Context and Meaning in the Interpretation of Statements Under POFMA

Under the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA), Ministers may issue Directions requiring the correction or takedown of subject statements containing false statements of fact. However, between the selection of the subject statement, and the assessment of its content, there is a crucial intermediate step which Ministers and courts must perform: the interpretation of the statement. This interpretive enquiry in turn raises at least two important questions: is a subject statement’s context relevant in interpretation? And can a subject statement have multiple meanings? This article tackles these questions, arguing that courts, in interpreting subject statements, should take into account as much of their context as a reasonable reader would, and should recognise that statements may have multiple reasonable interpretations requiring targeted regulatory responses.

Introduction

Speech must be interpreted to be given meaning. This fact is particularly important in the context of the Protection from Online Falsehoods and Manipulation Act 2019¹No. 18 of 2019. (POFMA), where, depending on their meaning, one’s statements may attract significant regulatory consequences. POFMA creates a regulatory framework, which allows Ministers to issue “Directions”²Specifically, Parts 3 and 4 of POFMA provide for “Correction Directions”, “Stop Communication Directions”, “Targeted Correction Directions”, “Disabling Directions”, and “General Correction Directions”. to parties requiring them to correct or take down subject statements that are ‘false statements of fact’, and an appeal procedure allowing the courts to superintend this decision. However, between the selection of the subject statement in question, and the determination of its nature, there is an intermediate step which Ministers and courts must necessarily perform: the interpretation of the subject statement.

In the two cases POFMA has yielded so far – Singapore Democratic Party v. Attorney-General³(2020) SGHC 25. (SDP) and The Online Citizen v Attorney-General⁴(2020) SGHC 36. (TOC) – courts have identified two facets of the interpretive question. First, to what extent must a court, when interpreting a subject statement, take its context into account? Second, is a court bound to ascribe a single meaning to a statement, or can it recognise the existence of multiple meanings? These questions, though marginalized in public and academic discussions on POFMA to date, are crucial: as SPD and TOC show, in an appeal against a Minister’s decision to issue a Direction, a court’s interpretation of the subject statement will affect, often definitively, its conclusion on whether the subject statement is indeed a false statement of fact.

Unfortunately, SDP and TOC leave these interpretive questions largely unresolved, which, given their importance, is quite unsatisfactory. In this piece, we explore these questions, and argue that courts, in interpreting subject statements, should take as much of their context into account as a reasonable reader would, and should recognize that statements may have multiple reasonable interpretations requiring targeted regulatory responses.

POFMA’s Regulatory Framework

POFMA empowers Ministers to issue Directions to parties requiring them to correct or take down “false statements of fact” if two conditions are satisfied: the communication must contain a false statement of fact, and the Minister must believe it is in necessary or expedient in the public interest for the Direction to be issued.⁵POFMA ss 10-12, 20-23. We are here concerned only with the first condition, and the concept of a “false statement of fact” it uses, which POFMA defines as follows:

“2.—(1) In this Act, unless the context otherwise requires — […]

‘material’ means anything that consists of or contains a statement; […]

‘statement’ means any word (including abbreviation and initial), number, image (moving or otherwise), sound, symbol or other representation, or a combination of any of these; […]

(2) In this Act —

(a) a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact; and

(b) a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.”

POFMA thus requires a Minister to go through three analytical steps in identifying a “false statement of fact”. She must select a “statement” from the communicated material, determine whether the statement is one of “fact”, and finally determine whether the statement is “false”.

If the Minister issues a Direction, the recipient may appeal it, inter alia, under sections 17(5)(b) and 29(5)(b), which read:

“(5) The High Court may only set aside a […] Direction on any of the following grounds on an appeal: […]

(b) the subject statement is not a statement of fact, or is a true statement of fact”

Evidently, sections 17(5)(b) and 29(5)(b) do not grant courts appellate jurisdiction over the first step in the Minister’s enquiry: the selection of a “statement” from the communicated material. This decision may be challengeable only by way of judicial review. In contrast, courts clearly have appellate jurisdiction over the second and third steps: they must assess whether the subject statement is a statement of fact and, if so, whether it is false.

However, those two steps raise questions about how subject statements should be interpreted. As mentioned above, this interpretive question may be divided into two sub-enquiries, concerning the relevance of a subject statement’s context in its interpretation, and the possibility of a single statement bearing multiple meanings. We address these enquiries in turn.

