By Choo Zheng Xi
Recently, AXA Insurance went to the High Court to seek an injunction to prevent a disgruntled customer from harassing their staff. AXA claimed that the former customer was sending abusive correspondence to its staff.
In dismissing AXA’s claim, Justice Choo Han Teck declined to grant the injunction on the basis that the law as it stands does not provide for an award for a civil remedy in harassment. He took the view that Parliament is better placed to introduce such laws, and was hesitant to judicially introduce an amorphous tort of harassment.
Justice Choo’s approach is a departure from the last landmark case on harassment in Singapore.
At the turn of the century, in 2001, Justice Lee Seiu Kin decided the case of Malcomson v Mehta. The case granted injunctive relief to a Malcomson, an employer who was being stalked and harassed by an ex-employee, Mehta. Mehta used emails, SMSes and phone calls and trespassed on Malcomson’s property. Most alarmingly, Mehta sent a card with a picture of a baby rattle on the death anniversary of Mehta’s infant child.
Behind the differences
The differences in the approaches of Justice Choo and Justice Lee can be understood given the particular facts of the two cases.
Justice Choo was naturally hesitant to set a precedent of allowing better resourced institutional plaintiffs to prevent individual complainants who might be unreasonably persistent in fighting for their rights as a consumer.
On the case before him, Justice Lee understandably saw a need for the law to protect individuals from the sort of insidious, aggravated harrassment Malcomson experienced.
Still, two differing High Court cases in over a decade are a poor roadmap for the ordinary Singaporean who might be at the receiving end of harassing activity.
Unfortunately, criminal law does not provide much more consistency than the civil recourse.
Currently, law enforcement is constrained to rely on a mishmash of different legislation to prevent varying modes of harassment, particularly in the sphere of online harassment.
The Miscellaneous Offences (Public Order and Nuisance) Act makes it an offence for a person to use “threatening, abusive or insulting” words and behaviour with the intent to cause harassment, alarm or distress. However, it is not clear that the statute would apply to harassment by phone and email.
The Computer Misuse Act has been used to prosecute cases where an individual gains access to the email of someone else to stalk and harass the person. In the case of Lim Siong Khee v Public Prosecutor, a disgruntled ex-boyfriend who had used his ex-girlfriend’s email account to send out lurid details of their relationship to her friends was sentenced to a year’s imprisonment.
However, neither of the two pieces of legislation above covers situations where an individual has his or her personal details exposed online, nor does it cover situations where an individual becomes the target of anonymous poison pen email campaigns.
The reality for the man in the street is that the cost and expense of the civil remedies that Malcomson and AXA tried to obtain in the High Court would be a deterrent to commencing a civil suit.
In some situations, the police have difficulty acting on complaints of harassment by email because of a lack of a framework in this area. This sends the incorrect impression that such crimes are relatively “low signature” offences.
Nothing could be further from the truth.
Cyber-stalking and cyber-harassment can be more traumatic than other kinds of harassment or stalking. The ease with which the internet allows perpetrators to stalk and harass their victims makes the crime easier to commit, and the ubiquity of the internet makes victims of such crimes all the more insecure.
The United Kingdom has a Malicious Communications Act which makes it an offence to send letters or electronic communications (whether oral or written) to another person which is false, contains a threat, or contains indecent or grossly offensive material. Federal law in the United States prohibits cyber-stalking, and several states have prohibitions against cyber-stalking and cyber-harassment.
Early last year, the government indicated it was reviewing cyber-crime laws. Justice Choo’s decision in AXA’s case is a timely reminder that we need to get such legislation off the runway.
The writer is a lawyer at Peter Low LLC specializing in civil and criminal litigation. He was the the founding editor-in-chief of The Online Citizen.