The risks attributable to the proliferation of misinformation – or ‘faux information’ – through social media platforms and on the spot messaging providers aren’t simple to counteract. By the web’s very nature, on-line communications are troublesome to manage as info shared by customers in a single jurisdiction could be simply made out there to customers in lots of others. In some instances, platforms themselves have acted to fight faux information past the superficial step of sustaining a misinformation coverage. For instance, Meta’s Oversight Board, a quasi-judicial physique created by the guardian firm of Fb and Instagram to overview content material moderation selections on these platforms, has reviewed particular person selections by Meta in regards to the moderation of misinformation, and has made coverage suggestions concerning the administration of misinformation.
In different instances, states have acted to deal with faux information inside their borders. This contribution focuses on one such regime – Singapore’s Safety from On-line Falsehoods and Manipulation Act 2019 (‘POFMA’) – and its limits within the context of Kerajaan Malaysia (‘Authorities of Malaysia’) v. Attorneys for Liberty, an ongoing case within the Malaysian courts.
POFMA – Singapore’s Anti-Pretend Information Regime
Underneath POFMA, an individual who has communicated or is speaking a false assertion of truth inside Singapore could also be issued with a ‘Correction Course’ by means of the POFMA Workplace the place a Minister considers it within the public curiosity to take action (s 10(1) POFMA), no matter whether or not the individual had precise or constructive data that the assertion was or is fake (s 11(4)). When issued with a Correction Course, the individual is required to make an extra assertion within the method and type required by the Course explaining that the ‘topic assertion’ is fake and/or talk an announcement of truth or present a hyperlink to an announcement of truth correcting the topic assertion (s 11(1)). Whereas a Correction Choice shouldn’t be itself a legal sanction, failure to adjust to a Course with out cheap excuse is an offence punishable, within the case of a person, with a superb not exceeding S$20,000 and/or 12 months’ imprisonment (s 15(1)).
POFMA is notable for its express concentrate on extraterritorial actors, as demonstrated by three provisions within the Act. First, the which means of ‘talk’, for the aim of Correction Instructions, refers back to the making out there of an announcement or materials to an end-user in Singapore on or by means of the web (s 3(1)). This offers POFMA an extremely broad attain; any one that publishes an announcement on any web site accessible in Singapore probably falls inside POFMA’s ambit (as acknowledged by Singapore’s Courtroom of Enchantment in The On-line Citizen v Legal professional-Common, para. 161). Second, the Act specifies {that a} Correction Course could be issued to an individual outdoors Singapore and that that individual could also be required to do an act outdoors of Singapore (s 13(1)-(2). Third, the s 15 offence is specified as one which could be dedicated by an individual outdoors of Singapore (s 15(1)).
Between the Act’s coming into drive on 2 October 2019 and 30 September 2024, the POFMA Workplace issued 123 Correction Instructions. A subject in relation to which Instructions have been persistently issued is the loss of life penalty in Singapore, the utilization of which Singapore’s Authorities strenuously defends regardless of worldwide strain. For instance, one anti-death penalty group, the Transformative Justice Collective, obtained no fewer than 5 Correction Instructions between August and December 2024. It’s in relation to this contentious difficulty that the authorized saga in Kerajaan Malaysia v. Attorneys for Liberty began shortly after POFMA got here into drive.
Kerajaan Malaysia v. Attorneys for Liberty
On 16 January 2020, Attorneys for Liberty (‘LFL’), a Malaysian human rights NGO revealed an announcement on their web site alleging that sure executions performed at Singapore’s Changi Jail have been in violation of Singapore’s Structure and worldwide regulation. Particularly, LFL alleged that, in situations the place the rope used to hold the condemned prisoner broke, officers of the Singapore Jail Service have been skilled to interrupt the prisoner’s neck themselves utilizing a brutal methodology involving the bodily pulling of the prisoner’s physique and the kicking of the prisoner’s neck. On 21 January 2020, the POFMA Workplace, directed by Singapore’s Minister for House Affairs, issued Correction Instructions in opposition to LFL’s web site and several other Singaporean people and information organisations which had shared LFL’s assertion. One of many latter, The On-line Citizen, challenged the Course’s legality within the Singaporean courts. These efforts have been finally fruitless: the constitutionality of POFMA, in addition to the validity of the Correction Course issued in opposition to The On-line Citizen below POFMA itself, was confirmed by Singapore’s Courtroom of Enchantment in The On-line Citizen v Legal professional Common (see paras 81-105, 239-242).
