[Singapore] From heavy-handed to a calibrated approach

Online Freedom of Expression in Singapore

by ANG Peng Hwa, Nanyang Technological University, Singapore[1]

Key Laws/Policies Affecting Online Free Expression And Their Application

The Singapore Government adopts the policy that offline rules apply online with a nod to the issue of enforceability. That is, as far as practicable, offline rules apply to the online space.

This means that the restrictions on freedom of expression online are not to be found in any particular set of laws but in the laws that apply to the media and to expression generally. There are of course some particular regulations that apply to online content but they form only a part of the larger picture.

To understand how the rules apply, it should be noted that there are several “layers” of regulation in any regime:

  1. the Constitution,
  2. the law passed by the executive branch of the government (which in Singapore’s case is Parliament),
  3. subsidiary legislation passed by the ministry or department in the government that oversees that area; these are rules that are delegated from the law passed in Parliament; often there are legal penalties.
  4. administrative rules, which are more granular rules made by a unit within the ministry; it could be in the form of licensing or guidelines and they may or may not attract legal penalties, and
  5. unofficial sanctions. These are unwritten sanctions that may apply perhaps through social pressure, perhaps through quiet official pressure.

The Constitution

To begin at the beginning, the Singapore Constitution has the freedom of expression clause as a fundamental liberty in Article 14:

14.— (1) Subject to clauses (2) and (3) —

(a) every citizen of Singapore has the right to freedom of speech and expression;

(b) all citizens of Singapore have the right to assemble peaceably and without arms; and

(c) all citizens of Singapore have the right to form associations.

(2) Parliament may by law impose —

(a) on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

(b) on the right conferred by clause (1)(b), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order; and

(c) on the right conferred by clause (1)(c), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, public order or morality.

(3) Restrictions on the right to form associations conferred by clause (1)(c) may also be imposed by any law relating to labour or education.

Article 14 is unusual as a clause granting a right in that it begins with a restriction: “subject to”. In other words, the exception overrides the right. Article 14 is in material aspects identical to the freedom of expression clause in Article 10 of the Malaysian Constitution, which was adopted when Singapore became independent from Malaysia in 1965.

The list of exceptions is broad, encompassing security, friendly relations with other countries, public order, morality, contempt of court, defamation and incitement to any offence. In short, the right to free expression is limited in Singapore. This means, for example, that unlike the case of New York Times vs Sullivan where the US Supreme Court held that defamation laws were subject to freedom of expression protection and that public officials had a lesser right to reputation, in Singapore, officials have as much right to protection of their reputation as the average citizen. It also means that laws such as the Official Secrets Act, Internal Security Act and the Sedition Act may not be challenged on constitutional grounds.

Laws Passed by Parliament

The two most significant pieces of legislation that regulate the media are the Newspaper and Printing Presses Act (NPPA) and the Broadcast Act. The NPPA licenses newspapers and has rules that govern ownership, appointment of the editors and institutes “golden shares” in which 1% of the shares have 200 times the voting power of ordinary shares. These shares may only be held by shareholders designated by the government.

The Broadcast Act stipulates that only 49% of a broadcast company can be foreign-owned. Because Singapore was among the first countries to attempt to regulate the Internet and the only two media known then were print and broadcast, the Internet came to be regulated under the broadcast model. The Broadcast Act empowers the Ministry of Communication and Information to formulate more granular rules for the media and the online space. It should be noted that the regulations regarding the Internet are not spelled out directly in the Act itself but in the subsidiary legislation that the Minister promulgates. More details are discussed below.

The incumbent media giants, Singapore Press Holdings for the newspapers and MediaCorp for broadcast, have argued that the rules impose a burden on them whereas competing online sites are not subject to similar rules. A Media Convergence Review Panel formed of high voltage leaders concluded, in essence, that the rules for the mainstream offline media should also apply to the online media.[2] More details of these are discussed below.

