Protection from Online Falsehoods and Manipulation Bill introduced in Singapore Parliament: Allen & Gledhill

29 April 2019

On 1 April 2019, the Protection from Online Falsehoods and Manipulation Bill (“Bill”) was introduced in Parliament. The Bill aims to:

Prevent the communication of false statements of fact (“falsehoods”) in Singapore and enable measures to be taken to counteract the effects of such communication;
Suppress the financing, promotion and other support of online locations that repeatedly communicate falsehoods in Singapore;
Enable measures to be taken to detect, control and safeguard against coordinated inauthentic behaviour and other misuses of online accounts and bots; and
Enable measures to be taken to enhance disclosure of information concerning paid content directed towards a political end.

The Ministry of Law (“MinLaw”) has stated in a press release that the Bill is not intended to cover opinions, criticisms, satire or parody.

The Bill is part of a multi-pronged, whole-of-nation response recommended by the Select Committee on Deliberate Online Falsehoods - Causes, Consequences and Countermeasures (“Select Committee”) to disrupt online falsehoods. By way of background, the Select Committee was appointed by Parliament in January 2018 to study the problem of deliberate online falsehoods and to recommend how Singapore should respond. Chaired by Deputy Speaker of Parliament Mr Charles Chong, the Select Committee was made up of nine Members of Parliament including the current Senior Minister of State for Law and Health, Mr Edwin Tong, SC who was a Partner of Allen & Gledhill during the Select Committee hearings. Allen & Gledhill Partner and Head of Intellectual Property Practice, Dr Stanley Lai, SC, also gave evidence before the Select Committee.

In summary

Set out below is a summary of what to expect under the proposed new laws:

The Bill applies to persons who communicate a falsehood and persons who assist by providing financing, etc. and third party service providers whose services are used to communicate the falsehoods.
It is an offence to communicate in Singapore a statement knowing or having reason to believe that such statement is a falsehood and is likely to lead to public interest concerns.
Persons communicating falsehood can be directed to put up correction notices or stop communication, non-compliance is an offence.
Internet intermediaries and providers of mass media services can be directed to put up correction notices or disable access, non-compliance is an offence.
Prescribed internet intermediaries can be directed to take steps to counteract inauthentic online accounts and coordinated inauthentic behaviour, non-compliance is an offence.
Online locations that repeatedly spread falsehoods can be subject to a declaration and subject to additional measures (including cutting off its ability to profit).
A right to apply to the Minister to vary or cancel directions, or to suspend, vary or cancel a declaration of an online location is available.
A right of appeal to the High Court is available but stay granted only in very limited circumstances.
The Info-communications Media Development Authority (“IMDA”) may order an internet access service provider to disable access.
Other measures (including relating to steps to be taken by online platforms to keep their platforms safe and secure).
Online falsehoods affecting private persons to be dealt with under the Protection from Harassment Act.

Bill applies to persons communicating a falsehood, persons assisting and third party service providers

The Bill applies to persons who communicate a falsehood and persons who assist by providing financing, etc. and third party service providers whose services are used to communicate the falsehoods.

Primary offences relating to the communication of falsehoods in Singapore

It is an offence to communicate in Singapore a statement knowing or having reason to believe that such statement is a falsehood and is likely to lead to public interest concerns. This applies to acts committed in or outside Singapore as long as it results in the communication of falsehoods in Singapore. Set out below is a summary of the primary offences relating to the communication of falsehoods in Singapore:

Any act to communicate in Singapore a statement knowing or having reason to believe that it is a falsehood, and that such communication is likely to have certain effects (e.g. it prejudices Singapore’s security, public health or public safety): The Bill also provides for enhanced punishments if an inauthentic online account or a bot is used in the communication to amplify the falsehood.
Make or alter a bot with the intention of using it to communicate in Singapore a falsehood or enabling another person to do so: This Bill also provides for enhanced punishments if the communication of the falsehood is likely to raise public interest concerns (e.g. it prejudices Singapore’s security, public health or public safety).
Solicit, receive or agree to receive a benefit for providing a service which the person knows is or will be used to communicate a falsehood in Singapore, if the service is in fact used in such communication: The Bill also provides for enhanced punishment if the communication of the falsehood is likely to raise public interest concerns (e.g. it prejudices Singapore’s security, public health or public safety).

