[2023] SGHC 247

In the GENERAL DIVISION OF

THE high court of the republic of singapore

[2023] SGHC 247

Originating Application No 764 of 2023

In the matter of Section 17 of the Protection from Online Falsehoods and Manipulation Act 2019

Between

The Inquiry Pte Ltd

… Appellant

And

Attorney-General

… Respondent

Originating Application No 765 of 2023

In the matter of Section 17 of the Protection from Online Falsehoods and Manipulation Act 2019

Between

The Inquiry Pte Ltd

… Appellant

And

Attorney-General

… Respondent

Judgment

[Statutory Interpretation — Construction of statute — Protection from Online Falsehoods and Manipulation Act 2019]

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

The Inquiry Pte Ltd

Attorney-General and another matter

[2023] SGHC 247

General Division of the High Court — Originating Applications Nos 764 and 765 of 2023
Valerie Thean J
8 August 2023

6 September 2023 Judgment reserved.

Valerie Thean J:

Introduction

1 Originating Application Nos 764 and 765 of 2023 are two appeals filed by The Inquiry Pte Ltd (“TIPL”) to set aside two Correction Directions (“CDs”) issued to it under s 11 of the Protection from Online Falsehoods and Manipulation Act 2019 (2020 Rev Ed) (“POFMA”). Section 17(4) of the POFMA empowers the General Division of the High Court (the “High Court”) to set aside a CD on grounds provided by s 17(5). In The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] 2 SLR 1358 (“TOC”), the Court of Appeal set out a framework for dealing with such matters. These appeals engage s 17(5)(a) of the POFMA and [155] of TOC.

Background facts

2 TIPL operates an online magazine, Jom. On 7 July 2023, TIPL published an article entitled “Singapore This Week” on its webpage, https://www.jom.media/singapore-this-week-070723/. The article contains several parts, but the ones relevant to these appeals are the first two parts, respectively entitled, “Politics: No corruption by the Rajahs of Ridout, but many questions unanswered” (the “Politics Article”) and “Society: Did Instagram accede to a censorship request by the Rajah?” (the “Society Article”). TIPL also posted links to the article from 7 to 9 July 2023 on Facebook, LinkedIn and Twitter.

The First CD

3 On 16 July 2023, a Correction Direction was issued to TIPL under s 11 of the POFMA (the “First CD”) at the instruction of the Minister for Culture, Community and Youth and Second Minister for Law, in respect of two parts of the Politics Article. The first part of the Politics Article reads (the “SM Teo Material”):

Politics: No corruption by the Rajahs of Ridout, but many questions unanswered

As expected, the government found no corruption in the Ridout Road bungalow leases by K Shanmugam, home affairs and law minister and Vivian Balakrishnan, foreign affairs minister. Yet the issue of corruption was a straw man—parliamentary opposition members never complained about it. The primary problems were around conflicts of interest and possible breaches of the Code of Conduct for Ministers (Code). Among other conflicts, it has emerged that Teo Chee Hean, senior minister, was both the informed and investigating officer. He should have “recused himself from the [ministerial] review, much less lead it,” as Harpreet Singh, a senior counsel, argued in a Jom editorial last week. The potential breach of the Code involved Shanmugam, whose ministry oversees the Singapore Land Authority (SLA), the agency that rents out the properties. The Code states that a minister “must scrupulously avoid any actual or apparent [emphasis ours] conflict of interest between his office and his private financial interests”. Teo’s pithy reply: “...it is more important to observe the spirit rather than just the letter of the Codes.” Ownself check ownself wins again…

[emphasis in original]

4 The First CD stated that the SM Teo Material contained the following subject statement (“SM Teo Subject Statement”), which was false:

Senior Minister Teo Chee Hean did not respond to questions concerning the issue of actual or apparent conflicts of interest and possible breach of the Code of Conduct for Ministers beyond replying that it is more important to observe the spirit rather than just the letter of the Code.

5 The SM Teo Subject Statement was stated to be false on the following bases:

Senior Minister Teo Chee Hean said that Minister Shanmugam had recused himself, and this meant that he no longer had any duty in the matter. There could thus be no potential or actual conflict of interest. He explained how Minister Shanmugam had removed himself from the chain of command and decision-making process entirely in the case of 26 Ridout Road. He had also highlighted that the Corrupt Practices Investigation Bureau (CPIB) had established, as part of its independent investigation, that no matter was raised by the Singapore Land Authority (SLA) to the Ministry of Law and hence to any of the Ministers during the entire rental process.

6 The First CD also identified a false statement of fact in the second part of the Politics Article (the “Renovation Material”). The Renovation Material reads:

The primary problems were around conflicts of interest and possible breaches of the Code of Conduct for Ministers (Code). Among other conflicts, it has emerged that Teo Chee Hean, senior minister, was both the informed and investigating officer. He should have “recused himself from the [ministerial] review, much less lead it,” as Harpreet Singh, a senior counsel, argued in a Jom editorial last week. The potential breach of the Code involved Shanmugam, whose ministry oversees the Singapore Land Authority (SLA), the agency that rents out the properties. The Code states that a minister “must scrupulously avoid any actual or apparent [emphasis ours] conflict of interest between his office and his private financial interests”. Teo’s pithy reply: “...it is more important to observe the spirit rather than just the letter of the Codes.” Ownself check ownself wins again. In Parliament, Balakrishnan and Shanmugam cried about the sacrifices they made moving into apparently decrepit bungalows. Stories of termites and financial losses, respectively, merited a sandiwara soundtrack. The bare facts are shocking, including over S$1m of taxpayer money spent on renovation works. Balakrishnan’s bungalow is almost 9,000 sq ft gross floor area on a property of almost 100,000 sq ft, equivalent to well over a football field. He claimed he needed so much space to accommodate three generations of family—he must pity the many Singaporeans who do so in tiny flats. Shanmugam’s property is about 250,000 sq ft, larger than three football fields, with a monthly rental of S$26,500—just over 10 cents per square foot. SLA in May said that Shanmugam had bid above the “guide rent” but has since changed its story: Shanmugam, through his agent, apparently offered below the guide rent, and SLA counter-offered with the exact guide rent, not a cent more, suggesting that the Singaporean coffers are represented by the most inept housing agent in history.

