The dangers caused by the proliferation of misinformation – or ‘fake news’ – via social media platforms and instant messaging services are not easy to counteract. By the internet’s very nature, online communications are difficult to regulate as information shared by users in one jurisdiction can be easily made available to users in many others. In some cases, platforms themselves have acted to combat fake news beyond the superficial step of maintaining a misinformation policy. For example, Meta’s Oversight Board, a quasi-judicial body created by the parent company of Facebook and Instagram to review content moderation decisions on those platforms, has reviewed individual decisions by Meta concerning the moderation of misinformation, and has made policy recommendations regarding the management of misinformation.
In other cases, states have acted to tackle fake news within their borders. This contribution focuses on one such regime – Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 (‘POFMA’) – and its limits in the context of Kerajaan Malaysia (‘Government of Malaysia’) v. Lawyers for Liberty, an ongoing case in the Malaysian courts.
POFMA – Singapore’s Anti-Fake News Regime
Under POFMA, a person who has communicated or is communicating a false statement of fact within Singapore may be issued with a ‘Correction Direction’ through the POFMA Office where a Minister considers it in the public interest to do so (s 10(1) POFMA), irrespective of whether the person had actual or constructive knowledge that the statement was or is false (s 11(4)). When issued with a Correction Direction, the person is required to make a further statement in the manner and form required by the Direction explaining that the ‘subject statement’ is false and/or communicate a statement of fact or provide a link to a statement of fact correcting the subject statement (s 11(1)). While a Correction Decision is not itself a criminal sanction, failure to comply with a Direction without reasonable excuse is an offence punishable, in the case of an individual, with a fine not exceeding S$20,000 and/or 12 months’ imprisonment (s 15(1)).
POFMA is notable for its explicit focus on extraterritorial actors, as demonstrated by three provisions in the Act. First, the meaning of ‘communicate’, for the purpose of Correction Directions, refers to the making available of a statement or material to an end-user in Singapore on or through the internet (s 3(1)). This gives POFMA an incredibly broad reach; any person who publishes a statement on any website accessible in Singapore potentially falls within POFMA’s ambit (as acknowledged by Singapore’s Court of Appeal in The Online Citizen v Attorney-General, para. 161). Second, the Act specifies that a Correction Direction can be issued to a person outside Singapore and that that person may be required to do an act outside of Singapore (s 13(1)-(2). Third, the s 15 offence is specified as one which can be committed by a person outside of Singapore (s 15(1)).
Between the Act’s coming into force on 2 October 2019 and 30 September 2024, the POFMA Office issued 123 Correction Directions. A topic in relation to which Directions have been persistently issued is the death penalty in Singapore, the usage of which Singapore’s Government strenuously defends despite international pressure. For example, one anti-death penalty group, the Transformative Justice Collective, received no fewer than five Correction Directions between August and December 2024. It is in relation to this contentious issue that the legal saga in Kerajaan Malaysia v. Lawyers for Liberty started shortly after POFMA came into force.
Kerajaan Malaysia v. Lawyers for Liberty
On 16 January 2020, Lawyers for Liberty (‘LFL’), a Malaysian human rights NGO published a statement on their website alleging that certain executions conducted at Singapore’s Changi Prison were in violation of Singapore’s Constitution and international law. Specifically, LFL alleged that, in instances where the rope used to hang the condemned prisoner broke, officers of the Singapore Prison Service were trained to break the prisoner’s neck themselves using a brutal method involving the physical pulling of the prisoner’s body and the kicking of the prisoner’s neck. On 21 January 2020, the POFMA Office, directed by Singapore’s Minister for Home Affairs, issued Correction Directions against LFL’s website and several Singaporean individuals and news organisations which had shared LFL’s statement. One of the latter, The Online Citizen, challenged the Direction’s legality in the Singaporean courts. These efforts were ultimately fruitless: the constitutionality of POFMA, as well as the validity of the Correction Direction issued against The Online Citizen under POFMA itself, was confirmed by Singapore’s Court of Appeal in The Online Citizen v Attorney General (see paras 81-105, 239-242).