Minister may require issuance of directions to put up correction notice or stop communication, non-compliance is an offence

Any Minister in Singapore may instruct the Competent Authority to issue the following directions (“Part 3 Directions”) if a falsehood has been or is being communicated in Singapore and the Minister is of the opinion that it is in the public interest to do so. The Part 3 Directions are to be issued to the person who communicated the falsehood in Singapore (excluding service providers who will instead be subject to Part 4 Directions). A Part 3 Direction may be issued to any person whether in or outside Singapore and the person issued with the direction must comply with it (at his own costs) even if the person has no knowledge and no reason to believe that the statement in question is a falsehood.

Correction Direction: Requires the communication of a correction notice in Singapore consisting of: (a) a notice that the statement communicated is false, and/or (b) a specified statement of fact or a specified location where such statement may be found. The Correction Direction may require the correction notice to be placed online, in specified proximity to every copy of the falsehood (or a substantially similar statement), and/or to be published in a Singapore newspaper or other publication.
Stop Communication Direction: Requires the person to stop communicating the falsehood (or any substantially similar statement) in Singapore by a specified time. A Stop Communication Direction may also require that a correction notice be communicated to specified person(s) in the specified form or manner and/or published in a newspaper or other publication. A Stop Communication Direction is required to be published in the Government Gazette but non-publication does not invalidate the direction.

Non-compliance with a Part 3 Direction is an offence under the Bill. It is not a defence that the person is subject to any conflicting duty under any written law, rule of law, contract or rule of professional conduct.

Minister may require issuance of directions to internet intermediaries and providers of mass media services to put up correction notices or disable access, non-compliance is an offence

Any Minister in Singapore may instruct the Competent Authority to issue the following directions (“Part 4 Directions”) if any material containing or consisting of a falsehood has been or is being communicated in Singapore, and the Minister is of the opinion that it is in the public interest to do so. Depending on the type of Part 4 Direction being issued, it may be issued to an internet intermediary or a provider of mass media services. A Part 4 Direction may be issued to any person whether in or outside Singapore and require the person to take any act in or outside of Singapore and the person issued with the direction must comply at his own costs save that a person issued a General Correction Direction may seek to recover its reasonably incurred costs from the author and communicator of the statement in question.

Targeted Correction Direction: This is a direction to the internet intermediary whose service is the means by which the subject material is communicated in Singapore, to communicate to end-users in Singapore who access the subject material a correction notice consisting of (a) a notice that the statement communicated is false, or that the material contains or consists of a falsehood, and/or (b) a specified statement of fact or a specified location where such statement may be found. Where the internet intermediary is a prescribed internet intermediary, it may be required to undertake additional steps.
Disabling Direction: This is a direction to the internet intermediary whose service is the means by which the subject material is communicated in Singapore, to disable access by end-users in Singapore to the subject material provided on or through the service. If the internet intermediary is a prescribed internet intermediary, it may also be required to undertake additional steps.
General Correction Direction: This is a direction to a prescribed internet intermediary, prescribed newspaper permit holder, prescribed broadcasting licensee, prescribed telecommunications licensee or any other prescribed person, to communicate to its end-users, publish in a specified newspaper or publication, broadcast, transmit by its telecommunications service, or to give to specified persons (as the case may be) a correction notice.

If the correction notice is not easily perceived, the Minister can instruct the Competent Authority to issue a Remedial Order to require the taking of remedial actions.

Non-compliance with a Part 4 Direction or Remedial Order is an offence under the Bill. It is not a defence that the person is subject to any conflicting duty under any written law, rule of law, contract or rule of professional conduct. The court must however take into consideration the state of the art available, costs relative to the means available to the person and any other relevant factor.

Minister may require issuance of directions to prescribed internet intermediaries to take steps to counteract inauthentic online accounts and coordinated inauthentic behaviour, non-compliance is an offence

The Bill provides that any Minister in Singapore may direct for the issuance of an Account Restriction Direction to a prescribed internet intermediary to disallow its services from being used to communicate statements in Singapore through a specified online account, or to disallow any person from using a specified online account to interact with an end-user of its service in Singapore if (a) the online account is created with the internet intermediary, (b) it is either used to communicate in Singapore a falsehood or to carry out coordinated inauthentic behaviour, (c) the Minister has reason to believe the account is an inauthentic online account or is controlled by a bot and (d) the Minister is of the opinion that it is in the public interest to issue the Account Restriction Direction.