[emphasis in original]

7 The false subject statement identified from the Renovation Material (the “Renovation Subject Statement”) reads:

SLA spent more than $1 million on the renovation for 26 Ridout Road and 31 Ridout Road because the Ministers were to be the tenants.

8 The First CD stated that the Renovation Subject Statement was false because:

The identity of the tenants had no bearing on the amount spent by SLA on the works it carried out on 26 Ridout Road and 31 Ridout Road. The works done by SLA were consistent with SLA’s general practice, and were assessed to be necessary in the circumstances, in light of the condition of the properties and to comply with the relevant conservation requirements.

9 Pursuant to the First CD, TIPL was required to issue a Correction Notice to state that the Politics Article contained false statements of fact and to reference a website link.

10 TIPL complied with the First CD. In addition, on 17 July 2023, TIPL also, on its own initiative, put up an addendum at the end of the Politics Article, which reads as follows:

Addendum to original post: Jom would like to clarify that it did not intend to nor did it make the following subject statements in the above article: (1) “Senior Minister Teo Chee Hean did not respond to questions concerning the issue of actual or apparent conflicts of interest and possible breach of the Code of Conduct for Ministers beyond replying that it is more important to observe the spirit rather than just the letter of the Code.”; (2) “SLA spent more than $1 million on the renovation for 26 Ridout Road and 31 Ridout Road because the Ministers were to be the tenants.”

11 On 19 July 2023, TIPL applied to the Minister for Culture, Community and Youth and Second Minister for Law to cancel the First CD. The application was rejected on 21 July 2023.

12 Thereafter, on 31 July 2023, TIPL filed Originating Application No 764 of 2023.

The Second CD

13 On the same day when the First CD was issued, another CD was issued under s 11 of the POFMA at the instruction of the Minister for Communications and Information in respect of a statement of fact in the Society Article (the “Second CD”). The Society Article reads:

Society: Did Instagram accede to a censorship request by the Rajah?

Instagram has seemingly geo-blocked (only in Singapore) a post by Charles Yeo, a former opposition politician with the Reform Party (RP). In the post, Yeo, who’s currently seeking political asylum in the UK, had alluded to crony capitalism in Singapore. He said that Livspace, whose regional head is Ravindran Shanmugam, son of K Shanmugam, may have benefited from involvement in renovation works at 26 Ridout Road (where his father lives). This claim generated enough controversy, including on forums such as Reddit and Hardwarezone (owned by SPH Media), that the elder Shanmugam was forced to debunk it in Parliament last week. What’s curious is that the government has not issued any correction order, as it so often does, under The Protection from Online Falsehoods and Manipulation Act 2019 (POFMA)—neither to Yeo nor to Kenneth Jeyaretnam, RP chief, who repeated the allegation on his blog. A correction order would have offered more transparency than a block, which is nefarious in its opacity. Instagram’s blocking notice said it “…complied with a legal request to restrict this content.” We don’t know if this request came from Shanmugam. What we do know is that Meta sometimes works hand-in-glove with autocratic governments in the region. “Meta reportedly maintains an internal list of Vietnamese Communist Party officials who should not be criticised on Facebook,” Alan Soon, co-founder of Splice Media, a consultancy, recently wrote, referencing a Washington Post article, which said the list was shaped by Vietnamese apparatchiks. “Posts criticising top officials have been taken down…” There’s no evidence that Meta has any similar arrangement with Singapore’s ruling People’s Action Party (PAP), whose leaders are regularly criticised on Facebook and Instagram. In response to a Jom query, Meta said that after careful review of a court order it received—in a similar process it conducts in every country—it determined it was legally required to restrict access to that bit of content. Still, this incident raises worrying questions about speech, censorship tools, and the rules of engagement in online discourse, particularly given inherent power dynamics (PAP politicians are far less likely to be penalised for potential falsehoods, as evidenced here). All this is particularly relevant ahead of a crucial general election, which must be called by 2025.

14 The Second CD identified the following subject statement as false (the “Geo-block Subject Statement”): “[t]he Government caused Instagram to geo-block a post by Charles Yeo”. According to the Second CD, the Geo-block Subject Statement was false as “[t]he Government did not cause Instagram to geo-block Charles Yeo’s Instagram post concerning Minister Shanmugam’s son”.

15 TIPL was required to issue a Correction Notice to state that the earlier post contained false statements of fact and to reference a link.

16 Similar to its actions in response to the First CD, TIPL complied with the Second CD. On or around 17 July 2023, again on its own initiative, TIPL also posted an addendum at the end of the Society Article which reads:

Addendum to original post: Jom would like to clarify that it did not intend to nor did it make the following subject statement in the above article: “The Government caused Instagram to geo-block a post by Charles Yeo.”

17 On 19 July 2023, TIPL applied to the Minister for Communications and Information under s 19 of the POFMA to cancel the Second CD. This was rejected on 21 July 2023.

18 Subsequently, on 31 July 2023, TIPL filed Originating Application No 765 of 2023.

The legal context

19 The CDs in the present case were issued under s 11 of the POFMA, pursuant to the conditions set out for Part 3 Directions generally in s 10(1): (a) a false statement of fact has been or is being communicated in Singapore, and (b) the Minister is of the opinion that it is in the public interest to issue the Part 3 Direction.

20 Section 17(2) states that any person who wishes to appeal to the High Court under s 17 must first apply to the Minister under s 19 of the POFMA. The Minister is empowered to vary or cancel a Part 3 Direction. On the subsequent appeal, the High Court may only set aside the CD on one (or more of) of the following three grounds stated in s 17(5):

(a) the person did not communicate in Singapore the subject statement;

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

21 In The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] 2 SLR 1358 (“TOC”), the Court of Appeal laid out a five-step analytical framework to determine whether a Part 3 Direction could be set aside under ss 17(5)(a) and 17(5)(b) the POFMA (the “TOC framework”). The second step is set out in greater detail at (b) as it is of particular relevance to the present case.

