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POFMA appeals

This page covers the courts' interpretation of the Protection from Online Falsehoods and Manipulation Act 2019 in appeals against Correction Directions. For the Act's provisions generally, see Protection from Online Falsehoods and Manipulation Act 2019. For the Bill's passage, see Parliamentary passage of the Protection from Online Falsehoods and Manipulation Act. For the directions themselves, see POFMA directions.

Under section 17 of the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA), a person issued a Correction Direction may appeal to the General Division of the High Court after first applying unsuccessfully to the relevant Minister to vary or cancel it. The High Court may only set the direction aside on one of three statutory grounds: that the person did not communicate the subject statement in Singapore; that the subject statement is not a statement of fact, or is a true statement of fact; or that compliance is not technically possible.[1] Two first-instance decisions in early 2020 reached conflicting conclusions on how this test should be applied and on whom the burden of proof falls; the Court of Appeal resolved the conflict in October 2021, setting out a five-step analytical framework that has governed every subsequent appeal.

The analytical framework

In The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96 ("TOC (CA)"), the Court of Appeal held that determining whether a Correction Direction may be set aside requires the court to work through five sequential questions:[2]

  1. What meaning did the Minister intend the identified subject statement to bear?
  2. Does the material in respect of which the direction was issued, objectively read, make or contain that subject statement — in the sense that at least an appreciable segment or a particular class of the potential readership in Singapore would construe it that way, or regard the subject statement as a reasonable interpretation?
  3. Is the subject statement, so understood, a "statement of fact" as defined in section 2(2)(a) of POFMA?
  4. Is it "false" in the sense explained in section 2(2)(b) — false or misleading, wholly or in part, on its own or in context?
  5. Has it been or is it being communicated in Singapore?

The Court of Appeal also settled, contrary to the position taken by one of the two conflicting High Court decisions, that the burden of proof in a section 17 appeal lies throughout on the recipient of the direction, not the Minister. The recipient must first show a prima facie case of reasonable suspicion that one of the statutory grounds is met; the evidential burden then shifts to the Attorney-General to show otherwise; the court decides on the balance of probabilities.[3]

Summary of appeals

Case Court Subject matter Outcome
The Online Citizen Pte Ltd v Attorney-General [2020] SGHC 36 High Court Reproduction of a Malaysian NGO's allegations about execution methods at Changi Prison Appeal dismissed
Singapore Democratic Party v Attorney-General [2020] SGHC 25 High Court Claims about local PMET retrenchment trends Appeal dismissed
The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96 Court of Appeal Consolidated appeals in the two cases above, plus constitutional challenge TOC's appeal dismissed; SDP's appeal allowed in part
Singapore Democratic Party v Attorney-General [2022] SGHC 100 High Court Election-period claim about Singapore's projected population density Appeal dismissed
The Online Citizen Pte Ltd v Attorney-General [2022] SGHC 177 High Court Instagram/Facebook posts on a police encounter with an elderly woman Appeal dismissed (moot; also fails on the merits)
Singapore Democratic Party v Attorney-General [2022] SGCA 56 Court of Appeal Permission to appeal against the SGHC 100 decision above Permission to appeal refused
Xu Yuan Chen @ Terry Xu v Attorney-General [2023] SGHC 200 High Court The appellant's personal Facebook post on the same police encounter as the 2022 case Appeal dismissed
The Inquiry Pte Ltd v Attorney-General and another matter [2023] SGHC 247 High Court Jom articles on the Ridout Road ministerial-bungalow controversy Both appeals dismissed

The two conflicting first-instance decisions (2020)

The Online Citizen v AG [2020] SGHC 36 — the Changi Prison case

A Malaysian NGO, Lawyers for Liberty, issued a press statement in January 2020 alleging a "brutal and unlawful" execution procedure at Changi Prison, attributed to an anonymous former prison officer.[4] The Online Citizen (TOC) republished the allegations, seeking comment from the Ministry of Home Affairs. A Correction Direction was issued identifying the reproduced allegations themselves as the false subject statement.

