Courts make POFMA clearer in recent case on TOC

The Online Citizen’s (TOC) POFMA appeal went to the High Courts, his case was duly dismissed. However, the courts gave clearer guidance that would be useful to newsmaker.

  1. The burden of proof should not be on the government

Most importantly, the judge clarified that the burden of proof cannot be on the government. This does not make sense at all. Imagine – if I wanted to know how much was in the reserves, all I need to do is write a fake article and then demand the government prove that it is false.

This is double jeopardy and it makes sense that courts do not allow it.

2. Sites cannot just use the word “alleged” and shove the blame of fake news to a third party

Sites like TOC pepper their articles with the word “allegedly” generously. For example: “The minister was alleged to have killed kittens” or “the CEO was alleged to have work pink underwear”. They then write the articles as if the allegations were certain and hide under this convenient protection.

The Courts said that they were unable to accept this. “This was premised on misconstruction” and raising this as a defence was untenable.

So don’t do this. It is a journalist’s job to check whether or not an allegation is true, false or at least founded somewhere in the truth. You can’t brush off your responsibilities with the word “alleged”.

3. Sites cannot be ignorant of whether a source is true

TOC then said that they don’t know if the source of news was true. The judge said that this was immaterial.

The POFMA says that a correction direction can be issued even if the does not know or has no reason to believe it is false. In layman’s terms, it means “I don’t need you to know it is fake…I need you to make a correction anyway”.

The law is quite obvious – if everyone just pretended that they didn’t know…then the law would be redundant.

4. Cannot evade responsibility by writing “hearsay” news

Finally, TOC said that their article was neither a fact nor an opinion…but just a report based on “hearsay”.

TOC said the words “allege” and “allegation” were used six times in the article, ensuring that readers were aware that they were unverified allegations. 

They also said that they had put a sentence stating that the MHA was reached for comments, apparently signalling to readers that TOC was trying to verify the allegations with the ministry.

These tricks are often used by sites to create opinionated articles packaged with fake/false information. The courts are not fooled by this. No, you may not evade responsibility by claiming these are “hearsay” news.

Sites such as TOC have been using the above methods to hide opinion and agenda in an article. They also use the same tactics to dismiss their own responsibility to fact check. Well, they can’t hide behind this anymore now that the courts have shed light on these tricks.

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