Singapore Fake News Laws: Guide to POFMA (Protection from Online Falsehoods and Manipulation Act)
Amidst much debate and controversy, Singapore’s fake news laws (i.e. the Protection from Online Falsehoods and Manipulation Act, or “POFMA”) were passed in Parliament on 8 May 2019 with a majority of 72 votes and came into effect on 2 October 2019. This article provides an overview of POFMA as well as some of its key provisions.
- What is POFMA and What Does It Cover?
- What Can Happen If a Falsehood Has Been Communicated?
- What Can Happen to Websites that Repeatedly Spread Misinformation or Falsehoods?
- How Does POFMA Deal With Fake Accounts or Bots That Spread Falsehoods?
- Can an Appeal be Made Against a POFMA Direction or Order?
- How to Appeal against a Direction or Order under POFMA
- What Happens If the Falsehood Had Originated from Overseas?
- What are the Codes of Practice Under the POFMA and How Will They be Implemented?
- Is There Any Recourse for Individuals Who Have Been the Subject of Fake News and Face Harassment as a Result?
What is POFMA and What Does It Cover?
POFMA seeks to prevent the electronic communication of falsehoods (i.e. false statements of fact or misleading information), as well as to safeguard against the use of online platforms for the communication of such falsehoods.
POFMA also puts in place various measures to counteract the effects of such communication and to prevent the misuse of online accounts and bots (i.e. computer programmes that run automated tasks).
Why was POFMA implemented?
Fake news has been an ongoing phenomenon in Singapore. As early as 2007, a picture of “halal pork” allegedly being sold in FairPrice outlets island-wide went viral, forcing the supermarket chain to lodge a police report and assure customers that this was a falsehood.
Then in 2016, a hoax was widely shared about the alleged collapse of a roof at Punggol Waterway Terraces. This false news caused anxiety among residents, and led to the wastage of substantial resources, as grassroots leaders, police and Singapore Civil Defence Force personnel had rushed down to the scene over fears of mass casualties.
The POFMA was therefore implemented to tackle growing concerns over the scourge of fake news and misinformation, communicated particularly through various online and social media platforms.
What does POFMA cover?
POFMA focuses on statements of fact, defined as statements which a reasonable person seeing, hearing or otherwise perceiving them would consider as representations of fact.
Under section 3 of the POFMA, statements communicated to one or more end-users in Singapore, through the internet and on social media platforms such as Facebook and Twitter, as well as MMS and SMS, will fall under the POFMA’s purview.
Then-Senior Minister of State for Law Edwin Tong clarified in Parliament that POFMA will also cover closed platforms, such as private chat groups and social media groups.
The POFMA is not intended to cover opinions, criticisms, satire or parody.
Further, the Singapore Court of Appeal has held in a 2021 landmark judgment that the POFMA is constitutional, in the sense that it does not restrict the right to freedom of speech under Article 14(1)(a) of the Singapore Constitution.
A statement that has been identified as a false statement of fact under POFMA continues to be protected under the Constitution until it has been determined by the courts to be a falsehood.
What does POFMA prohibit?
POFMA prohibits the communication of false statements of fact in Singapore.
Under POFMA, a “false statement of fact” is defined as a false or misleading statement which a reasonable person would consider to be a representation of fact.
In particular, under section 7 of the POFMA, a person must not commit any acts, whether in or outside of Singapore, to communicate a statement which that person knows or has reason to believe that it is a falsehood, and the communication of that falsehood in Singapore is likely to:
- Be prejudicial to Singapore’s security;
- Be prejudicial to public health, public safety, public tranquillity or public finances;
- Be prejudicial to the friendly relations of Singapore with other countries;
- 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
- Diminish public confidence in the government.
Individuals in breach of section 7 will be liable to a fine up to S$50,000 and/or a term of imprisonment up to 5 years. For non-individuals (e.g. online media platforms run by tech companies), a fine of up to $S500,000 will be imposed.