TOC argued the statement was neither fact nor opinion but a third category — an even-handed hearsay report — and that, properly read, its own statement was merely the true fact that Lawyers for Liberty had made these claims (the "reporting defence"). Belinda Ang J rejected both arguments: POFMA recognises only two categories, fact and opinion, and an unverified hearsay claim can still be a statement of fact; and section 11(4) of the Act, which allows a Correction Direction to issue even where the communicator does not know or believe the statement is false, forecloses any defence based on neutral reportage.[5] On the burden of proof, the judge held — departing from the approach taken days earlier in the SDP case below — that the statutory language of section 17(5) places the burden on the person challenging the direction, not the Minister, and rejected the argument that this infringes the constitutional right to free speech, reasoning that a Correction Direction does not prevent continued publication and that there is no free-speech interest in disseminating falsehoods.[6] The appeal was dismissed; an uncontested Singapore Prison Service affidavit denied the alleged procedure existed.

Singapore Democratic Party v AG [2020] SGHC 25 — the PMET retrenchment case

The Singapore Democratic Party (SDP) published an article and two Facebook posts during 2019 asserting a "rising proportion of Singapore PMETs getting retrenched" amid competition from foreign labour.[7] Three Correction Directions followed. Ang Cheng Hock J held — contrary to the later Court of Appeal ruling — that the burden of proof lay on the Minister, reasoning from the constitutional right to free speech, the "rehearing" language in the POFMA Rules, and an asserted information asymmetry between the state and individual statement-makers.[8] On the substance, the judge found the SDP Article, read objectively, conveyed that the proportion of retrenched local PMETs relative to all local PMET employees was rising — this being one of two competing readings the Attorney-General had put forward — and that Ministry of Manpower data showed this to be false.[9] On the December Facebook post's graphical illustration, the judge held the term "local" would reasonably be understood to include Singapore permanent residents, not citizens only, and on that reading the claimed decline in local PMET employment was also false.[10] All three directions were upheld.

The Court of Appeal's resolution (2021)

TOC (CA) consolidated both cases on appeal, together with a constitutional challenge to Part 3 of POFMA under Article 14 of the Constitution.

Constitutionality

The Court of Appeal held that a statement identified by a Minister as false continues to enjoy Article 14 protection until a court determines otherwise, since the Minister may be mistaken.[11] It nonetheless held that issuing a Correction Direction does not, in itself, restrict free speech: the recipient remains free to keep the original material online and to state publicly that it is under legal challenge, subject only to the obligation to append a correction notice.[12] The court declined to recognise, on the facts before it, a "compelled speech" objection to being required to display a correction. It further held that the public interest grounds in section 4 of POFMA concerning election integrity and public confidence in government institutions fall within the "public order" exception to free speech under Article 14(2)(a), and rejected arguments that section 2(2)(b)'s "false or misleading... in part... in context" language, or the absence of an express proportionality requirement, rendered the Act unconstitutional.[13]

Burden of proof and the five-step framework

The Court of Appeal resolved the conflict between the two 2020 decisions in favour of the Changi Prison case's approach: the burden lies on the recipient of the direction throughout, subject to an evidential shift once a prima facie case is shown (see above).[3] It set out the five-step framework summarised above, and in doing so overruled Ang Cheng Hock J's approach of upholding a direction on the basis of a subject-statement meaning the Minister had not actually identified in the direction itself — holding that a Minister is bound strictly to the meaning stated in the direction, since fairness to the recipient depends on this.[14]

The disavowal dictum

In discussing whether a statement-maker's own subjective intended meaning is relevant, the court observed, as a provisional view not necessary to its decision, that a statement-maker might in principle object to a Minister's chosen meaning — where that meaning sits at the outer edge of what the words could reasonably bear — by publishing a clear and unequivocal public disavowal of that meaning, for instance as an addendum to the original material.[15] This obiter remark became the central issue in the 2023 Jom case discussed below.

