier struck down the core provision of the law, which mandated the removal of hate speech from online platforms within 24 h of notice, finding this to be a breach of the freedom of expression (Boring Citation2020).
44 Following the publication of the Online Harms White Paper in April 2019, the UK introduced the Draft Online Safety Bill in May 2021: https://bills.parliament.uk/publications/49376/documents/2822
45 India introduced the Guidelines for Intermediaries and Digital Media Ethics Code Rules in February 2021, subjecting social media intermediaries to an expanded set of due diligence obligations: https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf.
46 While Malaysia’s Anti-Fake News Act of 2018 was repealed in late 2019, Malaysia adopted similar provisions in Emergency (Essential Powers) (No 2) Ordinance 2021, which aimed to tackle misinformation related to the pandemic (Schuldt Citation2021).
47 Singapore also subscribes to the dualist approach to the domestic incorporation of international law (Chen Citation2011).
48 The 19 states that have neither signed nor ratified do not include any major states.
49 The requisite elements are that of widespread and representative state practice and opinio juris: North Sea Continental Shelf Cases, ICJ Reports 1969 at [73]–[77].
50 Liu v Russia (no 2) App no 29157/09 (ECtHR, 26 July 2011) at [88].
51 See generally Robert Faurisson v France UN Doc CCPR/C/58/D/550/1993 (HRC, 2 January 1993).
52 Further, the assessment of whether the requirements of prescription by law, the existence of a pressing social need, and a proportionate response with no less restrictive measures must necessarily be conducted against the backdrop of the specific circumstances of a state and take into account the ‘specific need on which they are predicated’ (UN Rights Committee Citation2011).
53 A common tactic they use is to brand groups they disagree with as ‘extremist’ or ‘far-right’. As private corporations, they can claim to be not obligated to uphold constitutional freedoms, but they should not be given free rein to do as they please either.
54 It was also stated in Parliament that such a body would not have the same democratic mandate as the government to make decisions (M. Z. Lim Citation2019).
55 As to whether there are privacy rights in Singapore, see Chen Siyuan, ‘The Regulatory Framework for Aerial Imaging by Recreational Users of ‘Drones’ in Singapore: Old and Emerging Issues and Some Possible Solutions’ (2017) 29(1) Singapore Academy of Law Journal 126.
56 See for instance Business Insider, ‘The Turkish Government Reportedly Blocked WhatsApp and Other Social Media Sites’ (4 November 2016): https://www.businessinsider.com/social-media-and-messaging-sites-blocked- in-turkey-2016-11/?IR = T; The Straits Times, ‘Indonesian Government Lifts Ban on Telegram’ (12 August 2017): https://www.straitstimes.com/asia/se-asia/indonesian-government-lifts-ban-on-telegram; CNA, ‘Sri Lanka Social Media Shutdown Raises Fears on Free Expression’ (23 April 2019): https://www.channelnewsasia.com/news/asia/sri-lanka-social-media-shutdown-raises-fears-on-free-expression- 11469136.
57 The Straits Times, ‘Closed, Encrypted Communications Also Covered by Law’ (8 May 2019): https://www.straitstimes.com/politics/closed-encrypted-communications-also-covered-by-law-edwin-tong.
58 See also The Straits Times, ‘Facebook Rolls Out Fact-Checking Service in Singapore to Combat Fake News’ (3 May 2019): https://www.straitstimes.com/tech/facebook-rolls-out-fact-checking-service-in-singapore-to- combat-fake-news; The Daily Wire, ‘Journalism Schools Poynter Publishes List of ‘Unreliable News’’ (2 May 2019): https://www.dailywire.com/news/46703/journalism-school-poynter-publishes-list-ashe-schow.
59 As of 1 December 2021, POFMA had been invoked 33 times, with 19 targeted at COVID-19 misinformation (Chee Citation2021).
60 For instance, a man was charged over making Instagram Stories posts with deliberate intent to wound religious feelings of any person (Yeo Citation2021). Another man was also charged for making remarks on his Facebook and Instagram accounts to wound the feelings of the Christian community on several occasions (Kamil Citation2022).
61 Section 298 of the Penal Code 1871 targets persons who act with the intention of wounding the religious or racial feelings of any person.
62 The 2021Edelman Trust Barometer reflected that the trust index for trust in the government in Singapore was 76, well above the global average of 53 (Edelman Citation2021).