What is a POFMA Correction Direction and How to Appeal
Correction directions are one of the primary tools under the Protection from Online Falsehoods and Manipulation Act (POFMA) to correct online falsehoods. If you’ve been issued a correction direction, read on to find out what are your options.
This article explains:
- What is a POFMA correction direction
- When might you receive a correction direction
- What you can do if you’ve been issued a correction direction, such as appealing against the direction
What is a POFMA Correction Direction?
A correction direction is issued to a person who has communicated a falsehood that affects the public interest. It requires that person to publish a correction notice that provides access to the correct facts or information in order to correct the falsehood that had been communicated.
A correction direction does not, however, require the person to take down their post or make edits to the content containing the falsehood.
When Might I Receive a Correction Direction?
If you have communicated a falsehood – for example, by posting a false statement on your social media accounts, blog or a website – that affects the public interest, you might receive a correction direction.
Public interest would include considerations such as public health and safety. For example, putting up a post which claims that vaccines against a potentially fatal and highly transmissible virus are unsafe for humans, despite scientific data and evidence suggesting otherwise, could be deemed a falsehood that puts public health and safety at risk.
This is because people viewing the post might decide not to get vaccinated, which could in turn increase the rate of transmission and spread of the virus amongst the population.
I Have Received a Correction Direction, What Do I Do Next?
There are two options available to you if you are issued a correction direction. You can either
- Comply with the correction direction; or
- Appeal against being issued the direction.
Comply with the correction direction
To comply with a correction direction, you may be required to insert a notice that provides either a clarification to the contents of the original post, or access to the correct facts, by:
- Publishing the notice online (next to the original post/content); and/or
- Publishing the notice in a specified manner in a specified newspaper or other printed publication in Singapore.
Do note that you are not required to take down your original post or make edits to the contents of that post.
Non-compliance with a correction direction is an offence. In the case of an individual offender, he or she may face a fine of up to S$20,000 and/or a term of imprisonment of up to 12 months. In other cases, the offender will be subject to a fine of up to S$500,000.
Appeal against the issuance of the correction direction
Instead of complying with the correction direction, you may appeal against it to the General Division of the High Court. However, before you do so, you must first apply to the Minister who had issued the direction to either:
- Vary the correction order – meaning to change or modify what has been stipulated in the direction that you are supposed to reflect in the correction notice; or
- Cancel the correction direction entirely, such that you are not required to put up the correction notice.
Taking the example cited above of the post that disputes the safety of vaccines, the correction direction would be issued by the Minister for Health. If you wish to appeal against the direction, you will first need to apply to the Minister for Health to either vary or cancel the direction.
If the Minister has refused your application to vary or cancel the direction, you can then file an appeal to the General Division of the High Court.
Applying to the Minister to vary or cancel a correction direction
There are certain procedural requirements that need to be met if you wish to apply to the relevant Minister to vary or cancel a correction direction.
First, an application must be made in writing using the prescribed form. You will then need to submit the form to the relevant Ministry via the email address provided in the correction direction. You would also need to attach a copy of the correction direction to your application.
If you have submitted the application in accordance with the stated requirements, you should receive a notice of the Minister’s decision within 2 working days after the date on which the application was received.
If you do not receive the notice within this specified time period, the application is treated as refused. You may then wish to appeal against the Minister’s decision by filing an appeal to the High Court. Do note that you must file the appeal to the court within 14 days after the Minister’s decision to refuse your application.
Appealing to the General Division of the High Court
When appealing to the General Division of the High Court, you would also need to be mindful of the various procedural requirements that you must comply with.
For instance, you are required to file a number of documents, which include the originating application and supporting affidavit found in the First Schedule of the POFMA Rules.
After filing the documents, you will need to go to the Supreme Court Legal Registry to attend before the duty registrar and request a hearing date for the appeal. Do note that you are also required to serve, either electronically or in person, the originating application and supporting affidavit on the Attorney-General when the Legal Registry has accepted your documents. You must then file an affidavit of service after serving the documents on the Attorney-General.