Outcome

TOC's appeal was dismissed; the reproduced Changi Prison allegations were held to be a false statement of fact regardless of the neutral-reportage framing.[16] SDP's appeal succeeded in part: the Court of Appeal found the December Facebook post's graphical illustration, read with its surrounding text (which referred repeatedly to "Singaporeans" and contrasted "foreign talent" with "home-grown Singaporean talent"), would not have been understood by an appreciable segment of readers to include permanent residents, and set aside that part of the direction on the ground the subject statement was not communicated.[17] However, the court upheld the directions concerning the SDP Article itself, finding — on the Attorney-General's primary rather than alternative interpretation — that the article conveyed an increase in local PMET retrenchment in absolute numerical terms, which was false.[18]

Later High Court decisions

TOC v AG [2022] SGHC 177 — the elderly woman case (first round)

In May 2021, TOC posted Instagram stories criticising four police officers for their handling of an elderly woman found without a face mask, which the posts characterised as the police "taunting" her.[19] A Correction Direction followed, requiring a new Facebook post correction. TOC appealed. By the time of the hearing, however, the Infocomm Media Development Authority had cancelled TOC's class licence over an unrelated compliance failure, so TOC could no longer operate the Facebook page the direction concerned. Aedit Abdullah J held the appeal moot: since the direction could no longer be displayed, no order of the court could have any practical effect, and courts should not grant relief that would be futile.[20] For completeness, the judge went on to find that, on body-worn camera footage, the officers' conduct — largely paternalistic concern rather than any scolding or taunting — did not bear out the subject statement, which was therefore also false on the merits.[21]

SDP v AG [2022] SGHC 100 — the population density case

During its 2020 election campaign, SDP published a Facebook post combining a 2018 lecture by the then-CEO of the Housing & Development Board (HDB), Dr Cheong Koon Hean — who had referred to Singapore's projected "living density" rising to 13,700 persons per sq km by 2030 — with the country's total land area, to claim a projected population of "nearly 10 million" by 2030.[22] A Correction Direction issued during the election period by the Alternate Authority for the Minister for National Development.

As a preliminary matter, Woo Bih Li JAD (sitting in the High Court) dismissed SDP's application to have the appeal heard in open court, holding — consistently with the position later confirmed in the 2022 permission-to-appeal decision discussed below — that POFMA appeals follow the ordinary default rule that originating summonses are heard in chambers absent special reasons, and that the public interest inherent in any POFMA case, or the raising of novel legal questions, does not by itself amount to a special reason.[23]

On the merits, SDP argued the court should assess the truth of what Dr Cheong actually said, rather than the subject statement SDP had published, and that its own report of her lecture was accurate. The judge rejected this: since it was precisely in dispute whether SDP's post accurately reflected Dr Cheong's statement, the question for the court was the meaning of SDP's own published statement, which both sentences of the post presented as a factual report of what Dr Cheong had said, not an expression of opinion.[24] On falsity, the court found that a letter from an HDB director published shortly after the lecture had already clarified that the cited figures concerned "living density" confined to urban land, not "population density" applied to Singapore's total land area, and inferred that SDP was aware of this letter at the time it published its post. A rough calculation applying the cited density figures to Singapore's total land area would in any event have produced a population estimate inconsistent with Singapore's actual population at the time, reinforcing the finding of falsity.[25] The appeal was dismissed. Because SDP is a society rather than an individual, it fell outside the POFMA Rules' general costs protection for individual appellants, and the court ordered it to pay costs of the appeal.[26]

SDP v AG [2022] SGCA 56 — permission to appeal

SDP sought the Court of Appeal's permission to appeal against the SGHC 100 decision above, arguing that POFMA cases should be treated as appealable as of right, or at least that permission should be granted more readily than in ordinary civil cases. The Court of Appeal rejected this, holding that POFMA decisions have always been subject to the same permission-to-appeal requirement as other High Court decisions, tracing this to the POFMA Rules' commencement alongside the Act itself in 2019.[27] None of the four questions SDP sought to raise — the applicable permission-to-appeal principles, when a POFMA appeal should be heard in open court, how the framework applies to a "report of a statement made by someone else", and what distinguishes a statement of opinion from fact — was found to be a question of general principle or public importance warranting further appeal.[28] The court also confirmed that POFMA appeals are, by default, heard in chambers rather than in open court, absent the same "special reasons" required to depart from the default position in any other civil originating application; the fact that POFMA by definition involves a public-interest determination was not itself a special reason.[29]

