Should we have a law against fake news?
by Bertha Henson
A WHOLE thicket of rules and regulations now govern the news media, from the dinosaur-era Newspaper and Printing Presses Act and Class Licensing to registration of websites.
Then there are the unseen OB markers which shouldn’t be crossed even though your words don’t amount to anything criminal. Plus, there is the Sedition Act and the myriad clauses under the Penal Code which can land you in jail.
Now, we are awaiting proposed amendments to the Broadcasting Act, which is really two years late. The hope is that the promised consultation on the changes will materialise given that it will affect nearly everyone, both content producers and consumers.
So what is the Law ministry thinking about now since the Supreme Court has ruled that the Protection from Harassment Act doesn’t cover entities, and there’s some confusion over what should be done about “false statements”? In the aftermath of the judgment, its spokesman said that it will “study the judgment and consider what further steps it should take to correct the deliberate spreading of falsehoods”.
The Workers’ Party has jumped into the fray and got an answer from the G on whether it would amend POHA. Frankly, the G would have just needed to make clear that “victims” of harassment could include entities, for G agencies to be covered under POHA. That is, anyone and any group can claim to have been victims of “harassment”, which could be stalking or the butt of online jokes or the subject of an online CSI.
In any case, the ministry has said it has no intention of changing POHA.
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So if not the POHA, what then? And how has it come to pass that we need rules to curb fake news? In the past, a public admonition would be enough to knock people into the dust. Then there was the concept of right of reply. In 2012, the G came up with its Factually website to curb misinformation. Evidently, it’s not of much use.
A government agency might pursue the defamation route but according to lawyers, there is some confusion about whether this is allowed. There is the Derbyshire principle — a common law principle in Britain and other countries that bars a public body from suing a citizen for defamation so as not to discourage free speech. Is this applicable here? While public figures have sued for falsehoods which ruined their reputation, there is no record of G agencies having done so.
It might have escaped people’s notice, but the estate of the late Lee Kuan Yew tried to invoke the legislation against teenager Amos Yee in 2015 – but the charge was quietly dropped. Now, you can’t defame dead people. For a while, it does seem like the POHA could be an alternative defamation suit! Now we’re in for a more confrontational approach, thanks to the US presidential election and Brexit.
“The Government strongly believes that the scourge of false information must not be allowed to take hold in Singapore, lest it weakens our democratic society and institutions,” said the Law Ministry.
“At a time when false information can affect election results, contaminate public discussions and weaken democratic societies, it is important for the Government, as well as corporations and individuals, to be able to respond robustly to false statements that could poison public debate and mislead decision-making.”
“Everyone, including the Government, should be entitled to point out falsehoods which are published, and have the true facts brought to public attention.”
It’s odd that the G feels that it is being curbed from addressing falsehoods in some way. It has plenty of resources to put forward its point of view, but it is not content with that. It wants an acknowledgement that the purveyor of fake news was wrong, and to set it right.
On principle, it looks reasonable that everybody, big or small or company or G agency, should be entitled to equal protection under the law. Experts surveyed by TODAY seemed to think so.
But this is to under-estimate the deadening effect such a move will have on freedom of speech, which seems to be a very bad phrase in Singapore. There are other reasons a government doesn’t do or say things even if it thinks it is right to do so.
It could simply choose to sue for defamation, for example, but there is no tradition for this. Why? Because the impact on the wider society is far greater than the good it does? This is not to say that the G is without protection. It is immune to law suits under the Government Proceedings Act.
In terms of freedom of speech, the balance has always been tilted in the G’s favour. It has the most resources and the biggest reach.
So it didn’t win in the most recent case. Does this mean it needs another mechanism to get its way in the future? Will this hammer be applied to everyone who makes a wrong statement, or restricted to entities with a big enough reach?
If the latter, there are plenty of levers it can pull. If it encompasses everyone or anyone, the G would have to maintain an army of fact-checkers to stop false statements from going viral online. Of course, It could also say that it will only invoke the mechanism for egregious cases – and to trust that it will be used sparingly.
How ironic! The job of calling out people, including those in power, on lies and mistakes is usually the responsibility of news media. The checks are the readers and viewers – and those in the industry. There was – and still is – an editorial code of conduct in most news media to ensure transparency and accountability. To stop the G from playing policeman, it falls on the rest of us to do the job. Pointing out mistakes is an unpopular thing but it is far better than to have the G weigh in, whether with a heavy hand or a light touch.
The G would say that respectable news media have no need to fear, so long as they publish the facts.
The job of checking
Now, here’s the truth about facts:
Some facts can be checked easily; some aren’t easily verifiable especially with a deadline looming. Some are simply impossible to obtain such as when ministries claim not to keep records or use the word “sensitive”. Some can’t be reported because of the Official Secrets Act or Administration of Justice Act. Some facts might lead to public discontent, and there’s the OB marker to think of. Some facts might cause social unrest, and then you’ll have to be wary of running foul of the Sedition Act even though there was no intended malice. Some facts are withheld because newsmakers think that is the best way to kill a bad story. Some facts could be out-dated.
Any journalist will tell you that Singapore is not a place where facts are given out freely. Corporations and G agencies tend to be protective of their information, possibly because they think new information will somehow rebound on them. Better to keep silent than give more information which can become ammunition.
Mr Ho Kwon Ping said this at a forum recently: “Access to information enables the public to robustly debate and articulate ground-up responses to the pressing societal issues of today. An information-rich society is all the more important since we’ve seen, in the recent US presidential elections, how social media can easily distort facts and even manufacture dis-information”.
So let’s re-write this phrase: “The Government strongly believes that the scourge of false information must not be allowed to take hold in Singapore, lest it weakens our democratic society and institutions”.
Let’s try this: “The Government strongly believes that more access to real information must be given to the people, so as to strengthen our democratic society and institutions”.
Featured image by Sean Chong.
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