The Minister may file and serve an affidavit in response to your affidavit. The matter will then proceed for hearing on the date provided by the duty registrar.
If the appeal is successful, the court will set aside the direction, and you are no longer required to comply with it. However, if the appeal fails, the court will confirm the correction direction, and you will be required to comply with it. Otherwise, you may be charged for non-compliance (as highlighted above).
How does the court decide whether to set aside a correction direction?
In the case of The Online Citizen v Attorney-General and another appeal and other matters (“TOC v AG“), the Court of Appeal applied a five-step analytical framework to determine whether a correction direction may be set aside. The five steps include determining:
- The meaning behind the allegedly false statement (i.e., the subject statement) identified by the Minister who had issued the direction. The court will need to ascertain how the Minister had interpreted the subject statement, and the meaning that he intended to place on that statement;
- Whether the original post/content makes or contains the subject statement identified by the Minister who had issued the direction. The court will consider whether the Minister’s interpretation of the subject statement is a reasonable one;
- Whether the subject statement is a statement of fact;
- Whether the subject statement is false; and
- Whether the subject statement has been or is being communicated in Singapore.
In TOC v AG, the appellants filed appeals against correction directions that were issued to them. The directions required them to insert correction notices over certain statements made in some of their online publications over Singapore’s immigration and employment policies, and separately, the execution methods used when meting out the death sentence on offenders.
After applying the five-step framework, the Court of Appeal reviewed the two different subject statements of one of the appellants – the Singapore Democratic Party – and partly allowed the appeal relating to the second subject statement. Unlike the first subject statement, The Court of Appeal held that the words used in the second subject statement were not deemed to bear the meaning intended by the Minister who had issued the direction (i.e. the first step was not met on the facts of the case), and was therefore not communicated in Singapore.
However, the Court of Appeal dismissed the appeal of the other appellant, The Online Citizen. This was because, after applying the five-step framework, the court held that the statements concerned were false statements of fact that had been communicated in Singapore. There was therefore no basis to set aside the correction direction.
Who needs to prove whether a correction direction should be set aside?
In TOC v AG, the Court of Appeal held that the burden of proof is on the person who made the allegedly false statement (i.e. the recipient of the correction direction). This means that the recipient of the direction must be the one to prove that the correction direction should be set aside. The court further held that the standard of proof required, or the extent to which the recipient of the correction direction must prove its case to succeed, is one of reasonable suspicion.
In other words, the recipient of the direction has to show a prima facie case of reasonable suspicion that one or more of the grounds for setting aside the direction under section 17(5) of POFMA has been satisfied, as set out below:
- The subject statement was not communicated in Singapore;
- The subject statement is not a statement of fact (e.g., it is an opinion or criticism), or is a true statement of fact;
- It is not technically possible to comply with the correction direction.
If the recipient is able to show evidence under one or more of the grounds under section 17(5) of the POFMA, then the burden of proof will shift to the Minister (who had issued the direction) to show that none of the grounds for setting aside the direction have been made out.
Ultimately, it is the court that will make the final decision on whether the subject statement is a falsehood or not, based on all the evidence that has been put forward by all the parties concerned, and by applying the five-step framework.
If the court decides that the subject statement is a falsehood, then the appeal fails, and you will need to comply with the correction direction. Do note that a failure to comply with a correction direction is an offence, and you may be liable to a fine and/or a term of imprisonment (as mentioned above).
What happens if my appeal to the General Division of the High Court is unsuccessful?
If your appeal is unsuccessful, do note that there is a further right of appeal from a decision of the General Division of the High Court. However, you must seek permission from the Court of Appeal before doing so.
Receiving a POFMA correction direction is a serious matter, as a failure to comply with a direction could render you liable to criminal sanctions.
If you have been issued a correction direction in Singapore, you should consult a civil litigation lawyer for legal advice or assistance on the options available to you, and the best approach to take based on the circumstances of your case. A lawyer can explain the different rules and procedures, as well as the implications of a decision to comply with the direction or appeal against it.
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