In contrast, LFL mounted a problem in opposition to its Correction Course within the Malaysian courts, initiating two associated instances. The primary was introduced in opposition to the Malaysian Authorities, with LFL in search of a declaration that, inter alia, LFL’s proper to freedom of expression below Article 10(1)(a) of the Malaysian Structure couldn’t be impaired by POFMA, and that LFL wouldn’t be topic to any course of below Malaysian regulation to offer impact to the Course (Attorneys for Liberty, para. 6). The second was introduced personally in opposition to Singapore’s Minister for House Affairs, with LFL in search of a declaration that no enforcement of the Correction Course might be directed in opposition to LFL in Malaysia, and an injunction to restrain the Minister from appearing to implement Singaporean regulation, together with POFMA, in opposition to LFL (Attorneys for Liberty, para. 7). Each functions have been struck out by the Excessive Courtroom, however the strike-out determination was overturned by the Courtroom of Enchantment. Earlier than the instances might be remitted to the Excessive Courtroom, the Malaysian Authorities appealed within the first case, whereas the Malaysian Legal professional-Common appealed within the second. Listening to the appeals, the Federal Courtroom decided that two preliminary questions required answering: (1) in relation to the case in opposition to the Malaysian Authorities, what, if any, extraterritorial impact does POFMA have in Malaysia, and (2) in relation to the case in opposition to Singapore’s Minister of House Affairs, does state immunity forestall the Minister from being sued within the Malaysian Courts?
Does State Immunity Forestall a Singaporean Minister from Being Sued in Malaysian Courts?
Of the 2 questions earlier than the Federal Courtroom, the immunities query was the only – and it was straightforwardly answered on a predictable utility of settled rules of immunity ratione materiae, as mirrored within the 2004 Draft Conference on the Jurisdictional Immunities of States and their Property: the Minister of House Affairs’ actions regarding POFMA are undertaken in his official capability and no exceptions below Articles 10-17 of the 2004 Draft Conference to his immunity ratione materiae utilized (Attorneys for Liberty, para. 38). Accordingly, the Minister of House Affairs was immune from LFL’s go well with and the case in opposition to him was struck out.
Notable was that, in obiter dicta, the Federal Courtroom noticed the pattern of some nationwide courts to search out the immunities of state officers ineffective within the face of alleged violations of jus cogens norms (see, e.g., the Italian Constitutional Courtroom’s Judgment 238/2014 and its impacts), a doctrine that might not apply within the on the spot case as the appropriate of freedom of expression shouldn’t be of peremptory standing. Nevertheless, having positively cited the Worldwide Courtroom of Justice’s judgment in Jurisdictional Immunities (Germany v. Italy) as authority for the procedural standing of immunities earlier than nationwide courts, the Federal Courtroom pressured that it reserved its opinion on the query of whether or not the Malaysian Structure would render immunities ineffective in a case regarding jus cogens (Attorneys for Liberty, para. 30).
What, If Any, Extraterritorial Impact Does POFMA Have in Malaysia?