Context is Key

In both SDP and TOC, the High Court had to consider whether a subject statement’s context, as arising from the rest of the communicated material, should be relevant in its interpretation, coming to diametrically opposed conclusions in both cases.

SDP concerned an article and two Facebook posts the Singapore Democratic Party published online relating to its employment policy proposals. The Minister for Manpower issued a Direction in response requiring the Party to append correction notices to the publications stating the publications contained false statements of fact. The Party’s appeals to the Minister were unsuccessful, and they then appealed to the High Court.

In his decision, Ang Cheng Hock J imported considerations of context from defamation law to Section 2(2) of POFMA. On section 2(2)(a), he stated that:

“[…] whether a statement is one of fact or comment will depend on the precise words, the context in which the passage is set out, and the content of the entire publication […] determining whether a statement is one of opinion or fact will depend on the entirety of the circumstances, and falls to be determined on an objective standard of how the statement would strike the ordinary reasonable reader”.⁶SDP, (28)-(29).

Ang Cheng Hock J then turned to Section 2(2)(b), and held that this provision proceeded:

“[…] on the basis that the reader may be taken to have read only parts of the article or even just one or two sentences, since the statement can be false ‘in part’ or ‘on its own’, rather than in the context in which it appears”.⁷Ibid, (69).

That precluded any defamation law-type requirement for a publication “always to be considered in its entirety and in line with the ‘bane and antidote’ rule”, according to which a problematic statement in one part of a publication may be nullified by another elsewhere.⁸Ibid. Nevertheless, Ang Cheng Hock J noted that a subject statement’s meaning still “falls to be determined by reference to what a reasonable reader would understand from the material in question […] an objective assessment”.⁹Ibid, (70). He added that such reader would not be “perverse, nor morbid, nor suspicious of mind, nor ‘avid for scandal’”,¹⁰Ibid, (71). but would also be slow to adopt a meaning that ignores a term the material clearly includes.¹¹Ibid, (81)-(82). The result is a position somewhere in-between defamation law (which requires that context be borne in mind) and the plain wording of section 2(2)(b) (which does not). Courts should have as much regard to context as a reasonable reader would, nothing more or less.

The High Court reached a different conclusion in TOC. There, news outlet The Online Citizen published an article quoting a Malaysian human rights group’s vivid allegations about the Singapore Prison Service’s execution protocols. The Minister for Home Affairs issued a Direction requiring the outlet to append a correction notice to the article stating that the allegations, but not the reportage of them, were false. As in SDP, The Online Citizen’s appeals to the Minister were unsuccessful, and it then appealed to the High Court.

Belinda Ang J adopted a markedly more literal approach to section 2(2) in TOC than in SDP, one that largely excludes considerations of context. This is evident partly from her remarks on section 2(2)(a) in which she rejects The Online Citizen’s argument that the subject statement is a “report based on hearsay”¹²TOC, (46)-(51)., opining that courts should confine themselves to “the semantics of the subject statement”.¹³Ibid, (49).

More important, though, are Belinda Ang J’s comments on section 2(2)(b). The Online Citizen had argued that:

“[…] the court must take into account the context of the Article in order to objectively interpret the Subject Statement, and to this end, have regard for the use of quotation marks and quoted extracts. When the Subject Statement is read in the context of the Article, it is true because the fact that [the human rights group] made such allegations is undisputed and TOC simply reported that fact alone”.¹⁴Ibid, (52).

Belinda Ang J found this argument was untenable, on grounds that it:

“[…] implicitly relies on a reinterpretation of the ‘subject statement’ that includes TOC’s own reporting of the Subject Statement. However, TOC had conceded at the start of the hearing that the ‘subject statement’ in question is the extract as it was identified in the [Minister’s Direction]. Accordingly, it cannot now contest the definition of the ‘subject statement’”.¹⁵Ibid, (55).

Evidently, Belinda Ang J did not feel section 2(2)(b) compelled her to consider context at all. That the reasonable reader (of the article) may have done otherwise, and perhaps even reached a drastically different view of the subject statement’s meaning, mattered little.

Thus, SPD and TOC reached vastly different conclusions on the relevance of context to the interpretation of subject statements. SDP concluded that courts must consider as much of a subject statement’s context as a reasonable person would when interpreting it for the purposes of both sections 2(2)(a) and 2(2)(b); while TOC seems to reject the relevance of context in both enquiries.