(a) First, the court must ascertain the meaning the Minister intended to convey in the subject statement stated in the Part 3 Direction: TOC at [118]–[133] and [163(a)].

(b) Second, the court should objectively determine whether the subject material actually makes or contains the subject statement as identified by the Minister, based on the Minister’s intended meaning from the first step. A fine-grained or overly technical analysis should be avoided. Instead, the court should consider whether, on an objective construction of the subject material, regardless of the subjective intention of the statement-maker, there would be at least an appreciable segment of the potential readership or audience of the subject material in Singapore or a particular class of potential readers sharing certain clearly identifiable characteristics such as socio-political beliefs or ideals who would construe the subject material as making or containing the subject statement, or regard the subject statement as a reasonable interpretation of the subject material. In this connection, the court must ensure that statements that will only be construed as false by an insignificant segment of the public or class of persons are not culled from public discourse. If the subject material did not make or contain the subject statement identified in the Part 3 Direction, the Direction could be set aside under s 17(5)(a) of the POFMA: TOC at [136], [150]–[152], [154], [156] and [163(b)].

(c) Third, the court should objectively evaluate whether the identified subject statement falls under the definition of a “statement of fact” as per the POFMA: TOC at [158] and [163(c)].

(d) Fourth, the court should determine, on an objective basis, whether the identified subject statement is “false” in the sense explained in s 2(2)(b) of the POFMA: TOC at [159] and [163(d)].

(e) Fifth, the court should consider whether the subject statement has been or is being communicated in Singapore, being accessible to at least one end-user in Singapore through the internet: TOC at [161] and [163(e)].

22 Further, the legal burden in appeals to set aside Part 3 Directions under ss 17(5)(a) and/or 17(5)(b) of the POFMA lay from the outset on the recipient of the Direction being challenged. The recipient of the Direction had to show a prima facie case of reasonable suspicion that one or more of the grounds for setting aside the Direction under ss 17(5)(a) and/or 17(5)(b) was satisfied by putting forward some material which might, on further consideration, turn out to be an arguable case in favour of setting aside. If the recipient of the Direction could not establish this, its application would fail at the threshold stage. Conversely, if this threshold was crossed, the evidential burden would then shift to the Minister to show that none of the grounds for setting aside under ss 17(5)(a) and/or 17(5)(b) were made out. The final determination would be made by the court based on the totality of the evidence adduced by the parties, applying the standard of proof on the balance of probabilities: TOC at [180]–[184].

Arguments and issues in the appeals

23 It is common ground that the five stages of the TOC framework apply, and the parties do not dispute the Ministers’ intended meanings as set out in the three subject statements. Nor do they dispute that the specified subject statements were false statements of facts communicated in Singapore. As such, TIPL situates its arguments strictly within the second step of the TOC framework.

24 In applying the second step of the TOC framework, TIPL also limits its appeals to s 17(5)(a), that the subject materials “did not communicate” the subject statements. First, TIPL argues that the Ministers should be held strictly to their subject statements and therefore considering the relevant parts of the subject materials, no reasonable reader would understand them to mean any of the three subject statements. While TIPL contends that it did not have the intention to make the subject statements, TIPL and the AG agree that an objective standard is applied in the interpretive exercise under the second step of the TOC framework.

25 Second, and in any event, in the present case, after the CDs were issued, TIPL specifically thereafter added addenda to the Politics and Society Articles (see above at [10] and [16]). In doing so, TIPL relies upon the dicta in [155] of TOC, which it argues allows TIPL to nullify the effect of the subject materials with a clear and unequivocal disavowal. TIPL argues therefrom that a clear disavowal issued before the Minister exercises his or her power under s 19 to cancel the CD must be considered by the court under s 17(5) of the POFMA. On the facts, TIPL argues that the addenda make it very clear that all three subject statements do not pass muster under the second step of the TOC framework and so both CDs ought to be set aside.

26 The AG, on the other hand, argues that, on an objective interpretation of the subject materials, there is at least an appreciable segment or a particular class of the potential readership of the article that would construe the relevant parts of the article to mean the three subject statements, respectively.

27 Regarding the addenda, the AG contends that in determining whether a CD should be set aside, the High Court should consider the subject material so long as it was communicated at some point in Singapore, even if it was no longer being communicated, and any subsequent amendments are irrelevant. The Court of Appeal’s remarks at [155] of TOC were obiter. The Court expressly stated that its remarks were no more than a provisional view for future consideration as the issue did not arise for its decision, and the Court did not have the benefit of full arguments on the point.

28 Further, the AG submits that in any event, on the facts, even if the addenda were considered, the subject materials still make or contain the subject statements.

29 From these arguments, three issues may be distilled for determination:

(a) At the time of the issuance of the CDs, did the subject materials make or contain the subject statements? If not, issues (b) and (c) are not relevant, as the addenda would simply be reiterating points that the subject materials did not make or contain.

(b) As a matter of statutory interpretation, in the exercise of its powers under s 17(5)(a) of the POFMA, is the High Court entitled, in the light of [155] of TOC, to take into account amendments to the subject material made subsequent to the issuance of the CD but before the Minister considers the recipient of a CD’s application under s 19 of the POFMA? This impacts the manner in which issue (c) is engaged.

(c) Whether the effect of the addenda by TIPL results in the subject materials no longer making or containing the subject statements.

The subject statements at the time of the issuance of the CDs

An appreciable segment of the public

30 I first deal with a preliminary contention of TIPL, which is that the affidavits made on behalf of the Ministers need to, at the very least, assert who the “appreciable segment” of the potential readership of the subject material in Singapore is, or set out the “particular class of potential readers sharing certain clearly identifiable characteristics such as socio-political beliefs or ideals” (see TOC at [136]) that would interpret the relevant parts of the article to mean the respective subject statements. According to TIPL, this is to put TIPL (and the court) on notice so that TIPL can meaningfully respond (by, presumably, showing that the identified class is an insignificant class or would not have so interpreted the impugned subject material to mean the subject statement).

