On 8 May 2019, the Singapore Parliament passed the Protection from Online Falsehoods and Manipulation Act (POFMA) after a marathon debate. In this Q&A, we address some of the main features of the POFMA especially in relation to internet intermediaries who are also subject to the POFMA. Examples of internet intermediaries include those that provide social networking, search engine, content aggregation, internet-based messaging and video-sharing services.
From the perspective of internet intermediaries, what are they subject to?
Internet intermediaries will be subject to the Directions issued by the Competent Authority empowered under the POFMA, as well as the POFMA's subsidiary legislation and codes of practice which are being formulated.
Who is empowered under the POFMA?
Both the Competent Authority and portfolio ministers have roles to play in achieving the objectives of the POFMA.
The Competent Authority will be the POFMA Office; it will be a new office established under the Info-communications Media Development Authority of Singapore (IMDA). The Competent Authority advises the government on the feasibility and effectiveness of the legal tools that are available to combat falsehoods under the POFMA. The Competent Authority will also work alongside internet intermediaries on the codes of practice aimed at preventing the misuse of online accounts and protecting political debates from falsehoods.
Portfolio ministers have a crucial role in influencing the exercise of the Competent Authority's powers. Portfolio ministers are given this role because they are perceived to be best placed to assess whether there is an online falsehood, take swift action and remain accountable for their actions afterward.
Once a minister decides that there is an online falsehood and it is in public interest for it to be corrected, the minister will work with the Competent Authority on the appropriate action to take. Each minister will only deal with falsehoods under their respective domain. For example, falsehoods about the education system will be handled by the Education Minister and falsehoods about banks will be handled by the Finance Minister. Matters that may have broader implications for internet users and the digital industry, such as those to block funding and access to online locations, are reserved specifically for the Minister for Communications and Information.
What can the minister direct the internet intermediaries to do?
Upon the instruction of a portfolio minister, the Competent Authority can issue Directions and Orders to parties engaged in the spreading of online falsehoods. The types of Directions and Orders that can be issued to internet intermediaries are as follows:
Targeted Correction Directions and General Correction Directions
Often, the first priority is to correct the falsehood. Targeted Correction Directions and General Correction Directions will be deployed for such a purpose. These Directions perform the function of juxtaposing the falsehood with actual facts in order to allow discerning end-users to make well-informed judgements and inferences.
A Targeted Correction Direction would require an internet intermediary to first communicate to end-users, via a correction notice, that a statement or a subject material containing a statement is false and secondly, provide a reference to a specified location where the accurate information can be found.
A General Correction Direction is similar to a Targeted Correction Direction. It would require an internet intermediary to communicate a correction notice in Singapore through its service to all its end-users.
An internet intermediary which issues a correction notice must ensure that the correction notice is communicated through a method that will ensure that it will reach the attention of the end-user, viewer or listener.
Harsher Directions such as the Disabling Direction will only be used in exceptional cases where a serious threat of harm is present.
A Disabling Direction would require the internet intermediary to disable access by end-users in Singapore to the subject material provided on the internet intermediary service that contains the impugned statement. If the internet intermediary is a prescribed internet intermediary, the Disabling Direction may require the internet intermediary to disable access by end-users to identical copies of the subject material provided on or through the internet intermediary service and/or communicate a correction notice to specified end-users in Singapore by any means.
Order to internet intermediary to disable access to declared online location
The Competent Authority can order an intermediary to disable access by end users in Singapore to the declared online location. In simple terms, a minister can declare an online location as a "declared online location" if the minister believes that that online location is becoming a base from which falsehoods are spreading.
Before the minister can make such a declaration, the minister must be satisfied that there are three or more different statements which are subject to an active Direction and at least three of those statements were first communicated in Singapore. Upon a minister's instruction, the Competent Authority can direct the internet intermediary to disable access by end-users in Singapore to the declared online location if there is paid content being circulated on the declared online location.
Account Restriction Direction
The Competent Authority can issue a direction to a prescribed internet intermediary to restrict the functions of a user's account. The Account Restriction Direction can either demand that the internet intermediary disallow its services from being used to communicate statements or disallow a person from using an account from communicating with other end-users.
The purpose of Account Restriction Directions are to combat the spreading of falsehoods and, in particular, combat "coordinated inauthentic behaviour". In simpler terms, “coordinated inauthentic behaviour” involves using more than one online account to mislead end users in Singapore of any internet intermediary service as to any matter. Accounts that would be the subject of Account Restriction Directions are those which are controlled by bots or by a person who has created an alternative and false online identity for the purpose of facilitating the spread of online falsehoods.
