By Lim Chong Kin, Director, Corporate Head, Telecommunications, Media and Technology Head, Competition and Regulatory Practice and Daniel Teo, Associate Director, Telecommunications, Media and Technology
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Introduction
On 13 March 2014, the Protection from Harassment Bill (the “Bill”) was passed in Parliament. The Bill, which abolishes the common law tort of harassment, re-enacts existing offences relating to harassment and related anti-social behaviours, and creates a new offence of unlawful stalking.
The Bill is timely in the wake of strong public support for the enactment of legislation specifically targeting such behaviour. In particular, the Bill clearly signals that harassment is a social scourge that society will not tolerate. The Bill will be gazetted as the Protection from Harassment Act 2014, and will come into effect on a date to be published in the Government Gazette.
In this article, we will discuss the Bill’s key features and the potential implications of the new law for organisations and particular sectors.
Back to topKey features of the Bill
In general, the Bill re-enacts and extends the scope of offences under sections 13A – 13D of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap. 184) (“MOA”), namely (a) intentional harassment, alarm or distress, (b) harassment, alarm or distress, (c) causing fear or provocation of violence and (d) threatening, abusing or insulting public servants. The Bill also creates a new offence of unlawful stalking.
The Bill is intended to cover a wide range of anti-social behaviour, eschewing precise definitions of the terms “harassment” and “stalking” in favour of non-exhaustive illustrations. For example, with regard to unlawful stalking, the following are illustrative examples set out in the Bill: (a) a person repeatedly sending emails to a subordinate with suggestive comments about the subordinate’s body, (b) a person sending flowers to another person daily, even though he/she has asked that person to stop doing so, and (c) a person repeatedly circulating revealing photographs of a classmate to other classmates.
In addition, references to the location of the offending act or behaviour (“in a public place or in a private place”) have also been removed from the re-enacted MOA provisions, thereby allowing the new law to capture a wider range of anti-social acts and behaviour, regardless of their form and where they are perpetrated.
‘Harassment’ is medium-neutral under the Bill, and can be perpetrated via words, behaviour or communication used or made by “any means”. This reflects the legislative intent for standards of acceptable behaviour to apply equally in the physical world and in cyberspace, in order for the new law to address challenges posed by the borderless and viral nature of social media and other forms of online communication.
The Singapore Courts may, in certain circumstances, have extra-territorial jurisdiction to try offences or make Protection Orders (“POs”) or Expedited Protection Orders (“EPOs”), specifically, where there is some nexus to Singapore.
Back to topNew offence of unlawful stalking
A person unlawfully stalks another person if the accused person engages in a course of conduct which involves acts or omissions associated with stalking, causes harassment, alarm or distress to the victim, and the accused person intends to cause harassment, alarm or distress to the victim, or knows or ought reasonably to know that the acts or omissions are likely to cause harassment, alarm or distress to the victim.
Some examples of acts or omissions associated with stalking include:
(a) following a victim or a related person;
(b) making or attempting to make any communication, by any means, to the victim, relating to the victim, or purporting to originate from the victim;
(c) entering or loitering in any place outside or near the victim’s residence or place of business, or any other place frequented by the victim;
(d) interfering with property in the possession of the victim;
(e) giving or sending material to the victim; or
(f) keeping the victim under surveillance.
The Bill also sets out some factors which a Court may have regard to in considering whether a course of conduct is likely to cause harassment, alarm or distress.
Back to topCriminal penalties and civil remedies
The Bill provides a calibrated approach as regards sentencing, to better reflect the culpability of the offender and gravity of each offence. In this regard, conviction for an offence under the Bill may attract a fine and/or a term of imprisonment, and subsequent offenders may be liable to enhanced penalties.
The Court is also empowered to make Community Orders where appropriate.
Apart from criminal sanctions, the Bill allows a victim to bring civil proceedings for damages in respect of certain offences and/or make an application to the court for POs or EPOs.
In addition, the Bill creates a self-help avenue for a victim to seek redress without resorting to criminal complaints or civil actions. Specifically, a victim may apply for a Court Order to prevent the publication or continued publication of a false statement of fact.
