Full Speech: Films (Amendment) Bill (Mar 18)

Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Films (Amendment) Bill [Bill No. 10/2018]

• Date Introduced: 27.02.2018
• Date of 2nd Reading: 21.03.2018
• Date Passed: 21.03.2018

Sir, my parents and my sister played the most important role in developing my values and instilling in me a sense of compassion, honesty and integrity. And it was my late Daddy who always taught me to speak up, to question, to always focus on solutions and to try my best, no matter what.

But films probably played the second most important role in shaping my life, shaping the person I am today.

At 14, I watched a documentary, or film called “Gorillas in the Mist” that told the true life story of Dian Fossey, an American lady who gave up her good life in America to go to Africa to study and save gorillas.

That movie single-handedly changed my life and probably my Mommy’s too. I watched that movie with her and halfway through I turned to her and said, “Mommy, I want to be just like Dian once I grow up”. Mommy freaked out at the end of the movie because Dian was murdered by the poachers and she thought this was probably what her son wanted to do.

And I did. I spent the last 17 years of my life protecting animals. Like Dian, I too studied primates, but gibbons and not gorillas, and thankfully, unlike Dian, I have not been killed. Yet.

Films, continue to shape my life. From the food I eat, to the places I visit and to the father I am today. Films continue to play that important role. 

And so the amendments we are proposing today will not only have an impact on just the films industry, but on all of us, on our society because ultimately, we are not just what we eat but what we watch.

Sir, in drafting my speech for this Bill, I met up with filmmakers and they have some concerns about the effect of the proposed amendments. I do believe I met up the same filmmakers that Member Kok Heng Leun met as well because some of the clarifications that I will say will be similar to his.

They have emphasised to me the need to have checks and balances in the regulatory and enforcement framework.

Films with their transformative powers are a crucial part of our nation’s arts and culture. It is important to protect the ability of filmmakers to tell their stories openly, honestly and with integrity, and to preserve the right of audiences to enjoy those stories. But at the same time, there is also a need to have regulations in place.

Before raising my questions for clarifications, I would first like to commend IMDA for engaging with the filmmakers and the public in their review of the Films Act, which started in May last year and involved several meetings.

The filmmakers that I met highlighted to me several changes in the final Bill that resulted from IMDA’s consultation process on the Bill. This is a good example of how the public can be constructively engaged in the law-making process.

Sir, allow me to now seek some clarifications. The new sections 24 to 27 set out the appeals process for classification decisions, for which there are two appellate authorities – a Committee of Appeal and the Minister.

I understand that presently filmmakers are given the opportunity to present their case before the Films Appeal Committee.

Filmmakers I have spoken with have indicated that this current practice satisfies them that the decision was made in accordance with due process even if the appeal does not succeed.

Will this positive practice be maintained and will filmmakers continue to have the opportunity to present their case before the Committee of Appeal and/or the Minister in an appeal against a classification decision?

While there is no guarantee of such a right to audience even under the current Films Act, the opportunity to be heard is an important procedural safeguard. Further, would the minutes of the Committee of Appeal’s deliberations on a classification and grounds for decision on the appeal be published?

Similarly, while a decision of a Minister on a matter of national security is deemed to be final, will the Minister be providing reasons for his decision?

Next, I do welcome the new section 25, which will increase the number of members sitting on the Committee of Appeal, which may provide for greater diversity of views. Can I check with Minister, if we will be including more members of the film community and civil society who can provide professional perspectives and feedback reflecting civic and consumer concerns?

Next, under section 16, IMDA may refuse to classify films in five stated categories. Can the Minister clarify how the proposed category of “Refused Classification” differs from the current rating of “Not Allowed for All Ratings”? Filmmakers also wanted clarifications that the Board of Film Censors will watch and assess the films that is subsequently deemed to be “Refused Classification” notwithstanding the language, which may be understood as suggesting that the film will not be reviewed at all?

I would also like to seek further clarification on the scope of those categories. Can the Minister clarify what would constitute a “prohibited film” and “a film against national security” respectively?

Can the Minister also shed some light on the type of films that might be refused classification under the catch-all provision “contains any material prescribed” that is not currently already covered by the first four categories?

Further, what is the rationale behind providing for such powers to deal with matters of national security under the Films Act when there are other legislation such as the Penal Code, the ISA, and Maintenance of Religious Harmony Act that deal with matters that might threaten national security?

Can I also find out if we will be publishing reasons and basis for classification decisions by IMDA and registered film content assessors, clearly communicating the grounds for decisions ensures accountability and transparency.

The Bill also introduces a new co-classification scheme, which has been welcomed by distributors as it shortens the processing time for classifications. However, one concern raised by filmmakers is that an external film content assessor hired by the distributors may be incentivised to cut out shots to achieve lower age-restriction ratings.