As with ‘communication infrastructure’ offences in different jurisdictions, s 15(1) POFMA establishes a ‘skinny’ territorial nexus between the offence and Singapore by means of the requirement that the false assertion is accessible to end-users inside the jurisdiction (see Brown (2023), ‘Extraterritorial Ambit by means of Offence Definitions, Know-how and Financial Energy’ in Transformations in Legal Jurisdiction, pp. 67-68). Nonetheless, in relation to the Correction Course issued in opposition to LFL, the Federal Courtroom accepted that there was an extraterritoriality difficulty. That is appropriate insofar because the s 15 POFMA offence requires a Malaysian NGO working a web site in Malaysia to undertake an motion in Malaysia (i.e., to adjust to the phrases of the Correction Course) on the specter of legal sanction.
Had the query of the legality of the s 15 offence’s extraterritorial impact been posed to a Singaporean courtroom, the simple conclusion could be that the POFMA does have a lawful extraterritorial impact. As with different widespread regulation jurisdictions, Singapore operates a presumption that statutory regulation regulates conduct inside the nationwide borders except the legislature expressly makes provision for its extraterritorial impact (for a latest restatement, see the judgment of Singapore’s Excessive Courtroom in Ng Kok Wai v Public Prosecutor, paras 25-30.) Plainly, Singapore’s Parliament had the intention to imbue the s 15 offence with an extraterritorial impact, as laid out in s 15(1) POFMA itself.
From the Malaysian perspective, nonetheless, the query of POFMA’s extraterritorial impact in Malaysia is extra complicated. Self-evidently, Singapore has no means to immediately implement POFMA inside Malaysia: with only a few exceptions, a state’s legal enforcement jurisdiction is strictly territorial, as recognised by the Everlasting Courtroom of Worldwide Justice in Lotus (pp. 18-19). With the cooperation of the Malaysian authorities, nonetheless, there are routes by means of which POFMA might foreseeably have an effect on LFL in Malaysia. For instance, Singapore might make a request for mutual authorized help from Malaysia pursuant to ASEAN’s 2006 Treaty on Mutual Authorized Help in Legal Issues and Malaysia’s Mutual Help in Legal Issues Act 2002. Extra dramatically, Malaysia might execute an arrest warrant endorsed by a Singaporean courtroom and subsequently detain and switch the arrestee to Singapore below ss 26-28 of Malaysia’s Extradition Act 1992.
But, earlier than the Federal Courtroom even countenanced these home authorized mechanisms, it discovered it essential to reply a query of public worldwide regulation: does Singapore have an internationally recognised extraterritorial prescriptive legal jurisdiction to manage the conduct of international nationals outdoors of Singapore’s borders below POFMA? In so doing, the Federal Courtroom has seemingly made the worldwide legality of a purported train of Singapore’s legal prescriptive jurisdiction in Malaysia a situation precedent earlier than any steps could be taken below Malaysian regulation to offer impact to the LFL Correction Course. However the Federal Courtroom didn’t decide the worldwide legality query itself; LFL’s case in opposition to the Malaysian Authorities was remitted to the Excessive Courtroom for a listening to for the requested aid of ‘A declaration as to the extraterritorial jurisdiction of POFMA in relation to a Malaysian citizen in Malaysia in mild of artwork 10(1)(a) of the [Federal Constitution].’ (Attorneys for Liberty, para. 59).
It’s curious that, regardless of acknowledging that the query of whether or not Singapore’s prescriptive legal jurisdiction might lawfully lengthen to LFL by means of POFMA was a pure query of regulation (Attorneys for Liberty, para. 61), the Federal Courtroom selected to not settle the query. Nevertheless, the Courtroom did make some pertinent observations which is able to, little question, information the dedication of the problem by the Excessive Courtroom. Particularly, the Federal Courtroom rightly rejected the outdated view of the Everlasting Courtroom in Lotus that an extraterritorial prescriptive legal jurisdiction could also be exercised supplied that there isn’t any particular prohibition in worldwide regulation on the contrary, as an alternative affirming the ‘trendy’ strategy of requiring any train of such a jurisdiction to be primarily based on a positively ‘recognised’ foundation of extraterritoriality (Attorneys for Liberty, paras. 50-52).
