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.  http://article14.blogspot.sg/2013/05/from-licensing-to-regulation-of-content.html

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. 

 

 

 

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:
http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/Documents/Annex.pdf

 

1. asiaone.com
2. businesstimes.com.sg
3. channelnewsasia.com
4. omy.sg
5. sg.news.yahoo.com
6. stomp.com.sg
7. straitstimes.com
8. tnp.sg
9. todayonline.com
10. zaobao.com

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.




 

The New Normal: Celebrating a New Media victory (or 'Why We don't need your COC')

Exactly one year ago, we were in the midst of one of the fiercest and most intensely fought out general elections in the history of our nation (post independance). There was much drama and passion; Grand and inspiring speeches by the likes of Vincent Vijeysinha; Rising chorus of anger amongst the voting public; Open display of disdain for PAP candidates (in a country that was often driven by fear of political reprisal, whether real or imagined).

There were particular moments during the campaign period when we felt that public opinion may be swinging so wildly against the PAP that Aljunied, Holland-Bukit Timah and Bishan-Toa Payoh might fall. Marine Parade was not looking very safe for the PAP nor was East Coast. These are GRCs. In the past, GRCs were the safe zones for the PAP and the opposition struggled to make a dent. In 2011, the opposition parties contested nearly all the seats and gave to the electorate an important gift: the ability to vote in the general elections. For many, it was the first time that they had a chance to vote. The opposition parties benefited from a more credible slate of candidates. The level of resentment against the PAP's policies had led to candidates with sound credentials coming forward to take up the cause of providing an alternative voice in Parliament.

Above all else, I believe the crucial development in the 2011 elections was the disappearance of fear from the minds of many voters. Perhaps, not surprisingly, this translated into a corresponding fear in the minds of the PAP candidates. The high and mighty and infallible PAP was reduced to issuing a public apology. On 3rd May 2011, at Boat Quay, we witnessed the vulnerability of the PAP and the true power of the ballot.

An important battle in the 2011 elections was fought online. It was not a straightforward battle between the PAP and the Opposition Parties. Much of the battle was waged by bloggers, websites such as The Online Citizen and Temasek Review, citizens posting on forum pages and Facebook users doing no more than clicking and sharing. The irreverance was infectious and it was curing many of the disease of fear. The online battles were crucial in averting serious damage for the opposition and in inflicting damage on the PAP. Singaporeans have grown accustomed to the reality that the mainstream media is the mouthpiece of the ruling party. Alternative sources of information were becoming more relevant to the assessment of issues thrown up during the elections. Quite tellingly, thanks to keyboard warriors, it became difficult to tarnish or trivialise opposition candidates and their policy positions.

Since it is now a year after that historic election campaign, I thought it would be good to reflect on one such online battle. During the campaign, Vivian Balakrishnan said the SDP was suppressing a video on youtube that raised "some very awkward questions about the agenda and motivations of the SDP and its candidates." He stated: "I can't help feeling that part of the reason for their (SDP) reticence is they have elements of their agenda they are not prepared to disclose and subject to scrutiny. Eventually, they will have to come out of the closet."

The phrase, "coming out of the closet" is often used in the context of a person coming forward to openly declare his sexual orientation. As it transpired, the video being referred to was one involving a speech by lawyer M Ravi. Vincent Wijeysingha of the SDP can be seen briefly in the video asking some questions. Vivian Balakrishnan's allusion was to a potential gay agenda on the part of the SDP. The perception amongst many netizens was that there was an attempt to tarnish the image of Vincent Wijeysingha by emphasizing that he is gay. A New Paper issue ran the headline: "Is Singapore ready for a Gay MP?"

The online backlash was consistent, virulent and mono-directional (against the PAP). Voters had too many fundamental concerns that needed to be addressed and netizens reflected this by displaying impatience with an attempted smear campaign against the SDP candidate. On April 28, Vivian Balakrishnan told the press that there is no need to discuss the video further.

The election campaign was marked by many instances of campaign issues being subjected to close scrutiny online. I wouldn't be overstating the case if I were to say that the 2011 General Elections was heavilly influenced by online discussion.

Today, we are engaged in discussion (initiated by the government) about a Code of Conduct for the internet. Given the fact that our laws relating to sedition, contempt of court, criminal and civil defamation and incitement to religious hatred are more than adequate to deal with some of the reasons stated for a Code of Conduct by Dr Yacoob, one can only arrive at the conclusion that the real issue for the PAP leaders is the control of information that is available online. PAP no longer enjoys a monopoly on information. The diversity of views expressed online (often in the form of intellectually sharp analysis) gives the people a very real opportunity to assess the truth for themselves. The days of an officially constructed reality are over.

Do we need a COC? No. In all likelihood this move is initiated as an attempt at information management. If that is indeed the motivation, then our leaders have not understood a key driving force behind the 'new normal'. So, here is some free advice: We don't want to be told. We want to make up our own minds.