Asia has seen an exponential increase in the use of fake news to further political propaganda. To address this concern, Singapore passed the ‘Anti-Fake News’ law in May.
Authorities have justified the implementation of this law by saying that it aims to stop the circulation of false statements that could polarise society and instil distrust in government institutions. They also highlighted the need to take measures to control the content on online portals, stating that such platforms do not regulate content.
However, with elections in March 2020, it is suspected that this law was implemented as a means to curb free speech. In fact, the reason cited in all three instances of the law being used was that it was detrimental to the interests of the government. This is especially perilous in a country where political dissent is already under attack.
Such laws are viewed as a means to “rebrand” government censorship and produce a ‘chilling effect’ on criticism of the government. Under this law, platforms that are considered ‘repeat offenders’ will be imposed with a hefty penalty of SGD 1,000,000 (Rs. 5,23,44,225); thus, social networking platforms will be forced to err on the side of caution and take content that is even minimally critical of the government.
Under this law, Ministers can control the content on online platforms through a variety of decisions, ranging from mandating a warning adjacent to the post to taking down the content altogether. According to Section 7 of the law, these actions will be taken when the content passes a two-pronged test. Firstly, the complaint must establish the dissemination of false information. Secondly, it must be shown that the content has the potential to:
“(a) be prejudicial to the security of Singapore or any part of Singapore;
(b) be prejudicial to public health, public safety, public tranquillity or public finances;
(c) Be prejudicial to the friendly relations of Singapore with other countries;
(d) Influence the outcome of an election to the office of President, a general election of members of Parliament, a by-election of a Member of Parliament, or a referendum’
(e) Incite feelings of enmity, hatred or ill-will between different groups of persons;
(f) Diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a party of the Government, an Organ of State or statutory board.”
The contents of this law are made all the more alarming by the fact that Singapore is a signatory to Article 19 of the International Covenant on Civil and Political Rights, which protects freedom of speech.
The Singaporean government has justified this law using the 'public order' defence in Article 19, which allows for restrictions on freedom of speech and expression in pursuance of “public order, public health or morals”.
However, in order to qualify as a valid restriction on freedom of speech, law must pass a three-part test that has been established in international law. It must first be established whether the restriction is prescribed by law. Secondly, the law must pursue a legitimate aim. Lastly, the law restricting the right must be necessary in a democratic society. A law is considered to pursue a legitimate aim when there exists a causal link between the law and the purpose it seeks to achieve. Since the law aims to protect public order, the legitimate aim cannot be challenged.
For a law to be prescribed by law, the law must be precise enough to for one to know how to regulate their behaviour in order to abide by it. Hence, if any discretion is given in such a law, the scope and its safeguards must be clearly described. In this law, the Minister exercises his discretion to determine whether the law has been violated and taking enforcing the law is in public interest. If he is convinced, he can instruct the Competent Authority, a body that is set up by the Minister himself, to pass a direction under this law. However, there is no safeguard to the exercise of these discretionary powers by the Ministers, causing ambiguity in its implementation.
The test for the law being ‘necessary in a democratic society’ requires, firstly, a pressing social need and secondly, the law to be proportionate to its aim. For there to be a pressing social need, there must be an imminent danger to the social fabric and democratic nature of the society. Arguably, the issue of ‘fake news’ could be detrimental to pluralism in Singapore. However, there is no urgency in this situation. On the contrary, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression highlights the importance of free and open political conversation, especially around the elections of a country.
A law is considered ‘proportional’ if it is the least restrictive action that can be taken in the situation. Hence, any penalty or punishment imposed must be absolutely necessary to serve the aim that is sought to be achieved. A fee up to SGD 100,000 (Rs. 52,34,422) or imprisonment up to 10 years for individuals and a fine up to SGD 1,000,000 (Rs. 5,23,44,225) in other cases are highly excessive penalties.
While addressing the Parliamentary Committee, Alvin Tan, the Head of Public Policy in Southeast Asia, expressed his scepticism of the necessity of the law especially with existing laws, which address hate speech, defamation and spreading of false news, already in place. This goes to show that the law is not a valid restriction on the right of freedom of speech, and must be amended to correct this violation.
Freedom of speech is considered a foundational right as it protects the essence of any democracy. The ICCPR tests are an established standard in international law, and failure to conform attracts significant criticism. However, the unenforceability of the ICCPR has led Singapore to adopt only the provisions which fit into its own legal framework, such as Article 19. The scepticism surrounding the motives of Singapore's anti-fake news law questions whether the government is fighting against 'fake news' or against dissent.
References:
Protection from Online Falsehoods and Manipulation Act, 2019. Act No. 26 of 2019, Government Gazette, Republic of Singapore.
HRC, ‘Promotion and protection of the right to freedom of opinion and expression Frank La Rue’, (7 September, 2012) A/67/357.
Gündüz v. Turkey App no. 3571/97 (ECtHR December 2003); Perincek v Switzerland Application no. 27510/08 (ECtHR October 2015).
Lingens v. Austria, 8 July 1986, Application No. 9815/82, paras. 39-40 (European Court of Human Rights).
The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para. 49 (European Court of Human Rights).
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