In passing, the Courtroom talked about two such bases which might, on expansive interpretations, justify POFMA’s attain into Malaysia below worldwide regulation. The primary was the passive persona precept. This foundation is usually handled as being restricted to notably severe crimes with clearly identifiable victims, e.g., homicide, terrorism, or torture (see Ryngaert, Jurisdiction in Worldwide Regulation (2nd edn, 2015), pp. 111-112). The s 15 POFMA offence can’t be readily characterised as being of such severity, and it could be conceptually beneficiant to treat any Singaporean nationwide as being a ‘sufferer’ of a failure to adjust to a Correction Course.
The second foundation recognized by the Federal Courtroom was the ‘results’ doctrine, an idea originating from the US case of United States v. Alcoa, in response to which a state’s prescriptive legal jurisdiction could also be asserted over extraterritorial conduct which has an antagonistic impact inside that state’s borders. The Federal Courtroom accepted that the doctrine’s utility has largely been restricted to the context of US anti-trust proceedings however famous that ‘this doesn’t act as a whole bar to the results of the doctrine being utilized in analogous conditions’ (Attorneys for Liberty, para. 55). The Courtroom did stress that ‘warning should be exercised in opposition to an overbroad utility of this exception’, however the actual fact that the Federal Courtroom was not keen to exclude the results doctrine from the Excessive Courtroom’s consideration outright is, maybe, indicative of what Ryngaert identifies as a flexibility proven by states to simply accept extraterritorial workouts of different states’ legal prescriptive jurisdictions of their territories within the subject of cybercrime, even when territoriality formally stays the lodestar of addressing internet-based wrongdoing (Ryngaert, Jurisdiction in Worldwide Regulation (2nd edn, 2015), p. 80). This flexibility can also be evident within the Federal Courtroom’s commentary {that a} ‘consideration of whether or not there may be an clearly substantial hyperlink with the state in search of to enact legal guidelines with extraterritorial results’ is required within the dedication of whether or not POFMA has legitimate foundation to manage extraterritorial conduct (Attorneys for Liberty, para. 56). This assertion means that the Federal Courtroom is a minimum of sympathetic to a holistic strategy to figuring out the worldwide legality of the purported extraterritorial impact of a international State’s legal regulation in Malaysia, relatively than counting on the normal ‘rules’ of extraterritoriality, i.e., the persona precept, the passive persona precept, the protecting precept and so on. Such considering displays the view of some students that, within the web age, there must be a elementary shift in how the worldwide legality of states’ jurisdictional claims are assessed (see, e.g., the ‘new paradigm’ advised by Svantesson within the context of ‘web jurisdiction’ which focuses on a state’s substantial reference to conduct and its reliable curiosity in its regulation: Fixing the Web Jurisdiction Puzzle (2017), pp. 60-61).
POFMA and the Proper of Freedom of Expression below the Malaysian Structure
Ought to the Excessive Courtroom discover that the POFMA does have an internationally lawful declare to manage the extraterritorial conduct of LFL, the Courtroom can be required to find out the no much less tough query of whether or not that regulation violates LFL’s proper of freedom of expression below Article 10(1)(a) of Malaysia’s Structure.
Singapore shouldn’t be a state social gathering to the Worldwide Covenant on Civil and Political Rights, however the compliance of POFMA with Singapore’s obligation to respect the appropriate of freedom of expression in customary worldwide regulation (see Schabas (2021), The Customary Worldwide Regulation of Human Rights, pp. 192-195) has been constantly questioned by observers. For instance, the Worldwide Fee of Jurists has expressed concern, inter alia, that Correction Instructions, together with the Course in opposition to LFL, are issued for functions which might not be recognised as reliable functions in worldwide human rights regulation, similar to to stop the ‘diminution of public confidence’ in public authorities (s 4(f) POFMA). Different observers, similar to Amnesty Worldwide, have been sharper of their criticism, alleging that POFMA is used as ‘a device for censorship’ of political opponents. For its half, the Singaporean Authorities denies that POFMA is used to suppress political dissent, even taking the considerably ironic step of issuing a Correction Course in opposition to on-line reporting alleging that Correction Instructions are utilized in such a means.
