Thursday, May 30, 2013

Making sense of the legislative framework underlying MDA's move

When I blogged on Tuesday about MDA's decision to bring ten news sites under licensing conditions, there was no subsidiary legislation yet on the matter.

On 29 May 2013, the MDA has gone ahead to issue a subsidiary legislation:  The Broadcasting (Class Licence) (Amendment) Notification 2013.  This Notification amends the earlier Broadcasting (Class Licence) Notification.  The amendment that has been made will cause Paragraph 3 to appear as follows:

"3. The provision of the following licensable broadcasting services are subject to a class licence except a computer on-line service provided on or after such date as the Authority specifies in a notice given to the provider of the service under paragraph 3A:
(a) audiotext services;
(b) videotext services;
(c) teletext services;
(d) broadcast data services;
(e) VAN computer on-line services; and
(f) computer on-line services that are provided by Internet Content Providers and Internet Service Providers."
The words in 'bold' represent the amendment. 
What has happened is that whereas in the past all sites were automatically licenced, the new legal position is that MDA can exclude a web site from the class licence.  The precondition for excluding a website from class licence is stipulated in a new paragraph 3A.  It is in this paragraph 3A that the now notorious stipulation of a reach of 50,000 unique IP addresses and at least 1 article per week is set out.  So, news sites excluded under the class licence would have to be registered under s.8 of the Broadcasting Act. 
Interestingly, even before the current development, websites and content providers that came within the class license were required to abide by the Class License Conditions and the Internet Code of Practice.  The change is that MDA will now designate certain sites as requiring licences.  These will be removed from the automatic licensing.  As a condition of specific licensing MDA can then require that a bond is furnished.  Using Yahoo News as an example.  YahooNews was already subject to the Class Licence.  Now it is going to be required to obtain a licence specically.  The news, if deemed to be objectionable, can be objected to and pulled out by MDA. 
So, the real issue is not about whether a site such as YahooNews should be subject to liecensing.  The issue is whether stipulating the requirement of a $50,000 performance bond will operate as a bar to many independant and alternative news sites in the future if these sites were forced to get themselves licensed.  Given the fact that moving a site from class licensing to specific licensing facilitates the State's ability muzzle articles, it is difficult to avoid the conclusion that this exercise is targetted at unfavourable alternative news sites. 
If the concern was about racist statements or such other offensive words, other laws already adequately address them.  There is no need to fool around with the automatic licensing regime.  The irresistable conclusion that one has to reach is that MDA wants to be able to force the removal of content through the threat of forfeiture of the performance bond. 

Tuesday, May 28, 2013

From licensing to regulation of content

It has started.  After much discussion about a Code of Conduct for online content providers, bloggers, news sites, etc. (and after much resistance to that idea from the online community), the government has decided to institute a modest measure in controlling/regulating/muzzling the online community. 

The salvo has come from the Media Development Authority.  The MDA has, today, made the following announcement:

"From 1 June 2013, online news sites that report regularly on issues relating to Singapore and have significant reach among readers here will require an individual licence from the Media Development Authority (MDA). This will place them on a more consistent regulatory framework with traditional news platforms which are already individually licensed."

I did a quick check on the Government Gazette.  There is no Gazette notification as yet on this.  Under S.8 of the Broadcasting Act (cap 28), the MDA has the Authority to grant licences for broadcasting. Chances are, MDA will be invoking this statutory provision in regulating the first ten internet sites that they have identified.  I don't see any subsidiary legislation yet.   The targetted sites are:


From the list, it is quite clear that the only site that can be deemed to be independant of the government is YahooNews.  The initial reaction on social network sites has been to conclude that the target of this initial licensing exercise is YahooNews.  Of course, many of us are aware of the often critical views expressed on Yahoo.  (In particular, posts by Andrew Loh on YahooNews could be quite irksome to the powers that be.)  The other nine sites are unlikely to be bothered or significantly affected by the licensing requirement.  It is obvious that YahooNews may have to start being mindful of that non-legal OB marker nonsense. 

What is MDA's criteria for licensing?  The only source right now for this is MDA's press statement:

"online news sites will be individually licensed if they (i) report an average of at least one article per week on Singapore’s news and current affairs over a period of two months, and (ii) are visited by at least 50,000 unique IP addresses from Singapore each month over a period of two months."

"A “Singapore news programme” is any programme (whether or not the programme is presenter-based and whether or not the programme is provided by a third party) containing any news, intelligence, report of occurrence, or any matter of public interest, about any social, economic, political, cultural, artistic, sporting, scientific or any other aspect of Singapore in any language (whether paid or free and whether at regular interval or otherwise) but does not include any programme produced by or on behalf of the Government."

