Online commentary on GE2020: Are some potentially in breach of the POFMA?

During the recent GE2020, one may have seen certain viral whatsapp messages or posts online with questionable content circulating. Examples of these include anecdotes about the self inking pens, or declarations that there will be a lockdown after elections end. These are all falsehoods that are transmitted through the internet which are regulated by the Protection from Online Falsehoods and Manipulation Act (POFMA).

POFMA centres on statements of fact - statements which a reasonable person seeing, hearing or otherwise perceiving them would consider as representations of fact as defined under section 2 of POFMA. POFMA regulates all statements made through or on the internet, including social media platforms like Facebook and Instagram, as well as those in Whatsapp and Short Message Service (SMS). Senior Minister of State for Law Edwin Tong also added that POFMA will also cover closed or private platforms, for example private Whatsapp chat groups and social media groups.

Pursuant to section 7(1) of POFMA, a person is liable when he/she makes a statement of fact whether in or outside of Singapore, to communicate a statement which that person knows or has reason to believe that it is a false statement of fact, and the communication of that statement in Singapore is likely to:

1. be prejudicial to Singapore’s security;
2. be prejudicial to public health, public safety, public tranquillity or public finances;
3. be prejudicial to the friendly relations of Singapore with other countries;
4. influence the outcome of a presidential election, general election, by-election or referendum;
incite feelings of enmity, hatred or ill-will between different groups of persons; or
5. diminish public confidence in the government.

Upon criminal liability being established, individuals may be fined up to S$50,000 and/or a term of imprisonment up to 5 years. However, the penalty is harsher for non-individuals such as online media platforms. In the case of non-individuals, a fine of up to $S500,000 will be imposed.

In instances where a fake online account or bot is used to spread such falsehoods, offenders who are found liable may be fined up to S$100,000 and/or a term of imprisonment up to 10 years. As for non-individuals, a fine up to S$1 million may be imposed.

Ministers can also give out “stop communication directions” or “correction directions” ordering the falsehood to be removed or corrected. They may also issue directions to internet service providers and online platforms to issue corrections or halt access to the false statement.

Further, even though one may not be aware that the statement they shared is a falsehood, they may still be issued orders to correct or remove such statements. Although, they will not be criminally liable under POFMA for sharing such falsehoods, non-compliance with correction or stop communication directions will attract criminal liability as well.

Although no one was prosecuted for those viral messages, POFMA was indeed used during GE2020. In response to comments made by SDP’s Prof Paul Tambyah at an NUSS forum, the Manpower and Health ministries issued POFMA correction notices to The Online Citizen Asia, New Naratif, Channel News Asia and the National University of Singapore Society.

At the forum, Prof Tambyah was quoted to have made statements to the effect that MOM sent out circulars, without consulting public health medical professionals, discouraging employers from sending their workers for COVID-19 testing. MOM and MOH clarified that these allegations were false, and that the multi-ministry taskforce in charge of the COVID-19 crisis actively consults the medical professionals in their ranks.

Thus the news outlets and entities which published Prof Tambyah’s false statements online were issued correction orders to amend their posts. This is despite these entities not being the original authors of the statements (the statements being quotes).

Therefore, to avoid contravening POFMA, it is of utmost importance to self-review any statement of fact, gained personally or through third parties, before posting it on or through the internet. This is especially important during elections period, since statements may easily be seen to be potentially affecting Singapore’s security, public health, safety or induce feelings of enmity, hatred or ill-will between different groups, or any other consequences stated in section 7 of the POFMA.

However, the POFMA is not intended to cover opinions, criticisms, satire or parody. Therefore, it would be good practice to state clearly if your statement contains your own opinion.

If you are in doubt or you have any further questions, please feel free to contact us at 6553 4800.

Written by:
Hoh Law Corporation
21.7.2020