Judicial Commissioner Goh Yihan: Speech delivered at the Online Harms Symposium 2023

ONLINE HARMS SYMPOSIUM 2023
“Civil Claims as a Response to Online Harms: Why, What, How”
Wednesday, 27 September 2023
The Honourable Judicial Commissioner Goh Yihan⁽¹⁾
Supreme Court of Singapore

Mr Damian Collins, Member of the UK Parliament
Mr Calvin Phua, Deputy Secretary, Ministry of Law
Professor Lee Pey Woan, Dean of the Yong Pung How School of Law
Ladies and Gentlemen

Introduction

1                 I begin with an obvious point. It is clear that technology has greatly improved our lives. For example, information that was previously only accessible through the expensive purchase of an encyclopedia set is now freely available online. Gone too are the days of navigating a foreign land with maps in a foreign language and a compass in hand.

2                 However, along with these improvements to our lives, content on the internet can cause very real harm. We have heard examples of these online harms such as cyberbullying, sexual harassment, identity theft, defamation, and image-based sexual abuse. As a report from Linklaters points out, the risks of these online harms have come into sharper focus in 2020, as national lockdowns during the pandemic caused many of us to spend more time online than before.⁽²⁾

3                 In these remarks, I want to focus on one principal question, which is, how civil remedies or, more accurately, civil claims, can respond to online harms. I will structure these remarks along three points, on the why, what, and how. These points are (a) why civil claims as a reaction to online harms, (b) what harms are addressed by the existing common law causes of action, and (c) how do we go ahead from the existing state of civil claims?

Why civil claims as a reaction to online harms?

4                 As a starting point, civil claims are important for several reasons.

5                 First, they shift the focus from punishing criminal behaviour to vindicating the plaintiffs’ personal interests.⁽³⁾ This is what Jason Varuhas has argued to be the over-arching vindicatory function that varies depending on the tort concerned. This vindicatory function is especially strong for torts that are actionable per se, because damages awarded in respect of such torts compensate for a loss that is normative in nature, whether the claimant suffers from any negative effect in consequence of the wrong.⁽⁴⁾

6                 Second, the claimant may obtain a more direct and personal remedy, ie, damages, or an injunction. This is sometimes more useful to the claimant, as opposed to a fine or term of imprisonment imposed on the defendant.

7                 Third, the standard of proof in civil claims is lower than in criminal proceedings.⁽⁵⁾

8                 Fourth, while private prosecutions may be available to claimants, such prosecutions are limited to selected criminal offences.⁽⁶⁾ In contrast, the existing common law causes of action arguably cover a broader ground.

9                 However, civil remedies arising from common law causes of action suffer from at least two disadvantages. First, practical concerns may render civil claims more theoretical than real. For example, many victims of online harms cannot afford to hire a lawyer or refuse to endure additional unwanted publicity. Monetary damages may also be difficult to collect or injunctive orders may be difficult to enforce especially in cross-border cases.⁽⁷⁾ These are very real challenges that should be taken seriously.

10                 More broadly, civil claims suffer a more fundamental limitation. They are reactionary. By this I mean that they have been incrementally developed by common law judges in reaction to a fact situation that has already occurred. Further, because of the practice of judicial restraint, judges will be slow to create a new tort. As such, by the time such a tort is created, the harm that the civil claim seeks to address may already be relatively widespread.

What harms are addressed by the existing common law causes of action?

11                 On this note, I would like to pivot to my second point, which is what harms are addressed by the existing common law causes of action, especially in the law of torts? In considering this question, we cannot ignore how the law of torts has evolved to enable prospective claimants to deal with various physical harms. However, as technology has advanced, people are confronted with a wide range of digital actions that were not anticipated by early torts law – online actions that can cross the virtual divide to cause a person to suffer real-world harm.⁽⁸⁾

12                 In this regard, a report from the SAL Law Reform Committee on Civil Liability for Misuse of Private Information has conducted a helpful survey of the existing protection afforded by the common law to privacy and private information.⁽⁹⁾ This can be helpfully expanded more generally to online harms.

13                 First, the tort of battery was clearly created to deal with physical harms. Thus, as Benjamin Duranske argues, certain limitations prevent the application of traditional touch-based torts to online conduct.⁽¹⁰⁾ His argument is elegantly summarised in the following manner: “no matter how dangerous a sword-swinging Level 70 Night Elf appears in World of Warcraft, he can’t really hurt the physical player behind the keyboard”. And so, the same is in relation to online harms because actionable assault and battery cannot pass from the virtual realm into the physical domain.