Back to topImplications for key sectors
While the broad drafting of the Bill seeks to create flexibility in capturing a wide range of anti-social acts and behaviour, parliamentary debates and specific illustrations in the Bill indicate a focus on addressing three main aspects of harassment, namely, workplace harassment, school bullying, as well as cyber harassment/bullying. In this regard, we anticipate that particular considerations may arise for (1) employers; (2) educational institutions; and (3) Internet content publishers and Internet service providers.
Employers
While the Bill does not impose specific legal obligations on employers to prevent harassment from occurring at the workplace, there are certain guidelines in place which address issues of workplace harassment. For example, guidelines published by the Tripartite Alliance for Fair Employment Practices have touched on handling sexual harassment related grievances. In addition, the Ministry of Manpower, together with the Workplace Safety and Health Council, has also published guidelines recommending that clear policies and procedures dealing with workplace harassment and violence be put in place and communicated to employees. The National Trades Union Congress (“NTUC”) has also conducted public education programmes to increase awareness of workplace harassment and available recourses for victims. Following the introduction of the Bill, NTUC is (in collaboration with the Law Society of Singapore) also in the midst of preparing a guide on workplace bullying. The guide is also expected to include details of the new harassment legislation.
Given the negative reputational repercussions that could potentially result for employers in the event that an employee is found guilty of workplace harassment, it would be prudent for employers to take steps to address workplace harassment.
For example, organisations should seek to delineate the boundaries of acceptable/non-acceptable behaviour at the outset, and institute policies and procedures to resolve and reduce occurrences of harassment both within and outside the workplace. This could include developing a set of clear guidelines and procedures informing employees on how to deal with such situations, as well as implementing a complaints mechanism and other whistle-blowing and internal disciplinary measures.
Educational institutions
Similarly, the Bill does not contain provisions which hold educational institutions directly responsible for preventing bullying amongst its students. However, in view of the legislative intent to address bullying in schools and cyber bullying amongst young children, schools are also encouraged to establish guidelines setting out clear policies against bullying, harassment and other anti-social behaviour, and raise awareness of such guidelines among all parties.
Educational institutions should also seek to ensure that all stakeholders (e.g. students, teachers, parents, counsellors, etc.) are aware of what constitutes acceptable/non-acceptable behaviour; and in particular, educate students of their potential liability in respect of offences under the Bill.
Internet content and service providers
As mentioned above, the Bill applies to words, behaviour or communication used or made “by any means”, which would include electronic means, in relation to harassing conduct.
Moreover, the “acts or omissions” listed under the Bill as being associated with stalking (in particular circumstances) include “making [or attempting to make] any communication […] by any means”. In addition, the offences under the Bill have extraterritorial effect in certain circumstances, and potentially apply to offenders located overseas insofar as the harm caused to the victim by the offending conduct occurred when the victim was in Singapore. In this regard, the Bill clearly seeks to address instances of online harassment or cyber-stalking.
To this end, the Court is empowered to order that “no person shall publish or continue to publish” any offending communication or false statement, thereby extending the application of the Bill to third parties. Furthermore, the Minister for Law has clarified that the application of these orders would extend to other online third parties that republish the offending material or false statement. As such, online content publishers (including third party publishers) may potentially be subject to take-down notices issued by the Court in respect of any offending material or false statement of fact. In addition, failure to comply with a PO or EPO is an offence which could potentially be punishable by fine and/or imprisonment. This underscores the legislative intent to tackle the borderless and viral nature of online publications.
In relation to proceedings for such Court Orders, the Bill envisages the making of further rules in relation to the identification of unknown parties by unique identifiers such as websites, usernames, email addresses and IP addresses. This is unsurprising given the Bill’s intent to combat the shield of anonymity accorded to perpetrators in cyberspace.
Back to topConclusion
The arrival of the new Bill is indeed timely, and demonstrates the ability of laws to evolve to take into account the nature of modern communications. In this regard, organisations and businesses are encouraged to take appropriate measures to ensure that relevant parties keep up with such developments in the law.
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