A law regulating deliberate online falsehoods (DOFs) may be justified on the grounds of “public order” given the harm that they pose to democratic institutions and processes, said National University of Singapore’s (NUS) law professor Thio Li-ann in her written representation to the select committee looking at the issue.
Dr Thio, who appeared before the committee on Friday (Mar 23), said in her written representation that such a law could also be justified on the ground of “national security” given that DOFs are a “hybrid” threat to both. She also said that a law regulating such falsehoods cannot be seen as a means to curtail free speech as “not all forms of speech are equally worthy of protection”.
“SINGLE DEATH BLOW OR CAUSING DEATH BY A THOUSAND CUTS”
In expounding her case, Dr Thio said that the dissemination of false or inaccurate information or claims “can harm and threaten public order”.
Public order is a “less decentralised” idea than a ‘law and order’ issue, she wrote. “It is usually defined as relating to a disturbance to communal tranquility under which every person feels safe under the protection of the law, where danger to human life and safety falls within its purview and can involve matters relating to public health or drug trafficking which has obvious deleterious social impact.”
With the courts appearing oriented towards an expansive or capacious understanding of ‘public order’ that transcends the threat of physical violence, public order thus appears able to accommodate both physical threats and threats to fundamental values and processes.
These include the harm that deliberate online falsehoods poses to democratic institutions and processes. Found within a single publication or cumulatively in a series of publications, these falsehoods can cause harm by a “single death blow or causing death by a thousand cuts”, she said.
Hence, anticipatory preventive action may be required, though care must be taken to ensure that there is a non-trivial basis for such action, she added.
Dr Thio also said that falsehoods could perhaps be a “hybrid” between a threat to public order and national security, citing views that deliberate online falsehoods, which attempt to undermine democratic elections, may rise to the level of a national security threat.
“The internet in particular provides the speaker (or) publisher with a platform to an audience of thousands if not hundreds of thousands, as opposed to a speaker addressing a local crowd or handing out tracts to dozens of people in a localised setting.
“The exponential spread of online information in terms of speed and reach has yielded characterisations of deliberate online falsehoods as a mode of ‘weaponising’ public narratives with the intent to deceive, to effect misrepresentation, in order to get a certain result.”
She added: “This could be for personal pecuniary benefit which is simply anti-social and irresponsible, or to manipulate political processes by spreading duplicitous narratives, which implicates the common weal.”
The Internet has also been a “mixed blessing to democracy”. While the Internet has promoted and expanded informational flows, this increase is also accompanied by an increase in misinformation flows, which undermines the democratic process.
“As a vehicle for human communication, the manner of communication will be shaped by human nature, which is capable of both wickedness and altruism, such that both benefit and harm may be generated depending on the proclivities of its user,” she wrote.
Thus, freedom of expression can be viewed as a “double-edged sword”. While free speech is the lifeblood of democratic society, the abuse of free speech through the propagation of deliberate falsehoods can undermine deliberative democracy and have other deleterious effects, she said.
NOT ALL FORMS OF SPEECH ARE EQUALLY WORTHY OF PROTECTION
In that case, free speech is not really ‘free’ in the sense of being offered “just for the sake of expression.”
She added that not all forms of speech are equally worthy of protection if one “speaks with the goal to defame another’s reputation, to denigrate a judge in a contemptuous fashion, to incite violence against an ethnic or religious group or to abusively harass someone who expresses a view in the public square which the abuser dislikes and wishes to silence through intimidation and threats”.
In such case, “the law steps in and sanctions rather than protects such speech”.
“Such speech is adjudged unworthy of protection, as it violates the rights of others or undermines a social interest, or both,” according to Dr Thio.
She added that a society is “entitled to prohibit or severely restrict forms of speech to vindicate social values. She raised the example of banning or severely restricting pornography in the interests of public morality or feminist concerns about gender stereotyping and the degradation or commodification or women.
Even if regulation is not entirely effective, the prohibition has a “signaling function” which indicates to people “the boundaries of what is and is not socially desirable or approved”. She said “this discharges the educative function of law”.
In the context of Singapore, “bright lines are drawn” where fundamental values like racial and religious harmony are at stake.
These represent substantive limits on free expression, which are justified on grounds of other overriding considerations which go to the heart of community identity and moral solidarity. Though she added that societies differ as to where to draw these lines and where free speech is valorised and elevated, it is harder to justify speech restriction as a “clear and present danger” might be required.
FALSE TO CHARACTERISE BALANCING PROCESS AS INDIVIDUAL’S RIGHT VS STATE
Dr Thio also said that it would be false to characterise the balancing process as always involving an individual’s right to free speech against a state-defined and defended public interest.
The process can be far more complex, she said, while listing four examples.
Firstly, there’s the popular view that involves pitting the right of an individual against the interest of the state in regulation.
However, a free speech issue could also involve a clash between two co-equal rights. This includes the right to free speech and the right to reputation as a facet of privacy rights.
Meanwhile, there could be instances when “free speech as a negative liberty may be in conflict not with a state defined good but with a positive liberty”. A positive liberty is defined as “the power to control or participate in public decisions”.
Dr Thio raised the example of pornography that exercises free speech as a negative liberty. This has been criticised as violating the “positive liberty” of women as pornography creates an environment where women cannot have political power given its degrading stereotypes of women and projecting them as commodities or somehow unfit for public office.
Lastly, the exercise of a negative liberty like free speech can actually erode someone else’s right to free speech.
Dr Thio quoted Harvard Law Professor Frank Michelman who has argued that certain speech, such as pornography, can have a “silencing” effect. “If I speak and you engage in simultaneous and/or abusive speech, you may intimidate me into silence or otherwise prevent me from effectively communicating my views, which is the point of free speech,” she wrote in her written submission.