14                 Second, the tort in Wilkinson v Downton could potentially apply, where there is a “wilful communication of false information” and if “it causes physical, including psychiatric harm”. In the Court of Appeal decision of Ngiam Kong Seng v Lim Chiew Hock,⁽¹¹⁾ the court emphasised that the tort requires the defendant to have intended to harm the claimant and that negligence is insufficient. The problem with this tort, as applied to online harms, is that the tort requires the claimant to have suffered a recognised psychiatric illness due to the defendant’s conduct. This is notwithstanding Lord Neuberger’s non-binding observations in the UK Supreme Court decision of O (a child) v Rhodes,⁽¹²⁾ to the effect that there may be no need for the claimant to establish that he suffered something more serious than significant distress. Indeed, online harms can cause annoyance, embarrassment, or distress which is serious but does not rise to the level of a psychiatric illness.⁽¹³⁾

15                 Third, the tort of private nuisance affords protection if the defendant’s activities on land unreasonably interfere with the claimant’s use and enjoyment of land. However, the claimant must have possessory rights over the land. To establish this, the claimant must prove that he is in possession of the land as an owner or tenant, although de facto exclusive possession without legal title may suffice.⁽¹⁴⁾ Thus, in the High Court decision of AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan,⁽¹⁵⁾ it was held that individual employees and officers of a company could not sue in private nuisance since it was the company which had title to the premises. Transposed to the context of online harms, this tort may not be available to those who suffer misuse of their private information, such as being photographed or video-recorded, and having those images posted online, when they are on premises belonging to other persons.⁽¹⁶⁾

16                 Fourth, following the Court of Appeal decision of I-Admin (Singapore) Pte Ltd v Hong Ying Ting,⁽¹⁷⁾ the tort of breach of confidence affords protection when (a) the information concerned must inherently possess the quality of confidence and not be in the public domain, and (b) the foregoing information was imparted under circumstances importing an obligation of confidence, or accessed or acquired without the claimant’s knowledge. Once these elements are satisfied, it is for the defendant to show that its conscience was unaffected by, for instance, showing that it “came across the information by accident or was unaware of its confidential nature or believed there to be a strong public interest in disclosing it”.⁽¹⁸⁾ Thus framed, the tort is not available to victims of online harm once the information concerned has entered the public domain. Furthermore, the Court of Appeal in ANB v ANC [2015] 5 SLR 522 observed that it has not been decided whether Singapore law should adopt the English tort of misuse of private information.⁽¹⁹⁾

17                 Fifth, the statutory tort of harassment now embodied in the Protection from Harassment Act 2014 provides the broadest protection to a victim of online harms. Pursuant to s 11 of the Act, it is possible for a victim of harassment to bring civil proceedings against a respondent for breach of a statutory tort. A court needs to be satisfied on a balance of probabilities that the defendant has contravened one or more of four specified sections before the court can award damages as is just and equitable. The four sections are (a) s 3, intentionally causing harassment, alarm, or distress, (b) s 4, harassment, alarm, or distress, (c) s 5, fear or provocation of violence, and (d) s 7, unlawful stalking. This is similar to the Ontario Superior Court of Justice’s creation of a new tort of internet harassment in Caplan v Atas 2021 ONSC 670. Given the breadth of its coverage, the POHA is likely to afford much protection to victims from online harm. However, because it was conceived in relation to harassment, some have argued that there are a few situations that may fall outside of the Act. For example, it has been suggested that ss 3. 4, and 7 may not be triggered if a victim discovers that a person has taken photographs of the victim on a single occasion, intending to keep them for personal gratification without publishing them.⁽²⁰⁾ However, it may well be that a defendant has published the said photographs on a private server online which while not accessible publicly, may still cause distress to the victim who thinks of the potential of any leakage.

