24 March 2018

5 basic principles you can learn at a select committee hearing

On 22 March 2018, select committee for deliberate online falsehoods member Minister Shanmugam subjected Facebook representative Simon Milner to a long and tough question session. That is a fact. Incontrovertible.

It is possible to track how the domestic and international news reportage, as well as general commentary by various interest groups is playing out. Several narratives have arisen from that one incontrovertible fact. Each narrative is indicative of the position, positioning, and position-taking of its respective author.

Did Facebook prevaricate? Did Milner discombobulate? Did Facebook get what it deserved? Was a normally unaccountable Facebook taken to task? Was Facebook treated unfairly? Was Shanmugam an inquisitorial bully? A competent publicist for the Singapore government might have even spun a narrative about Shanmugam striking a blow for consumer rights worldwide.

Don't forget advertising and PR agencies!

Sadly for the proponents of the concept of fake news, the above exercise proves it is possible to take a single fact to spin countless narratives and opinions that cannot be reconciled with each other. It is not only a possibility but a reality that is easily explained by various communications theories.

We at Illusio will leave the actual communications experts, if they do exist and have submitted representations to the select committee, to explain what communications theories make of the "fake news" concept.

Meanwhile, here are 5 easy principles that may or may not have been illustrated by this or any other select committee proceedings!

Parliamentary privilege

In order to exercise its theoretical fact-finding function as well as the practical consensus-building role, the proceedings of select committees are protected by law. Specifically, by the same parliamentary privilege that protects MPs in parliament. Interestingly, this protection also extends to witnesses invited to give both written submissions and oral testimony to select committees.
"Absolute privilege protects freedom of speech in parliamentary proceedings; it is enshrined in statutory form in Article 9 of the Bill of Rights 1689, which prohibits proceedings in Parliament from being called in question in any court. In practical terms this means that select committee witnesses are immune from civil or criminal proceedings founded upon that evidence; nor can their evidence be relied upon in civil or criminal proceedings against any other person"

i. In the hearing of 22 March 2018, minister Shanmugam questioned Simon Milner on his testimonies to various UK House of Commons committees on its handling of admitted and alleged privacy failures. Milner may have been under the impression that the minister was seeking to incriminate Facebook, either by admission of lying or by admission of outright guilt.

A basic understanding of absolute privilege would've allowed Milner to realise that any answer he gave to the minister would not have incriminated Facebook back in the UK, and could not have incriminated him in Singapore, even at the 22 March hearing. In addition, Milner could have attempted to recuse himself from answering questions about the UK select committee hearings.

ii. After the first break in questioning, Milner made a formal complaint to the chairman of the select committee on the minister's manner and line of questioning. Milner argued that the minister went out of established parliamentary select committee procedure, in the following ways:

a. Springing unexpected, possibly irrelevant lines of questioning

The established procedure is for the clerk of parliament to prepare select committee witnesses by forwarding a rough guide of questions and question lines from the select committee in advance of the hearing. This is done to facilitate the fact-finding function of the committee.

b. Presenting evidence to attack witnesses

c. Treating a select committee witness as a hostile trial witness

A basic understanding of select committee procedure and parliamentary privilege would explain Milner's formal complaint to Charles Chong, the select committee chairman, and request to abandon the minister's questioning. The minister was fully protected by parliamentary privilege, and that protection (and his line of questioning) could only be contradicted by the chairman of the committee - who made the call not to do so.

Judging the past with the standards of the present

In the same hearing, the minister closely questioned Milner on whether his oral testimonies to the committees in 2017 were less than truthful, less than credible, less than trustworthy, considering the recent allegations that Cambridge Analytica and Prof Aleksandr Kogan failed to destroy user data when their apps with Facebook were terminated. How could Facebook have trusted this professor to do what he was required?

The answer, obviously, is that Facebook did not know in 2015 the allegations that have surfaced in March 2018. And that Facebook could not have been less than truthful, or untruthful, in the 2018 UK committee hearings that took place before the allegations occurred.

