True or False or Misleading: [A]dequate Judicial Oversight over Part 3 Directions under the Protection from Online Falsehoods and Manipulation Act
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True or False or Misleading? [A]dequate judicial oversight
over Part 3 Directions under the Protection from Online
Falsehoods and Manipulation Act
Lee Kay Howe, University of Oxford
Disinformation, or 'fake news,' is a serious threat
to democracy, with the Minister for Law asserting
that it has combined, like a battering ram with
inequality, inequity, [and] political systems not
delivering results to damage [and] destroy the
foundations of democracy.' Modern media and
technology have given disinformation a new
power, with fake accounts; digital advertising;
and algorithms magnifying its impact.2 In
response, Parliament has passed the Protection
from Online Falsehoods and Manipulation Act
(POFMA), in order to, inter aia, prevent the
communication of false statements of fact in
Singapore and to... counteract the effects of
such communication.3 This is undoubtedly
desirable. Nonetheless, questions remain as
to whether certain provisions of the Act will
instead harm democracy by creating a chilling
effect4 on free speech and curtail important
discussion of matters of public interest...
including content critical of the government.'
The government, in response, has promised
adequate judicial oversight'6 of the Act. In
1 Protection from Online Falsehoods and Manipulation
Bill (POFMB) Debate 7 May 2019. Per the Minister, the
foundations of democracy include trust, free speech and the
infrastructure of fact.
2 ibid. See Select Committee on Deliberate Online
Falsehoods, Report of the Select Committee on Deliberate Onine
Falsehoods- Causes, Consequences and Countermeasures (Parliament
2018) at p. 5 - 13 and 187 - 188 for details of its impact
worldwide, and p. 51 - 58 for the specific threat to Singapore.
3 POFMA, s. 5(a).
4 Cherian George, 'Singapore's online falsehoods bill
will deepen a culture of self-censorship' (NewMandala, 26 April
2019) <https://www.newmandala.org/singapores-online-
falsehoods-bill-will-deepen-a-culture-of-self-censorship/>
accessed 5June 2019.
5 International Commission of Jurists, 'RE: Protection
from Online Falsehoods and Manipulation Bill 2019'
(International Commission of Jursts, 12 Apr 2019) <https://
www.icj.org/wp-content/uploads/2019/04/Singapore-online-
regulation-bill-letter-advocacy-open-letter-2019-ENG.pdf?
accessed 5June 2019.
6 POFMB Debate (n 1).
exploring the adequa[cy] of this judicial
oversight, this article will begin with a discussion
of the discretion-conferring provisions in Part
I; an examination of the appeals mechanisms
of the Act in Part II; an assessment of judicial
review procedures in Part III; a review of cost
and time-frame issues in Part IV; and a final
analysis in Part V which concludes that judicial
oversight of the Act is, indeed, adequate.
Throughout the analysis, this article pursues
two lines of inquiry -whether the judicial
oversight mechanisms are adequate to ensure
due process and the proper exercise of power,
and give assurance to the public of the integrity
of the decision-making process; and whether
they are adequate to ensure that free speech is
not unduly chilled.
I. Ministerial discretion under Part 3 of
POFMA
One of the main concerns raised by the Select
Committee on Deliberate Online Falsehoods
was the potential dangers of virality,'8 which
can lead to disinformation spreading and
causing harm in a very short span of time. As
such, the Select Committee recommended that
the Government should have the powers, as
the first-instance decision-maker, to swiftly
disrupt the spread and influence of online
falsehoods.9 This recommendation has been
effected by several discretionary powers in
POFMA, addressed to individuals, internet
intermediaries, and providers of mass media
services. Of these, Part 3 Directions have the
most significant impact on individuals. Under
Part 3, any Minister has a wide discretion to
7 Select Committee Report (n 2) at [438], but see also [364].
8 The relative ease and affordability with which
[falsehoods] are transmitted, ibid. at [3] and [396].
9 ibid., at [438].](ViewImageLocal?handle=hein.journals/singclr2019&div=34&collection=&method=preview&ext=.png&size=3)
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