Prescribed digital advertising intermediary or internet intermediary to disable access in Singapore to certain paid content
Prescribed internet intermediaries must take reasonable steps to ensure that they do not facilitate the communication of any paid content in Singapore that draws attention to an online location where false statements can be found.
The minister may direct a prescribed internet intermediary to designate a channel through which the Competent Authority may notify the internet intermediary of any online location that includes a false statement of fact.
How much time do the internet intermediaries have to comply with the Directions?
The timelines for compliance with the issued Directions have not been disclosed. The subsidiary legislation to the POFMA should provide further clarity on this point.
What are the consequences for breaching the POFMA in the context of internet intermediaries?
Depending on the Direction or Order, internet intermediaries can face a fine of up to S$1,000,000 for refusing to comply with a Direction or a fine of up to S$500,000 for refusing to comply with an Order.
Would a foreign internet intermediary be subject to the POFMA?
A foreign internet intermediary will be subject to the POFMA. A foreign intermediary can be found to be guilty of an offence and be liable on conviction to a fine if it fails to comply with a Direction or an Order.
What can an internet intermediary do if it is issued with a Direction?
If an internet intermediary is issued a Direction which it disagrees with, it is entitled to apply to the minister to vary or cancel the Direction. If the minister refuses the application in whole or in part, the internet intermediary may then proceed to make an appeal to the High Court. The High Court would then hear and determine any such appeal and may either confirm the Direction or set it aside. The period within which the appeal to the High Court must be made, including the manner and procedure of the appeal, will be prescribed in the Rules of Court.
A Direction that is the subject of an appeal remains in effect notwithstanding the appeal. A Direction only ceases to have effect if it is set aside by the High Court (or the Court of Appeal on appeal from the High Court), if it expires, or if it is cancelled. Thus, the aggrieved party would still have to comply with the Direction unless and until its appeal process is successful.
However, if the appellant can establish that it is technically impossible to comply with the Direction, the High Court can order the Direction to be stayed until the appeal is determined.
Now that the POFMA has been passed, what should internet intermediaries look out for?
Further guidelines on the practices that internet intermediaries can adopt will be set out in the subsidiary legislation to the POFMA and codes of practice. These have not yet been released.
When will the POFMA come into force?
As of the date of this article, the exact date has not been announced. However, it is expected to come into effect within the second half of 2019.
What verification requirements are internet intermediaries subject to?
The Competent Authority can issue one or more codes of practice and internet intermediaries must comply with the applicable codes of practice.
The codes of practice would compel internet intermediaries to implement certain practices for the prevention of online account misuse, transparency of online political advertising and de-prioritisation of online falsehoods. The practices that these codes would promote include:
- carrying out due diligence measures before entering into an agreement to communicate in Singapore any paid content that is directed towards a political end;
- disclosing to the public any paid content communicated in Singapore that is directed towards a political end; and maintaining and making available to the public a record of all such paid content;
- carrying out due diligence measures for the detection of coordinated inauthentic behaviour involving online accounts created with it and to safeguard against any misuse of such online accounts;
- carrying out due diligence measures to safeguard against any misrepresentation of the identity of an end-user and to safeguard against any misuse of bots;
- reporting to the Competent Authority any knowledge or suspicion of any coordinated inauthentic behaviour;
- reporting to the Competent Authority any knowledge or suspicion of any misuse of services provided by the digital advertising intermediary to facilitate the communication of paid content in Singapore;
- designating a channel by which the Competent Authority may notify it of any Declaration or Direction;
- keeping specified records, and providing specified reports to the Competent Authority at a specified frequency, regarding its compliance with any part of the code of practice;
- placing measures to detect non-compliance with any due diligence measures, to keep specified records, and to provide specified reports to the Competent Authority within a specified time of such non-compliance; and
- requiring measures in the code of practice to be applied in or outside Singapore, or both.
The POFMA has raised eyebrows because it empowers ministers with the tools to shape the discourse prevalent on social media platforms. The exact manner in which the ministers will wield their powers under the POFMA remains to be seen.
Internet intermediaries' concerns about complying with Directions are warranted given the sheer number of internet intermediary end-users and the limited control that an internet intermediary can exert over them.
They can take some comfort from the fact that recourse to the courts to invalidate a Direction remains an available option. As such, the exercise of the ministers' powers under the POFMA must be justified on principled grounds.