This disagreement between the decisions may be attributed to the fact that section 2(2) itself is ambiguous on the relevance of context. Section 2(2)(a) plainly says nothing about whether and to what extent context is relevant, save only that the perspective of the “reasonable person” must be adopted. On the other hand, although section 2(2)(b) expressly licenses a statement to be read “on its own or in the context in which it appears”, this may equally be understood as meaning that subject statements should be read in context by default, or that the default position excludes context. Evidently, the plain wording of section 2(2) is unhelpful on the relevance of context to interpretation.

However, it is submitted that section 2(2) must be interpreted as making context relevant, since a contrary interpretation would lead to manifestly absurd or unreasonable results.¹⁶See Interpretation Act (Cap 1, 2002 Rev Ed) s 9A(2)(b)(ii). As mentioned, the POFMA-mandated appeals procedure does not give the High Court appellate jurisdiction over a Minister’s selection of a “statement” from the communicated material. Hypothetically, the Minister could select a statement in such a way that omits one or more key words or punctuation marks. Indeed, that seems to be what happened in TOC (where the subject statement was divorced from the quotation marks that surrounded it otherwise). If context could be neglected in this way, courts may have to assess a subject statement under sections 2(2)(a) and 2(2)(b) on the basis of an interpretation which reasonable readers of the wider piece may never have come to.

That this contrary interpretation of section 2(2) would lead to manifestly absurd results is underscored by the fact that it would plainly be contrary to Parliament’s intention on the section’s underlying purpose,¹⁷For the uncontroversial relevance of Parliament’s intent in determining a provision’s absurdity, see John Manning, “The Absurdity Doctrine” (2003) 116 Harv L Rev 2387, 2389-2390 which show that Parliament cannot have intended to marginalize, let alone exclude, context. In relation to section 2(2)(a), Minister for Law K Shanmugam stated during POFMA’s Second Reading that “[t]here is a body of case law on what is ‘fact’ and what is not fact. It is better to rely on existing case law.”¹⁸Singapore Parliamentary Debates, Official Report (7 May 2019) vol 94 at 3.45 pm (K Shanmugam, Minister for Law). We assume, as Ang Cheng Hock J did in SDP, that this passage refers to defamation case law, under which a statement’s meaning “must be gathered from the words themselves and in the context of the entire speech”.¹⁹Jeyaretnam Joshua Benjamin v Lee Kuan Yew (1992) 1 SLR(R) 791, (19).

Similar comments were made in Parliament concerning section 2(2)(b). Mr Shanmugam noted that “[t]he question of how truth or falsity should be established and it should draw from the body of principles that form part of [evidence] case law.”²⁰Singapore Parliamentary Debates, Official Report (7 May 2019) vol 94 at 3.45 pm (K Shanmugam, Minister for Law). Likewise, Senior Minister of State for Law Edwin Tong noted that the provision’s wording was meant to address:²¹Singapore Parliamentary Debates, Official Report (7 May 2019) vol 94 at 5.54 pm (Edwin Tong, Senior Minister of State for Law).

“… the various ways in which reality might be distorted. Real words and real actions can also be edited and presented in a way that completely transforms their meaning…[s]imilarly, news reports that omit material facts can be a falsehood.”

Mr Tong then proceeded to criticize media that had shown an interview clip “out of context” to make it seem as if one of Hilary Clinton’s advisors had blamed her for the death of US diplomats in Afghanistan.²²Ibid. Evidently, then, section 2(2)(b)’s purpose is to ensure that statements are interpreted in context, rather than out of context.

Such an approach, which considers rather than ignores a statement’s content, would also be consistent with the position taken by the Government when issuing a recent Direction, refuting a statement made by one Mr Thum Ping Tjin. Mr Thum had stated that under section 2(2)(b)’s definition of a “false statement of fact”:²³“Corrections and clarifications regarding falsehoods and misleading statements by Mr Thum Ping Tjin”, Factually, 13 May 2020, online: https://www.gov.sg/article/factually-corrections-on-falsehoods-about-pofma-by-thum-ping-tjin, (2(a)).

“even if one bit [of the statement] is found to be wrong or misleading, the whole statement can be considered false. The definition is so broad that the omission of a fact, accidentally or otherwise, is sufficient for something to be considered misleading… And … anyone could selectively quote it, so that what they quote is misleading. So under this law, every statement can be considered false in some way.”