31 The AG argues that there is no requirement for the Minister to positively identify a particular segment or class of potential readers of the publication. This was made clear by the Court of Appeal’s approach at [211] of TOC, where the sentence “local PMET retrenchment has been increasing” was interpreted from the perspective of the “ordinary reasonable reader”. The AG’s position is that ordinary individuals with no particular inclination would have thought that the three subject statements were reasonable interpretations of the relevant parts of the article. The AG also submits that if there is to be a particular class of potential readers with “clearly identifiable characteristics” such as “socio-political beliefs or ideals” (as envisaged by TOC at [136]), the class should be defined as those with similar political inclinations as Jom, ie, possessing a critical attitude towards the Singapore Government. This is because the other Jom articles exhibited are somewhat critical of the Singapore Government. As an example, the Politics Article referred to another Jom article that was critical of the Government.

32 For ease of reference, I set out [136] of TOC in full:

For the reasons that we develop below, as in the case of ascertaining the Minister’s intended meaning in respect of the subject statement identified in a Part 3 Direction, an objective approach to interpretation ought similarly to be adopted in determining whether the subject material makes or contains the identified subject statement. This is essentially because, as the AG has highlighted, the POFMA is primarily concerned with the effect that the subject material has on the public, and not with the meaning that the statement-maker subjectively intended to place on the subject material (referred to hereafter as “the statement-maker’s subjective intended meaning” where appropriate to the context). This is in line with the passages we have already cited from the legislative material. In undertaking this interpretive exercise, the court should eschew a fine-grained or unduly technical analysis and consider whether, on an objective construction of the subject material regardless of the subjective intention of the statement-maker, there would be at least an appreciable segment of the potential readership or audience of the subject material in Singapore, or a particular class of potential readers sharing certain clearly identifiable characteristics such as socio-political beliefs or ideals (referred to hereafter as a “particular class”), who would construe the subject material as making or containing the subject statement, or regard the subject statement as a reasonable interpretation of the subject material.

[emphasis in original]

33 Reading [136] in its entirety, the Court of Appeal was reiterating that the POFMA is primarily concerned with the effect of the subject material on the public. In elaborating an objective construction, the Court referred to two options. The first is a reading that would be adopted by “at least” an appreciable segment of the potential audience. The segment is referred to in the context of an objective standard of reasonableness, which is reflected in the accompanying guidance of the Court of Appeal that the interpretive exercise is an objective one undertaken by the court, and the subjective intention of the statement-maker is generally irrelevant. Framing a second option with a disjunctive “or”, the Court left open the alternative of defining a particular class of potential readers with clearly identifiable characteristics. The paragraph as a whole reflects that the two alternatives are nonetheless both elucidations of how the interpretive exercise is to be directed toward a reasonable interpretation held by a sufficiently large number of readers.

34 This objective standard of reasonableness is reiterated at [156] of TOC, where the Court of Appeal drew a distinction between an interpretation that would be adopted by an appreciable segment of the article’s readership and material “which will only be construed in the false sense by an insignificant segment of the public or class of persons not culled from the public discourse” [emphasis in original]. The contrast of the two segments is a device to delineate an objective standard of reasonableness, which is emphasised again at [157] of TOC, where the Court of Appeal reiterated that the interpretive exercise is to be approached as a matter of impression and “the court should not engage in fine-grained legal interpretation or unduly technical analysis”.

35 Further, in applying the second step of the analytical framework to determine if the impugned article posted by the Singapore Democratic Party (“SDP Article”) contained the subject statement in question (that “Local PMET retrenchment has been increasing”), the Court of Appeal in TOC found that the ordinary reasonable reader would have understood the SDP Article to mean that there was a rising absolute number, as opposed to a rising proportion, of “Singapore PMETs” being retrenched. In so holding, the Court of Appeal did not require evidence, for example, of the number of retrenched PMETs, to be averred in affidavit, and neither did the Court of Appeal consider such evidence. Again, the Court of Appeal expressly stated that the SDP Article was to be interpreted “as a matter of impression rather than fine-grained or unduly technical analysis”: see TOC at [210]–[211].

36 In the present case, therefore, I shall determine, on an objective basis, whether the subject statements are reasonable interpretations of the subject material. While, as I explained at [33], the Court of Appeal left open at [136] of TOC the option of defining a specific class of reader in making the objective assessment, this is not, in my view, necessary for these appeals, and I do not do so.

The SM Teo Subject Statement

37 I turn to the specific subject statements. There is no dispute over the intention and meaning of the SM Teo Subject Statement, which is that SM Teo did not respond to questions concerning the issue of actual or apparent conflicts of interest and a possible breach of the Code of Conduct for Ministers (“Code”) beyond replying that it was more important to observe the spirit rather than just the letter of the Code.

38 TIPL submits that the SM Teo Subject Statement is not a reasonable interpretation of the subject material. The material does not hold itself out as describing exhaustively SM Teo’s response to all the issues raised in Parliament on conflicts of interest or the Code. It makes clear, with the use of an ellipsis, that it is a partial quote. The word “pithy” meant nothing more than its dictionary meaning: “full of concentrated meaning; conveying meaning forcibly through brevity of expression; concise, succinct; condensed in style”. The title of the Politics Article also did not lead to the SM Teo Subject Statement.

39 The AG agrees with TIPL’s definition of “pithy” but submits it is used in a sardonic sense and that the title and body of the material lead to the subject statement being made. Reading the subject material in context, the fact of the partial quote is not sufficient.

40 In ascertaining whether the Politics Article does contain the SM Teo Subject Statement, I look at the article in its entire context. Its title references two issues: a lack of corruption on the part of two Ministers and a lack of answers. The body begins with an explanation that “[a]s expected, the government found no corruption in the Ridout Road bungalow leases … Yet the issue of corruption was a straw man – parliamentary opposition members never complained about it.” Having thus set the stage, the article then moves on to the lack of answers to “the primary problems”. It then highlights specifically a conflict of interest on the part of SM Teo. It is with this premise that it calls SM Teo’s response “pithy”: this is a sarcastic reference to the understanding of concision. What makes the impression plain is the five-word explanatory sentence that follows immediately after: “Ownself check ownself wins again”.

