Were there shenanigans involved in issuing a POFMA direction followed by defamation suits on the same post?

“It’s actually contempt of court for a POFMA Direction to be issued with the intention of prosecuting later or for the Minister to sue for defamation later.”

This was stated by Reform Party chief Kenneth Jeyaretnam on Facebook on Monday, in response to a post on The Online Citizen’s (TOC) Facebook page.

For context, the post discussed former Straits Times journalist Bertha Henson’s query about why Lee Hsien Yang was sued for defamation by Minister for Home Affairs and Law K Shanmugam and Minister for Foreign Affairs Vivian Balakrishnan despite complying with the POFMA correction direction on the same Facebook post.

On Sunday (26 May), Ms Henson expressed her scepticism about the necessity of the defamation lawsuit against Mr Lee Hsien Yang (LHY), suggesting it was redundant and potentially overreaching for individuals to comply with POFMA yet still face defamation lawsuits.

“If someone complied with POFMA, then there’s no need to remove the ‘offending words’, is there? Because the whole idea is to let everyone assess both versions.” said the veteran journalist.

After LHY’s Facebook post on 23 July 2023, commenting on the leasing of the Ridout estates by the two ministers, Edwin Tong, Minister for Culture, Community and Youth and Second Minister for Law, issued a Correction Direction under the Protection from Online Falsehoods and Manipulation Act (POFMA) on 25 July.

This required LHY to publish the corrected notice prescribed by Mr Tong on his Facebook page. The notice included a link to a Factually article, which provided the Singapore government’s facts and clarifications on the matter.

LHY chose to comply with the POFMA direction and did not contest in the High Court—frankly, who would, given the interpretation principle of POFMA as defined by the Court of Appeal in the Singapore Democratic Party’s case?

However, while LHY complied with the instructions, on 27 July, the counsels for the two ministers threatened him with legal actions for defamation on the same Facebook post unless he apologized for making false allegations.

According to LHY, the ministers demanded he make a specific statement: “I recognize that the Post meant and was understood to mean that Mr K Shanmugam/Dr Vivian Balakrishnan acted corruptly and for personal gain by having the Singapore Land Authority give them preferential treatment by felling trees without approval and illegally and having it pay for renovations to 31 Ridout Road.”

Responding to the threats, LHY defended his initial words: “Two ministers have leased state-owned mansions from the agency that one of them controls, felling trees and getting state-sponsored renovations.” He believes his original statement does not equate to an allegation of corruption or personal gain and criticizes the ministers for insisting on a “false apology” for words he claims he did not utter.

Given that the two ministers went high-profile by announcing the legal letters sent to LHY, they had no choice but to file their law suits against LHY after his non-compliance.

Ultimately, the defamation suits filed by the two ministers succeeded in the Singapore High Court. LHY, choosing not to represent himself, was ordered by the judge to pay S$200,000 in damages to each minister, along with nearly S$220,000 in costs, totalling S$620,000.

Reflecting on Mr Jeyaretnam’s comment, one wonders whether any shenanigans were involved when considering the sequence of events and the various elements surrounding what happened.

According to the Attorney General’s website’s definition of contempt of court, it states for contempt by interference:

“This category comprises a wide range of acts, including acts which risk prejudicing or interfering with a court proceeding that is pending (also known as sub judice contempt), acts impugning the integrity or impartiality of any court and posing a risk that public confidence in the administration of justice would be undermined (also known as scandalising contempt), and acts interfering with the ability of a witness to appear in court.”

While the POFMA direction was issued before the commencement of the suits by the two ministers, surely the consideration of whether legal actions would be launched by them is considered as although the POFMA direction was issued by Mr Tong, everyone knows Mr Shanmugam heads the ministry.

There does not appear to be any recusing of the Law minister in the POFMA direction issued by Mr Tong, and neither were there instructions to have anything in LHY’s post to be removed.

In fact, during the debate to pass the POFMA law back in 2019, Mr Tong stated, “In line with this new approach I mentioned earlier, the primary tool that we intend to use is the power to give people direct access to corrections. In other words, the falsehood stays up. People will then have access to both the falsehood and the corrections, and they can decide for themselves. In such a case, the Directions add to and not remove the discourse.”

To have a legal demand come from the two ministers over the Facebook post days after complying with the POFMA direction by the Ministry of Law, which Mr Shamugam heads, would have come as an utter shock and disbelief to many, including LHY himself.

Although the judge did not mention in his ruling how the POFMA direction influenced his decision, one has to question the potential risks to the administration of justice.

This coincidental arrangement of sequences and connections is exactly why people find it hard to believe that the Law Minister, who heads the Singapore Land Authority, had nothing to do with the arrangements of the leasing and refurbishing of his sultan-grade property at 26 Ridout Road.

In any case, the Law Minister’s position on using both the POFMA law and defamation in the same post might appear just to him as he said in parliament during the passing of the POFMA law, “The Defamation Act deals in the private law sphere, with damage to reputation. For example, if someone says you are corrupt, then if it is not true, you can sue to clear your name.”

Even so, given that the whole of Singapore would have known from the government-labelled correction notice that LHY’s post was considered fake news, where was the reputation damage by the time he and Dr Balakrishnan filed their lawsuits? Hadn’t the sting of the allegedly defamatory statement already been removed?

A point that does not appear to have been considered by the judge in his ruling for damages and a point that would have resulted in the case being thrown out in the United Kingdom, like that of British billionaire Sir James Dyson — A more logical reason as to why the two ministers declined the proposal by LHY to have the matter heard in the UK courts or to address the escalating dispute through independent arbitration.