24 April 2019

Can Singapore's leaders be trusted to enact a Fake News law?

Barely half a year after public hearings conducted by the Select Committee on Deliberate Online Falsehoods and its report presented to parliament, the Singapore parliament last week tabled the Protection from Online Falsehoods and Manipulations Bill.

But is there trouble in paradise?

How some activists see themselves
Respected elder statesmen of Singapore journalism, Cherian George and Bertha Henson, continue to employ their decades of expertise in journalism to point out major and niggling issues with Singapore's fake news law. The Law Society of Singapore, accused of inaction or acquiescence by civil society slacktivists, issued a statement that it has indeed been engaging the cabinet and giving its legal opinions on the bill in closed door consultations (a necessary mode of operations given how the Law Society appears to be proscribed from public legal commentary). Singapore's mainstream press participated in a roundtable organised by the opposition Workers' Party. Presumably the mainstream press has also been engaging with the cabinet in closed-door consultations, but it is clear their preferred remedies to the "Fake News problem" do not align with the bill. The Internet Society of Singapore will organise a seminar on the bill, presented by a lawyer, a former member of parliament, and a veteran journalist. K Shanmugam, widely seen as the moving force behind the fake news law, appeared in public to discuss popular criticisms made against the bill. Singapore's ministers have never been this consultative in recent memory.

The reality of governance is that a ruling party with a supermajority still needs to consult with stakeholders and industry. Losing the confidence of stakeholders and industry interests kills a bill faster and more quietly than protests and petitions from activist academics, rights activists, and their coalition of willing overseas petition signers. Will the law kill off the viability of social media and small independent online publishing in Singapore? Will it bring back the primacy of a tightly controlled and narrow print media industry, a la Lee Kuan Yew? Why would any stakeholder or industry concern want that?

Is Singapore's fake news law the new normal or an outlier in a post-truth world?

There is sufficient evidence that Singapore's bill is not unusual. The European Union, UK, Germany, France, and Australia have either passed or are in the process of drafting legislation to protect their citizens from hate speech, "manifestly unlawful content", "abhorrent violent content", "incitement to terrorism", "disinformation", and other "online harms".

Legislation against fake news and violent online content is fast becoming the international norm
These legislation couch incitement of hatred, violence, and disinformation campaigns as a public order and public health issue, similar to how Singapore's Select Committee couched the fake news threat. There are removal orders (the EU draft for example suggests a one-day window for compliance upon receipt of orders from a competent authority while Singapore's bill has yet to specify a reasonable time frame for expedient removal), an appeals and oversight process, and fines for failure to comply. In contrast, the UK white paper leaves it to an independent commission to set a reasonable timeline for compliance with removal orders instead of baking it into the law, and strikingly, to ensure that the law does not itself become a barrier to entry.
"We expect the regulator to work with the industry to encourage the development of technologies that aid compliance, and to facilitate cross-sector collaboration and sharing of expertise. These technologies could be made available to start-up or small companies."
UK online harms white paper, section 5.9
"The Regulation introduces a removal order which can be issued as an administrative or judicial decision by a competent authority in a Member State. In such cases, the hosting service provider is obliged to remove the content or disable access to it within one hour."
EU Proposal for a Regulation... on preventing the dissemination of terrorist content online, section 1.3

Both the EU and UK draft legislation propose automated proactive identification of objectionable content, but such provisions have been defeated in the European Parliament on the basis that such a reliable and accurate technological solution does not yet exist and is realistically a pipe dream in the foreseeable near future, and an obligation to proactively monitor, identify, and remove content will be too onerous even for the social media giants, much less smaller publishers and content mediums.

More likely than not, there is some consensus among governments that online platforms do have a duty of care to address real online harms and have not done so appropriately, proportionately, and in a timely manner, according to their capabilities. The UK and European Parliament documents identify these specific principles as guidelines for the companies and red-lines delimiting the scope of their respective draft legislation. The international consensus also seems to suggest a goal of 1 hour between removal order and compliance, although the realisation that this may be technologically and logistically unfeasible may vary.

If Singapore's bill is more of the same, why then is it viewed with more suspicion?

Consensus-building by the Select Committee

How the Select Committee won consensus from a wide slice of civil society and academia
In our analysis of the public hearings of the Select Committee, we note that the committee browbeat or pressured liberal-leaning and moderate witnesses into agreeing with the definition and dangers of fake news by Ukrainian witnesses from the first day of the hearing.

Often, the committee members acknowledged the concerns from skeptical witnesses that "fake news" could be too broadly defined, but urged them very strongly, nay, firmly held their hands in lengthy summaries of the Ukrainian witnesses over and over again, putting to them that "Expert A from XYZ institution has presented evidence that contradicts with your view [or understanding of fake news]. Perhaps you would like to make an amendment to your submission to the committee and change your stand?" "Would you insist that the Myanmar police not have used a gag order against a monk who used fake news to mobilise for a public gathering that would surely break into a riot?"

