The Online Citizen v Attorney-General: POFMA, Freedom of Speech & Constitutional Law

In The Online Citizen Pte Ltd v Attorney-General, the Singapore Court of Appeal addressed appeals by The Online Citizen Pte Ltd (TOC) and the Singapore Democratic Party (SDP) against Correction Directions (CDs) issued under the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The court considered the constitutionality of POFMA, the interpretation of its provisions, and the burden of proof in setting aside CDs. The court allowed SDP's appeal in part and dismissed TOC's appeal, clarifying the scope and application of POFMA while upholding its constitutionality.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal allowed in part, appeal dismissed.

1.3 Case Type

Constitutional

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal clarifies POFMA's scope, burden of proof, and constitutionality regarding freedom of speech in online falsehoods.

1.7 Decision Date

7 October 2021

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Attorney-General	Respondent	Government Agency	Appeal Dismissed	Won	Fu Qijing of Attorney-General’s Chambers Hui Choon Kuen of Attorney-General’s Chambers Tan Ruyan Kristy SC of Attorney-General’s Chambers Pang Ru Xue of Attorney-General’s Chambers Jamie of Attorney-General’s Chambers Jocelyn Teo Meng Hui of Attorney-General’s Chambers Amanda Sum Yun Qian of Attorney-General’s Chambers
Singapore Democratic Party	Appellant, Applicant	Association	Appeal Allowed in Part	Partial	Nair Suresh Sukumaran of PK Wong & Nair LLC Joel Wong En Jie of Eugene Thuraisingam LLP Eugene Singarah Thuraisingam of Eugene Thuraisingam LLP Joel Yeow Guan Wei of PK Wong & Nair LLC
The Online Citizen Pte Ltd	Appellant, Applicant	Corporation	Appeal Dismissed	Lost	Joel Wong En Jie of Eugene Thuraisingam LLP Eugene Singarah Thuraisingam of Eugene Thuraisingam LLP

3. Judges

Judge Name	Title	Delivered Judgment
Sundaresh Menon	Chief Justice	Yes
Andrew Phang Boon Leong	Justice of the Court of Appeal	No
Judith Prakash	Justice of the Court of Appeal	No
Tay Yong Kwang	Justice of the Court of Appeal	No
Steven Chong	Justice of the Court of Appeal	No

4. Counsels

Counsel Name	Organization
Fu Qijing	Attorney-General’s Chambers
Hui Choon Kuen	Attorney-General’s Chambers
Tan Ruyan Kristy SC	Attorney-General’s Chambers
Pang Ru Xue	Attorney-General’s Chambers
Jamie	Attorney-General’s Chambers
Jocelyn Teo Meng Hui	Attorney-General’s Chambers
Amanda Sum Yun Qian	Attorney-General’s Chambers
Nair Suresh Sukumaran	PK Wong & Nair LLC
Joel Wong En Jie	Eugene Thuraisingam LLP
Eugene Singarah Thuraisingam	Eugene Thuraisingam LLP
Joel Yeow Guan Wei	PK Wong & Nair LLC

4. Facts

TOC and SDP were issued Correction Directions (CDs) under POFMA for publishing online content.
TOC's CD related to an article quoting allegations of unlawful execution methods in Changi Prison.
SDP's CDs concerned articles and Facebook posts about local PMET employment trends.
SDP and TOC appealed to the High Court to set aside the CDs, raising constitutional concerns.
The High Court decisions in TOC and SDP's cases conflicted on the burden of proof.
SDP sought to argue that POFMA was unconstitutional for inconsistency with the right to freedom of speech.

5. Formal Citations

The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters, Civil Appeals Nos 47 and 52 of 2020, and Summonses Nos 72, 97 and 98 of 2020, [2021] SGCA 96
The Online Citizen Pte Ltd v Attorney-General, , [2020] SGHC 36
Singapore Democratic Party v Attorney-General, , [2020] SGHC 25

