Protection from Harassment Bill

Mdm Speaker, I beg to move, "That the Bill be now read a Second time."

Let me first set out the context. Harassment can take place anywhere, anytime and in any form. Sexual harassment has been an issue. It can take place within and outside the workplace.

Stalking conduct can be following a person, loitering near a person's office or residence, repeatedly trying to contact a person by calling him or her, sending SMSes, emails and so on – it is basically trying to impose unwanted communication on another person, to try and get that person's attention.

Harassment can take place in the physical space and in the online space. Cyberspace makes harassment easier and, in some ways, more egregious, because it can be anonymous, borderless, viral and permanent.

Late last year, REACH commissioned a study involving more than 1,000 Singapore residents above the age of 15. More than 80% of those surveyed felt online harassment to be a serious issue. The survey had a margin of error of 3%. These findings correspond with the very grave instances of harassment being reported. The instances are far too numerous. I have summarised a few cases as illustrations and, after my speech, I will have them handed out to

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Members, but if I may speak about some of them here.

In one case, an online netizen impersonated a doctor and posted provocative and offensive comments in her name on Facebook. No one waited to see if what was posted was true. The doctor did not get to defend herself. Allegations were swiftly followed by attacks. Many netizens harshly criticised the doctor for the comments. Some online netizens even uncovered her personal information and posted photos of her online. Really, Members have to ask if that is fair and acceptable.

In another case, cyber bullies targeted the baby of a blogger. The blogger gave birth prematurely because there had been a life-threatening condition during her pregnancy. Cyber bullies called her baby an "alien". They said the baby should be euthanised. This was really quite sickening behaviour. It comes from the basic bullying instincts of some, unchecked by any notion of civil conduct and aided by anonymity. Comments like these go beyond what any decent human being would consider to be the proper exercise of free speech.

I have also been receiving emails from members of the public after news of this Bill came out. The majority of them are women, recounting their personal experiences and welcoming the Bill. One writer described her harrowing experience with a fellow colleague. After she had rejected his advances, this colleague began spreading rumours about her at the workplace. It was said that she was a lesbian, and was a loose woman. This caused the writer to feel very harassed for several years and, of course, her colleagues reacted negatively towards her. Despite all that, the writer did not leave her job as she needed to support her family. Another writer feared for her safety as her employer, who was the harasser, had a violent temper. A third writer told us that she was a victim of harassment and stalking from about five years ago and that her life has never been the same since. She continues to be traumatised until today. The writers went through serious trauma and that left indelible marks in their lives.

Bullying amongst our youth is also a serious issue and, by the way, those writers have given me permission to have redacted copies of their emails circulated and I will do so at the end of my speech. The emails have been redacted to remove personal particulars and also some other information they have set out. Coming back to bullying amongst our youth, a recent Microsoft Study surveyed 25 countries on the issue of bullying amongst youth aged eight to 17. According to the study, 86% of those surveyed worldwide had

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experienced bullying online, offline or both.

The situation in Singapore is, unfortunately, reflective of the global trend. Eighty-three percent of youths in Singapore aged eight to 17 have been bullied either online, offline or both. Unfortunately, Singapore was also found to have the second highest rate of online bullying of youth at 58%, behind only China at 70%.

The Straits Times ran a report last month highlighting that our children are particularly vulnerable to cyber risks. According to the report, more than eight out of 10 households are connected to the Internet. Activities, such as web-surfing, chatting online and posting on social media networks, have become commonplace, especially for our young. With these come the increased risks of cyber bullying, whether as a bully or as a victim.

In schools, we are familiar with the kinds of bullying that take place – name-calling, inappropriate jokes, intimidating behaviour and the like. Bullying of children by other children can scar – both the bully and the bullied – for life. Worse, bullying of children can also lead to devastating consequences. Again, this is a worldwide trend with increasing frequency. I will use three examples to illustrate what is happening.

In the United Kingdom, 14-year-old Hannah Smith hanged herself last year after weeks of taunting by anonymous cyberbullies. She received messages telling her to kill herself.

In the United States, just last month, 11-year-old Michael Morones fell into a coma following a failed suicide attempt, after being bullied by his classmates. Why? Because he liked the cartoon titled "My Little Pony", with a predominantly young, female audience.

In Canada last year, 17-year-old Rehtaeh Parsons committed suicide. This was after photographs of an alleged sexual assault against her went viral on the Internet.

What can be done to better protect our society? We looked at what other jurisdictions have done or are doing. Our concerns with harassment in Singapore are reflective of those in other countries, across cultures, both east and west, both developed and developing. Many of these countries have responded with strict legislation to combat harassment. The United Kingdom,

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New Zealand, South Africa have standalone harassment legislation.

In 2012, the United Kingdom introduced a specific offence of stalking to strengthen its laws. Last year, Nova Scotia enacted the Cyber-Safety Act in response to Rehtaeh Parson's tragic death, which I referred to earlier. Last month, Italian lawmakers called for laws against cyberbullying after a 14-year-old girl jumped to her death because of abuse on a social networking site.