Yes, all but the recalcitrant extremists agreed that if this were how fake news were to be defined, they would broadly agree that some form of legislation is indeed necessary. Following the dictum of Carl Sagan, the witnesses were presented with extraordinary evidence that compelled their agreement with the necessity of some fake news law.

But through this manoeuvre, the select committee had also tacitly committed itself in full view of the Singapore's intelligentsia and civil society that its understanding of "fake news" was limited and circumscribed to extreme threats to public order, public peace, and national sovereignty.

We at Illusio put that the manufactured consensus (however hard-won) and the trust (however grudgingly and tentative) won from most of the stakeholders involved in the Select Committee process has been squandered entirely in the form taken by the bill.

Consensus demolition by the Cabinet: 1. Playing the SKIP card

Something seems to have gone terribly wrong with the legislative procedure. As we have noted in an earlier post:
Cabinet signals interest and concern on an issue in a Green Paper, a Select Committee is convened... Public hearings need to be convened, a committee report drafted and presented in parliament, the cabinet's response to its recommendations and findings presented in another parliament session, a White Paper drafted by the cabinet, potentially more public hearings convened for feedback, the White Paper debated in parliament, a Bill drafted and read twice before passing into law.
What has happened instead is: The Select Committee report was presented in parliament on 20 September 2018. There was no response from the cabinet to the report. Indeed, there was no debate on the report on that day. The cabinet did not publish a White Paper. The cabinet wrote up the bill and presented it on 1 April 2019, without debate. It was read and the ayes had it.

The SKIP card in UNO
The lack of a White Paper is a cause for real concern. Central to any new legislation and especially any novel legislation such as this, is an expression of legislative intent. What is the scope of the proposed bill? Who or what classes of people or entities does it intend to cover and leave out? What are the precise harms the proposed legislation seeks to avert via removal orders? What are the red lines that spell out explicitly the situations that the bill should not apply to?

These are answered clearly and explicitly in the UK White Paper as well as the EU proposal.

We at Illusio understand that at a National University of Singapore feedback session with academic staff (including law professors!) committee member Janil Puthucheary explained (to a history professor who posed the question, no less!) that no White Paper was published because there was already a Select Committee process.

It should be noted that any select committee is separate from the cabinet. It can (though traditionally avoids) appoint ministers as committee members but it is not the cabinet and does not represent the cabinet. It holds hearings, summarises what has been presented and discussed, and generally makes recommendations that tend to be the consensus(es) among a significant proportion of witnesses. The cabinet is not obligated to agree with the committee's findings or adopt any or all of its recommendations. That is why a cabinet in Westminster-style legislature would respond and give its views on a select committee's report. And that is why a White Paper is needed: to spell out the cabinet's view and legislative intent in a coherent form, especially if it has diverged with the select committee's line.

Consensus demolition by the Cabinet: 2. Diverging from the consensus

Remember the consensus that bound the support of the stakeholders and select committee itself: "fake news" and "online falsehoods" are limited and circumscribed to extreme threats to public order, public peace, and national sovereignty, especially from campaigns by hostile state actors.

How some activists see Shanmugam's style of lawmaking
We now examine how the text of the Protection from Online Falsehoods and Manipulations bill diverges from the consensual understanding established by the end of the Select Committee hearings.

General interpretation
  • section 2(2)(b) defines a falsehood as merely a statement that is false.
    It divorces the falsehood from any public order and security threat requirement.
  • section 4(f) and 7(b)(vi) extends the acceptable "diminution of public confidence" in the State and Government to include "the performance of any duty or function or exercise of any power by" Organs of State, statutory boards, any part of the government or organ of state or statutory board.
    The expansion of threat to the state and government to include any and every sundry of the state and the civil service ironically diminishes the public order and security threat requirement. If this is a public order law for extreme circumstances, the power should not be wielded willy-nilly by just about anyone.
  • It is only in 10(b) and 20(b) that identifies "public interest" as an additional and necessary criterion for a minister to order a correction or removal of content.
Purpose of Act
  • 5(a) "to prevent the communication of false statements of fact in Singapore and to enable measures to counteract the effects of such communications"
    This clearly expands the ambit of the law to cover all falsehoods to leave out the public order, security threat, and hostile state action criteria
Competent Authority (aka delegation of powers and delegated authority)
  • 6(1)(a), "the holder of any office in the service of the Government or a statutory board"
  • 6(2) "any Minister"
  • 20(1) "Any minister may instruct the Competent Authority..."
  • 55. Minister may appoint a. police officer b. public officers who are not police officers c. employees of any statutory board
    These clearly expand the power to identify a public order situation to not just any minister but in fact any civil servant, including presumably the rat-catcher at the ENV. Again, the expansion of power to declare a public order situation and demand a removal of content or correction of content, when expanded to just about any pencil-pusher with a fancy job title, diminishes the public order and security consensus.
Going back to the contested meaning of a falsehood, we have:
  • 11(4) "A person who communicated a false statement of fact in Singapore may be issued a Correction Direction even if the person does not know or has no reason to believe that the statement is false"
  • 12(4 )"A person who communicated a false statement of fact in Singapore may be issued a Stop Communication Direction even if the person does not know or has no reason to believe that the statement is false"
    These may imply that enforced clarifications and stop communications directives can still apply if the "online falsehood" is not deliberate, malicious, or conscious, and not clear cut. The minister can still order content to be removed or corrected even if the person has made a reasonable opinion that it is not a falsehood - which isn't the established consensus set out by the select committee and agreed by most of its public witnesses!
As for the code of practice favoured by stakeholders from Singapore's mainstream media and independent online publishers:
  • 48(1) A code of practice will be issued eventually by a "competent authority"...
  • 48(6) All online publishers and social media must comply with the code of practice.
  • 48(8) "A code of practice issued under this section does not have legislative effect."
    Presumably this is not an optional membership, the code of practice will be decided by the "competent authority", with no guarantee of a consultative process or need for agreement to the code of practice, but that code of practice does not have legislative effect? Really?
If there is a backlash in Singapore against this bill and a loss of trust in the consensual model of this particular cabinet with its 5G leaders, however muted and polite in the non-radical sections of the stakeholders and corporate interests, these are the probable areas for rectification before the bill is revised and read a second time.