What is the implication for the online news site if it is to be licensed?

1.   The news site must not put out 'prohibited content' as defined under the Internet Code of Practice

2.   Within 24 hours of being notified, the news site must take down an article found to be in breach of content standards.

3.   The news site must put up a $50,000 performance bond that can be forfeited in the event of breach. 

To be fair, at this stage, there is unlikely to be any adverse effect on YahooNews in terms of its reporting.  The 'prohibited content' in the Internet Code of Practice is "material that is objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited by applicable Singapore laws."   This is, arguably, broad enough to include news that is unflattering to the PAP government.  In considering what is prohibited material, the MDA will be taking into account 7 factors.  Five of the factors deal with content of a sexual nature.  One deals with extreme violence or cruelty.  The last factor is stated as follows:

"the material glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance"

Thus far, I have not seen anything on YahooNews that is capable of crossing the red line in this regard.  The only matter of concern is the fact that comments posted by readers could give rise to adverse action from MDA against the licensed site. 

The one area that we should all be uncomfortable about is that the broad statutory mandate of the MDA under s.8 of the Broadcasting Act, raises the possibility of further tweaking and tightening of content restrictions.  Moving forward, there is nothing to prevent MDA from prohibiting content that is deemed to be politically undesirable.  There remains the possibility that other news sites might be on MDA's radar.  The Online Citizen and Temasek Review Emeritus come to mind. 

If either TOC or TRE has a reach of 50,000 (unique visitors) every month (over a 2 month period), they are likely to be subject to the licensing regime.  Both sites churn out more than 1 article per week.  So, it is really about their reach.  It is not unlikely that the two sites have such a reach.  Of course, bloggers like myself are nowhere near that figure.  So, we can safely blog on.

If the tracks are laid carefully now, the state will have enough time to lay the groundwork for managing the content within these sites by the time the next General Elections come by.  Prohibited content could be extended  to include 'party political news', 'partisan reporting', 'opinion on election campaigning', etc.  TOC or TRE could be licensed sites that could face financial penalties.

But, the internet is a monster that even our highly efficient surveillance state can't manage.  Content could be provided from out of our jurisdiction.  New sites can be started.  Bloggers and online news sites can engage in assymetrical warfare and there is little that the state can do except for an outright clampdown.  I don't think the present leadership of the PAP has any intention to go down the route of a total clampdown on alternative views.  They seem to be going for more subtle techniques of content management.  

Phase 1 of content management has started.  But, it is unlikely to have a muzzling effect on alternative news sites and bloggers in general.


Thursday, May 16, 2013

Much ado about Nordin

I've been awfully busy and have taken some time off blogging.  But, some pretty interesting things have been going on that warrant some commentary:  the questioning of a local cartoonist by the police, the judgment in one of the two s.377A cases and the General Elections in Malaysia, just to name a few. 

But, I figured that I'd get back to blogging by dealing with the 'gang-rape' analogy in relation to democracy that has raisede quite a storm.  PAP MP Nordin posted on his Facebook page a quotation from Terry Goodkind that kind of riled up the online community.  This kind of took me by surprise.  The more I read the quote, the more puzzled I became.  Why such an adverse reaction?

I first came across this issue when I saw a Facebook posting by "Rice Bowl" (Kenneth Jeyaretnam's alter ego):

"PAP Member of Parliament for Bishan-Toa Payoh GRC Zainudin Nordin appears to be using his Facebook page to promote the view that democracy is akin to gang rape. Quote:

“People use democracy as a free-floating abstraction disconnected from reality. Democracy in and of itself is not necessarily good. Gang rape, after all, is democracy in action."

When questioned to rebut the opinion - which is ...
presented as a quote by author Terry Goodkind - the MP clearly declined and deleted the relevant comment.

The Rice Bowl believes strongly in democracy and the rule of law. As such we reject the opinion published in the strongest terms possible. Primarily since rape is obviously illegal in all democratic countries, the stated opinion cannot possibly stand. Furthermore, by the rule of law, a supposedly "democratic" move to violate fundamental personal and human rights could never succeed as a free and independent judiciary would inevitably strike out such an effort. In fact the constitution of Singapore itself states that Singapore is a democracy - in light of this one wonders how the MP reconciles such a negative view of democracy with his own standing as an elected member of parliament.

Finally, the intent of democracy is such that the result of a free vote in a secret ballot will tend to reflect the opinion of a majority of participants. To us it seems obvious that citizens are wise and compassionate enough to ensure that a free vote to inflict suffering and harm on a minority would be rejected in a landslide. One wonders if Mr Zainudin agrees."