Xu Yuan Chen @ Terry Xu v AG [2023] SGHC 200 — the elderly woman case (second round)

Nearly two years after the incident underlying the first elderly-woman case, TOC's chief editor personally posted further claims about the same encounter on his own Facebook account: that police knew the woman was not lost but sent her home regardless; that the primary reason they approached her was her lack of a mask; that an officer lied to her daughter-in-law by claiming she was lost; and that the daughter-in-law's police report against TOC was filed because of that lie.[30] Chua Lee Ming J applied the TOC (CA) framework and found each of the four statements false. Body-worn camera footage, the officers' documented actions, and a contemporaneous police event log showed the officers believed the woman was lost and that mask compliance was a secondary concern.[31] The daughter-in-law's own police report — in evidence before the court — stated in terms that she filed it because she was unhappy with TOC's earlier reporting, not because any officer had misrepresented anything to her; the judge described the resulting falsity of that claim as "most blatant".[32] The appeal was dismissed. The judge separately declined the Attorney-General's application for security for costs, holding that a weak case is not, without more, "an abuse of the process of the Court" of the kind needed to expose an individual appellant to a costs order under the POFMA Rules.[33]

The Inquiry Pte Ltd v AG [2023] SGHC 247 — the Jom/Ridout Road case

The online magazine Jom, published by The Inquiry Pte Ltd, ran an article on the controversy over ministerial rentals at Ridout Road, including claims about Senior Minister Teo Chee Hean's response to conflict-of-interest questions and the renovation spend on the properties, plus a separate piece questioning whether the Government had caused Instagram to geo-block a post by former opposition politician Charles Yeo.[34] Two Correction Directions followed, identifying three subject statements. Jom complied, but also published its own addenda disclaiming any intention to make those specific statements, before unsuccessfully applying to the Minister to cancel the directions and then appealing.

The central legal question was whether the TOC (CA) disavowal dictum entitled the court to take Jom’s addenda into account under section 17(5)(a). Valerie Thean J held it did not: the relevant time for assessing whether the underlying material communicates the subject statement is the time of original publication, not any later point; section 10(2) of POFMA expressly allows a direction to issue even after a statement has been amended or has ceased to be communicated; and the disavowal dictum was intended only for the narrow case of a genuinely outer-range interpretation coupled with an unequivocal disavowal — not, as here, addenda the court characterised as bare denials rather than a clear repudiation of the Minister's meaning.[35] On the merits, applying close reading of tone and context — including the article's use of "pithy" said "in a sardonic sense" and rhetorical questioning — the court found all three subject statements were reasonable interpretations of the Jom articles and were false.[36] Both appeals were dismissed.

Settled principles

The following points can be drawn from the cases above as the courts' settled position, current as of the cases reviewed for this page:

  • The burden of proof in a section 17 appeal lies on the recipient of the direction throughout, subject to an evidential shift to the Attorney-General once a prima facie case is shown; the standard is the balance of probabilities.[3]
  • A Minister is bound strictly to the subject-statement meaning stated in the direction itself; a court cannot uphold a direction on the basis of an alternative meaning the Minister did not identify.[14]
  • Reproducing or reporting a third party's false claim, even in neutral or "even-handed" terms, does not exempt the republisher — section 11(4) forecloses any defence based on the communicator's lack of knowledge or belief that the statement is false.[5][16]
  • Post-issuance addenda or disavowals will very rarely affect the outcome of an appeal; they are not a recognised ground under section 17(5) and matter, if at all, only in the narrow scenario the Court of Appeal described obiter in TOC (CA) at [155].[35]
  • POFMA decisions of the High Court are not appealable to the Court of Appeal as of right; permission to appeal is required on the same footing as any other civil High Court decision.[27]
  • A POFMA appeal becomes moot, and will not be heard on an academic basis, if the direction can no longer have any practical effect — for example, where the platform it concerns is no longer operated by the recipient.[20]
  • POFMA appeals are, by default, heard in chambers rather than open court, on the same "special reasons" test that applies to any other originating summons; the public interest inherent in POFMA cases generally is not itself a special reason.[23][29]