Nevertheless, the query of the worldwide legality of POFMA is wholly separate from the query of Malaysian constitutional regulation which the Excessive Courtroom has been requested to reply. Any motion taken by the Malaysian authorities to offer impact to POFMA in Malaysia – similar to actions taken pursuant to Mutual Help in Legal Issues Act 2002 or the Extradition Act 1992 – should conform with Malaysia’s Federal Structure, as required by Article 4(1)’s stipulation that legal guidelines inconsistent with the Structure are void to the extent of that inconsistency. An interference with the appropriate of freedom of expression in Article 10(1)(a) of the Structure should be justified as regards to the needs in Article 10(2) and be proportionate as regards to that function (see the judgment of the Federal Courtroom in Public Prosecutor v. Azmi Sharom, paras 30-31, 43). A short, speculative conclusion is that the interference with the Article 10(1)(a) proper attributable to, for instance, arresting the writer of LFL’s assertion pursuant to a Singaporean arrest warrant could be justified as regards to Article 10(2)(a)’s allowance for ‘crucial or expedient’ restrictions ‘within the curiosity of […] pleasant relations with different nations…’, topic to a proportionality evaluation.
Nevertheless, the necessity for the justification of such an interference can solely come up the place the expression in query is protected, one thing which isn’t assured the place it’s alleged that the expression in query is fake. Malaysian jurisprudence on the scope of the appropriate of freedom of expression is comparatively restrictive (see Ren (2020) ‘Suppressing Pretend Information or Chilling Free Speech’ in Journal of Malaysian and Comparative Regulation, pp. 38-41) and up to date judicial selections have affirmed that restrictions affecting false statements are in line with the safety in Article 10, such because the discovering of the Federal Courtroom that the appropriate to freedom of expression is topic to the regulation of defamation (Chong Chieng Jen v. Authorities of State of Sarawak, paras 46-47), or the affirmation by the Excessive Courtroom that s 233(1) of the Communications and Multimedia Act 1998 (which, inter alia, criminalises the transmission of false statements by means of on-line platforms) is constitutional (Teoh Kah Yong v. Public Prosecutor, para. 28). Therefore, the Excessive Courtroom must decide the vexing query of whether or not LFL’s declare that brutal, illegal executions are performed at Changi Jail is true. In its process, the Malaysian Excessive Courtroom could also be assisted by the dedication of its Singaporean counterpart in The On-line Citizen that LFL’s assertion was unfaithful on the idea that The On-line Citizen had supplied no proof of its fact and since the conduct alleged by LFL was refuted by the Deputy Director of the Singapore Jail Service in an affidavit (see the Excessive Courtroom’s judgment in The On-line Citizen v Legal professional-Common, paras 59-60). Though LFL was not a celebration to the Singaporean proceedings and will search to substantiate the reality of its declare earlier than the Excessive Courtroom, if for nothing greater than comity, one wonders whether or not the Excessive Courtroom can be keen to contradict the discovering of the Singapore Excessive Courtroom, notably on such a delicate difficulty.
Conclusion
The Malaysian Federal Courtroom in Attorneys for Liberty has left a lot to be decided by the Excessive Courtroom; we should wait and see whether or not POFMA has an internationally lawful foundation for regulating the conduct of LFL in Malaysia and, if it does, whether or not that impact violates LFL’s rights below the Malaysian Structure indirectly. At current, nonetheless, Attorneys for Liberty illustrates that, on the confluence of faux information and extraterritoriality, there are not any easy solutions to elementary questions in regards to the means of states to manage on-line communications originating from overseas and the extent to which ‘faux information’ is protected speech, if in any respect.