Alternatively, where a fake online account or bot is used to spread such falsehoods, offenders who are individuals will be liable to a fine up to S$100,000 and/or a term of imprisonment up to 10 years. For non-individuals, a fine up to S$1 million will be imposed.
Exemptions to the POFMA
Under section 7(4) of the POFMA, the prohibition against the communication of falsehoods does not apply to any act for the purpose of or that is incidental to the provision of:
- An internet intermediary service;
- A telecommunication service;
- A service of giving public access to the internet; or
- A computing resource service.
How is it decided what constitutes a “falsehood” under POFMA?
A Minister of any government agency may assert, in his or her judgement, that a particular statement is a falsehood. However, it is the court that will make the final decision on whether a statement is false or not, after assessing all the evidence put forward by the parties.
What Can Happen If a Falsehood Has Been Communicated?
Part 3 Directions
If a falsehood has been communicated, the Minister can issue Directions found in Part 3 of the POFMA (i.e. Part 3 Directions) if it is in the public interest to do so.
Non-compliance with a Part 3 Direction is an offence that individuals can be fined up to S$20,000 and/or imprisoned for up to 12 months. For non-individuals, they may be liable to a fine up to S$500,000.
In addition, individuals who knowingly communicate falsehoods online, and do so through a fake account or bot, may be subject to aggravated penalties (discussed in further detail below).
The Part 3 Directions are:
This requires the party who communicated the falsehood to put up a notice stating:
- That the falsehood communicated previously was false; and/or
- A correction to the falsehood and/or where such a correction can be found.
The correction notice may also be required to be placed online, or to be published in a Singapore newspaper or other publication.
The notice will still need to be published even if the party who communicated the falsehood had already taken down the content containing the falsehood.
It is possible for the recipient of a Correction Direction to appeal against the issuance of the Direction. This can be done by first applying to the relevant Minister to vary or cancel the Direction. If the Minister refuses the application to vary or cancel the Direction, the recipient of the Correction Direction may then proceed to file an appeal with the General Division of the High Court.
For more information, please refer to our other article on filing an appeal against a Correction Direction.
Stop Communication Direction
Under a Stop Communication Direction, a person is required to take the necessary steps to ensure that the falsehood communicated is no longer available on, or through, the internet to end-users in Singapore, including – if necessary – the removal of the falsehood from an online location by a specified time. Such steps may include stopping the publication, sharing or posting of the falsehood in Singapore.
The person may also be required to communicate and publish a correction notice in the manner mentioned above. Stop Communication Directions are required to be published in the Government Gazette, although non-publication does not invalidate the Direction.
Part 4 Directions
For internet intermediaries (such as Google, Facebook or Twitter) and providers of mass media services, any Minister may issue the following directions found in Part 4 of the POFMA (i.e. Part 4 Directions) if a falsehood has been communicated and it is in the public interest to issue such directions.
The Part 4 Directions are:
Targeted Correction Direction
Under this direction, an internet intermediary whose service is the means by which a falsehood is communicated in Singapore, will be required to communicate a correction notice to all end-users who accessed the falsehood via that service.
Here, an internet service provider, such as Singtel or StarHub, whose service had been used to communicate the falsehood in Singapore, will be ordered to disable end-user access to that falsehood in Singapore.
General Correction Direction
Here, a Direction is issued to a prescribed:
- Internet service provider;
- Telecommunications service provider;
- Any other prescribed person,
to communicate a correction notice to its end-users via publication in their newspaper or broadcast, or via transmission by a telecommunications service.
Can I be held liable if I did not know that I was sharing a falsehood?
You will not be criminally liable if you were not aware that you were sharing a falsehood. Criminal sanctions would apply only if a person knowingly publishes or shares a falsehood that harms the public interest.
However, Part 3 Directions may still be issued to any person who communicates a falsehood even if the person had no knowledge or reason to believe that that communication had been a falsehood.
Will I be issued a Direction if I have amended or stopped communicating the falsehood?
What Can Happen to Websites that Repeatedly Spread Misinformation or Falsehoods?
