SINGAPORE — The High Court has dismissed an appeal by the Singapore Democratic Party (SDP) against the correction directions it was issued under the Protection from Online Falsehoods and Manipulation Act (Pofma) by Manpower Minister Josephine Teo.

In December last year, Mrs Teo had issued three correction directions against the party over an article and two Facebook posts, which she said contained falsehoods and a misleading graphic.

The Facebook posts were linked to the article titled “SDP population policy: Hire S’poreans first, retrench S’poreans last”, published on SDP’s website in June last year.

The party then applied for the directions to be cancelled, and Mrs Teo rejected the application.

SDP then filed an appeal with the High Court.

Justice Ang Cheng Hock said in a 50-page written judgement on Wednesday (Feb 5) that the article and two Facebook posts contained two false statements of fact “in the face of the statistical evidence against them”.

SDP had not challenged the accuracy of the statistics by the Ministry of Manpower (MOM), but instead “sought to critique it on other grounds” that he did not find convincing, the judge added.

In a statement on Wednesday, SDP said that it was “very disappointed” with the decision and is considering appealing against it.

“We reiterate our case which we argued in court: Pofma must only be applied to clear-cut cases of falsehoods, not for interpretations of statistical data,” the party added.

MOM said in a statement after the release of the judgement that since the correction directions were issued, “SDP has tried to confuse and mislead the public by suggesting several different meanings to its statements”.

“The SDP has also tried to confuse by saying that it was ‘interpreting’ statistics, when it was actually purveying falsehoods, as found by the court,” the ministry added.

SDP’S ARGUMENTS ‘PROBLEMATIC’

During the appeal heard in chambers, SDP and the Attorney-General — which represented MOM in the appeal — argued over what the relevant timeframe was in relation to the statistics. 

SDP was represented by its chief Chee Soon Juan, while Deputy Attorney-General Hri Kumar Nair and State Counsels Fu Qijing and Amanda Sum argued on behalf of the Attorney-General.

The Attorney-General pointed to data from 2015 to 2018 to show that the number of local professionals, managers, executives and technicians (PMETs) employed has been steadily increasing in terms of absolute numbers.

SDP accused the Attorney-General of “cherry picking” its statistics, and instead used numbers from 2010 to 2018 to show a statistical increase in retrenched local PMETs.

The party also argued that it was referring to only Singaporean PMETs, not including permanent residents, as a proportion of retrenched local PMETs.

Justice Ang said that the party’s arguments were “problematic”. Specifically on its point about proportion, the judge found that it did not gel with the SDP article’s message — that Singapore PMETs are getting retrenched and being displaced by foreign workers.

There was nothing in the article that “offers any hint that the ‘rising proportion of PMET retrenchment’ should be understood with such a long timeframe, rather than by reference to the most recent period of time”, Justice Ang said.

SDP had produced ministerial statements from 2010 and news articles to justify their time period, but the average reader would not know of these statements, Justice Ang added. The 2010 starting point was also “somewhat arbitrary”, the judge said.

“I am of the view that the Attorney-General’s characterisation of the relevant timeframe is more consistent with what could be reasonably interpreted from the relevant part of the SDP article,” Justice Ang said.

He did not accept the Attorney-General’s argument that a “reasonable interpretation” of the article was that local PMET retrenchment was increasing in absolute terms.

However, he agreed with the Attorney-General's alternative argument that the share of retrenched local PMETs as a proportion of all local PMET employees has been increasing.

Given that the two Facebook posts had re-communicated the article’s contents, the judge found that they also contained false statements of fact.

BURDEN OF PROOF SHOULD BE ON GOVERNMENT

As who should bear the burden of proving whether statements are false, Justice Ang established that such a burden should fall on the Government and not the one appealing against correction directions.

Pofma does not specify who should carry the burden, and the judge questioned if Parliament had intended for the statement-maker to do so.

He said: “There is a clear information asymmetry between the Minister on one hand, and the maker of a statement being challenged under Pofma on the other. 

“Unlike the Minister, who is able to rely on the machinery of state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources. For a statement-maker, who may be an individual, to bear the burden of proof would put him in an invidious position.”

Justice Ang added that in issuing a correction order under Pofma, the Government is seeking to restrict constitutional rights to free speech. It should thus be the one to prove that statements are false.

If the burden falls on the statement-maker, Justice Ang pointed out that the Government can succeed in dismissing a Pofma court challenge even if either side does not give evidence to prove whether a statement is false.

He emphasised that the court’s duty was to interpret legislation and not to comment or adjudicate “on the desirability of particular policies”.

Justice Ang also said that the intentions of parties in Pofma appeals are irrelevant when the court is not meant to assess criminal liabilities.

He referred to SDP’s and Attorney-General’s attempts to “cast aspersions on each other’s intentions and motivations, with labels such as ‘disingenuous’ and ‘dishonest’ being bandied about”.

The Attorney-General has to write to the court within the next week to justify any basis for seeking costs of the application, following which SDP has one week to reply.

ABOUT THE CASE

On Dec 14 last year, Mrs Teo issued three correction directives to SDP over the June 8, 2019 article and two Facebook posts that the Government described as false.

MOM took issue with a sentence in the article that read: “The SDP’s proposal comes amidst a rising proportion of Singaporean PMETs getting retrenched.” 

One of the posts also contained an infographic depicting falling employment for PMETs among residents here.

MOM said that this was false, as the employment of Singapore PMETs has risen since 2015. It also said that there was no rising trend of PMET retrenchments among residents.

SDP argued, however, that its article, stating that there was a rising proportion of Singapore PMETs being retrenched, was factual, because it referred to the share of Singapore PMETs being retrenched measured against all Singapore workers who had been laid off.

But MOM said that what its numbers showed was that more among retrenched residents in 2018 had been PMETs, since more local workers were now employed in PMET jobs. 

“However, retrenchments have not been rising,” the ministry said.