6. Timeline

Date	Event
2019-06-08	SDP published online article titled “SDP Population Policy: Hire S’poreans First, Retrench S’poreans Last”
2019-11-30	SDP published a post on Facebook
2019-12-02	SDP published a sponsored post on Facebook
2019-12-14	Three CDs were issued to SDP
2020-01-03	SDP applied to the Minister for Manpower to cancel the SDP CDs
2020-01-06	The Minister for Manpower rejected the application
2020-01-08	SDP filed HC/OS 15/2020 in the High Court to set aside the SDP CDs
2020-01-16	Lawyers for Liberty published a press statement
2020-01-16	TOC published an article titled “M’sian human rights group alleges ‘brutal, unlawful’ state execution process in Changi Prison”
2020-01-22	A CD was issued to TOC
2020-01-22	TOC applied to the Minister for Home Affairs under s 19 of the POFMA to cancel the CD
2020-01-24	TOC’s cancellation application was rejected by the Minister for Home Affairs
2020-01-28	TOC filed HC/OS 118/2020 in the High Court to set aside the TOC CD
2020-02-05	Judgment in SDP v AG dismissing SDP’s application to set aside the SDP CDs was issued
2020-02-19	Belinda Ang Saw Ean J released her decision in TOC v AG dismissing TOC’s application in OS 118 to set aside the TOC CD
2020-03-16	TOC filed CA 47 against Belinda Ang J’s decision in TOC v AG
2020-03-25	SDP filed CA 52 against Ang Cheng Hock J’s decision in SDP v AG
2020-06-18	TOC filed CA/SUM 72/2020 for leave to adduce further evidence for use in CA 47
2020-07-04	Minister for National Development issued a CD to SDP
2020-09-15	SDP filed CA/SUM 97/2020 for leave to raise additional grounds in support of its appeal in CA 52
2020-09-17	Hearing of these appeals
2020-09-18	TOC duly filed CA/SUM 98/2020
2020-12-21	Judgment reserved
2021-10-08	Judgment

7. Legal Issues

Constitutionality of POFMA
- Outcome: The court held that POFMA is constitutional and does not impermissibly restrict freedom of speech.
- Category: Constitutional
- Sub-Issues:
  - Whether POFMA impermissibly restricts freedom of speech
  - Whether the 'public interest' grounds in POFMA are consistent with constitutional limits on free speech
Interpretation of POFMA
- Outcome: The court clarified the interpretation of key POFMA provisions, including the meaning of 'false statement of fact' and 'communicated in Singapore,' and held that the single meaning rule does not apply.
- Category: Substantive
- Sub-Issues:
  - Meaning of 'false statement of fact'
  - Meaning of 'communicated in Singapore'
  - Applicability of single meaning rule
Burden of Proof in POFMA Appeals
- Outcome: The court held that the burden of proof lies on the applicant to show a prima facie case of reasonable suspicion that the Correction Direction should be set aside, after which the evidential burden shifts to the Minister.
- Category: Procedural
- Sub-Issues:
  - Which party bears the burden of proving the truth or falsity of a statement
  - Standard of proof required to set aside a Correction Direction

8. Remedies Sought

Setting aside of Correction Direction

9. Cause of Actions

Application to set aside Correction Direction under s 17 of the Protection from Online Falsehoods and Manipulation Act 2019