41 As TIPL points out, the article does not state, literally, that SM Teo did not say anything apart from the partial quote. TIPL rightly approached the issue as one of reasonable interpretation with reference to the entire text. As an example, the Court of Appeal at [228] of TOC interpreted “local” in a graphical illustration in a December Facebook post to mean Singapore citizens because it read the article as a whole. In the same vein, I read the Politics Article as a whole: its tenor and import lead an objective reasonable reader to conclude that SM Teo had no other answer beyond the cryptic quote. While TIPL contends in passing that this was an opinion as there is no definitive set of questions to be answered, it is common ground that the first or third steps of the TOC framework are not relevant for the purpose of these appeals. The Minister’s intended meaning was not disputed, nor was it disputed that the SM Teo Subject Statement was a statement of fact. Within the text of the subject material, the SM Teo Subject Statement was not expressed as the author’s opinion. It was an assertion of fact made by the author in order to support his opinion that because of the issue of conflicts of interest, many questions remained unanswered after the review that SM Teo (ought not to have) helmed.

42 In my judgment, therefore, the subject material does contain the SM Teo Subject Statement.

The Renovation Subject Statement

43 TIPL’s contention here is that the causal link intended by the Renovation Subject Statement – that the money was spent because the Ministers were to be tenants – was not made in the subject material. The phrase “the bare facts are shocking” simply refers to the three factual statements that follow: (i) $1m was spent on the renovation of the two houses; (ii) the properties were about 100,000 sq ft and 250,000 sq ft in sizes, respectively; and (iii) the square foot rent worked out to just over 10 cents psf for 26 Ridout Road. The facts are “shocking” because (i) the amount spent on renovation is very large, (ii) the size of the properties is very large, but (iii) the square foot rent for 26 Ridout Road is very low.

44 In the present case, the subject material is capable of multiple meanings, one of which, as TIPL submits, is to take “at face value” the three bare facts that would shock the reader. Presumably, this reaction would be linked to the author’s opinion that the Ministers lived very privileged lives.

45 Nevertheless, in my view, an objective and reasonable segment of the audience would read the article as a whole and not merely the three “facts”. Looking at the text of the material, the first half of the article is about conflicts of interest. Minister Shanmugam is specifically highlighted as the Minister in charge of the Singapore Land Authority (“SLA”). The author makes clear that the conflicts of interest raised by Mr Harpreet Singh SC had not been answered by SM Teo, who was himself in a position of conflict. It is in the context of these conflicts of interest that the article then moves into identifying the two Ministers as privileged, highlighting the Ministers’ comments about the “apparently decrepit” – and yet huge – properties. The “bare facts” set out as “shocking” are that over $1m of “taxpayer money” had been spent on renovation and the vast size of the properties are comparable to football fields, ending with the punchline emphasised with dashed punctuation that the monthly rent was just over 10 cents per square foot. Regarding that monthly rent, SLA’s counter-offer was “the exact guide rent, not a cent more, suggesting that the Singaporean coffers are represented by the most inept housing agent in history”. The implied allusion to low rent (“10 cents per square foot”) is misleading. Gross floor area, referencing the liveable space, is the appropriate measure used in the market for black-and-white bungalows, as was explained by the Second Minister for Law at the same parliamentary sitting that the article referenced. SM Teo’s Report, accessible from the parliamentary website, has explained in a table (that was also distributed to Members of Parliament at the sitting) that for 26 Ridout Road, the rent per unit of floor area was $30.94 and the average for black-and-white bungalows in the Ridout Road Estate in 2018 was $29.78. The flow of the text within the article and its conclusion is an assertion that conflicts of interest caused SLA to spend more than $1m in taxpayer money to renovate the large properties despite the low rental return.

46 Again, TIPL submits in the alternative that this was the author’s opinion but makes no argument that the causal link asserted in the Renovation Subject Statement was not a statement of fact. In my view, the causal link is the statement of fact to be read from the subject material. This statement of fact supplies the reason that SLA had acted in what is framed as a commercially inept manner.

The Geo-block Subject Statement

47 The title of the Society Article asks, “[d]id Instagram accede to a censorship request by the Rajah?” It is common ground that “the Rajah” in this context refers to Minister Shanmugam. TIPL submits that the question in the title is an open question, while the AG contends that the query is a rhetorical question that the article then answers in the affirmative. I agree with the AG that the Geo-block Subject Statement is contained within the article for the reasons that follow.

48 The Society Article begins by referencing a post by Charles Yeo, which was “seemingly geo-blocked (only in Singapore)” by Instagram. It makes clear that Minister Shanmugam thought that the allegations in Charles Yeo’s post were serious, as he was “forced to debunk it in Parliament”. The Society Article then asserts that it is “curious” that the “[G]overnment has not issued any correction order, as it so often does” before claiming that a CD “would have offered more transparency than a block, which is nefarious in its opacity”, hinting that the Government chose one form of censorship over another. By contrasting a geo-block with a CD, the article intimates that the Government decided to geo-block Charles Yeo’s post because it wanted to avoid transparency. With the line, “[w]e don’t know if this request came from Shanmugam”, the article is implying it was indeed Minister Shanmugam, a member of the Government, who caused Instagram to geo-block Charles Yeo’s post.

