"Fake news" or further curbs on free speech?
Fake news. Since the election of Donald Trump to the most powerful position in the world, the subject of fake news has been a matter of much discussion. There's no consensus on how much of a role it played in helping a Twittering orange misogynist get to the White House, but it's become enough of an issue for social media platforms like Facebook to start talking about measures to combat it.
There's a sense that something has to be done about it, although no one can quite figure out exactly what. But the rush to deal with fake news can also have other consequences, particularly in terms of free speech and censorship. And we might have just seen the beginning of such a problem in Singapore.
Is the government a person?
After almost two years of moving through the courts, Singapore’s highest court finally had the last word: the government is not a person.
More specifically, the Court of Appeal ruled in a 2-1 split decision that the Singapore government (and other corporate entities) cannot be considered as a "person" under the Protection from Harassment Act, and therefore cannot apply for an order under the Act to compel a person to cease publication of a false statement of fact.
This legal question first arose in February 2015 when the Attorney-General, on behalf of the Ministry of Defence, applied to the State Courts for an order to invoke the anti-harassment law against the inventor Dr Ting Choon Meng and independent news website The Online Citizen (TOC).
Dr Ting, who had previously been embroiled in a patent dispute with the Ministry of Defence, had given an interview to TOC, in which he alleged that the ministry had deliberately infringed upon his patent for a mobile emergency clinic, then conducted a "war of attrition" by dragging out a legal suit to the point where Dr Ting's company could no long bear the costs.
The ministry, unsurprisingly, took issue with those claims, first responding on their Facebook page, then applying for an order under the Protection from Harassment Act to first get the allegations to be ruled as false and then to compel TOC to publish a notification referring to their statement.
The Court of Appeal has now ruled that not only can the government not be considered a person under the Protection from Harassment Act, but that it was also not “just and equitable” to grant the ministry the order.
In the written judgement, the Court of Appeal noted that the High Court judge had found that only the second of Dr Ting’s allegations had been false, and that the Attorney-General had not appealed against that decision. They also stated that TOC had made the effort to “provide a balanced view of the facts” by making it clear that “the truth of Dr Ting’s comments was by no means beyond doubt”, and also by publishing the ministry’s response in full.
On top of that, the Court of Appeal pointed out that the Ministry of Defence was hardly helpless: on the contrary, the government agency was “possessed of significant resources and access to media channels”, and that it was therefore difficult to see what impact the allegations could have had on the ministry’s reputation and public image.
When is the news fake?
In its reporting of the ruling, The Straits Times included a response from the Ministry of Law, from which I produce the following excerpt:
The spokesman noted that "fake news" has become a major problem for many societies.
"As recent events elsewhere show, the spreading of false and misleading information can be highly destructive of the institutions of democracy."
He added: "The Government notes the dissenting judgment of the learned Chief Justice, and the reasons the Chief Justice has given for his views.
"The Government will study the judgment, and consider what further steps it should take to correct the deliberate spreading of falsehoods."
It’s true that fake news is a matter of concern – and fake news does occur in Singapore – but is it really what’s happening here?
One of the two allegations that Dr Ting made was found to be false, but the Court of Appeal also found that TOC had been balanced in its reporting. From what I understand, TOC had also written to the ministry, offering them the right of reply to the story. When the Ministry of Defence later published their statement in response on their Facebook page, TOC published it too, and linked their original story to it.
In reporting, one encounters many different perspectives. People have their own opinions and analyses based on where they stand in a particular situation. That’s why it’s important for journalists to reach out to multiple parties, so everyone involved gets a chance to present their side of the story, and to respond to any accusations levelled at them.
In Singapore, independent journalists often find it difficult to get any comment or response from government agencies, even when the right of reply is actively offered. This sort of stonewalling makes it difficult to get important data or information. It also opens up the publication to accusations of bias or inaccuracies, when the truth is that efforts were made to present multiple sides, or to confirm particular facts, only that input was not forthcoming.
Should independent journalists kill every story simply because the state refuses to comment? How then can the powerful be held to account, if their silence is enough to shut down stories they would rather not have in the public eye?
Fake news or censorship?
In its response, the Ministry of Law is eager to classify TOC’s reporting on Dr Ting’s case as fake news, an instance in which falsehoods were deliberately spread to achieve particular ends, and thus justify any “further steps” taken as a way of fighting this dangerous problem.
There is little in the Court of Appeal’s judgement to demonstrate that TOC’s coverage of Dr Ting’s case was really an instance of fake news being spread. The danger of using the label of “fake news” too liberally – particularly when it’s wielded by the powerful – is that we end up further tightening restrictions around what can or cannot be said, or allowing the authorities to determine what is or isn’t acceptable according to their own unchecked standards.
While the issue of fake news does need to be addressed, we need to also be alert to the very real possibility of governments using it as an excuse to justify further curbs on press freedom and free speech, further extending their ability to control the media and the narrative.