Film reviewers would have reviewed and recommended the uncut version, while audiences only see the cut version and may not be aware of what they have missed out, since the full advisory is only available on the IMDA online classification database.

Will the Minister consider requiring all films with cuts to be expressly listed and visibly advertised as such so that consumers are not short-changed? This could be done, as suggested earlier, on the classification label that IMDA must issue under section 18(1)(b). For example, a PG13 film could be advertised as PG13 (Edited).

Next, sections 34 and 34A extend certain enforcement powers of an enforcement officer. They are granted special enforcement powers that may be exercised without warrant. Can Minister clarify who will be classified as enforcement officers? Given that these officers will have powers to conduct search and seizure, what kind of training will the officer be required to undergo to ensure that they are able to exercise these extensive powers responsibly? I note the Minister has said they will be trained by MHA. Will guidelines be issued for the exercise of their enforcement powers and will they be publicly available so that members of the public are aware of their rights and available recourse should their personal devices be seized?

Under sections 34 and 34A, enforcement officers will have the power to seize anything, which the officer reasonably suspects is evidential material. Can the Minister provide examples of what can and cannot be seized under this provision given that films do not clearly take the form of just film reels or DVDs as they did in the past, and can now be stored on all kinds of storage devices? This would seem to cover mobile phones, personal tablets, laptops, computers and thumbdrives. The amendments would implicate everyone who owns a camera and storage devices, not just filmmakers. What safeguards are there to ensure that personal materials on the devices seized will not be accessed?

I note that the special enforcement powers of enforcement officers allow them to enter a place “using such force as is reasonably necessary to obtain entry”. I understand from speaking with individuals within the film industry that this provision is intended for use against errant distributors. Can the Minister confirm that this is the intention behind this provision? Have there been instances where forced entries have been required in dealing with distributors?

Finally, what is the intent behind regulating the public exhibition of films via digital transmission? Will the amendments bring the streaming of films under the ambit of the Films Act?

Sir, I can see how powerful films are, how much they have impacted me and how we need regulations in place. I can see how much they have impacted my daughter Ella as well. While she has only watched four films so far, Paddington, Madagascar, The Lion King and Ant Bully. But I am pretty sure that one day Ella too will freak me out while we are watching a film, like how my Mommy was freaked out by me. That, I am not looking forward to.

Sir, I do stand in support of this Bill and I hope that Minister can provide the above clarifications and assurances, which will go a long way in addressing the concerns from members of the public and the films industry.

Assoc Prof Dr Yaacob Ibrahim: 

Both Mr Louis Ng and Mr Kok Heng Leun spoke about the prospect of consumers missing the uncut film should film CAs edit films to qualify them for lower ratings, and asked if we could require all edited films to be expressly listed. 

Sir, I wish to clarify that this is not a classification issue; it is a commercial one. Decisions on whether to edit a film and what film versions to screen are purely commercial ones made by film distributors or exhibitors. Some do release different versions for different audiences. I thank Mr Ganesh Rajaram for raising the example of the film “Lust, Caution”. Another example is the film “Attack on Titan”, where two versions were screened in 2015, one rated M18 and the other edited for NC16. In these two cases, the distributor decided to screen different versions, so that the films were viewed more widely. Sir, I think this is the right approach, as the distributors and exhibitors know their customers best and can decide which version of the film is the most commercially viable.

[…]

Mr Louis Ng asked what the intent was in regulating the public exhibition of films that are digitally transmitted, and if this amendment would bring the streaming of films under the FA’s ambit. Sir, I would like to reassure the Member that the amendments will not affect those who view films in the privacy of their homes. The amendments are to ensure that the public exhibition of films is regulated under the FA whether they are screened from a recording or from a digital transmission. The focus, Sir, is on public exhibition.

[…]

Mr Louis Ng and Mr Kok Heng Leun also asked what the films that might be refused classification under Section 16 are, where IMDA will refuse to classify any film that “contains any material prescribed”. This refers to existing film content elements that exceed the R21 rating in the film classification guidelines, for instance, gratuitous depictions of extreme cruelty or content that glorifies substance abuse. Going forward, these elements would be prescribed in regulations, and the provision cited enables it. This will be transparent, as they will need to be published in the Gazette.

[…]

Sir, on films with national security concerns, let me first thank Mr Ganesh Rajaram, Mr Zaqy Mohamad and Mr Darryl David for their support for this amendment for the Minister to hear appeals involving these films. Mr Zaqy Mohamad and Mr Darryl David as well as Mr Louis Ng and Mr Kok Heng Leun also asked several questions, including what would constitute a film against national security and how the new appeals process for such films would be like.