Declaration of an Online Location
Section 32 of the POFMA enables a Minister to declare an online location, or website, as a declared online location. The Declaration may specify the online location by way of its URL, domain name or any other unique identifier. Declarations will also be published in the Government Gazette.
In addition, under section 32(3)(f) of the POFMA, the Declaration may also require the owner or operator of the online location to communicate, and make known, to users who access the online location a notice that the online location is the subject of a Declaration. Users will still, however, be able to access the declared online location.
A failure to comply with the requirements set out in section 32(3)(f) renders the owner or operator of the declared online location, if an individual, liable to a fine up to S$40,000 and/or a term of imprisonment up to 3 years. For non-individuals such as companies, they may be liable to a fine up to S$500,000.
However, it is a defence to this offence if the accused can prove that he or she did not know and had no reason to believe that a declaration was made in relation to the specified online location.
Access Blocking Order
An Access Blocking Order may be issued where:
- Paid content included on a declared online location is communicated in Singapore, or the owner or operator of a declared online location failed to include a notice that the online location is the subject of a Declaration; and
- The Minister is satisfied that after the date on which the Declaration of an Online Location came into effect, one or more end-users in Singapore have used, or are using the services of an internet access service provider to access the declared online location.
If an Access Blocking Order is issued, the Info-Communications Media Development Authority (IMDA) may order an internet service provider to disable access to a declared online location in Singapore where a falsehood is being communicated.
Similarly, internet intermediaries may also be ordered to disable access to a declared online location, where the internet intermediary has control over access by end-users in any place to the declared online location.
Failure to comply with the Access Blocking Order renders the internet service provider (or internet intermediary) liable to a fine of up to S$20,000 for each day that the order is not complied with, up to a total of S$500,000.
How Does POFMA Deal With Fake Accounts or Bots That Spread Falsehoods?
Account Restriction Direction
Under Part 6 of the POFMA, any Minister may issue an Account Restriction Direction to order an internet intermediary to shut down any fake accounts and bots on its platforms.
In determining whether an online account is fake or is controlled by a bot, the Minister must have regard to the following factors, as stated under section 40(4) of the POFMA:
- Whether any information used in creating the online account relates to a country or territory that is different from the country or territory that the account holder claims to be from;
- Whether there is a pattern of suspicious activity carried out using the online account;
- The date on which the online account was created; and
- Any other factor that the Minister considers to be relevant in reaching his or her decision.
Once the Account Restriction Direction has been issued, the internet intermediary will have to prevent the fake accounts from using its services to communicate falsehoods, and/or prevent the accounts’ owners from interacting with the end-users of its service in Singapore.
Account Restriction Directions may run for up to 3 months or for an indefinite period of time. Internet intermediaries can also be required to act outside of Singapore.
A failure to comply with the Account Restriction Direction may render an individual liable to a fine of up to S$20,000 and/or a term of imprisonment of up to 12 months. Non-individuals may be liable to a fine of up to S$1 million.
Aggravated penalties for using fake accounts or bots to communicate falsehoods
An individual who knowingly communicates a falsehood online, and does so through a fake account or bot, can be fined up to S$100,000 and/or face a term of imprisonment of up to 10 years. Non-individuals can be fined up to S$1 million.
Individuals who make or alter a bot for the purposes of communicating a falsehood can face a fine of up to S$30,000 and/or a term of imprisonment of up to 3 years. Non-individuals can face a fine of up to S$500,000.
Can an Appeal be Made Against a POFMA Direction or Order?
If an individual or company wants to appeal against a Direction or order issued under the POFMA, they must first apply to the Minister who issued the Direction or order to cancel it.
If the Minister refuses to do so, then an appeal may be made to the General Division of the High Court to overturn the Direction or order. The individual or company that wants to file the appeal to the General Division of the High Court must do so within 14 days after the Minister’s decision to refuse the application.
For appeals against a Part 3 or Part 4 Direction
The court will apply a five-step analytical framework to determine whether a Part 3 Direction may be set aside:
- Ascertain the meaning that is intended to be placed on the statement that is the subject of the Direction (i.e. “the subject statement”);
- Determine whether the subject statement was made or contained in the material in respect of which the Direction was issued;
- Determine whether the subject statement is a “statement of fact”;
- Determine whether the subject statement is “false”; and
- Determine whether the subject statement “has been or is being communicated in Singapore”.