A rather surprising turn in the last decade now has been the use of the he Sedition Act. As the title of the Act suggests, it is to thwart sedition but it was used for the first time since the 1960s against two bloggers who had posted racist speech in 2005.[3] The relevant section of the law is Section 3(1)e, which defines a seditious tendency as “a tendency to promote feelings of ill-will and hostility between different races or classes of the population.” The instinctive knee-jerk reaction of the authorities is understandable when one considers the searing memory of the racial riots in the 1950s. Any hint of the potential for a similar riot is therefore to be squelched. For that reason the Maintenance of Religious Harmony Act was passed in 1990 to restrain persons from carrying out activities that cause “feelings of enmity, hatred, ill-will or hostility between different religious groups”.[4]

This researcher had written an op-ed to say that such heavy-handed use of the law will in fact not help the community in the long run because then judgment as to what is racist is left to the authorities.[5] Although there were subsequent cases that continued to use the Sedition Act, a more recent case of Amos Yee used the Section 298 of Penal Code to prosecute those who “utter words with an intent to wound religious and racial feelings”.[6]

Subsidiary Legislation and Administrative Action

For administrative ease, not every little rule of government should require passage by Parliament. The advantage of a law passed by Parliament is the possibility of debate. On the other hand, having to debate the minutiae of where to draw the lines against parking only makes for administrative burden. Administrative rules can have a shape the enforcement and therefore the impact of a law. And so for the average person on an average day, it is administrative rules that are more likely to be encountered.

Internet content provision was regulated back from 1996 through a class licence scheme.  Unlike the licences of yore, which were awarded on application, Internet content providers were given an automatic licence, which may be revoked when the terms are breached. The regulator allayed initial concerns that the creative use of licensing and with vague terms, promising a “light touch” to the regulation. Sites that had political and religious content, however, had to be specially registered.

For the most part, the regulator has kept to the promise. But in 2011, a few months before the general election, The Online Citizen, was deemed to be a “political association” for the purposes of the Political Donations Act. This means that the site may not accept foreign donations and all donors who give more than $10,000 in a calendar year have to file donation reports.

In 2013, however, against the backdrop of the Media Convergence Review Panel and a looming general election, the Media Development Authority promulgated new rules to license news websites with at least 50,000 unique monthly visitors from Singapore.[7] Under the Online News Licensing Scheme, the licence was to be renewed annually. Further, the sites had to post a S$50,000 (about US$35,000 – US$40,000) performance bond. A performance bond can be a bank guarantee that the sum will be paid when the conditions for such payment are met.

Puzzlingly, the number of viewers was to be decided by the regulator, not the company itself. The Online Citizen had said it fulfilled both criteria of carrying news and having 50,000 unique monthly visitors but the regulator has not compelled it to be licensed.

Unofficial Sanctions

It should be noted that there can be unofficial sanctions as well.

One well-known case is that of Amy Cheong who posted a rant on her Facebook page and was sacked by her employer, the National Trades Union Congress, a semi-governmental body headed by the labour minister.[8]

Since then, there has been at least one public case where someone who made a racist remark to a job applicant was fired.[9] Although this case is not about online expression, it suggests that private enterprise is taking its cue from the government: it is very possible therefore in Singapore that a racist post can cause one to lose one’s job.

Overview of the Existing Mechanisms

All media in Singapore are regulated by the Media Development Authority (MDA), which will merge with the Info-Comm Development Authority (iDA) in October 2016. This suggests a greater consistency in the application of online and offline rules.

In general, the formulation of rules has become more consultative. This is partly the result of the awareness that Singapore no longer has a trail to follow in many areas. It is also a genuine desire on the part of the Singapore Government to engage the populace; the Singapore Government believes that many of its policies are sound and rational and that as the opposing views must be second best, engagement would be the process to bring those with such “lesser” if not mistaken views to their side.

Nevertheless, the formulation of rules through administrative fiat is a habit that is not easy to break. The rules regarding the registration of online news site was an administrative rule that was made without public consultation. It was apparently thought that because it could be made administratively, no consultation was needed.

Dynamics With Civil Society Groups

Civil society tends to be weak in any regime with strong censorship and this is indeed the case with Singapore. There is no particular group promoting freedom of expression especially with respect to the government. Maruah, a human rights NGO, has been classified as a political association and so cannot accept foreign donations.

The Internet Society (Singapore Chapter) (ISOC.SG) aims to promote wider use of the Internet, which may impinge on freedom of expression.  A Community of IT Experts (CITE) formed of lawyers and IT professionals under ISOC.SG gives information on content issues.  Under Singapore law, it is illegal for anyone except lawyers to give legal advice, which is information specific to a case; general information is fine.

