Mr Foo Cheow Ming
Partner, Litigation & Dispute Resolution
KhattarWong
Ms Lin Lin
Foreign Lawyer, Corporate and Securities Laws Department
KhattarWong The last one month have seen a remarkable series of headlines that have shaken and even shocked the Facebook user community (or for the matter, social networking webpage using community):- ''Najib and Muiddin urges Stern Measures against those who abuse social networking'' – Lian He Zao Bao 5 Sep 2001 pg 22 – Malaysia's PM and DPM urges strong action in response to recent cases of a woman who allegedly insulted Islam on her Facebook page, and a song writer who posted an allegedly seditious music video called ''Shout''. ''Singapore Airlines Curbs Crew's Facebook musings'' AFP News 3 Sep 2001 reprinted on google.com/hostednews, also Straits Times 2 Sep 2010 – management of SIA orders its flight attendants to stop griping about work related grouses on social networking media after several flight attendants' on-line airing of grievances became well known. ''Journalist charged over Tenaga Nacional Berhad Parody in blog posting'' – thestar.com.my 3 Sep 2010 - a lifestyle executive editor writing for The Malay Mail arrested and charged for writing a sharply satirical article poking fun at the National Electricity Board of Malaysia (Tenaga Nacional). ''Hostage drama pictures of Manila cops on Facebook stir anger'' – APF News 30 Aug 2010 carried on hindustantimes.com – police officers in Manila took pictures of the recent hostage bus drama and published them on their own Facebook pages, incurring the anger and dismay of the family of the victims of the incident. ''Police NS Man Questioned over his Blog'' – Straits Times 28 Aug 2010 pg A8 – a police constable who criticizes on his blog the action of his colleague in handcuffing a SPH photographer taking photographs of the floods along Bk Timah Rd was hauled up for questioning, and may face disciplinary action from the police force. ''Singaporean arrested for inciting violence on Facebook'' – Channelnewsasia.com 25 Aug 2010 – blogger who posted his opposition to Youth Olympics Game and urged Singaporeans to ''burn'' the sports minister and the PAP was arrested for inciting violence. ''Israeli Soldier's Facebook Photos spark Controversy'' – Voanews.com 18 Aug 2010 – a woman soldier in the Israeli Army posted photos she took of herself with bound and blindfolded Palestinian prisoners on her Facebook page draws criticism from the Israeli Army and other sections of the public. ''Russian spy courts new scandal with racy photo shoot'' – AFP news 28 Aug 2010 reprinted on sg.news.yahoo.com – one of the Russian spies recently arrested in USA for conducting espionage against the USA and now repatriated to Russia, a rather comely looking young lady, published racy and glamourous photos of herself on her Facebook page.
Of course, we can all recall the recent case of an Indonesian woman who criticizes a hospital on her internet posting on a discussion forum for the allegedly poor standard of treatment received there, and was prosecuted for criminal libel. Then there is the local case of a Singapore youth who made an on-line comment about the body odor of some ethnic races, and was prosecuted in Court for sedition. What is going on? Why have the governments and public around the world suddenly react so strongly to Facebook postings and musings of perfectly ordinary folks whom the traditional media would never have considered newsworthy? Why are people getting into so much trouble on what they pose on social media websites? Why do governments and societies react so violently to such apparently trivial and harmless musings? There are at least 9 key differences between Traditional Media and the New Social Media (including Facebook and blog sites):- - strong medium term persistency of the New Social Media – the day's 10pm TV or radio news disappear the minute after it is finished. However, what is posted on the internet sometimes remain retrievable and searchable for years to come.
- the New Media is capable of being republished and republished widely and without control – i.e. going ''viral'' – even when the mainstream traditional media is no longer interested for any reason.
- it is very hard to censor the New Social Media because of its ability to go viral. The new media does not react to traditional government controls or commercial pressures for it not to publicize a certain topic further.
- when something goes ''viral'', it may take on the status of an ''urban legend'' whose apparent truth is implicitly accepted by all those who reads it from secondary sources, and for which the ''real'' underlying truth in the story is then obscured or forgotten.
- New Social Media is capable of being searched (for free!) vie internet search engines, whereas traditional media is not easily searched nor accessed after the initial broadcasts, or searchable only at some costs, trouble and expenses.
- Traditional media is mono-dimensional : radio is a ceaseless stream of audio, TV audio and moving images , newspapers and books static print. However, New Media is literally multi-media (the webpage itself is text, but it also incorporates pictures, music and videos, and also cross-links to other webpages). Not only can you read about something a long time after it is first published, you can also watch the video, listen to the song, and read about other people's comments, additions and criticisms about the original item.
- The traditional media is carefully tailored and edited for public consumption, whereas the New Social Media (including comments on Facebook and Blogspots) is more or less completely free, sometimes free to the point of absurdity. For eg I can start a blog claiming that Elvis Presley is still alive and living on Venus, and nobody can stop me.