By contrast, LFL mounted a challenge against its Correction Direction in the Malaysian courts, initiating two related cases. The first was brought against the Malaysian Government, with LFL seeking a declaration that, inter alia, LFL’s right to freedom of expression under Article 10(1)(a) of the Malaysian Constitution could not be impaired by POFMA, and that LFL would not be subject to any process under Malaysian law to give effect to the Direction (Lawyers for Liberty, para. 6). The second was brought personally against Singapore’s Minister for Home Affairs, with LFL seeking a declaration that no enforcement of the Correction Direction could be directed against LFL in Malaysia, and an injunction to restrain the Minister from acting to enforce Singaporean law, including POFMA, against LFL (Lawyers for Liberty, para. 7). Both applications were struck out by the High Court, but the strike-out decision was overturned by the Court of Appeal. Before the cases could be remitted to the High Court, the Malaysian Government appealed in the first case, whereas the Malaysian Attorney-General appealed in the second. Hearing the appeals, the Federal Court determined that two preliminary questions required answering: (1) in relation to the case against the Malaysian Government, what, if any, extraterritorial effect does POFMA have in Malaysia, and (2) in relation to the case against Singapore’s Minister of Home Affairs, does state immunity prevent the Minister from being sued in the Malaysian Courts?
Does State Immunity Prevent a Singaporean Minister from Being Sued in Malaysian Courts?
Of the two questions before the Federal Court, the immunities question was the simplest – and it was straightforwardly answered on a predictable application of settled principles of immunity ratione materiae, as reflected in the 2004 Draft Convention on the Jurisdictional Immunities of States and their Property: the Minister of Home Affairs’ actions relating to POFMA are undertaken in his official capacity and no exceptions under Articles 10-17 of the 2004 Draft Convention to his immunity ratione materiae applied (Lawyers for Liberty, para. 38). Accordingly, the Minister of Home Affairs was immune from LFL’s suit and the case against him was struck out.
Notable was that, in obiter dicta, the Federal Court observed the trend of some national courts to find the immunities of state officials ineffective in the face of alleged violations of jus cogens norms (see, e.g., the Italian Constitutional Court’s Judgment 238/2014 and its impacts), a doctrine that could not apply in the instant case as the right of freedom of expression is not of peremptory status. However, having positively cited the International Court of Justice’s judgment in Jurisdictional Immunities (Germany v. Italy) as authority for the procedural status of immunities before national courts, the Federal Court stressed that it reserved its opinion on the question of whether the Malaysian Constitution would render immunities ineffective in a case concerning jus cogens (Lawyers for Liberty, para. 30).
What, If Any, Extraterritorial Effect Does POFMA Have in Malaysia?
As with ‘communication infrastructure’ offences in other jurisdictions, s 15(1) POFMA establishes a ‘thin’ territorial nexus between the offence and Singapore through the requirement that the false statement is available to end-users within the jurisdiction (see Brown (2023), ‘Extraterritorial Ambit through Offence Definitions, Technology and Economic Power’ in Transformations in Criminal Jurisdiction, pp. 67-68). Nonetheless, in relation to the Correction Direction issued against LFL, the Federal Court accepted that there was an extraterritoriality issue. This is correct insofar as the s 15 POFMA offence requires a Malaysian NGO operating a website in Malaysia to undertake an action in Malaysia (i.e., to comply with the terms of the Correction Direction) on the threat of criminal sanction.
Had the question of the legality of the s 15 offence’s extraterritorial effect been posed to a Singaporean court, the straightforward conclusion would be that the POFMA does have a lawful extraterritorial effect. As with other common law jurisdictions, Singapore operates a presumption that statutory law regulates conduct within the national borders unless the legislature expressly makes provision for its extraterritorial effect (for a recent restatement, see the judgment of Singapore’s High Court 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 effect, as specified in s 15(1) POFMA itself.
From the Malaysian perspective, however, the question of POFMA’s extraterritorial effect in Malaysia is more complex. Self-evidently, Singapore has no ability to directly enforce POFMA within Malaysia: with very few exceptions, a state’s criminal enforcement jurisdiction is strictly territorial, as recognised by the Permanent Court of International Justice in Lotus (pp. 18-19). With the cooperation of the Malaysian authorities, however, there are routes through which POFMA could foreseeably affect LFL in Malaysia. For example, Singapore could make a request for mutual legal assistance from Malaysia pursuant to ASEAN’s 2006 Treaty on Mutual Legal Assistance in Criminal Matters and Malaysia’s Mutual Assistance in Criminal Matters Act 2002. More dramatically, Malaysia could execute an arrest warrant endorsed by a Singaporean court and subsequently detain and transfer the arrestee to Singapore under ss 26-28 of Malaysia’s Extradition Act 1992.