As I have mentioned earlier, national security is one of the Government’s core responsibilities. We cannot outsource or delegate our responsibility to safeguard the security of Singapore and Singaporeans. Considerations of national security include what would be detrimental to the continued existence of the country, its ability to exercise its sovereign rights, and the safety and security of its citizens and their way of life. In determining whether a film is against national security, IMDA will also consult the relevant security agencies. However, these agencies may face constraints to share the full extent of their security concerns and sensitive information with the FAC, as its members come from non-Government sectors and do not have the necessary security clearances. It will be better for the Minister to decide on such appeals as he will be able to consider the appellant’s view, together with IMDA’s considerations and the detailed assessment from security agencies. The Minister will also consult the FAC for its views before making his decision on the appeal. 

We do not disagree with Mr Kok Heng Leun that it would be useful to set out some considerations broadly, which I have done here. But, Sir, given the complex nature of national security matters, the prudent approach would be to avoid binding this in legislation. In refusing classification, let me assure Members again that IMDA has been and will continue to provide grounds for its decisions. Should there be appeals for films with national security concerns, I envisage that we will adopt an appeals process similar to existing Ministerial appeals, where the appellant and IMDA would be given due opportunity to make their respective cases to the Minister via written submissions. Where possible, the Minister will also provide the appellant with the grounds of his decision.

Mr Louis Ng and Mr Darryl David further asked about the rationale for the provisions that deal with films that are against national security, given existing laws, such as the Internal Security Act. Sir, these existing laws serve different purposes. The FA governs the regulation of films, regardless of the content theme or concern. It provides the films industry and the public with a single point of reference and clarity on the regulation of films in Singapore. This is a practical approach, given that any one film can contain multiple content themes or concerns. The FA also allows for a calibrated approach, depending on the nature and gravity of any undesirable content. For instance, films that are refused classification for exceeding classification guidelines are not allowed for distribution and public exhibition, but private viewing is allowed. However, it will also be an offence to possess films that are prohibited under Section 35. 

Sir, on the FAC’s composition, Mr Zaqy Mohamad asked how we could make the FAC more representative, while Mr Kok Heng Leun, Mr Louis Ng and Mr Darryl David asked about appointments and if more could be done to appoint members from the films sector or civil society. 

Sir, the FAC already comprises individuals from diverse backgrounds, representing our various communities, the creative, legal and education sectors, as well as academia. We agree with Mr Darryl David that experience is important too. There is thus also a mix of newer and more experienced members, so that the FAC brings in new perspectives while maintaining an understanding of past decisions. The appointment process also considers nominations from various community groups, such as Mendaki and SINDA. Sir, we are open to considering individuals from the creative and films sectors, but they should be appointed by the Minister in their own capacity and not as industry nominees. The FAC’s role is to hear appeals involving film classification, which takes reference from our community norms and values. The FAC, therefore, has to reflect the range of perspectives that make up our society. 

Mr Louis Ng and Mr Kok Heng Leun asked several questions about the FAC. Sir, I am not able to respond on the FAC’s behalf but I understand that the FAC generally allows appellants to present in person and will also share its grounds for decisions with appellants. So, this is already the case. I also understand that the FAC would consider allowing appellants to present in person, too, before forming its views when it is consulted by the Minister on appeals regarding films with national security concerns. 

Sir, Mr Louis Ng and Assoc Prof. Daniel Goh also asked what would constitute a prohibited film. Films are prohibited under section 35 of the FA. It is intended for films with the most egregious content, where even possession of the films would be contrary to public interest. Examples of such content include films that advocate violence or films that threaten racial or religious harmony, the broader fabric of our society or public confidence in our institutions. The Minister will have to exercise his judgement on whether it is necessary to invoke this section, and I think we have been very judicious as pointed out by the Senior Minister of State – we only have two films so far that have been prohibited. This section ensures that we have some safeguards against the most egregious content, to protect larger societal interests, even as we have moved away from censorship towards classification.

[…]

Mr Zaqy Mohamad and Mr Louis Ng asked if IMDA has used without-warrant powers in the past, including the use of reasonable force to obtain entry, and if extending these powers are really necessary. Mr Kok Heng Leun also asked about the rationale for these powers. 

First, I would clarify that without-warrant powers are not new. IMDA already has these powers for some offences, such as those involving unclassified films. IMDA has also been circumspect in invoking these powers. They are meant for serious offences and for situations where IMDA has to act quickly in order to secure evidence. IMDA enforcement officers have entered business premises to seize unclassified films intended for distribution or exhibition. However, people have generally cooperated and allowed access, after IMDA enforcement officers identified themselves. So, IMDA has not had to use forced entry. But these powers are still necessary, as we cannot expect compliance in every instance. IMDA has to be able to respond to a broad range of enforcement scenarios to be able to protect the public interest, but it has been and will continue to be circumspect in invoking these powers. 

