Case Summaries

Singapore Democratic Party v Attorney-General [2020] SGHC 25

SUPREME COURT OF SINGAPORE

5 February 2020

Case summary

Singapore Democratic Party v Attorney-General [2020] SGHC 25
Originating Summons No. 15 of 2020

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Decision of the High Court (delivered by Justice Ang Cheng Hock)

Outcome:  High Court dismisses appeal by Singapore Democratic Party (“SDP”) relating to Correction Directions issued under the Protection from Online Falsehoods and Manipulation Act (“POFMA”).

 

1 This is the first appeal against Correction Directions (“CDs”) issued under the Protection from Online Falsehoods and Manipulation Act (“POFMA”). This appeal was brought by the Singapore Democratic Party (“SDP”) under s 17 of the POFMA to set aside three CDs issued by the Minister for Manpower in relation to various material communicated by the SDP. The material communicated by the SDP included, among other things, statements about the employment prospects of professionals, managers, executives, and technicians (“PMETs”).

Background to the appeal

2 Under POFMA, a Minister may cause the issuance of a CD if a false statement of fact (the “subject statement”) has been or is being communicated in Singapore and the Minister is of the opinion that it is in the public interest to issue a CD. If a CD is issued, the recipient of the CD may be required to publish a Correction Notice, which may contain a statement that the subject statement is false, and/or a correction to the subject statement.

3 The subject statement is an interpretation drawn from the material communicated which the Minister asserts is a false statement of fact. A subject statement may be said to be “communicated” in Singapore under POFMA if it is made available to one or more end-users in Singapore on or through the internet.

The material facts

4 On 8 June 2019, the SDP published an article on its website titled “SDP Population Policy: Hire S’Poreans First, Retrench S’Poreans Last” (the “SDP Article”). On 30 November 2019, the SDP published a post on the ‘Singapore Democratic Party (SDP)’ Facebook page which contained a hyperlink to the SDP Article (the “November Facebook Post”). On 2 December 2019, the SDP published a further post on Facebook containing some text, an image containing two graphical illustrations, and a hyperlink to the SDP Article (the “December Facebook Post”).

5 The SDP Article introduced the SDP’s population policy proposal, which was described as coming “amidst a rising proportion of Singapore PMETs getting retrenched”. Relying on that quotation and the broader context of the SDP Article, the Minister for Manpower identified the relevant subject statement arising from the SDP Article as being that “local PMET retrenchment has been increasing. This formed the basis of the first CD (“CD-1”), which targeted the SDP Article.

 6 The second CD (“CD-2”) was issued in relation to the November Facebook Post. As the November Facebook Post contained a hyperlink to the SDP Article, the Minister for Manpower was of the view that the subject statement which was contained in the SDP Article also applied in relation to the November Facebook Post. That formed the basis of CD-2.

 7 The third CD was issued in relation to the December Facebook Post, and identified two subject statements. The first subject statement related to the hyperlink to the SDP Article contained in the December Facebook Post, while the second was in relation to a graphical illustration contained in the December Facebook Post. The graphical illustration in question was labelled “Local PMET employment” and showed a downward-pointing arrow on a graph. The second subject statement, identified from the said graphical illustration, was thus that “Local PMET employment has gone down”.

8 Having identified the abovementioned subject statements, the Minister for Manpower exercised her power under POFMA to issue CDs to the SDP in relation to those subject statements. The SDP seeks to set aside those CDs on the basis that the subject statements are true statements of fact.

The court’s ground of decision

9 The issues that the Court had to decide were as follows (at [22]): First, on a proper interpretation of the SDP Article, November Facebook Post, and December Facebook Post (collectively, “the SDP material”), do the subject statements identified in the CDs arise? Second, should the subject statements arise, are they true or false?

10 In determining those issues, the Court had to establish which party bears the burden of proof in relation to both the issues identified at [8] above. Neither the POFMA nor the secondary legislation associated with POFMA stated whether the appellant or respondent was to bear the burden of proof. The Court found that it was for the respondent (the Attorney-General, on behalf of the Minister), to bear the burden of proof: [36] – [44]. This was explicable in part on the basis of the fact that it was the Minister who was seeking to curtail the statement-maker’s right to free speech which was protected under Art 14 of the Constitution of the Republic of Singapore: [37]. Further, it was unclear that Parliament had intended that the appellants should bear the burden of proof, especially given the fact that the Minister had more resources to procure the relevant data for establishing the truth or falsity of a matter: [39].