Yet, before the Federal Court even countenanced these domestic legal mechanisms, it found it necessary to answer a question of public international law: does Singapore have an internationally recognised extraterritorial prescriptive criminal jurisdiction to regulate the conduct of foreign nationals outside of Singapore’s borders under POFMA? In so doing, the Federal Court has seemingly made the international legality of a purported exercise of Singapore’s criminal prescriptive jurisdiction in Malaysia a condition precedent before any steps can be taken under Malaysian law to give effect to the LFL Correction Direction. But the Federal Court did not determine the international legality question itself; LFL’s case against the Malaysian Government was remitted to the High Court for a hearing for the requested relief of ‘A declaration as to the extraterritorial jurisdiction of POFMA in relation to a Malaysian citizen in Malaysia in light of art 10(1)(a) of the [Federal Constitution].’ (Lawyers for Liberty, para. 59).
It is curious that, despite acknowledging that the question of whether Singapore’s prescriptive criminal jurisdiction could lawfully extend to LFL through POFMA was a pure question of law (Lawyers for Liberty, para. 61), the Federal Court chose not to settle the question. However, the Court did make some pertinent observations which will, no doubt, guide the determination of the issue by the High Court. In particular, the Federal Court rightly rejected the outdated view of the Permanent Court in Lotus that an extraterritorial prescriptive criminal jurisdiction may be exercised provided that there is no specific prohibition in international law to the contrary, instead affirming the ‘modern’ approach of requiring any exercise of such a jurisdiction to be based on a positively ‘recognised’ basis of extraterritoriality (Lawyers for Liberty, paras. 50-52).
In passing, the Court mentioned two such bases which could, on expansive interpretations, justify POFMA’s reach into Malaysia under international law. The first was the passive personality principle. This basis is generally treated as being limited to particularly serious crimes with clearly identifiable victims, e.g., murder, terrorism, or torture (see Ryngaert, Jurisdiction in International Law (2nd edn, 2015), pp. 111-112). The s 15 POFMA offence cannot be readily characterised as being of such severity, and it would be conceptually generous to regard any Singaporean national as being a ‘victim’ of a failure to comply with a Correction Direction.
The second basis identified by the Federal Court was the ‘effects’ doctrine, a concept originating from the US case of United States v. Alcoa, according to which a state’s prescriptive criminal jurisdiction may be asserted over extraterritorial conduct which has an adverse effect within that state’s borders. The Federal Court accepted that the doctrine’s application has largely been limited to the context of US anti-trust proceedings but noted that ‘this does not act as a complete bar to the effects of the doctrine being utilized in analogous situations’ (Lawyers for Liberty, para. 55). The Court did stress that ‘caution must be exercised against an overbroad application of this exception’, but the very fact that the Federal Court was not willing to exclude the effects doctrine from the High Court’s consideration outright is, perhaps, indicative of what Ryngaert identifies as a flexibility shown by states to accept extraterritorial exercises of other states’ criminal prescriptive jurisdictions in their territories in the field of cybercrime, even if territoriality formally remains the lodestar of addressing internet-based wrongdoing (Ryngaert, Jurisdiction in International Law (2nd edn, 2015), p. 80). This flexibility is also evident in the Federal Court’s observation that a ‘consideration of whether there is an obviously substantial link with the state seeking to enact laws with extraterritorial effects’ is required in the determination of whether POFMA has valid basis to regulate extraterritorial conduct (Lawyers for Liberty, para. 56). This statement suggests that the Federal Court is at least sympathetic to a holistic approach to determining the international legality of the purported extraterritorial effect of a foreign State’s criminal law in Malaysia, rather than relying on the traditional ‘principles’ of extraterritoriality, i.e., the personality principle, the passive personality principle, the protective principle etc. Such thinking reflects the view of some scholars that, in the internet age, there should be a fundamental shift in how the international legality of states’ jurisdictional claims are assessed (see, e.g., the ‘new paradigm’ suggested by Svantesson in the context of ‘internet jurisdiction’ which focuses on a state’s substantial connection with conduct and its legitimate interest in its regulation: Solving the Internet Jurisdiction Puzzle (2017), pp. 60-61).