10. Practice Areas

Constitutional Law
Civil Litigation
Administrative Law

11. Industries

Media
Politics
Law

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Wham Kwok Han Jolovan v Public Prosecutor	Court of Appeal	Yes	[2021] 1 SLR 476	Singapore	Cited for the three-step framework for determining whether a legislation impermissibly derogates from Art 14.
Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal	Court of Appeal	Yes	[2010] 1 SLR 52	Singapore	Cited for the observation that the interest in encouraging the “competition of ideas in the marketplace” arguably might not apply to false statements.
Attorney-General v Ting Choon Meng and another appeal	Court of Appeal	Yes	[2017] 1 SLR 373	Singapore	Cited for the minority judgment's observation that false speech can contribute little to the marketplace of ideas.
Reynolds v Times Newspapers Ltd and others	House of Lords	Yes	[2001] 2 AC 127	United Kingdom	Cited for the principle that society does not derive any value from the publication of inaccurate statements.
Chee Siok Chin and others v Minister for Home Affairs and another	High Court	Yes	[2006] 1 SLR(R) 582	Singapore	Cited for addressing allegations that Art 14 rights to freedom of speech and/or assembly had been violated by arbitrary police conduct.
Ong Ah Chuan and another v Public Prosecutor	Privy Council	Yes	[1979–1980] SLR(R) 710	Singapore	Cited for the principle that individuals should be afforded the full measure of their fundamental liberties under the Constitution.
Wooley v Maynard	Supreme Court of the United States	Yes	430 US 705 (1977)	United States	Cited for the doctrine of compelled speech and the right to refrain from speaking.
Lee v Ashers Baking Co Ltd and others	UK Supreme Court	Yes	[2018] 3 WLR 1294	United Kingdom	Cited for the acceptance of the negative aspect of the right to freedom of speech and expression.
Public Prosecutor v Phua Keng Tong and another	High Court	Yes	[1985–1986] SLR(R) 545	Singapore	Cited for the definition of “public order” as being “synonymous with ‘public safety and tranquillity’.
Shreya Singhal v Union of India	Supreme Court of India	Yes	(2015) 3 MLJ 162	India	Cited for the test for whether the public order exception could properly be invoked was whether a particular act “[led] to disturbance of the current life of the community”.
Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors	Federal Court	Yes	[1976] 2 MLJ 83	Malaysia	Cited for the types of acts that may affect public order are not closed, and whether or not a particular act poses a threat to public order depends in each case on the degree of disturbance that may be caused to the life of the community.
Goh Chok Tong v Tang Liang Hong	High Court	Yes	[1997] 1 SLR(R) 811	Singapore	Cited for the basic principle in defamation law that the judge is required to determine the single and the right meaning which the publication or words conveyed to the notional reasonable reader or reasonable listener.
Slim and Others v Daily Telegraph Ltd and Others	Court of Appeal	Yes	[1968] 2 QB 157	England and Wales	Cited for the critique of the single meaning rule.
Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd	Court of Appeal	Yes	[2011] QB 497	England and Wales	Cited for the potential for injustice arising from the application of the single meaning rule.
Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301	Court of Appeal	Yes	[2018] 2 SLR 866	Singapore	Cited for the tort of malicious falsehood.
Bonnick v Morris and others	Privy Council	Yes	[2003] 1 AC 300	Unknown	Cited for the recognition that the single meaning rule is somewhat “artificial”, given the range of meanings that words may bear even to reasonable readers.
Chng Suan Tze v Minister for Home Affairs and others and other appeals	Court of Appeal	Yes	[1988] 2 SLR(R) 525	Singapore	Cited for the principle that in an action for judicial review, where an issue arises as to the existence of a precedent fact justifying the exercise of an executive power, the burden is on the Executive to prove the existence of that fact.
Public Service Commission v Lai Swee Lin Linda	Court of Appeal	Yes	[2001] 1 SLR(R) 133	Singapore	Cited for the principle that the applicant must first demonstrate at least some objective basis for its complaint against the executive decision in question.
Muhammad Ridzuan bin Mohd Ali v Attorney-General	High Court	Yes	[2015] 5 SLR 1222	Singapore	Cited for the principle that it is presumed that constitutional office holders and other officials exercise their public functions in conformity with the law, and it is for any party alleging otherwise to adduce at least prima facie evidence at the outset to rebut this presumption.
Wong Keng Leong Rayney v Law Society of Singapore	High Court	Yes	[2006] 4 SLR(R) 934	Singapore	Cited for the distinction between the powers that a superior court exercises in judicial reviews and appeals.
Kenneth Merrall Fox v General Medical Council	Privy Council	Yes	[1960] 1 WLR 1017	United Kingdom	Cited for the statutory appeals under s 36 of the Medical Act 1956 (c 76) (UK).
Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd	Court of Appeal	Yes	[2009] 4 SLR(R) 1101	Singapore	Cited for the principle that an appellate court will only intervene if the trial judge’s assessment is “plainly wrong or against the weight of the evidence”.
Ramalingam Ravinthran v AG	Court of Appeal	Yes	[2012] 2 SLR 49	Singapore	Cited for the presumptions of constitutionality and regularity apply as a matter of the separation of powers doctrine (in the context of constitutional office holders) and legal policy (in the context of other officials).
Re Nalpon, Zero Geraldo Mario	High Court	Yes	[2018] 2 SLR 1378	Singapore	Cited for the standard of a prima facie case of reasonable suspicion is not a high bar to meet.

13. Applicable Rules

Rule Name
Supreme Court of Judicature (Protection from Online Falsehoods and Manipulation) Rules 2019
Rules of Court (2014 Rev Ed)

14. Applicable Statutes

Statute Name	Jurisdiction
Protection from Online Falsehoods and Manipulation Act 2019	Singapore
Constitution of the Republic of Singapore	Singapore
Evidence Act (Cap 97, 1997 Rev Ed)	Singapore
Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)	Singapore
Protection from Harassment Act (Cap 256A, 2015 Rev Ed)	Singapore
Official Secrets Act (Cap 233, 1970 Rev Ed)	Singapore
Medical Act 1956 (c 76)	United Kingdom
Broadcasting Act (Cap 28, 2012 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Protection from Online Falsehoods and Manipulation Act (POFMA)
Correction Direction (CD)
Freedom of Speech
Public Interest
Statement of Fact
Online Falsehoods
Ministerial Discretion
Burden of Proof
Standard of Proof
Constitutional Rights
Judicial Review
Singapore Constitution
PMET Employment
Local PMETs

15.2 Keywords

POFMA
Freedom of Speech
Online Falsehoods
Constitutional Law
Singapore
Correction Direction
Burden of Proof

17. Areas of Law

Area Name	Relevance Score
Protection from Online Falsehoods and Manipulation Act (POFMA)	95
Constitutional Law	90
Freedom of speech	90
Statutory Interpretation	85

16. Subjects

Constitutional Law
Freedom of Speech
Online Falsehoods
Statutory Interpretation
Administrative Law