GOVERNMENT — Correction Direction/Brad Bowyer

POFMA invoked for the first time.

On 25 November 2019, the POFMA Office acted on instructions from the Minister for Finance, Heng Swee Keat, to issue a Correction Direction to Progress Singapore Party politician Brad Bowyer. The POFMA Office and Ministry of Finance’s statements to this effect can be found here and here, respectively.

The issuance of the Correction Direction marks the first time the government has used the Protection from Online Falsehoods and Manipulation Act since the legislation came into effect earlier this year.

The Correction Direction pertains to Bowyer’s Facebook post of 13 November 2019 criticising investment and commercial decisions that Temasek, GIC, and other government-linked companies made. Bowyer also used the post to criticise the ruling People’s Action Party and to call for change.

The Correction Direction required Bowyer to amend his post to include the following correction notice.

The URL links to an article on Factually, a government website that contains material on various public issues. The article appears under the website’s “Law & Government” heading. It states that Mr. Bowyer’s post “contains false statements of fact and misleading statements” and provides 15 “clarifications on the points Mr Bowyer has raised”.

Shortly after amending his original post to comply with the Direction, Bowyer made another sharing his thoughts on the incident. He published his responses to the Factually article in an additional post on the same day. A further post followed on 28 November in light of the government’s decision to issue a Correction Direction to the States Times Review (which POFMA Watch will cover in a separate post). The incident has attracted significant coverage in the traditional and new media both domestically and internationally.

Bowyer’s Facebook page states that he was a member of the PAP (2011–2016) and the National Solidarity Party (2016–2018) before joining the newly-formed Progress Singapore Party. Singapore is expected to go to the polls in the next few months with Heng Swee Keat slated to become the country’s next leader. The Party has won every general election in the country since 1959.

POFMA Watch’s Opinion

The Minister for Finance/POFMA Office’s Correction Direction raises several interesting points.

First, the incident gives us an idea of what the government believes is necessary for it to take action under POFMA. The Act provides that two conditions must be satisfied before the government can issue a Correction Direction:

• a false statement of fact has been or is being communicated in Singapore; and
• the government is of the opinion that it is in the public interest to issue the Direction.

Similar conditions apply to other directions that the government may issue to persons or internet intermediaries (e.g., Facebook) that communicate “fake news” including Stop Communication Directions, Targeted Correction Directions, and Disabling Directions, and General Correction Directions.

Clearly, the government feels that aspects of Bowyer’s original Facebook post fulfilled these conditions. The same applies to the States Times Review’s post. In contrast, recent weeks have seen the government identify other “false statements of fact” or similar that have not attracted action under POFMA. Examples include statements from: local journalistic outlet The Online Citizen on POFMA and the 2015 general election (more on this below), the NUSSU-NUS Students United Facebook page on religion and politics (which Facebook has taken down because it breached the platform’s authenticity policies), and obscure websites on cabinet ministers (an obvious instance of “fake news”).

What follows is that, in respect of these statements, the government: (a) is not of the opinion that it is in the public interest to issue a Correction Direction; and/or (b) that some undefined element of government policy has led to a more restrained approach.

Second, the government continues to rely, at least partially, on implied statements. The Ministry of Finance’s press release notes that Bowyer’s post “implied that the Government was involved in individual investment decisions of GIC and Temasek”. Similarly, Factually states that the post “implies that the Singapore Government controls Temasek’s and GIC’s commercial decisions”. Factually also refers to Bowyer’s “implicit factual assertions” regarding certain investments.

This reliance on implied (or inferred) statements is not new. In early October, the government impugned The Online Citizen for the implied meaning of its remarks about POFMA. As POFMA Watch noted back then:

As anyone who has heard a snide remark will know, it is possible to infer meaning from something other than an overt statement. The real question is whether the person making the inference has accurately interpreted the underlying statement.*

We may feel that the meaning of Bowyer’s (and The Online Citizen’s) statements was obvious. That is presumably what the Ministry of Finance thinks since it said that his post “contains clearly false statements of fact”. However, in any other case, implication or inference is difficult and perhaps even dangerous given that potentially severe penalties are involved.

The incident allows us to understand this point in practice — given the comprehensiveness of the government’s response to Bowyer, what are we to make of the content that it did not specifically address? Should we take them to be true? Or statements of opinion? Or something else?

Third, the incident prompts us to think about what should happen next. It is unclear whether Bowyer will apply to the government to vary or cancel the Correction Direction issued to him and whether that application will eventually result in a further appeal to the High Court.

To successfully challenge the Direction, he would likely have to show that the statements the government has impugned are not “statements of fact” or that they are “true statements” (bearing in mind that POFMA defines the former as “a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact” and that it defines a “false statement” as one that “is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears”). Neither appears a straightforward proposition — set Bowyer’s post, the Factually article, and Bowyer’s rebuttal side-by-side and you’ll see why.

In the meantime, the Direction has consequences. Bowyer must comply with its terms. Failing to do so without reasonable excuse is an offence that could lead to a fine of SG$20,000 and/or imprisonment for up to 12 months. It could also result in internet access services providers blocking access to his post.

Additionally, POFMA requires certain digital advertising and internet intermediaries to take reasonable steps to ensure they do not facilitate the communication of any paid content that promotes Bowyer’s Facebook page. The government may also require these intermediaries to inform it of any other online location that includes Bowyer’s “false statements of fact”.

Moreover, Bowyer’s Facebook page is now one step closer to being eligible for “declared online location” status. The government can impose this status if: (a) at least three statements that are the subject of Correction or other specified POFMA Directions have been or are being communicated on the page; and (b) at least three of those statements had first been communicated on the page in the six months previous. A declaration would severely hamper the page’s ability to generate publicity and support. Declarations can remain in effect for up to two years.

On a similar note, the government’s “Prominence Code” requires major internet intermediaries to undertake due diligence measures that effectively give prominence to “credible online sources of information” (such as Factually, presumably) whilst relegating statements that are the subject of Correction or other specified POFMA Directions (e.g., the those in Bowyer’s post). These measures can affect Google and YouTube search results as well as Facebook, Instagram, and Twitter feeds.

One final issue concerns whether the Correction Direction “worked”. Did it stem the spread of “fake news” and propagate “the truth”?

As of late today, 28 November, Bowyer’s original post has garnered 117 comments, 13 of which were made after the Correction Direction. It also received 176 shares and 401 emoji reactions. Meanwhile, Bowyer’s three subsequent posts received a total of 249 comments, 116 shares, and 647 emoji reactions.

This is not a particularly sophisticated analysis. However, it raises the possibility that the Direction attracted more attention to the Bowyer and his posts than they would otherwise have received. POFMA Watch, for one, had not even realised they existed.

*POFMA Watch took down the post that contained this statement on 1 January 2020 as it did not pertain directly to POFMA or its invocation.

Click here for POFMA Watch’s Twitter feed and here for its methodology. All the usual “personal blog” caveats apply (in particular, this blog and its posts reflect the author’s personal views only and not those of any other party; neither the blog nor its posts should be understood as constituting legal advice in any way).