“Fake News Law” – Some Thoughts Before The Second Reading

“Fake News Law” – Some Thoughts Before The Second Reading

On Tuesday, the Protection from Online Falsehoods and Manipulation (POFMA) Bill goes to Parliament for Second Reading, a culmination of a month-long lively debate.

Some observations before we enter the final stretch:

ENGAGEMENT

Ministers, and in particular Law Minister K Shanmugam, have gone out of their way to engage and respond to local critics. I emphasise local because we had the usual flurry of criticisms from foreign rights groups, lobbyists and even foreign academics, people who are not part of the Singaporean voting electorate, and whom our officials have no obligation to be accountable to. Min Shan even wrote an Op-Ed for the MSM, to pre-emptively address issues that he would no doubt speak about on Tuesday – a highly unusual gesture.

The Government is trying to listen, to engage with reasonable critics, but as I have argued before, listening does not mean they are obliged to agree. Some suggestions – such as an expedited and less costly way to hear appeals, and for a public accounting of the reasons behind a takedown order – will be taken up in subsidiary legislation. Some suggestions will not be, and I look forward to hearing the reasons why.

Importantly, just because the G listens, does not mean they have to agree. This is common sense, but we will have the usual bunch of noisy activists having a hissy fit because THEIR demands are not met. And they wonder why they are ignored.

THE NATURE OF LAWS

Quite a few critics have said that the laws are too broad and unnecessary, given existing laws. One such strident critic, Professor Cherian George, has written a flurry of articles on this subject.

I find this baffling, especially from Prof George, who when appearing before the Select Committee, conceded that we “are on safer ground if we update our laws to keep up with changing modalities”, even when he was insisting that existing laws are adequate. But in his latest blog post (https://www.airconditionednation.com/2019/05/02/pofma/), he again argued that there isn’t a need for new laws since existing laws already give the Government broader powers to deal with online falsehoods. He has also consistently argued that the POFMA bill uses “sweeping language”.

I will take these two objections in turn, because I think Prof George is confused about a) why new laws are needed and b) how laws are drafted.

It is useful for readers to know both.

A)

The key term in the new bill is ONLINE. This should be obvious. Whilst it is true that we do have existing laws such as the Broadcasting Act, these laws were drafted in the pre-internet world. The nature of the Internet has brought on two features that the old print/broadcast world did not have to deal with – One, the instantaneous nature of a post, and two, the speedy virality of news.

It should be clear to all and sundry that old laws that regulated print and broadcast media are manifestly inadequate for the internet.

So when we say we need more calibrated laws, it is not for more calibrated oppression (like Prof George and critics like him insinuate), but more calibrated for a new technology – the Internet – that our old laws do not cater for.

All regulators have to struggle with this.

Prof George’s military weapon analogy – that we should not have more calibrated small arms which can do more damage, when we already have nuclear weapons – is thus a faulty one.

The right military analogy is that we only had cluster bombs, but now we need precision missiles to deal with a very specific problem that did not exist before.

To re-iterate, we need new laws because our old laws are unable to deal precisely with the new issues which the internet brings.

In this sense, the powers under POFMA are NARROWER because they are more PRECISE.

B)

Once we understand that we need new laws, the difficulty then lies in drafting these laws.

This is jurisprudence at work – the application of the theory or philosophy of law.

Firstly, the definition of facts in the POFMA is jurisprudentially sound.

We are not talking about the laymen definition of facts here; this is one of the key misunderstandings of critics , including some of the academics, who insist that there are ‘varying degrees of facts’ and how facts might change.

We are talking about the statements of facts in law, not epistemological definitions of facts argued about by academics and philosophers.

Every day, judges sit around the world in courts adjudicating on statements of facts, that are verifiable to the standards of law.

If there is no such thing as facts, or varying degrees of facts, all judges globally might as well stop work right now because no judgement could ever be made.

A statement of fact legally defined, is verifiable based on evidence.

It is uncontroversial.

Secondly, laws in general also have to be broad enough to cover all scenarios – it makes no sense to list down a specific set of scenarios which they will apply. This is also the reason why there is the clause on ministerial exemptions – a clause found in many laws.

There might be some scenario that the law should not or cannot be applied, and Ministers and the Judiciary should not be hemmed in to punish someone if so. For example, if a takedown order cannot be technically complied to, the law allows the technology company to be exempted. We cannot know how technology is going to evolve that makes such remedies technically possible or impossible, and so the law has to be broad enough and give some discretion to those applying the laws.

This is not ‘sweeping language’. This is the practice of drafting good law.

And as Min Shan replied to SC Hapreet Singh, if lawyers, jurists and legislators have a better and more jurisprudentially sound way of drafting the law, let’s hear it.

We have had none.

Looking To The Future of more New Laws

POFMA will not be the end of the issue.

As I have pointed out above, many of our laws were drafted in a pre-internet age and have to be refined and calibrated.

The elephant in the room has to be The Broadcasting Act itself, which the Government has repeatedly said needs to be updated, but has yet to do so.

It will not be easy, with a constantly changing technological landscape.

And no doubt, when the Broadcasting Act is finally updated, we are going to again hear the howls of dismay from freedom of the press advocates, who will again decry the ‘unnecessary new laws’ with ‘sweeping powers and broad language’.

When they do so, I will re-post this article.

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