See also

References

  1. ↑ Protection from Online Falsehoods and Manipulation Act 2019, s 17(5).
  2. ↑ The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] SGCA 96 at [163]. https://www.elitigation.sg/gd/s/2021_SGCA_96
  3. ↑ 3.0 3.1 3.2 TOC (CA) at [180]–[184].
  4. ↑ The Online Citizen Pte Ltd v Attorney-General [2020] SGHC 36 at [5]. https://www.elitigation.sg/gd/s/2020_SGHC_36
  5. ↑ 5.0 5.1 TOC [2020] SGHC 36 at [48]–[56].
  6. ↑ TOC [2020] SGHC 36 at [20]–[45].
  7. ↑ Singapore Democratic Party v Attorney-General [2020] SGHC 25 at [16]. https://www.elitigation.sg/gd/s/2020_SGHC_25
  8. ↑ SDP [2020] SGHC 25 at [36]–[44].
  9. ↑ SDP [2020] SGHC 25 at [80]–[103].
  10. ↑ SDP [2020] SGHC 25 at [113]–[124].
  11. ↑ TOC (CA) at [60]–[61].
  12. ↑ TOC (CA) at [67], [77]–[78].
  13. ↑ TOC (CA) at [94]–[113].
  14. ↑ 14.0 14.1 TOC (CA) at [124]–[130].
  15. ↑ TOC (CA) at [155].
  16. ↑ 16.0 16.1 TOC (CA) at [242]–[244].
  17. ↑ TOC (CA) at [225]–[234].
  18. ↑ TOC (CA) at [196]–[216].
  19. ↑ The Online Citizen Pte Ltd v Attorney-General [2022] SGHC 177 at [2]–[3]. https://www.elitigation.sg/gd/s/2022_SGHC_177
  20. ↑ 20.0 20.1 TOC [2022] SGHC 177 at [19]–[23].
  21. ↑ TOC [2022] SGHC 177 at [46]–[51].
  22. ↑ Singapore Democratic Party v Attorney-General [2022] SGHC 100 at [2]–[4]. https://www.elitigation.sg/gd/s/2022_SGHC_100
  23. ↑ 23.0 23.1 SDP [2022] SGHC 100 at [9]–[27].
  24. ↑ SDP [2022] SGHC 100 at [44]–[63].
  25. ↑ SDP [2022] SGHC 100 at [66]–[91].
  26. ↑ SDP [2022] SGHC 100 at [94]–[97].
  27. ↑ 27.0 27.1 SDP [2022] SGCA 56 at [27]–[38]. https://www.elitigation.sg/gd/s/2022_SGCA_56
  28. ↑ SDP [2022] SGCA 56 at [41]–[61].
  29. ↑ 29.0 29.1 SDP [2022] SGCA 56 at [48]–[50].
  30. ↑ Xu Yuan Chen @ Terry Xu v Attorney-General [2023] SGHC 200 at [17]–[18]. https://www.elitigation.sg/gd/s/2023_SGHC_200
  31. ↑ Xu Yuan Chen [2023] SGHC 200 at [42]–[53].
  32. ↑ Xu Yuan Chen [2023] SGHC 200 at [64]–[65].
  33. ↑ Xu Yuan Chen [2023] SGHC 200 at [24]–[25].
  34. ↑ The Inquiry Pte Ltd v Attorney-General and another matter [2023] SGHC 247 at [3]–[16]. https://www.elitigation.sg/gd/s/2023_SGHC_247
  35. ↑ 35.0 35.1 The Inquiry [2023] SGHC 247 at [55]–[69].
  36. ↑ The Inquiry [2023] SGHC 247 at [40]–[50].
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