49 Following the above, the Society Article states, “[w]hat we do know is that Meta [the company that operates Instagram] sometimes works hand-in-glove with autocratic governments in the region” and provides an example of how the Vietnamese government caused Meta to remove posts criticising top officials in Vietnam, while quoting a co-founder of a media consultancy as saying, “Meta reportedly maintains an internal list of Vietnamese Communist Party officials who should not be criticised on Facebook”. The assertion made is that Meta is compliant with government demands. While the Society Article then states that “[t]here’s no evidence that Meta has any similar arrangement with Singapore’s ruling People’s Action Party (PAP)”, that similar arrangement refers to “an internal list of Vietnamese Communist Party officials”, and this does not nullify the sting of the preceding assertion that Meta generally cooperates with governments. Instead, it leads on tantalisingly to the fact that Meta had received a court order. Its conclusion, “Still, this incident raises worrying questions about speech, censorship tools, and the rules of engagement in online discourse, particularly given inherent power dynamics” [emphasis added], reiterates the insinuation at the beginning of the article, that Charles Yeo’s post was censored by the Government. The link to the general election to be called by 2025 in the final sentence then supplies a powerful motive (implying that this was in order to prevent the electorate from reading it) that makes clear the assertion that the Government did cause Instagram to block Charles Yeo’s post in order.

50 In my view, what the article does, by a series of speculative associations, is set out a case that the Government caused Instagram to geo-block Charles Yeo’s post. Again, while this is not spelt out literally, the whole import of the article leads to an assertion that the Singapore Government asked Instagram to geo-block the Charles Yeo post in Singapore.

Interpreting s 17(5)(a) of the POFMA

51 My conclusion in the affirmative on the first question of whether the subject materials make or contain the subject statements leads me to the second question, which is whether or how the addenda may be considered.

Arguments

52 TIPL relies upon [155] of TOC, which reads as follows:

However, one point that did leave an impression on us in oral submissions was Mr Nair’s argument that it would be unreasonable for a statement-maker to be required to defend a subject statement in respect of which the Minister’s intended meaning is a meaning that the statement maker had not intended the statement to bear and did not believe in, even if that meaning is a reasonable interpretation arising objectively from the subject material. Such situations may conceivably occur given that words are capable of bearing an outer range of reasonable meanings. While this issue did not arise for decision in these appeals, we observed to Mr Nair that in such a scenario, perhaps a viable way in which the statement-maker might be able to object to the Minister’s intended meaning in respect of the subject statement, and the issuance of a Part 3 Direction on the basis of that meaning, would be to disavow clearly and unequivocally to the target readership of the subject material in its original published form the Minister’s intended meaning and any association with it. Such disavowal might, for instance, take the form of an addendum or a follow-up to the subject material, clarifying that the statement-maker did not intend to convey the particular meaning that the Minister had placed on the subject statement as the basis for issuing a Part 3 Direction. Such clear and public disavowal does not seem to us to be unduly onerous if, as Mr Nair submitted, the statement-maker insists that it was not making the subject statement that the Minister said was being made. In such circumstances, the statement-maker, in truth, would have no interest in allowing the misconception to persist, and would instead have every incentive to clarify to the public that the subject statement should not be read in the particular way that the Minister had done. This seems to us to strike a possible balance between an objective interpretation of the subject statement from the perspective of the potential readership or audience of the subject material in Singapore, and an interpretation based on the statement-maker’s subjective intended meaning. However, we leave this as a provisional view for future consideration since, as we mentioned earlier, the point did not arise for decision in the present appeals.

[emphasis in original in italics; emphasis added in bold]

53 While TIPL agrees with the AG that the Court of Appeal’s observations are obiter dicta, TIPL is of the view that the dicta is legally and conceptually sound and may be reconciled with s 17(5)(a) of the POFMA such that the High Court is entitled to, and must, take into account post-issuance amendments up to the point when the Minister exercises his or her powers to cancel the CD under s 19 of the POFMA.

(a) The Court of Appeal in TOC at [177] instructs that in an appeal under s 17 of the POFMA, “the High Court must determine afresh the relevant facts pertaining to the ss 17(5)(a) and 17(5)(b) grounds for setting aside a Part 3 Direction, without deferring to the Minister’s determination of those facts or being constrained by the usual principles of appellate review”. This clearly means that an appeal is by way of rehearing and, accordingly, the High Court is entitled to consider a disavowal made after the issuance of the CD but before the Minister exercises his or her power under s 19 to cancel the CD. This must be so because the Minister’s decision to confirm the CD is one made with the benefit of considering the disavowal.

(b) Accordingly, when the High Court exercises its powers under s 17(5)(a) of the POFMA, it is entitled to review the Minister’s refusal to cancel a CD under s 19. Relatedly, the phrase “did not communicate” in s 17(5)(a) of the POFMA should be determined at the time when the power is being exercised by the Minister under s 19 to reject an application to cancel a CD. The addenda should be read together with the subject material, thereby removing communication of the objectionable interpretation. Neither does s 10 preclude an interpretation of the phrase “did not communicate” to be the time of the Minister’s consideration under s 19.

(c) The Minister’s interest in making a CD is to remove any enduring misconception stemming from the alleged falsehood. A clear and public disavowal of the statement achieves, in substance, the same outcome as the CD. This disavowal assures the reasonable reader that the statement-maker did not intend to convey the offensive content pointed out by the Minister, which necessitated correction under the POFMA.

(d) Adopting TIPL’s approach in allowing the High Court to take into account amendments made after the initial issuance of the CD but before the Minister’s exercise of his powers under s 19 of the POFMA preserves the raison d’etre of s 17 (which provides a mechanism for recipients of a CD to appeal against the Minister’s refusal to cancel the CD under s 19 of the POFMA) and strikes the correct balance between the interests of national security and public order, and the freedom of speech. In this context, the court should take into account the fact that the Minister may impose conditions or even block access to a “declared online location" under ss 32 and 33 of the POFMA once three statements have been made subject to active CDs.

54 The AG disagrees on the premise that the Court of Appeal did not consider how such a disavowal is to be reconciled with the statutory scheme:

(a) The dicta in [155] of TOC does not provide an independent basis for setting aside CDs.