Why has this happened?

Rights activists would have you believe that K Shanmugam is an evil genius, that the entire process from select committee to the bill was done in bad faith. We at Illusio simply believe that what can be ascribed to malice can be adequately explained by stupidity. And even more charitably, to a loss of competence in communication, amongst other things.

Historically, the legislative process in Singapore has always been prone to power grabs by a civil service who would rather have power than be transparent and accountable to the people. Cheong Yip Seng's OB Markers: A Straits Times Story has several accounts where senior staff of various ministries used the Prime Minister's Office as a central clearing house to order corrections to news articles, or signal displeasure about coverage - instead of communicating openly with journalists and accepting negative feedback from public as filtered by the press. PN Balji's Reluctant Editor confirms some of these stories as well as details the harsh, adversarial, even bullying attitudes of Lee Kuan Yew's administration towards journalists.

While the UK White Paper notes (in section 2.3) that "there is already an effective response to some categories of harmful content or activity online. These will be excluded from the scope of the new regulatory framework to avoid duplication of existing government activity", the Singapore civil service seems all too eager to duplicate existing government activity and add on to its already-impressive, albeit potential delegated duties!

How could a bill of this nature be passed without a white paper? Do ask the Speaker of the House as proper procedure is within his duties and responsibilities. Do ask the parliamentary opposition as it is within their duty to question. Do ask the PAP's backbench as all of parliament has a duty to exercise its scrutiny function!

Go back to the drawing board, no mission creep, stick to the consensus please

As further note, the cordial public consultation and PR exercises by K Shanmugam and other members of the cabinet in the week are extremely troubling. In recent days, Shanmugam proposed using correction and removal orders in an otherwise entertaining scenario.
"Someone put up a fake photo - Punggol HDB roof collapsed. Do you know how many young families are living there? People will be concerned. (That's why) SCDF, police, and other assets rushed to the scene. If we have the power to immediately clarify that this is false, and require the person and the (online platform to push a notice to everybody: "Those of you who have read this article, please note that government has clarified that there is no roof collapse." Wouldn't it be better?

We at Illusio are saddened to have to point this out to the learned minister: No it wouldn't.

What happened in Punggol is not a public order, threat to sovereignty, will cause chaos and riots in the streets, in an hour scenario. Hell, not even that kook claiming on his blog that riots had broken out an hour after LKY's death caused an actual riot, and no authority cut off Singapore's ability to read his blog or thought it would cause a riot, even though it was shared widely on several platforms.

It was very easily verified by the residents, and the virality of this fake news would have died fast.

It was easily clarified by the HDB on its official social media page. The fake news website took down its post within half an hour. The press investigated and published stories confirming it was a hoax. People learned to exercise their powers of skepticism and discernment, however belatedly. Presumably as the news reports did not mention crowds rushing home or a state of panic or a riot breaking out, the people who should've learned to exercise their powers of skepticism and discernment and determine the appropriate response to fake news... were SCDF itself.

For the minster, ministers, or any employer of any statutory board to step in to order corrections and removals regardless of any real danger or harm to public order, is ultimately self-defeating. This mollycoddling creates precisely the sort of illiterate populace who is vulnerable to the "sophisticated disinformation campaigns" that were sold as the raison d'etre for this law during the public select committee hearings.

We at Illusio are wont to tell the learned minister how to do his job to sell the bill, but it should surely start by providing a real and historical scenario, in Singapore, which can be used as a baseline for what constitutes a threat to public order and would necessitate the use of this law? Unless of course the minister does intend to use this law for lesser purposes, out of sheer convenience.

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