Describing Mr Thum’s statement as a false statement of fact, the Government stated that, under section 2(2)(b):²⁴Ibid, (3).

“the whole statement will not be considered false, automatically, just because ‘one bit’ of it is false. The Courts have, over centuries, developed criteria for assessing falsehoods. It is untrue to say that ‘every statement can be considered false in some way’ and be subject to POFMA.”

Thus, a principled interpretation of section 2(2) – which the Government itself appears to support – holds that context ought to play a significant role in a court’s interpretation of subject statements in POFMA appeals. Specifically, courts should not confine themselves to acontextual excerpts of communicated material, but instead should always take a statement’s context into account to the extent a reasonable reader would, when interpreting a statement for the purposes of both sections 2(2)(a) and 2(2)(b).

The Multiplicity of Reasonable Interpretations

But establishing the relevance of context only resolves half of the complexities surrounding the interpretation of subject statements in POFMA appeals. Another important question is whether courts should, when interpreting subject statements in context, attribute only a single meaning to it, or recognise that it may bear multiple meanings.

TOC did not deal with this issue, since the subject statement in question there, devoid of its context, was capable of only one interpretation. In SDP, however, Ang Cheng Hock J faced this question head on. Following from his analysis of section 2(2)(b) above,²⁵See supra notes 6-11 and accompanying text. he held that POFMA’s regulatory framework itself suggested that statements should be understood as possibly having multiple interpretations.²⁶SDP, (89). This understanding of section 2(2)(b) would also be consonant with one of POFMA’s underlying purposes, to prevent misinformation on matters of public interest.²⁷Ibid, (62), (89). Importantly, however, courts were only limited to recognising multiple reasonable interpretations for a statement: they did not have “licence to ignore inconvenient words in the [communicated material]” when interpreting statements.²⁸Ibid, (82).

The plain wording of sections 2(2)(a) and 2(2)(b) suggests that Ang J’s approach in SDP, of recognizing that statements may have multiple reasonable interpretations, is appropriate for section 2(2) as a whole. As Ang J himself noted, section 2(2)(b) itself appears to recognise that subject statements have multiple interpretations. Moreover, section 2(2)(a), by requiring courts to adopt the lens of the “reasonable person”, impliedly recognises the possibility of statements having multiple interpretations. In the context of defamation law, courts and commentators have long recognised the artificiality of interpreting offending statements through the lens of a “single meaning rule”, since reasonable people may well interpret a single statement differently.²⁹Andrew Scott, ‘“Ceci n’est pas une pipe”: the autopoietic inanity of the single meaning rule’ in Andrew Kenyon ed, Comparative Defamation and Privacy Law (Cambridge University Press, 2016), 42-46. Indeed, courts today retain the “single meaning rule” in defamation proceedings only on pragmatic grounds,³⁰These pragmatic reasons relate to the nature of legal interpretation, the constraints of evidence and civil procedure and the uncertainty which a contrary approach might engender; see ibid, 46-50. rather than adopting the untenable position that reasonable persons never disagree on interpretive matters. Thus, by exhorting courts to interpret statements as “reasonable persons” would, section 2(2)(a) requires courts to recognise that statements may have multiple reasonable interpretations.

Moreover, Parliament’s intent underlying section 2(2) confirms that which its plain wording suggests, since Parliament clearly recognised the artificiality of such a “single meaning rule”, and enacted section 2(2) precisely to combat it. Mr Tong’s recognition in POFMA’s Second Reading, as recounted above, that the Section ‘addresses the various ways in which reality might be distorted’,³¹See supra note 21 and accompanying text. plainly recognises the possibility of statements with multiple reasonable interpretations.

Thus, section 2(2), properly understood, requires courts to determine the multiple reasonable interpretations a subject statement may have. But this conclusion raises one further question, which was left unanswered in SDP,³²SDP, (89). and which neither section 2(2) nor parliamentary debates on POFMA resolves: how should a court judge statements with multiple reasonable interpretations, when not all of them give rise to false statements of fact? Should a court confirm or set aside the Direction issued?

In this regard, the Attorney-General in SDP argued that courts should confirm Directions issued if at least one of the reasonable interpretations of the subject statement would give rise to a false statement of fact.³³Since Ang Cheng Hock J found that the subject statement before him was capable of only one reasonable interpretation; see ibid, (63). The Attorney-General’s proposed rule certainly has an intuitive appeal to it – as Ang J noted in SDP, it would uphold one of POFMA’s purposes, namely the combating of misinformation,³⁴SDP, (62). by eliminating statements which are (by definition) capable of misleading reasonable persons.