Lord Denning's judgement in 1954 provides us a quote that illustrates a very basic legal principle: "We must not look at the 1947 incident with 1954 spectacles"

In other words, we should judge the decisions a person made at a particular time by the prevailing knowledge available at that time, and not the knowledge available now. It is unfortunate that Singapore's minister of law appears to have misplaced this principle in his legalistic questioning of Milner.

The reasonable man and the professional panel

During the hearing, the minister repeatedly asked Milner to agree whether "a reasonable man" would've agreed with selected statements by MPs, journalists, and security experts or his own observations that Facebook was non-transparent, untruthful, less than truthful, etc. Why did Milner refuse to answer these questions? Was he justified to do so?

To the uninitiated and uncharitable, it may seem that a reasonable man is someone who says what Shanmugam would say, believes what Shanmugam would believe, and makes accusations that Shanmugam would make.

But the minister was merely being precise. And perhaps imprecise at the same time. One could very well ask the minister: What would a reasonable man conclude if you ask questions that are 5 minutes long and insist on hearing only yes or no answers?

So who is this reasonable man? He is the man in the street, an average man, a man on the legendary Clapham omnibus, from whom a particular legal standard is derived and extrapolated earlier in the UK hearings: What standard of duty and care would an ordinary man expect from say, a social media company, in its actions concerning user data and privacy, and its handling of Cambridge Analytica?

When the minister asked Milner to agree whether "a reasonable man" would've agreed with selected criticisms of Facebook by various people and experts, it might be truly a meaningless question on several grounds.

i. It is for lawyers to argue and contest what a reasonable man would think, and for a court to decide. Clearly, what a reasonable man thinks is a matter for debate.

ii. A reasonable man would not have the specialist knowledge to make an informed opinion whether to agree or not agree with experts.

iii. Milner may have excused himself from Shanmugam's "reasonable man" questions on the quotes from expert witnesses and members of the UK select committee, citing his obligation to respect their parliamentary privilege.

iv. As a social media company providing a specialised service based on cutting edge tools, Facebook would be held to professional standards, not common man standards.

In the case of professional standards, a panel of professionals in the industry are convened or canvassed instead of a mythical figure being constructed by lawyers. Interestingly, when a panel of respectable, responsible, and reasonable professional experts express differences in opinion, the court will not assume that majority or minority opinion is the right opinion nor demand that the panel come to a complete consensus.

Milner could have reserved his right to agree to disagree with the comments quoted by Shanmugam.

Consensus-building and compelled testimony changes

Select committees negotiate between their fact-finding role and consensus-building function. At times, select committees may be over-zealous in promoting a consensus. At times, either as an indication of their agenda or as an artifact of scheduling, certain testimonies from selected experts are taken as fact.

Other witnesses may be asked: "Expert A from XYZ institution has presented evidence that contradicts with your view. Perhaps you would like to make an amendment to your submission to the committee and change your stand?"

Following the principle of parliamentary privilege, it is within the full right of a select committee to ask this question. Following the principles of professional standards, witnesses posed with this question have every right to agree to disagree: there is no reasonable expectation for different experts in the same field to agree with each other, much less experts from different fields. In any case, the convening of any select committee already presupposes that opinions vary, to map out that range of opinions, establish common facts and possible consensus. It is unbecoming of a committee to press witnesses to change their testimonies just because they differ from an expert whose opinion the committee has decided (quite within their rights) to take as their truth.

As an alternative to outright refusal to change testimony and stand, a witness could also follow the example of Gaurav Keerthi in the 23 March 2018 hearing. Mr Keerthi responded to requests to respond and comment on a preferred expert's testimony was to say that he's not an expert in that field, does not possess that expert's perspective, and would not feel comfortable weighing in on it.

When the committee tried to bring in JS Mill's Marketplace of Ideas philosophy into the discussion, Mr Keerthi was polite enough to entertain Dr Janil Puthucheary, but only after stressing that he is not a philosopher, not sufficiently acquainted with the theory.

Mr Keerthi could also have added that he would engage in that discussion only if the record be shown that while he was testifying as an expert, he would not be replying to that line of questioning as an expert.

It should be clear that select committees do not solely engage with experts, but that their time may be better spent on extracting testimony from witnesses comfortable and au fait with their own fields.

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