Mr Zaqy Mohamad, Mr Kok Heng Leun, Assoc Prof. Daniel Goh, Mr Louis Ng, Mr Ganesh Rajaram, and Mr Darryl David – in fact, everyone who spoke – also asked about IMDA’s enforcement officers – their training, the extent and limit of their powers, and how IMDA would ensure that they exercise their powers responsibly.

[…]

First, we have limited the extension of powers to serious offences, such as those involving prohibited films and the unlicensed public exhibition of films. I have explained the egregious nature of prohibited films earlier. For unlicensed public exhibition, the risk and the ease of flight is high as an exhibition typically lasts two hours or less. But for less serious offences, a court warrant or permission from the owner will be needed for IMDA to exercise these powers. 

Second, we have also limited the exercise of these powers to IMDA’s enforcement officers. These officers currently already have to and will continue to attend and pass the Home Team Investigation Courses where they receive both classroom and practical training alongside Home Team officers in areas, such as (a) powers of entry, search and seizure, (b) collation of evidence, (c) recording of statements, and (d) preparation of investigation reports. There are three phases of training with the Home Team: three weeks of basic training, one week of intermediate training and one week of advanced training, with annual refresher courses for all officers. The enforcement officers are also security-vetted and the majority have prior experience in law enforcement agencies. To Mr Kok Heng Leun’s question of which “other individuals” may assist IMDA officers in exercising the enforcement powers under the Act, this refers to auxiliary police officers and IT forensic engineers. It does not refer to other IMDA officers.

Third, Sir, we have specified in the Bill that without-warrant powers will only be used when the enforcement officer has reasonable grounds to suspect that the specified serious offences have been or are being committed, or that evidence of the commission of these offences can be found in the premises and it is necessary to secure it from being concealed, lost or destroyed. 

So, I would like to reassure Mr Zaqy Mohamad, Mr Louis Ng, Mr Kok Heng Leun and Assoc Prof. Daniel Goh that only items used in the commission of the offences would be seized. What is seized, of course, will depend on the specific offence. For instance, for unlicensed public exhibition, IMDA officers are likely to seize the storage medium where the film is kept but not the projector or the exhibitor’s mobile phone. For distribution of unclassified films, the officers will only seize the copies of films being displayed or intended for distribution, but not personal items, such as the distributor’s mobile phone. During the investigation of seized items, only materials that are relevant to the offence will be flagged as evidence, while the rest will be protected and will not be disclosed. This is similar to conducting a physical search where enforcement officers will have to go through the storage space before extracting what is relevant. IMDA’s interest would only be on materials that serve as evidence. We have also provided an avenue for owners to challenge seizures of their items in court. Generally, IMDA will return seized items after investigations conclude. 

Sir, these limits and safeguards will be set out clearly in the amended Films Act, which will be publicly available.

[…]

Mr Zaqy Mohamad, Mr Ganesh Rajaram and Mr Louis Ng also asked how IMDA will ensure that these powers are exercised responsibly. I would like to assure the Members and Singaporeans that IMDA has put in place robust internal processes. 

First, all enforcement activities have to be authorised by suitably senior IMDA officers holding the office of a Director or its equivalent. Verification is done to assess and ascertain the veracity of information received on potential offences committed and/or the identity of the potential offender. Enforcement action will only be authorised if a prima facie case is established. The senior IMDA enforcement officer will also be apprised of the operational plan and the rules of engagement, before any action is taken. I would also like to reassure Mr Rajaram that any person who deliberately gives false information to mislead IMDA to initiate enforcement actions would be committing an offence. 

Second, enforcement actions are undertaken by a team of enforcement officers, led by an experienced team leader. New or less experienced officers do not carry out enforcement actions on their own. Team leaders leading enforcement activities have at least five years of enforcement experience. 

Third, to safeguard against abuse, each enforcement officer is issued with an authorisation card that is distinct from the general IMDA staff passes. It is spelt out in the Bill that enforcement officers must identify themselves if asked, failing which entry can be refused. 

Fourth, an established whistleblowing policy is also in place where members of the public can lodge complaints of abuse. Investigations will be conducted by IMDA’s Internal Audit Unit, which is independent of IMDA’s regulatory and enforcement divisions. IMDA takes the abuse of enforcement powers very seriously. Depending on the severity of the accusation and the evidence given, IMDA may deploy the accused officer to an administrative post during the investigation. If the allegations are true, internal disciplinary procedures will apply, including the prospect of dismissal. 

Finally, Sir, I will address questions raised on issues beyond the scope of the Bill. 

[…]

Sir, we have reviewed the provisions, and are of the view that they remain relevant. As Mr Louis Ng shared that films can be emotive and powerful and shape one’s worldview for a long time. It is one thing for “Gorillas in the Mist” to inspire someone to devote his life to animal welfare, but another thing for distorted or sensationalised films to undermine a democracy and alter the course of a country forever.

[End]

To search for my other PQs and speeches, do refer to my blog, Facebook page, or the Hansard.