This article is written by Mr Lim Seng Siew of OTP Law Corporation and Eric Lip, a trainee of OTP Law Corporation.
Ever since the Protection From Online Falsehoods and Manipulation Bill 2019 (“the Bill”) was tabled in Parliament on 1st April 2019, significant comments have been levelled at the potential stifling of free speech. Much ink has been spilled over this. You can search the internet to understand this issue better. There is even a video with Michelle Chong and Minister of Law explaining the Bill.
As of 9 May 2019, the Bill has been passed after a two-day debate on the matter to now form the Protection From Online Falsehoods and Manipulation Act (“the Act”).
What happens now to the legitimate business owner who runs a website or social media to promote his goods or services? How will the Act affect the online presence of his business?
What happens if the business inadvertently posts a false statement of fact on its website? What happens if the business allows a comment that contains a false statement of fact to remain on its social media? This article focuses on how such businesses can deal with these questions and offers some practical help to businesses to manage their online presence.
We start with key areas of possible liabilities that a business owner may face: (i) the offence of communicating a false statement of fact; and (ii) the liabilities and responsibilities of the business owner as an internet intermediary.
Communication in Singapore of False Statements of Fact
Section 7 of the Act makes the knowing communication of false statements of fact online in Singapore an offence if it is likely to be prejudicial to “public interest”. “In the public interest” is an umbrella term used in this article to cover the list of prejudicial situations specified in the Bill. Examples of such interests include: the security of Singapore, public health, public safety, public peace, public finance, Singapore’s diplomatic relations and other similar situations. ‘Communicate’ is defined in section 3 of the Act to cover any statement that is available to an end-user in Singapore through the internet, MMS or SMS.
A business that either knowingly publishes a false statement of fact on its website or knowingly allows a third-party comment that contains a false statement of fact to remain on its website or its social media may be committing an offence. An individual business owner can face a fine of up to S$50,000 and/or imprisonment of up to 5 years. Where the business is a corporation, it can face a fine of up to S$500,000.
What happens if the business was ‘innocently’ sharing an article or comment? After all, section 7 uses the terms “knowing” and “reason to believe”. This means that section 7 covers more than just actual knowledge and includes businesses who ought to have known that the statements were false or that they prejudice the interest of Singapore. Thankfully both the Minister of Law and the Minister of State for Law have clarified in the press that ‘innocent sharing’ will not attract any criminal liabilities. However, the level of such ‘knowledge’ required (or the lack thereof) for there to be an offence is still not clear. We will have to await further clarification during the Parliamentary debates or by our courts.
In any case, businesses (even those who fall under the category of “innocent sharing”), are still subject to other obligations under the Act. As an example, if a business receives a ‘Part 3 Direction’, then timely compliance with such a direction is necessary to avoid any liability.
The Part 3 Direction
A Part 3 Direction may be issued if a false statement of fact is communicated in Singapore and the Minister is of the opinion that the statement is prejudicial to Singapore. It is issued to the person who communicated the false statement. There are two types of Part 3 Directions: a Correction Direction and a Stop Communication Direction.
The Correction Direction will direct the business to communicate (either via the internet, MMS and/or SMS) a correction notice that will set out the government’s response to the false statement. In a Correction Direction, the false statement need not be taken-down.
The Stop Communication Direction is different. It requires that the business stops the communication of the false statement. It is akin to a take-down notice.
Non-compliance with a Part 3 Direction runs the risk of an individual business owner being fined up to S$20,000 and/or imprisonment of up to 12 months. Where the business is a corporation, the fine is up to S$500,000.
If the business is an internet intermediary, then section 7(4) of the Act gives it some protection against liability for communicating an online false statement of fact that is prejudicial to the interest of Singapore. There are other classes of service providers that are also given this protection but we will only focus on internet intermediaries. Examples of internet intermediaries set out in the Act include social networking sites, search engines, content aggregators, internet-based messaging service providers and video-sharing sites. Thus a business that operates a website that hosts a chatbot or allows users to post comments may be considered an internet intermediary.
However, this does not mean that an internet intermediary has no obligations under the Act. It has to comply with Part 4 Directions issued to it, that is either a Targeted Correction Direction or a Disabling Direction. The Targeted Correction Direction will direct the internet intermediary to communicate (either via the internet, MMS and/or SMS) a correction notice that will set out the government’s response to the false statement to end-users in Singapore who had access to that false statement. The Disabling Direction is issued to an internet intermediary to disable access by end-users in Singapore to that false statement.
Managing online presence
With the above in mind, how then should a business manage its online presence?
It is suggested that the mere failure to moderate third party comments such that false statements of fact remain on the website of a business would not satisfy the requisite degree of criminal culpability of having (a) knowledge that the statement is false; and (b) knowledge that the statement is likely to be prejudicial to the interest of Singapore. This is especially so for very active websites where it would be highly onerous to require its operators to moderate the hundreds or thousands of comments every day. The situation may be different if the volume of comments is very low since the reasonable expectation would most likely be that the website operator should moderate the third-party comments to seek out and remove false statement of facts that prejudice the interests of Singapore.
However, if the website operator has been specifically informed of such statements of falsehood in third party comments, the operator cannot claim innocence to avoid any criminal liability. He should remove the false statement within a reasonable time once he is informed about it.
In summary, a business that operates a website or social media pages promoting its services or products is not likely to post false statement of facts that are prejudicial to the interest of Singapore. It can stop comments on its website or in its social media pages to avoid any liability under the Act. However, it may not make commercial sense to do this as in this day and age online interaction with its customers is important. If comments are allowed and the volume is low, the business should moderate the comments to remove any false statements. If the volume is high and moderating the comments may not be feasible, false statements should be removed as soon as possible once the business is notified of the false statements. Finally, if the business receives any Direction, comply.