MINDEF–TOC POHA Dispute

The legal dispute between the Government and The Online Citizen (TOC) over the Protection from Harassment Act (POHA) was a significant case regarding the rights of the state to use anti-harassment laws against publishers.

Background and Patent Dispute

The dispute originated from an interview published by TOC in January 2015 with Dr. Ting Choon Meng, a Singaporean inventor and the co-founder of medical device firm MobileStats.

The interview concerned a patent dispute involving the Ministry of Defence (MINDEF), which MobileStats had sued for allegedly copying a concept for a mobile emergency medical station. MobileStats dropped its claim in 2014, citing financial difficulties, which resulted in the patent being revoked for invalidity.

In the TOC interview, Dr. Ting alleged that MINDEF had knowingly infringed on his patent and had deliberately delayed court proceedings as a "war of attrition" to wear his company down financially. MINDEF refuted these claims as "false and baseless," leading the Attorney-General (AG) to seek an order under Section 15 of POHA.

Initial District Court Ruling

A District Judge initially granted the order in favor of the AG. The court ruled that MINDEF should be considered a "person" under the statute and ordered that Dr. Ting's statements could not be published unless accompanied by a notification stating that the statements had been declared false by Singapore courts.

High Court Ruling (2015)

On 9 December 2015, Judicial Commissioner See Kee Oon overturned the District Court's decision. The High Court ruled that only individuals—not the Government or corporations—could seek redress under Section 15 of POHA.

Key findings from the High Court included:

• Sentient Subjects: The judge ruled that Section 15 should be confined to false statements capable of affecting their subjects emotionally or psychologically. This presupposes the subject is a human being "endowed with sentient consciousness."
• Legislative Intent: The judge noted that parliamentary debates suggested the "true mischief" the law aimed to address was the psychological impact on individuals.
• Factors for Remedies: The court introduced a set of factors to determine if a correction order was "just and equitable," suggesting courts should be slower to grant orders if the statement is minor, the subject has no psychological impact, or the subject (like MINDEF) has the means to publish its own version of the truth extensively.
• Encouraging Balanced Reporting: The judge noted that TOC had already published MINDEF’s response in full and provided a link to it. He argued that such efforts to present both sides of a story should be encouraged rather than penalized with court orders.

Court of Appeal Decision (2017)

The AG appealed the High Court's decision to the Court of Appeal. On 16 January 2017, the apex court upheld the High Court’s ruling in a rare 2–1 split decision.

• Majority Opinion: Judges of Appeal Andrew Phang and Chao Hick Tin agreed that the Government is not a "person" under Section 15. They maintained that the legislative intent was focused solely on protecting natural persons. They further noted that MINDEF was not a "helpless victim," as it possessed significant resources and access to media channels to defend its reputation.
• Dissenting Opinion: Chief Justice Sundaresh Menon dissented, arguing that Section 15 was a standalone remedy for "clear falsehoods" that should apply to "non-natural persons" like the Government. He argued that false speech contributes nothing to the "marketplace of ideas" and that there is no human right to disseminate misinformation.

Concluding Statements and Reactions

• Dr. Ting Choon Meng: Stated he was happy the court confirmed the Government should not use anti-harassment laws against "the man in the street."
• TOC Editor Terry Xu: Called the judgment a win for "common sense" and described the Government’s use of POHA in this instance as "inappropriate and unjustified."
• The Workers’ Party: The party welcomed the decision, arguing that the Government does not need POHA for protection given its media reach. They warned that using POHA for the state risked weakening Singapore’s climate of free speech.
• Ministry of Law: A spokesperson expressed disagreement with the majority ruling, stating that the Government intended for Section 15 to protect the public and institutions from "fake news." The Ministry characterized the Workers’ Party’s stance as "misconceived" and stated the Government would consider further steps to address deliberate falsehoods.

Influence on the Creation of POFMA

The legal impasse in Attorney-General v Ting Choon Meng is widely cited as a key catalyst for the development of the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The case exposed what the Government perceived as a "legal gap" in its ability to effectively combat misinformation directed at public institutions.

Commentators and observers have noted several points of comparison between issues raised during the POHA proceedings and mechanisms later incorporated into POFMA:

• Correction-based remedies: Similar to the correction remedy available under Section 15 of POHA, POFMA places significant emphasis on “Correction Directions”, under which content generally remains accessible while accompanied by a notice or link presenting the Government’s position.
• Authority to issue directions: Under POFMA, Ministers are expressly empowered by statute to issue directions relating to alleged online falsehoods. This differs from the position considered in the Ting Choon Meng litigation concerning whether the Government could invoke remedies under POHA.
• Procedural framework: Under POHA, applications for remedies were made through the courts. Under POFMA, directions may first be issued by Ministers, with affected parties subsequently entitled to challenge those directions through the statutory appeal process.