(b) A post-issuance addendum such as a disavowal is inconsistent with the scheme of s 17(5) of the POFMA. Section 17(5) contains three exhaustive grounds to set aside a CD for which a disavowal is not one. As regards s 17(5)(a), the phrase “did not communicate” should be interpreted to mean that the appellant “had not communicated the subject statement at any time”. Accordingly, if an appellant (such as TIPL) had communicated certain subject statements at any time and CDs were issued pursuant to that communication, whether the appellant had subsequently stopped communicating the subject statements (because of an addendum) would be irrelevant. Section 17(1) of the POFMA expressly states that what is being challenged and set aside is a Part 3 Direction (such as a CD issued under s 10), not the Minister’s decision to refuse the cancellation or variation of a CD.

(c) Contrary to TIPL’s submission (at [53(c)] above), a CD serves a different function from a disavowal. A CD is an important tool for the Minister to debunk falsehoods that have already been published and may have already done significant damage that needs to be remedied. Further, being exposed to falsehoods over an extended duration can lead to a corrosive impact, necessitating a CD to correct the reader’s point of view.

(d) Regarding the Court of Appeal’s concern about the fairness of expecting a statement-maker to uphold a subject statement when the Minister’s intended interpretation was not what the statement-maker initially intended or endorsed (see [155] of TOC), it is important to note that the statement-maker can still present their original intention. The CD does not restrict the statement-maker from doing so, nor does it mandate them to defend the subject statement, as all that a CD requires is for the statement-maker to publish a correction notice.

(e) In response to TIPL’s contention that the High Court has the power to consider the merits of the Minister’s decision and determine the matter afresh (at [53(a)] above), although the High Court may substitute the Minister’s view with its own and determine the matter afresh, this is only with respect to the three grounds stated in s 17 of the POFMA and does not extend to reviewing amendments made after the initial issuance of a CD.

Section 17 of the POFMA and [155] of TOC

55 I approach the issue from the established principle in statutory interpretation that the words of the provision are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803 at [44].

56 I start with s 17 itself. Section 17(1) allows a person to whom a Part 3 Direction is issued to appeal to the High Court “against the Direction”. Section 17(2) then mandates that before he does so, he must apply to the Minister under s 19 to vary or cancel that Direction and the Minister must have refused the application in whole or in part. TIPL’s interpretation rests on s 17(2), that, chronologically, the High Court would consider the matter after the Minister has exercised discretion under s 19. As posited by TIPL, if the Direction was issued on Date A, the Minister considered the matter on Date A+3, and the Court then heard the appeal on Date A+3+X, it would seem that logically, the matters which the Minister considered when exercising his or her discretion would be relevant to the court on Date A+3+X. Turning to s 17(5)(a) of the POFMA, the words “did not” are couched in simple past tense. TIPL has interpreted this to mean that a party subject to a CD “did not” communicate the subject statement at the time that the Minister considers an application under s 19.

57 Nevertheless, as parties agreed at the hearing, what is now being challenged on an appeal under s 17 is not the Minister’s exercise of discretion under s 19. Further, the words of s 17(5) are restrictive in that the High Court “may only” set aside such a Direction if any of the three grounds in s 17(5) is satisfied. While the matter before the High Court is a rehearing, this rehearing relates to the three grounds specified in s 17(5). As the Court of Appeal explained in TOC, the appeal process is a statutory mechanism for the recipient of a Part 3 Direction to challenge the Minister’s decision to issue the Direction against it. It does not constitute an “appeal” in the conventional sense where a higher court reviews a decision from a lower court or tribunal. Instead, the High Court determines afresh the relevant facts pertaining to the three grounds for setting aside a Part 3 Direction: see [176]–[177] of TOC.

58 In this context, s 17(2) of the POFMA reflects the well-established principle in administrative law that a person seeking judicial review of an executive decision must exhaust all alternative remedies before invoking the jurisdiction of the court: see, for example, Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR(R) 92 at [25]. The argument could be made therefrom, as TIPL has, that it is natural for the court to take cognisance of actions after the act that is being judicially reviewed. Nevertheless, s 17 is not concerned with the general law on judicial review, and neither are the present appeals. Section 17 is a statutory mechanism that must, by definition, be delineated by its particular statutory prescription, context and intent. Referencing back to the Court of Appeal’s guidance in TOC at [176], it is the Minister’s decision to issue a Part 3 Direction under s 10 of the POFMA that is before the court. Section 10 of the POFMA makes the timeframe for the consideration of the subject statement clear.

59 Section 10 of the POFMA reads as follows:

Conditions for issue of Part 3 Directions

10.—(1) Any Minister may instruct the Competent Authority to issue a Part 3 Direction if all of the following conditions are satisfied:

(a) a false statement of fact (called in this Part the subject statement) has been or is being communicated in Singapore;

(b) the Minister is of the opinion that it is in the public interest to issue the Direction.

(2) Any Minister may instruct the Competent Authority to issue a Part 3 Direction in relation to the subject statement even if it has been amended or has ceased to be communicated in Singapore.

60 Section 10(1) of the POFMA, which sets out the conditions for the issuance of a CD, specifies a false statement of fact that “has been or is being communicated in Singapore”. This frame (“has been or is being communicated”) uses a different time period from the simple past tense of s 17(5)(a). The use of different tenses highlights that the time at which the Court is to consider whether the subject material “did not communicate” the subject statement is a time prior to or during the issuance of the CD. The use of “has been” indicates the time at which the subject statement was first communicated.

61 Section 10(2) of the POFMA goes further. The sub-section allows the issue of a Part 3 Direction “in relation to the subject statement even if it has been amended or has ceased to be communicated in Singapore” [emphasis added]. Section 10(2) deals with the issuance of a CD after the material has ceased to be communicated, for example, when a disavowal has been made or the material has been taken down. The section is not strictly applicable to the present discussion, where the First and Second CDs were issued prior to the amendment. But the point to note is that in a case where s 10(2) of the POFMA applies, where CDs may be issued after any false statement is no longer being made, the material would have been communicated at a point even earlier in time (than the point of time in question in these present appeals). Moreover, there is clear statutory language to indicate this time period. In other words, while s 10(1) deals with “has been”, s 10(2) makes clear the effect in the contingency of “has been but is no longer”. Section 10(2) reiterates s 10(1) that, under s 17(5)(a), the time for considering whether the person “did not communicate” the subject statement was the time at which the subject statement was first communicated.

62 Section 19 of the POFMA reinforces this view. Under ss 19(1) and 19(2), the relevant Minister may give instructions to vary or cancel a CD, either on his or her own motion or on an application by the recipient of the CD. Where a CD has been varied, the varied CD amounts to a new issuance. By s 19(4), ss 14 to 17 of the POFMA apply in relation to the varied CD. The varied CD is served again and carries its appurtenant right of application to the Minister and appeal to the High Court. Crucially, the statutory focus is on the varied CD. There is nothing in s 19 that varies the application of s 10(2) of the POFMA in this scenario. Even where the subject material has been amended and instructions for a varied CD have been given, there is nothing in the section that disapplies s 10(2) of the POFMA: the subject statement that is the focus of the varied CD may be specified as that contained in the original subject material or the amended subject material.

63 My interpretation, at [60]–[61], that the relevant time is the time at which the subject material was first communicated, is consistent with the statutory purpose of the POFMA, as set out in s 5(a), which is “to prevent the communication of false statements of fact in Singapore and to enable measures to be taken to counteract the effects of such communication” [emphasis added]. The intent of the POFMA is that once misinformation and falsehoods have been communicated, full information is required to be set out as a countermeasure. The legislative reach is intended to counter the effects of misinformation that was previously put out.

64 In my opinion, the Court of Appeal in TOC also did not intend for such a disavowal to be considered in the manner posited by TIPL. Reading the section as a whole, [155] comes at the end of the entire section on the second step of the TOC framework. The Court of Appeal had set out at [150] the objective approach, highlighting that there are “multiple reasonable ways in which the subject material may be interpreted”. After emphasising the importance of how the statement in question would be received by the public over the subject-maker’s subjective intention at [154], [155] was inserted to deal with a marginal situation, which “may conceivably occur given that words are capable of bearing an outer range of reasonable meanings”. The paragraph cannot be taken to detract from the main holding of the Court of Appeal that an objective approach is taken to reading the subject material.

65 Applying this construction to the present case, my views at [40]–[41], [45], and [47]–[49], would mean that I do not consider the subject statements to be within an “outer” range of meanings, but a valid conclusion that an objective, reasonable reader would draw.

66 This interpretation does not, contrary to TIPL’s assumption, render the Court of Appeal’s dicta in [155] of TOC any less conceptually sound. In a case where the subject statement was within an outer range of meanings, an unequivocal addendum would make that clear and, as a practical matter, be considered by the Minister under s 19 of the POFMA, who can then vary or cancel the Part 3 Direction. Relevantly, sanctions in ss 32 and 33 of the POFMA only apply where there are “active” Directions; a cancelled Direction would not come within those sections. TIPL raises a further issue of whether an innocent party would be left without remedy if a Minister failed to cancel a CD in bad faith. In TOC, the Court of Appeal dealt with this issue at [104] when explaining that TOC’s concern that there were adequate safeguards was unfounded. In such a case the recipient of a Part 3 Direction may use s 17 of the POFMA, and judicial review on other aspects of the Minister’s decision remains available. Because of these considerations, the use of such addenda in the situation envisaged would still, contrary to TIPL’s suggestion, “strike a possible balance between an objective interpretation of the subject statement from the perspective of the potential readership or audience of the subject material in Singapore, and an interpretation based on the statement-maker's subjective intended meaning” as suggested by the Court of Appeal’s second last sentence in [155].

67 In my judgment, therefore, in determining these two appeals under s 17 of the POFMA, I am to consider whether the subject materials make or contain the subject statements at the time that they were communicated in Singapore.

The addenda

68 In view of my interpretation of s 17(5)(a) of the POFMA and TOC, I hold that the addenda are not relevant in determining whether the CDs should be set aside under s 17(5)(a). The present situation is not that specified at [155] of TOC, in which “an outer range of reasonable meanings” was engaged, where “the statement-maker, in truth, would have no interest in allowing the misperception to persist”. This is illustrated by the manner in which the specific addenda at hand do not amount to clear disavowals: they are bare denials. The AG submits that they are sardonic in nature. I do not find this a necessary conclusion, but I do find that they do not, when read in context, amount to unequivocal disavowals. The addenda do nothing to neutralise the slant of the subject material, where the subject statement is not literally made but set out as a logical conclusion for the reader. A reasonable reader, reading the subject material together with only the denials, would be left none the wiser but bemused, rather, by the anomaly between the import of the subject material and its accompanying addenda. Hence the AG’s contention that the addenda reflect sardonic humour. Whatever the case, it is the presence of the Correction Notice that supplies the answer to the logical query that has arisen.

69 The above is also relevant to TIPL’s contention that a disavowal serves the same purpose as a CD. The various addenda in this case and the CDs issued (see [7]–[10] and [14]–[16] above) highlight the difference between a disavowal and a CD. A CD allows the Minister to state all relevant facts and to highlight, through a hyperlink to another website, for example, the full facts for readers to come to an informed conclusion. A blanket disavowal of the Minister’s subject statement does not have the same effect of ensuring that full information is given to readers. As a practical matter, each piece has its own utility. The disavowal, as published, functions as the author’s response. In this sense, a balance is indeed struck, as the Court of Appeal points out in [155] of TOC, between an objective interpretation of the material and the statement-maker’s subjective intended meaning.

Conclusion

70 For these reasons, I dismiss the appeals. Regarding costs, if parties are unable to agree, each should write in within 10 days from today, with a page limit of seven pages.

71 I conclude with appreciation to counsel for their excellent assistance to the court.

Valerie Thean
Judge of the High Court

Tan Zhengxian Jordan and Leong Hoi Seng Victor (Audent Chambers LLC) (instructed), Han Guangyuan Keith and Angela Phoon Yan Ling (Oon & Bazul LLP) for the appellant.

Tan Ruyan Kristy SC, Jeyendran s/o Jeyapal, Tan Zhongshan and Allen Lye Xin Ren (Attorney-General’s Chambers) for the respondent.