Singapore’s High Court has ruled that the burden of proof in appeals against the city state’s controversial fake news law should lie with the government.

However, in the first court judgment since the controversial law was introduced, Justice Ang Cheng Hock decided the government need only prove false online statements were made ‘on the balance of probabilities’ as opposed to ‘beyond reasonable doubt’.

The Protection from Online Falsehoods and Manipulation Act (POFMA) came into force in November and empowers the government to require websites to add ‘correction notices’ to posts the authorities maintain contain ‘false statements of fact’.

The highly charged case involved three correction notices imposed on the opposition SDP party, two of which were placed on Facebook posts.

The judge sided with the government, ruling the SDP had incorrectly claimed the retrenchment of local Singaporean professionals, managers, executives and technicians was going up. 

However, the ruling’s longer-term significance will rest with the judge’s interpretation of the act in relation to both the burden and standard of proof during appeals.

Although the act allows for appeals against correction notices to be heard by the High Court, the judge noted ‘POFMA does not specify which party bears the burden of proof’ while ‘there is also nothing in the parliamentary debates which sheds light on this issue’. 

The government, represented by Deputy Attorney-General Hri Kumar Nair, had argued it was for the appellant to prove the alleged falsehood was true.

Citing the constitutional right to freedom of speech, Judge Hock ruled that the government had to ‘prove that facts warranting the curtailment of the appellant’s rights exist, that is, that a false statement of fact has been made’.

He added that if the appellant had to prove the contested fact, ‘it would mean that the minister would succeed in a situation where neither party provides any evidence of truth or falsity simply and solely because of the minister’s own earlier decision to cause the issuance of a correction direction’.

Finally, the judge ruled he was not satisfied that parliament had intended the appellant to bear the burden of proof.

Information asymmetry

‘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,’ he said in the judgment. '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.'

However, the judge went on to side with the government on the burden of proof required, arguing that the criminal burden of proof was not appropriate.

In a statement, the SDP said it was ‘very disappointed’ by the ruling and was considering an appeal.

POFMA was passed into law May 2019 amid fears that it could curb freedom of speech and stifle innovation and academic research.

It criminalises the communication of false statements of fact in some circumstance with individuals facing fines of up to $50,000 and five years in prison.

Companies face fines of up to $500,000, which can be more severe if bots or fake accounts are used to disseminate false statements.

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Further reading: 

Facebook adds 'correction' to post under Singapore fake news law