POFMA and the Right of Freedom of Expression under the Malaysian Constitution
Should the High Court find that the POFMA does have an internationally lawful claim to regulate the extraterritorial conduct of LFL, the Court will be required to determine the no less tricky question of whether that regulation violates LFL’s right of freedom of expression under Article 10(1)(a) of Malaysia’s Constitution.
Singapore is not a state party to the International Covenant on Civil and Political Rights, but the compliance of POFMA with Singapore’s obligation to respect the right of freedom of expression in customary international law (see Schabas (2021), The Customary International Law of Human Rights, pp. 192-195) has been consistently questioned by observers. For example, the International Commission of Jurists has expressed concern, inter alia, that Correction Directions, including the Direction against LFL, are issued for purposes which would not be recognised as legitimate purposes in international human rights law, such as to prevent the ‘diminution of public confidence’ in public authorities (s 4(f) POFMA). Other observers, such as Amnesty International, have been sharper in their criticism, alleging that POFMA is used as ‘a tool for censorship’ of political opponents. For its part, the Singaporean Government denies that POFMA is used to suppress political dissent, even taking the somewhat ironic step of issuing a Correction Direction against online reporting alleging that Correction Directions are used in such a way.
However, the question of the international legality of POFMA is wholly separate from the question of Malaysian constitutional law which the High Court has been asked to answer. Any action taken by the Malaysian authorities to give effect to POFMA in Malaysia – such as actions taken pursuant to Mutual Assistance in Criminal Matters Act 2002 or the Extradition Act 1992 – must conform with Malaysia’s Federal Constitution, as required by Article 4(1)’s stipulation that laws inconsistent with the Constitution are void to the extent of that inconsistency. An interference with the right of freedom of expression in Article 10(1)(a) of the Constitution must be justified with reference to the purposes in Article 10(2) and be proportionate with reference to that purpose (see the judgment of the Federal Court in Public Prosecutor v. Azmi Sharom, paras 30-31, 43). A brief, speculative conclusion is that the interference with the Article 10(1)(a) right caused by, for example, arresting the author of LFL’s statement pursuant to a Singaporean arrest warrant might be justified with reference to Article 10(2)(a)’s allowance for ‘necessary or expedient’ restrictions ‘in the interest of […] friendly relations with other countries…’, subject to a proportionality analysis.
However, the need for the justification of such an interference can only arise where the expression in question is protected, something which is not guaranteed where it is alleged that the expression in question is false. Malaysian jurisprudence on the scope of the right of freedom of expression is relatively restrictive (see Ren (2020) ‘Suppressing Fake News or Chilling Free Speech’ in Journal of Malaysian and Comparative Law, pp. 38-41) and recent judicial decisions have affirmed that restrictions affecting false statements are consistent with the protection in Article 10, such as the finding of the Federal Court that the right to freedom of expression is subject to the law of defamation (Chong Chieng Jen v. Government of State of Sarawak, paras 46-47), or the affirmation by the High Court that s 233(1) of the Communications and Multimedia Act 1998 (which, inter alia, criminalises the transmission of false statements through online platforms) is constitutional (Teoh Kah Yong v. Public Prosecutor, para. 28). Hence, the High Court will have to determine the vexing question of whether LFL’s claim that brutal, unlawful executions are conducted at Changi Prison is true. In its task, the Malaysian High Court may be assisted by the determination of its Singaporean counterpart in The Online Citizen that LFL’s statement was untrue on the basis that The Online Citizen had provided no proof of its truth and because the conduct alleged by LFL was refuted by the Deputy Director of the Singapore Prison Service in an affidavit (see the High Court’s judgment in The Online Citizen v Attorney-General, paras 59-60). Although LFL was not a party to the Singaporean proceedings and may seek to substantiate the truth of its claim before the High Court, if for nothing more than comity, one wonders whether the High Court will be willing to contradict the finding of the Singapore High Court, particularly on such a sensitive issue.
Conclusion
The Malaysian Federal Court in Lawyers for Liberty has left much to be determined by the High Court; we must wait and see whether POFMA has an internationally lawful basis for regulating the conduct of LFL in Malaysia and, if it does, whether that effect violates LFL’s rights under the Malaysian Constitution in some way. At present, however, Lawyers for Liberty illustrates that, at the confluence of fake news and extraterritoriality, there are no simple answers to fundamental questions concerning the ability of states to regulate online communications originating from abroad and the extent to which ‘fake news’ is protected speech, if at all.