Even without reading the context of the quotation from Terry Goodkind, I didn't think that there was anything radical that was being stated in that quotation.  Democracy, if it is understood to be majority rule and majority based decision making, does involve at its base level the rule by a lynch mob.  Much would depend on how we seek to define democracy.  I decided to look at MP Nordin's Facebook page.  This is the context of the quotation: 

“People use democracy as a free-floating abstraction disconnected from reality. Democracy in and of itself is not necessarily good. Gang rape, after all, is democracy in action.

All men have the right to live their own life. Democracy must be rooted in a rational philosophy that first and foremost recognizes the right of an individual. A few million Imperial Order men screaming for the lives of a...
much smaller number of people in the New World may win a democratic vote, but it does not give them the right to those lives, or make their calls for such killing right.

Democracy is not a synonym for justice or for freedom. Democracy is not a sacred right sanctifying mob rule. Democracy is a principle that is subordinate to the inalienable rights of the individual.”
― Terry Goodkind

Meanwhile, the "gang-rape" part of the quote was going viral and Nordin had to face the online lynch mob. 
Rather comically SPP's Lina Chiam put up a statement on the Facebook:
"In Singapore, we aspire to be a nation that is free to consider and tolerate different opinions in business, academic, political and to some extent religious spheres. However we clearly need to avoid outrageously chauvinistic statements tha...t condone rape culture. This is not a tall order, and our leaders should observe this.

I therefore regret that the MP for Bishan-Toa Payoh Mr Zainudin Nordin has reproduced on his Facebook page an abhorent quotation which characterises gang rape as 'democracy in action'. As a woman and an advocate of democracy, I urge Mr Zainudin to retract his statement and apologise to women in Singapore."

I guess that we have come to expect that a PAP MP is bound to speak disparagingly or in a less than flattering manner about democracy.  There has been a consistent pattern of PAP leaders speaking in favour of a model of government based on some degree of control and speaking against the wholesale import of Western-style democracy.  The messiness, the inefficiency and the chaotic tendencies of so-called liberal democracies is usually cited as a reason why Singapore's 'nannycracy' is a better model. 

I do, therefore, understand the reason why there was a knee-jerk reaction amongst many in assuming that Nordin had made an anti-democratic statement.  By posting a quote that referred to democracy as 'gang-rape in action', the MP appeared to many to be presenting democracy in a bad light. 

But, what does the quotation actually say.  What did Terry Goodkind intend to convey?  Making the right sense out of the quote would involve us understanding that the crudest form of a democracy is based on majority rule.  If one were to accept such a model of democracy, the will of the majority can be imposed on the minority.  If a majority of citizens in a country favour genocide, then genocide can be justified in such a version of democracy.  The Holocaust in Germany was, after all, carried out by a democratically elected government.  It is in this context that Goodkind referred to democracy as "gang-rape in action"

It is pretty obvious that the author intended to convey the view that rights of individuals must be allowed to trump the collective communal goals of society.  Majority rule must always be subject to the enlightened protection of the rights of the minority.  An individual is a minority of one.

The Terry Goodkind quotation presents Nordin as a liberal.  It presents him as someone that would advocate that whilst the majority of the country may demand a particular course of action, he would seek to ensure that the rights of individuals are not trampled upon.  I guess, that is the part that doesn't gell. 

I suspect that Nordin was going for another effect.  He probably found the quotation appealing for a different reason.  The PAP has been insisting for some time now that good leaders must resist adopting a populist approach to leadership.  The government should not pander to the demands of the crowd and it must be willing to take bold and unpopular decisions.  PAP's insistence on not going down the populist road is not based on a desire to uphold the rights of individual citizens.  In fact, often the PAP government's justification for compromising on individual rights is based on the importance of the community's collective goals.  The gang-rape version of democracy is what we get when majority moral sentiment is used as a basis for the rentention of laws that infringe upon the rights of individuals.  Communitarian goals trump rights in the gang-rape version of democracy. 

Nordin probably threw that quotation in because it appeared to justify the need to avoid populism.  But, Goodkind was in fact championing the rights of the individual.  That (championing individual rights), based on historical record, has not been the operating philosophy of Nordin's party. 

In the end, was there a need for Nordin to apologise for the quotation?  This is one incident that, I would unequivocally state, did not warrant an apology.  The quotation is against a majoritarian approach and is in favour of protecting individual rights.  I don't mind, and I approve of, this kind of infiltration into the mind of a PAP MP. 

(As for those that seek to read mysogyny into the 'gang rape' reference, please get a dictionary and look up the meaning of the word 'analogy')