However, POFMA’s specific purpose of combatting misinformation must be “subsumed under” the Act’s more general underlying purpose,³⁵Tan Cheng Bock v Attorney-General (2017) 2 SLR 850, (41). which, as Mr Shanmugam noted in POFMA’s Second Reading, is to “support the infrastructure of fact and promote honest speech in public discourse” and thus protect “the very foundations of democracy”.³⁶Singapore Parliamentary Debates, Official Report (7 May 2019) vol 94 at 3.45 pm (K Shanmugam, Minister for Law). One might question whether the Attorney-General’s proposed rule in SDP would serve that general purpose. After all, censuring statements with multiple reasonable interpretations, when only one of those interpretations gives rise to a false statement of fact, would (again, by definition) remove multiple other interpretations of that statement which are entirely honest and legitimate from public discourse. Instead, in order to give effect to both POFMA’s specific and general purposes, courts must deal with subject statements with multiple reasonable interpretations in a manner that combat misinformation, while also promoting honest and legitimate speech in public discourse.

Thus, rather than following the Attorney-General’s proposed rule in SDP, courts should instead uphold Directions issued against statements with multiple reasonable meanings only if the Direction is sufficiently targeted, censuring only those interpretations of such statements which give rise to false statements of fact. Courts may do so by requiring Directions issued against such statements to state, as their basis,³⁷Regulation 6 of the Protection from Online Falsehoods and Manipulation Regulations 2019 (S 442/2019) requires Directions to contain “the basis on which the subject statement…is determined to be a false statement of fact”. that “the subject statement, if interpreted to mean [X], would be a false statement of fact”. Courts should also require such Directions to be accompanied only by regulatory approaches which are themselves sufficiently targeted. Thus, the Government’s usual regulatory approach – involving clarification posts on a government website³⁸See Factually, online: https://www.gov.sg/factually. containing screenshots of the subject statement with the word “FALSE” writ large across it³⁹See e.g. the posts on Factually concerning the subject statements in SDP (“Corrections And Clarifications Regarding Falsehoods Posted By The Singapore Democratic Party”, Factually, 14 Dec 2019, online: https://www.gov.sg/article/factually-corrections-on-falsehoods-posted-by-sdp) and TOC (“Corrections and clarifications regarding falsehoods posted by Lawyers for Liberty”, Factually, 22 Jan 2020, online: https://www.gov.sg/article/factually-clarifications-on-falsehoods-posted-by-lawyers-for-liberty). – should be abandoned in the context of statements with multiple reasonable meanings, in favour of an approach that uses clarification posts with smaller, less aggressive notice like “some clarification required”. If courts uphold Directions in accordance with the Attorney-General’s proposed rule in SDP, rather than adopting such targeted approaches, they risk perpetuating the (ironically) misleading impression that subject statement is illegitimate in its entirety, when in fact some of its reasonable interpretations would give rise to statements of opinion or true statements of fact, which POFMA itself recognises should legitimately form part of public discourse. A targeted approach to Directions, which combats misinformation while promoting honest and legitimate speech, is therefore the best approach courts can take toward Directions issued against statements with multiple meanings. Such an approach gives effect to Parliament’s vision of a “calibrated approach” toward the threat of fake news, which, as David Tan and Jessica Teng note, is not always apparent from POFMA’s provisions.⁴⁰David Tan and Jessica Teng, “Fake News, Free Speech and Finding Constitutional Congruence” (2020) 32 SAcLJ 207, 247-248.

Conclusion

The two questions surrounding the interpretation of subject statements under POFMA – the relevance of context, and the possibility of multiple interpretations – are crucial to a court’s assessment of whether a subject statement is a false statement of fact. Here, we have argued that the proper approach would be for courts, in interpreting a subject statement, to consider as much of its context as a reasonable reader would, and to recognise statements as capable of having multiple reasonable interpretations requiring targeted regulatory responses. Such an approach would be consistent with both the text of section 2(2) as well as Parliament’s underlying purposes for section 2(2) and POFMA as a whole. As both decisions in SDP and Online Citizen go on appeal, it is hoped that the discussion here provides some clarity on this important question.

The post Context and Meaning in the Interpretation of Statements Under POFMA appeared first on The Singapore Law Gazette.