ISOC.SG has organised talks around law and policy of Internet, inviting policy makers to the meeting, prompting the Civil Service to be aware of larger issues. It recently challenged the legal procedure used by Singapore lawyers acting for the Dallas Buyers Club in their aggressive enforcement of the copyright of the multi-award winning movie. At the time of writing, the lawyers will now face either a reprimand or fine by the Law Society.

Possible Policy Directions

There are three possible policy directions in any reform of the law. The option of online rules superseding or overriding offline rules is deemed extremely unlikely so that option is not considered.

1.     Offline rules apply online

This is the position that was adopted by the Media Convergence Panel Review.  In essence, it urged the application of offline rules to new media. It would mean that the light touch approach would no longer be so light.

Although this approach has a commendable logic to it, this also means the possible stifling of innovations.

2.     Online rules meet offline midway

This position would mean recognition that online and offline rules have to meet halfway. It would come across as the most sensible direction and it is being adopted in Singapore.

For example, Singapore taxi drivers have to undergo two weeks of full-time training before they are accorded the vocational taxi licence. Uber drivers, in contrast, undergo all of 30 minutes of training. After deliberation, it is very likely that both groups of drivers will now undergo a week of training.

Just how this would work out in practice remains to be seen.

For example, defamation laws online can be looser. And this has happened; the Prime Minister while suing blogger Roy Ngerng has sought a lower sum of damages. And this after giving the blogger the opportunity to apologise.

Such an approach affords exploration and encourages innovation. Eventually, the relaxation of the rules may be applied offline.

3.     Safe-harbour/Special provisions for online

This third approach allows a limited time to test online innovations to avoid stifling them. This approach is not a long-term one but in practice is being used in Singapore for new technology. That is, new technologies that break existing rules are allowed to run in the market place for a period. The “mischief” such innovations reveal may then be addressed in more targeted regulations.

Conclusion

Overall, the general trend in Singapore is to relax the rules on censorship. In November 2015, after the general election, the ban on 240 publications “ranging from decades-old anti-colonial and communist material to adult interest content” was lifted.[10] That the ban was lifted after the general election and not before suggests sensitivity to certain conservative segments of the Singapore population.

The treatment of opposition political parties has also been seen as fairer. Opposition political candidate Paul Tambyah was promoted to full professor in 2013, two years after contesting in the general election. More recently, media coverage of the 2016 by-election has been scrupulously even-handed with both opposition and ruling-party candidate given equal space and prominence in the leading morning broadsheet The Straits Times.

On the other hand, there have been heightened concerns over security, terrorism and hate speech, especially those directed against religious minorities. But as pointed out, even here, the heavy-handed approach is giving away to a more calibrated approach.

 

Notes:

[1] A version of this paper was presented at the Regional Meeting Data Policy and Internet Governance in Southeast Asia, Bangkok, May 19-20, 2016.

[2] Media Development Authority, 2014, Media Convergence Review Report. http://www.mda.gov.sg/RegulationsAndLicensing/Consultation/Pages/MediaConvergenceReview.aspx.

[3] Chong, Chee Kin, 2005, Racist bloggers jailed, The Straits Times, October 5.

[4] Section 8(1).

[5] Ang, Peng Hwa, 2005, Social Disapproval A Better Way to Deal with Racist Remarks, Straits Times, October 14.

[6] Lianne Chia, 2016, Teenage blogger Amos Yee faces 8 new charges, Channel News Asia, http://www.channelnewsasia.com/news/singapore/teenage-blogger-amos-yee/2817976.html.

[7] Tessa Wong, 2013, MDA rolls out licence scheme for news websites, Straits Times, May 28.

[8] Jennani Durai, 2012, NTUC assistant director sacked for racist remarks, Straits Times, Oct 9, http://www.straitstimes.com/singapore/ntuc-assistant-director-sacked-for-racist-remarks

[9] Olivia Ho and Aw Cheng Wei, 2016, PrimaDeli apologises, sacks staff for making racist remarks to job interviewee, Straits Times, April 29, http://www.straitstimes.com/singapore/manpower/primadeli-apologises-sacks-staff-for-making-racist-remarks-to-job-interviewee

[10] Chong Zi Liang, 2015, MDA lifts ban on 240 publications ranging from communist material to adult interest content, Straits Times, November 25, http://www.straitstimes.com/singapore/mda-lifts-ban-on-240-publications-ranging-from-communist-material-to-adult-interest