Apex court examines what constitutes responsible journalism when reporting on allegations in TOC Pofma appeal

Graphics of fake news seen on a wall. ST FILE PHOTO

SINGAPORE - What constitutes responsible journalism when reporting on allegations and how that would be practised under Singapore's laws against fake news came under examination on Thursday (Sept 17), as the apex court heard The Online Citizen's (TOC) appeal against a correction direction it received.

The socio-political site, which had reported on a Malaysian rights group's claims of unlawful execution methods by the Singapore prisons, said it should be enough that it had asked the Home Affairs Ministry (MHA) for a response and indicated in the article that the claims were allegations.

TOC, represented by Mr Eugene Thuraisingham, also argued that it had not taken a position on the allegations, and this was clear if the article was read in full. Given this, the TOC did not deserve to be issued a correction order, the lawyer said.

But the Attorney-General's Chambers said a responsible news outlet would have made reasonable attempts to verify information that could threaten public interest before publishing it.

The TOC had sent an e-mail to MHA for verification only moments before the article was published, leaving scant time for the ministry to respond, said Deputy Chief Counsel Hui Choon Kuen.

He added that in this case, a correction direction under Pofma is meant to prevent the spread of falsehoods and should not be taken as an indictment of those who had repeated the false statements.

The issue of how the Protection from Online Falsehoods and Manipulation Act (Pofma) interacts with journalism was canvassed yesterday when the five-judge Court of Appeal questioned both sides on their arguments. It reserved judgment on the case.

TOC had been issued a correction direction in January over a story - quoting Lawyers for Liberty - that alleged Singapore's prison officers were instructed to kick the head of death-row prisoners to snap their necks when the rope breaks during hanging, among other things.

Home Affairs and Law Minister K. Shanmugam, initiating the correction direction, said the claims were false.

TOC then filed an appeal under Pofma to have the correction direction set aside. This was dismissed by High Court Judge Belinda Ang.

On Wednesday, Mr Thuraisingham said that a correction direction comes with consequences as an online site can be barred from receiving advertising revenue after it has received three such directions.

In response, Mr Hui said that the Government exercises its discretion in deciding whether websites should come under such sanction. When a website did not intentionally spread falsehoods, even if it has accumulated three correction directions, it may not be barred.

Judge of Appeal Andrew Phang, though, noted that without knowing when the discretion will be exercised "sometimes the fear is even worse than the actual coming down of the sword".

Mr Thuraisingham also said the Government should only issue a correction direction when a news outlet refuses to carry its response. He added that MHA had never replied to TOC's query.

Judge of Appeal Tay Yong Kwang noted that TOC's email sent to the MHA and the publication of the article was "almost simultaneous", a point also brought up by Mr Hui.

"Would a person say the request for clarification is sincere?" asked the judge.

Judge of Appeal Judith Prakash noted that the nature of journalism entails some pressure to publish in a timely fashion.

To this, Mr Hui said: "As a responsible journalist, if you report on something, and not just anything, but something that affects the public interest, you should make attempts to verify."

Chief Justice Sundaresh Menon suggested this "imposes quite a burden on responsible journalism".

He posed a hypothetical scenario of a newspaper receiving information from a whistleblower which is a matter of public interest, but cannot report on it until it is proven.

"It worries me that you're saying Pofma allows the minister to come to a journalist and say you can't report that, or if you're going to report then you have to tell the world that you say it is untrue," he said.

He added this would mean there is a whole slew of things that the media cannot bring to Singaporeans' attention until it is proven.

Mr Hui, though, voiced concern over allowing news outlets to publish any claim just by qualifying them as allegations and indicating they had asked the Government for comments: "My concern is that this becomes the blueprint for other articles where you just put this one line."

He added that in the case of whistle blowing, there were other ways to raise the issue, and "mass communicating" it to people when it could affect Singaporeans is not the only way.

To this, CJ Menon said: "I'm a tiny bit concerned, Mr Hui, that your suggestion is that Pofma was meant to protect Singaporean's from themselves, I don't think that is correct."

Justice Phang said if a news outlet constantly harps on certain themes and puts out questionable articles, it would lose credibility after a while.

He added that it is the early days of the law, but if patterns of behaviour are detected over time, that would also add to the context in which Pofma cases are considered.

"Any organisation, ultimately, is judged by its trustworthiness over a period of time, but that is extra legal, we have no control over it," he said.

"The question for us today is having regard to...that delicate balance of maintaining free speech versus the spread of falsehoods, the approach we are supposed to take. If you take heavy handed approach, you can have a very good instrument that is not blunt and use it bluntly."

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