11 The Court also found that the relevant standard of proof was on a balance of probabilities: [45] – [49]. While the POFMA included certain offence-creating provisions, the Court did not accept that POFMA was a ‘penal statute’ and that the criminal standard of proof beyond reasonable doubt should apply. The issuance of a CD did not in itself give rise to criminal liability, and there was no basis for the Court to demand proof beyond reasonable doubt in the context of an appeal under s 17 of the POFMA: [46].

12 In determining how the subject statements were to be identified, the Court outlined some of the principles under defamation law for determining the meaning of published statements. In particular, the meaning of a statement fell to be determined objectively by reference to what a reasonable reader would understand from the material in question. The subjective intention of the statement-maker is not relevant in this analysis: [70]. Further, the ‘reasonable reader’ is essentially fair minded, reasonable, and not avid for scandal, but may be guilty of a certain amount of loose thinking: [71]. These principles were found to assist in determining the appropriate meaning of the SDP material.

 13 In relation to CD-1, three possible meanings were put forward by the parties. The appellants argued that the subject statement should refer only to Singaporean citizens (and not Permanent Residents), and that the Article refers to Singaporean PMETs retrenched as a share of all locals retrenched. The respondent’s primary case was that the meaning of the SDP Article was that local PMET retrenchment had been increasing in absolute terms. The Court declined to accept both of these meanings. Rather, the Court found that the appropriate meaning to be identified from the SDP Article was the respondent’s alternative case, that the proper meaning of the SDP Article is that the share of retrenched local PMETs as a proportion of all local PMET employees has been increasing. This meaning accommodated the reference to “proportion” in the SDP Article, and was in line with the broad argumentative thrust of the said Article: [86] – [87].

14 The Court did not accept the respondent’s primary case, that local PMET retrenchment has been increasing (in absolute terms), because it had the effect of “reading-out” the reference to “proportion” in the SDP Article: [81] – [83]. The meaning put forward by the appellants was also rejected because it referred to external considerations like news articles which were not even referenced in the SDP Article, and which therefore would not have influenced how a reasonable person would have interpreted the Article: [74] – [75]. Further, the appellant’s concept of proportion is statistically unhelpful in showing how retrenched local PMETs are in a deteriorating position, and would not have been in the mind of the ordinary reader when the said reader was reading the Article: [78].

15 In determining the truth or falsity of the meaning identified from the SDP Article, the respondent provided statistics from the Ministry of Manpower (“MOM”) to show that the number of retrenched local PMETs per 1,000 local PMET employees had decreased from 2015 to 2018. The appellant did not challenge the veracity of MOM’s statistics, and its attempts to undermine the statistics by reference to the period they were from did not persuade the Court: [93] – [100]. Accordingly, the Court was satisfied that the respondent had met its burden of proof in relation to the SDP Article, and that there was no basis to set CD-1 aside: [101].

16 In relation to CD-2 and the November Facebook Post, the hyperlinking of the SDP Article in the November Facebook Post re-communicated the SDP Article’s content: [109]. Accordingly, the Court was satisfied that the November Facebook Post contained a false statement of fact (as identified in relation to CD-1), and found that there was no basis to set aside CD-2: [109].

17 CD3 involved two separate subject statements. The first related to the December Facebook Post containing a hyperlink to the SDP Article. The Court found that the hyperlinking re-communicated the SDP Article’s content, and adopted the analysis in relation to CD-2 above in finding that there was proper basis for CD-3 on that ground: [112]. In relation to the second subject statement, the Court accepted the respondent’s argument that the graphical illustration referred to at [6] above would give rise to the interpretation that “local PMET employment has gone down”: [113]. In establishing the falsity of that interpretation, the respondent pointed to data from 2015 to 2018 to show that the number of local PMETs employed, in absolute numbers, has been steadily increasing. The appellant once again did not dispute the veracity of those statistics, instead seeking to challenge them on the basis that the data relied on by the respondent was, among other things, from “too narrow” a timeframe: [121] – [122]. The Court did not accept the appellant’s contentions in this regard, finding that the fact that the appellant did not label the axes of the graphical illustration did not give it free rein to assert any timeframe of its choosing as the applicable one: [123].

 18 Overall, the Court was satisfied that there was proper basis for all three CDs. The appeal was accordingly dismissed. It was emphasised in closing that the role of the Court in this context is to interpret the legislation, not comment or adjudicate on the desirability of particular legislation: [127].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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