The party that has made the allegedly false statement will also need to put forward some evidence to show that the Direction should be set aside on one or more of the following grounds:
- The statement or material that is the subject of the Direction was not communicated in Singapore, or in the case of a Part 4 Direction, was not communicated in Singapore by any means of any internet intermediary service;
- The 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 Direction.
The party that has made the allegedly false statement bears the burden of proving that the Direction should be set aside. In other words, if the recipient of the Direction is unable to provide evidence that proves that the Direction should be set aside, then the appeal would fail.
However, if the recipient of the Direction is able to put forward such evidence, the burden then shifts to the Minister who issued the Direction to show that none of the grounds for setting aside the Direction have been made out. It is only if the Minister is unable to do so that the Direction will be set aside.
For appeals against a Declaration of an Online Location
The High Court may only set aside a Declaration on the ground that, at the time of making the Declaration if the conditions required for the Declaration (as mentioned above) were not satisfied.
For appeals against an Account Restriction Direction
Only the following persons are permitted to appeal to the High Court against an Account Restriction Direction:
- The prescribed internet intermediary to whom the Direction is issued
- The holder of the specified online account
- Any other person with control over that account.
The High Court may set aside the Direction only under the following conditions:
- The online account had not been used to communicate the falsehood or behaviour;
- The statement communicated is true;
- The statement is determined to not be a fact;
- The account holder is determined to not be working together with other fake accounts or bots to communicate a falsehood;
- It is technically not possible to comply with the Direction; or
- The account is found to be authentic.
How to Appeal against a Direction or Order under POFMA
1. Apply to the Minister to have the direction or order cancelled
If an individual or organisation wants to appeal against a Direction or order issued under the POFMA, they must first apply to the Minister who issued the Direction or order to cancel it. More information on the application process, and the download link to the application form, can be found on the POFMA Office website.
The Minister has 2 working days to decide whether to allow the appeal against his Direction or order. If the appeal is allowed, the Minister will issue a notice of his decision within 2 working days to change or cancel the directive, or to reject the application altogether. If the Minister does not give notice by this time, it means that the application is refused.
2. If the application to the Minister is refused, file an appeal to the High Court
If the Minister refuses the application, then an appeal may be made to the High Court to overturn the Direction or order. The appellant will need to file an originating application and a supporting affidavit in court within 2 weeks of the refusal.
The forms for these documents can be found in the First Schedule of the Supreme Court of Judicature (Protection from Online Falsehoods and Manipulation) Rules 2019, and they can be filed at the LawNet & CrimsonLogic Service Bureaus.
The appellant must then appear before a duty registrar to ask for a hearing date. The High Court will fix a hearing date that is 6 working days after such appearance, or after the date that the court accepts the appellant’s documents.
3. Serve the appeal documents on the Attorney-General
After the High Court has accepted the appellant’s documents, the appellant is also required to serve them on the Attorney-General by 12pm the next working day. This can be done by:
- Emailing the documents to AGC_POFMA@agc.gov.sg;
- Filing them through the LawNet & CrimsonLogic Service Bureaus; or
- Leaving copies of the documents in an envelope marked “POFMA APPEAL” at the reception counter of the Attorney-General’s Chambers.
After the appellant has served their documents on the Attorney-General:
- The appellant must also file an affidavit of service to court within 2 working days
- The Minister will also have 3 working days to file an affidavit in reply.
4. Attend the High Court hearing for the appeal
On the day of the hearing, the High Court will hear the appeal and decide whether to allow or set aside the POFMA Direction or order, based on the grounds mentioned above.
If one party to the appeal does not show up for the hearing, the High Court may still carry on with the hearing without that party.
If the High Court refuses to set aside the Direction or order and dismisses the appeal, the appellant can appeal to the Court of Appeal, but only with the permission of the High Court or the Court of Appeal.