Non-compliance with an Account Restriction Direction is an offence. It is not a defence that the person is subject to any conflicting duty under any written law, rule of law, contract or rule of professional conduct. The court must however take into consideration state of the art available, costs relative to the means available to the person and any other relevant factor.

Declaration of an online location that repeatedly spread falsehoods to cut off its ability to profit without shutting it down

The Bill enables the Minister to declare an online location as a declared online location if (a) three or more different statements which are the subject of an active Part 3 Direction or Part 4 Direction have been or are being communicated in Singapore on the online location, and (b) at least three of those statements were first communicated in Singapore on the online location within six months before the date of the declaration. A statement is considered communicated on an online location even if in the case of a sub-domain name or sub-directory. The declaration may specify the online location by way of a URL, domain or any other unique identifier and includes all mirrors. Declarations will be published in the Government Gazette.

The owner or operator (whether or not in Singapore) of the online location may be required to communicate to any end-user in Singapore who accesses the online location, a notice that the online location is the subject of a declaration. Non-compliance is an offence.

It is an offence for:

any person to solicit, receive or agree to receive any material benefit as an inducement or reward for operating a declared online location (including consideration for sale of advertising space or access to the online location). If convicted, the person must (in addition to the prescribed punishment) pay an amount equal to the amount or value of the financial or other material benefit received;
a service provider or digital advertising intermediary to fail to take reasonable steps (both in and outside of Singapore) to ensure that any paid content that it includes or causes to be included on a declared online location is not communicated in Singapore on that online location;
any person to expend or apply property knowing (or having reason to believe) it supports, helps or promotes the communication in Singapore of a falsehood on a declared online location.

It is not a defence to any of the above offences that the person is subject to any conflicting duty under any written law, rule of law, contract or rule of professional conduct.

A right to apply to Minister to vary or cancel directions, or to suspend, vary or cancel a declaration of an online location is available

The Minister on whose instruction a Part 3 Direction, Part 4 Direction or Account Restriction Direction was issued may vary or cancel the direction either on his or her own initiative or on application by the person to whom the direction is issued.

Similarly, the Minister may suspend, vary or cancel a declaration, either on his or her own initiative or on application by the owner or operator of the declared online location or a person with editorial control of the online location.

A right of appeal to the High Court is available but stay granted only in very limited circumstances

The Bill provides for appeals to the High Court against a Part 3 Direction or Part 4 Direction by the person to whom it is issued. A similar right of appeal is also available against an Account Restriction Direction. The direction remains in effect despite an appeal against it. However, the High Court may stay the direction if the appellant proves on a prima facie basis that it is technically impossible to comply with it.

The owner or operator of a declared online location, or a person with editorial control over the online location, also has the right to appeal to the High Court against the declaration.

IMDA may order internet access service provider to disable access

Under the Bill, the Minister may direct the IMDA to order an internet access service provider licensee to take steps to disable access by end-users in Singapore to an online location or a declared online location or if a Part 3 Direction, Part 4 Direction or Remedial Order is not complied with.

Other measures under the Bill

Other measures in the Bill include requiring online platforms to keep their platforms safe and secure through the introduction of binding codes of practice which target inauthentic online accounts and bots, digital advertising transparency and de-prioritising falsehoods.

Online falsehoods affecting private persons to be dealt with under the Protection from Harassment Act

For online falsehoods affecting private persons, amendments to the Protection from Harassment Act (“POHA”) have been tabled in Parliament to strengthen remedies and improve the speed of recourse.

Various offences under POHA will be expanded to include the publication of identity information of another person, even if such identity information may not by itself be a threatening, abusive or insulting behaviour or communication. The court will also be empowered under POHA to make orders in respect of false statements of fact. These orders include a stop publication order, a general correction order and various other interim orders. Furthermore, amendments to POHA also seek to establish the Protection from Harassment Courts in which remedies and enforcement measures can be obtained against contraventions by individuals and entities.

Reference materials

The following materials are available on the Parliament website www.parliament.gov.sg and MinLaw website www.mlaw.gov.sg: