CALIBRATED LEGISLATON?

Calibrated censorship is not always kinder.

One of the arguments being marshaled in defence of the government’s sweeping online falsehoods bill is that existing laws are actually even wider. In a Straits Times op-ed yesterday, Senior Counsel Siraj Omar pointed out that the Protection from Online Falsehoods and Manipulation Act (POFMA) would provide more “measured and calibrated” instruments than already exist in the Broadcasting Act and other legislation.

The Law Ministry has chimed in to say Omar is correct that POFMA “gives narrower powers to the Government, compared with powers the Government already has, under existing legislation”.

“The Bill does seek to scope down and calibrate the Government’s powers in key areas,” the ministry adds.

It is certainly true that some of POFMA’s features are more refined than existing laws. For example, receiving a correction directive under POFMA would be less painful than being hit with a defamation suit, or being charged with sedition, a Section 298 violation, or scandalising the judiciary—until now the most commonly used weapons against online political expression.

Similarly, POFMA’s take-down directives would be far less extreme than China’s mass blocking and filtering, which existing Singapore law allows.

But this does not mean we should feel grateful for the Bill. Adding a less repressive instrument to a government’s toolkit does not automatically produce less censorship or coercion.

Consider this analogy. If a country already has nuclear weapons, it would be foolish to encourage it to boost its conventional arsenal as well. The proliferation of small arms has cumulatively claimed more fatalities than the world’s fission and fusion weapons, precisely because handguns and rifles are more measured and calibrated—and therefore more readily triggered—than the nuclear option.

The analogy is extreme, but the same logic applies to POFMA. When comparing it with existing laws, it is not enough to measure their relative firepower. We also need to weigh the political and administrative costs of using them.

China-style blocking is so extreme that the Singapore government has, sensibly, never used it against good-faith news media and blogs. In contrast, POFMA would allow ministers to intervene in media cheaply. Considering the government’s track record of overreaction, the temptation to play with this toy may prove irresistible.

There is a second problem with the notion that calibrated coercion is necessarily better. We need to ask, better for whom?

Certainly, our media workers and media owners are spared the brutality that their peers face in some countries, and that is not a privilege to be scoffed at. When direct and violent repression is replaced with a system that encourages self-censorship, the media may even cease to feel like victims.

Yet, such a system is not victimless. Media freedom does not belong to media workers or media owners. It belongs to the public. Yes, the media could get comfortable with a regulatory system that is highly calibrated and measured. But when the media adapts to the new rules, the real loser would be a public that is not getting the fearless reporting and commentary it needs.

As for the Law Ministry’s assurance that POFMA “represents a shift in the Government’s approach, with the Government adopting a more measured and calibrated approach”, we can only wait and see.

The claim would be more persuasive if the government promised to review those other, more extreme laws. Or, at the very least, it should pledge that those who comply with POFMA correction and take-down orders will get immunity from more severe laws that could have been used.

I have made a similar suggestion regarding the correction powers in the Protection from Harassment Act. (See “Dreaded Defamation” in Singapore, Incomplete.) It would be a great step forward if compliance with such relatively painless directives provided protection from costly defamation suits.

Such arrangements are not without precedent. The Indonesian Press Council has a memorandum of understanding with the police, to the effect that if news reports are alleged to have violated ethical and possibly legal limits, and if the media concerned subject themselves to the Press Council’s independent self-regulatory mechanism, the police will not proceed with criminal investigations.

This is the kind of compromise that would truly represent a more measured and scoped-down approach to balancing media freedom with the need to protect society from its harms.

 

A 400-word version of this piece was offered to the Straits Times Forum page, but editors turned it down.