Fees for appealing against a POFMA direction or order
The filing fees for both individuals and non-individuals are as follows:
|Filing of Originating Application
|Filing of Affidavit
|$1 per page, subject to a minimum fee of $10 per affidavit
Hearing fees for the court appeal for both individuals and non-individuals are as follows:
|Duration of Hearing
|First 3 days
|6th to 10th days
|$3,000 per day
|11th day onwards
|$5,000 per day
Deferment, waiver and refund of filing fees and court fees
The registrar may partially or fully defer the payment of filing and court fees.
If the appellant is having financial hardship, the High Court may also choose to:
- Waive the payment of the deferred fees;
- Issue a full or partial refund of filing fees and court fees already paid; or
- Split the payment of these fees among the appellant and the Minister.
If the appellant loses the appeal, does the appellant have to pay for the Minister’s costs?
In court cases, the general rule is that the losing party will pay the costs incurred by the winning party for that case. These costs can include the filing fees and hearing fees as mentioned above.
For POFMA appeals however, appellants who are individuals may not be required to pay any costs.
That said, if the High Court thinks that an appellant (whether an individual or an organisation) had abused the court process by bringing the appeal, or had conducted the appeal in an extravagant and unnecessary manner, the High Court can order that appellant to pay costs.
What Happens If the Falsehood Had Originated from Overseas?
If a falsehood had originated from an overseas source but is being communicated in Singapore, it will still fall under the purview of POFMA, which applies to communications of falsehoods in Singapore.
What are the Codes of Practice Under the POFMA and How Will They be Implemented?
Under section 48 of the POFMA, codes of practice can be issued to prevent online platforms from being used to spread falsehoods. According to then-Communications and Information Minister S. Iswaran, these codes of practice have 3 aims:
- To prevent and counter the misuse of online accounts by malicious actors who can hide behind them by remaining anonymous;
- To enhance the transparency of political advertising; and
- To downplay online falsehoods.
The Codes of Practice complement as well as strengthen the POFMA’s measures, such as corrections and take-down orders, to ensure that online environments are made safer. These codes may include requiring online platforms – such as social media platforms – to implement reasonable verification measures to prevent the creation of fake accounts or bots that can be used for malicious activities.
Other measures include requiring tech firms to disclose the sources of political advertisements. In Singapore’s context, such advertisements include election advertising as well as advertisements on issues of public interest or controversy (such as those concerning racial or religious issues), according to Minister Iswaran.
Is There Any Recourse for Individuals Who Have Been the Subject of Fake News and Face Harassment as a Result?
Victims of harassment as a result of falsehoods may seek recourse under the Protection from Harassment Act (POHA) in the following ways:
Applications for interim stop publication orders
Victims of falsehoods (both individuals and companies) will be able to apply for an interim stop publication order if they want the falsehood to be taken down urgently.
Applications for interim stop publication orders will be heard within 2 working days from when they are filed, although processes may take longer if the other party challenges the victim’s application. If so, a final order is expected to be issued within 1 month from the date of application for the interim order.
Applications for general correction orders
The court will be able to issue general correction orders under POHA, which are similar to those under POFMA. Under a general correction order, a third-party–for example, news outlets–are required to publish a correction if serious harm to the victim’s reputation occurred as a result of the publication of a falsehood.
Filing a police report for a doxxing offence
Doxxing–the publication of another individual’s personal information with the intention to harass, threaten or facilitate violence against them is a criminal offence under POHA.
Individuals found guilty of doxxing with the intent to cause harassment, alarm or distress can be fined up to S$5,000 and/or face a jail term of up to 6 months for a first offence. The maximum jail term is doubled for individuals found guilty of a first offence of doxxing with the intent to create fear or provocation.
Refer to our other article for more information on doxxing laws in Singapore.
With the passing of POFMA, the government has undoubtedly adopted a tough stance against online falsehoods and other malicious activities that are carried out through online platforms. POFMA will serve as an important legislative tool to curb the spread of fake news and protect the public against fake news and misinformation that could cause social harm.
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