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Fake News, Free Speech and Finding Constitutional Congruence

David Tan & Jessica Teng Sijie

(2020) 32 SAcLJ 207

In September 2018, the Select Committee on Deliberate Online Falsehoods issued a report that recommended new legislation to address the harms of online falsehood or “fake news”. After much vigorous debate in Parliament, the Protection from Online Falsehoods and Manipulation Act (Act 18 of 2019) (“POFMA”) was passed on 8 May 2019 and came into effect on 2 October 2019. As expected, POFMA, like any legislation which attempts to curtail the spread of fake news, has attracted much criticism. As the business models of social media platforms such as Facebook and Twitter thrive on community engagement and user-generated content, such technology companies lack the incentive to curb the virality of fake news under a voluntary self-regulation regime. At the same time, fake news laws can overreach and significantly restrict the constitutional right to freedom of speech. This article surveys the efficacy of the legislative landscape pre-POFMA in combating fake news and suggests that an umbrella legislation like POFMA is necessary. This article concludes that POFMA, even if perceived to be draconian, is congruent with Art 14 of the Singapore Constitution (1999 Reprint). Nevertheless, such plenary powers are subject to potentially powerful political limits in the electoral process. The final test for the legitimacy of POFMA really lies in how the Government enforces this new law.