How can we go ahead from the existing state of civil claims

18                 I have raised the statutory tort of harassment contained in POHA as the last example because it leads me very nicely to my last point, which is how can we go ahead from the existing state of civil claims. First of all, it should be clear that while the common law can deal with online harms, it is better to have focused legislation that is targeted at the harm. As I have sought to demonstrate, the common law, which is necessarily founded on an incremental approach, may well be too slow to react to the fast-evolving nature of online harms and the damage that these harms are causing to victims every day. There also be uncertainty in what a newly created tort means. For example, the tort of internet harassment created in Caplan v Atas has been the subject of numerous discussions as to how it should be applied outside of the facts of that case. This is necessarily so because the common law, as I said earlier, reacts to a discrete situation, as opposed to undertaking a broader consideration of a social problem. As such, Parliament is uniquely placed to undertake a root and branch approach as to the appropriate action to empower victims of online harms and provide them with swift and ready solutions.

19                 To my mind, such legislative response will need to react where the common law cannot. First, any recourse afforded to victims of online harm must be swift. The court process, while efficient in Singapore today, may not be able to deal with the quick dissemination of online harms if the usual process of civil procedure is adhered to. Second, any recourse must also be affordable and easy to use. Again, while the courts have emphasised the importance of access to justice, there are inherent limitations in terms of monetary costs and time if the traditional processes were adhered to. Third, and most fundamentally, there is always a degree of uncertainty in the development and application of the common law. While this is not to say that the interpretation and application of legislative provisions will always be certain, it must be that legislative solutions can be clearer and targeted at the types of harm suffered by victims of online harms, instead of, for example, insisting on a recognised psychiatric harm as some torts do.

20                 Needless to say, civil remedies should be juxtaposed against regulatory remedies. In this regard, victims of online harms can seek recourse under the Online Safety (Miscellaneous Amendments) Act 2022, which introduces powers to take down egregious content (defined under the Act) and to pass Codes of Practice for designated Regulated Online Communication Services. They can also seek recourse under the Online Criminal Harms Bill, which allows a competent authority to act against all criminal content, including scams.

Conclusion

21                 To conclude, I return to where I began. It is clear that technology has greatly improved our lives. But just as with any revolutionary change, technology will bring with it the bad along with the good. We should do whatever it takes to minimize the bad, so that future generations can benefit and prosper from the good that technology brings. This may mean recognising the limits of civil claims brought through existing common law causes of action, and seriously considering how legislation can complement the inherent gaps in the common law.

22                 Thank you.

^{(1)       This paper was delivered at the Online Harms Symposium on 27 September 2023 at the Singapore Management University Yong Pung How School of Law (jointly organised by the Singapore Management University Centre for AI and Data Governance and the Ministry of Law). The views expressed in these remarks do not represent any view taken by the Supreme Court of Singapore. I thank my law clerk, Ms Chang Wen Yee for her able assistance in the preparation of these remarks.
(2)       Linklaters, “Online Harms: A Comparative Analysis”.
(3)       Gary Chan, “Introduction to the Law of Torts” in Gary Chan (ed), The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2015) at para 01.012.
(4)       Jason Varuhas, “The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests, and Damages” (2014) 34(2) Oxford Journal of Legal Studies 253 at 253.
(5)       Gary Chan, “Introduction to the Law of Torts” in Gary Chan (ed), The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2015) at para 01.013.
(6)       Criminal Procedure Code 2012 s 11(10); Lwee Kwi Ling Mary v Quek Chin Huat [2003] 2 SLR(R) 145.
(7)       Amanda L Cecil, “Taking Back the Internet: Imposing Civil Liability on Interactive Computer Services in an Attempt to Provide an Adequate Remedy to Victims of Non-consensual Pornography” (2015) 71Wash & Lee L Rev 2513 at 2351.
(8)       Neal Hoffman, “Battery 2.0: Upgrading Offensive Contact Battery to the Digital Age” (2010) Case Western Reserve Journal of Law, Technology & the Internet 62 at 62.
(9)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee).
(10)       Benjamin Tyson Duranske, Virtual Law: Navigating the Legal Landscape of Virtual Worlds (2008) at 179–180.
(11)       [2008] 3 SLR(R) 674.
(12)       [2015] 2 WLR 1373.
(13)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee) at 12.
(14)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee) at 12.
(15)       [2013] 4 SLR 545.
(16)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee) at 13.
(17)       [2020] 1 SLR 1130.
(18)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee) at 13.
(19)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee) at 14.
(20)       Singapore Academy of Law Law Reform Committee, Report on Civil Liability for Misuse of Private Information (December 2020) (Chairperson: Jack Tsen-Ta Lee) at 22.}