- The New Media blurs the line between ''private'' social domain and permanent public publication. What is completely unremarkable and harmless grousing exchanged between friends in the context of a idle Sunday after lunch chat, once published on-line becomes horrifically controversial, seditious, racist, even defamatory to the general readership! Perhaps, metaphors would even come to be interpreted literally, a passing comment becomes an incitement to public uprising, an outraged or delusional musing becomes criminal libel, with the result that law enforcement is then called in and becomes involved.
- The New Media is perceived as something on the side of the people and underdogs, as opposed to the Traditional Media which is perceived to be under the control of Big Governments and Big Businesses. Therefore, when state authorities use police powers to come down on bloggers and Facebook-commentators, there is rightly or wrongly the perception that states are indulging in the persecution and oppression of the weak, downtrodden or disenfranchised. The public's sympathy shifts, and suspects the state of covering up some inconvenient truth. Metaphorical barricades are raised, both sides mount the moral high horse and accuse the other side of being evil or immoral, and the whole incident becomes deadly serious. A trivial comment which was first read by no more than 30-50 people after its initial publication is then reported by the traditional print and broadcast media to the attention of 5 million members of the public and becomes the focal point of a crusade or test case for human rights, freedom of speech, the citizenry's right to critique the state, etc
Anyone who uses the New Social Media in Singapore should bear in mind the following legal constraints on speech:- - any printed or published comment which tends to lower someone's social standing in the regard his peers is called libel or defamation. The party who made such a comment may be prosecuted for criminal defamation, and (not or, but ''and'') sued in civil law for damages arising from harm done to the person's reputation. Once you are sued for libel, there are relatively few defences other than ''justification'', that is to say, what you said is in fact true. As such, before you make any potentially libellous comments on any New Social Media webpage, make sure you possess the actual proof of the truth of what you assert. It is probably no good to claim you heard the purported truth from someone else, because that would be hearsay and not at all good evidence. It is also probably no good to claim that you are merely republishing or providing a link to the original source of the libel: at law, he who disseminates the libel is just as liable as the original party who created the libel. Libel can also be quite subtle and unexpected: it is also libellous to use someone's name to suggest that he has either patronized your shop or used your product or services if you do not have the consent of the person to use his name, or if such a person had not in fact patronized your shop or used your product or services.
- the cases of the Israeli soldier and the police officer may attract sanctions under their respective governing statues or internal discipline rules as ''conduct unbecoming'' of a member of such an organization because their postings may bring adverse publicity to bear on their respective organizations.
- Employees of any commercial organizations, and not just the flight attendants of the airline in the example given above, should be aware that their comments may be viewed by employers as adverse to the public image or interest of the company. In such a case, the employee may be found to be in breach of an employee's common law duty of fidelity to his employer (i.e both a positive duty to act in the best interest of his employer as well as a negative duty to abstain from any acts which detracts from the best interests of his employer), and this may be held to be a valid legal basis for termination. In so many words, anyone who works for a sweet factory had better not say eating sweets is bad for your teeth on his Facebook page!
- More sinisterly, many comments once published are capable of being construed as criminal offences or incitement/abetment to commit criminal offences:- for eg
(a) it is an offence punishable by death to contemplate causing death to the President;
(b) a public call to gather people in a protest or organizing a ''flash mob'' may be construed as abetting the commission of the offence of a riot or unlawful assembly; (c) to put in writing the exhortation to cause harm to any one individual or class or type of individual can be either Sedition or an incitement to cause hurt, grievous hurt, or even murder. It is interesting to note that ''sedition'' is broadly defined in Singapore to include anything which:- brings into hatred or contempt or to excite disaffection against the Government, or to excite the citizens of Singapore or the residents in Singapore to attempt to procure in Singapore, the alteration, otherwise than by lawful means, of any matter as by law established, to bring into hatred or contempt or to excite disaffection against the administration of justice in Singapore, to raise discontent or disaffection amongst the citizens of Singapore or the residents in Singapore; or even to promote feelings of ill-will and hostility between different races or classes of the population of Singapore. Be wary that under the laws of Singapore, he who abets an offence (for eg by instigation) is punished on equal terms as the actual offender. So, be careful of what you actually tell people to do on your blogspot or Facebook page!
(d) if any public servant or military officer tries to be a Whistle-blower on his Facebook page and publishes official information which came into his possession which purportedly shows neglect or bad intention on the part of the state, he may be charged with either an offence under the Official Secrets Act, or if he is unlucky, charged under the SAF Act for ''assisting the enemy'' which is an offence that attracts the death penalty!
New Social Media is capable of great, new beneficial powers. Never before has so much potential power to disseminate, persuade, entertain and convince come into the possession of the average citizenry in the street. However, users of New Social Media should be aware of this: WITH GREAT POWER, COMES GREAT CONSEQUENCES, not all of which pleasant! The freedom of speech stops at shouting ''Fire'' in a crowded cinema when there is no fire. Remember this rule of thumb: if you don't like something said about you, you can bet someone else won't like it if you say so about them!
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