In Singapore, we have been getting consistent feedback that our laws are inadequate. The Miscellaneous Offences (Public Order and Nuisance) Act (MOA) makes harassment a criminal offence. However, the way the law has been interpreted by the Courts, it is not clear if it would apply to harassment online. We also have other legislation, for example, the Women's Charter and the Moneylenders Act. But these are specific – covering harassment in the context of family violence or unlicensed moneylending – rather than covering general harassing conduct. For example, the harassment of an ex-girlfriend will not be caught by the Women's Charter.

The Institute of Policy Studies (IPS) organised a Conference in November last year. It was attended by legal professionals, educators, social workers and civic groups including NGOs like AWARE. It gave us a good sense of what professionals actively dealing with the issues thought. This was in addition to the survey which showed that 85% of the broad public wanted tougher legislation to deal with harassment. The many people we consulted over several rounds of consultations, both before the Conference as well as after the Conference, including victims of harassment and those who worked to help these victims, all took the same view: we need clear, strong legislation.

My own initial thinking and my Ministry's thinking was to adopt an incremental approach to reforming our law on harassment by tweaking existing legislation, for example, making amendments to the MOA.

At the Conference, however, we witnessed a clear and overwhelming consensus for a standalone omnibus Protection from Harassment Act. Participants, including AWARE, told us that this would send a clear signal that harassment is a social scourge that our society will not and should not tolerate. And the fact is that our existing civil remedies and self-help avenues are also limited. The High Court's recent decisions in AXA Insurance (AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan [2013] 4 SLR 545) and its earlier decision in Malcomson (Malcomson Nicholas Hugh Betram and another v Mehta Naresh Kumar [2001] 3 SLR 379) cast doubt as to whether one can even

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bring a civil action for harassment in Singapore. Other forms of private action, for example, in nuisance, assault, battery and so on also have obvious limitations.

Since we discussed the possibility of legislation on harassment, there has been a very significant public interest and support for such legislation. I had asked my officers to list the commentaries and articles which have discussed the issue of harassment and cyber bullying since October last year. They have prepared a non-exhaustive list which I will have circulated. These are not the actual articles, but just the list referencing the articles.

There is clearly a real need to better protect victims of harassment and, indeed, I went through that list of articles which have been appearing in the media. Just in the last four and a half months or so, we have had nearly 200 articles in the media on harassment. This shows the extent of public interest, awareness and the extent to which this is a matter of public concern.

The titles of these articles: October 2013, "California Outlaws Revenge Porn"; November 13, "Man Harasses Ex Lover by Releasing Sex Clip", "Schools Keeping an Eye on Students Online", "Stalked, Terrified by Confidant", "Boss Made Sexual Advances", "Bullies on the Internet and in the Office", "Online bullies", "Cyber-bullied and Suffering in Silence", "Taunting by Primary School Pupils", "Circulating Altered Pictures is Cyber Bullies' Main Tactic", "Harassment A Rising Worry, Laws to be Tabled", "Stop Online Harassment and Cyber Bullying", "More Help for Those Facing Domestic Violence", "Holistic Measures Necessary in Fight against Cyber Bullying", "Unemployed man is Internet Stalker of American Singer who Made Death Threats", "Netizens must Unite against Trolling", "He told her ‘I'll Cut Your Face'", "What Women are Up against Online", "Mother: my son is an ordinary person – why do this to him"; "Road Bully Apologised for Behaviour after Death Threats", "10-year-old Girl Subject to Harassment", "New Programme on Cyber Bullying for Primary Schools", "Rise in Cyber Bullying a Cause for Concern", "Opposition Party Leader Kenneth Jeyaretnam Receives Email Threats against Family", "Hong Kong survey: one in three Air Stewardesses Sexually Harassed Last Year", "Charlotte Dawson's Celebrity Suicide: how Cyber Bullying also Drove South Korean stars to Suicide", "Youth Forum: scourge of Cyber Bullying", "One Phone Call, Nightmare for 14 years", "Retired Man: Harassment Act brings Hope", "Law Creeping Up on Stalkers, Spells Relief", "New Bill Could Change Ways of Behaviour", "Protection against Harassment Overdue", "Stalking Victims robbed of Her Peace of Mind", "Labour Movement welcomes Anti-Harassment Bill", "MOE, NGOs to Include New Laws against Cyber Bullying in Cyber Wellness Curriculum", "Cyber Menaces a law Unto Themselves", "Suitor who Would Not Take No for An

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Answer".

Nearly 200 articles; and that is a non-exhaustive list. It shows the extent of public concern, shows the types of concerns, shows the range of people impacted and shows that, as I said earlier – not today but outside Parliament – that we are probably already behind the curve in dealing with this.

The proposed criminal and civil measures in the Bill do precisely what we hope to do. Standards of acceptable behaviour should be the same in the physical world and in the online sphere. I will now take the House through the main features of the Bill.

There are three main parts to the Bill: (a) Part II of the Bill deals with the criminal offences; (b) Part III deals with self-help and civil remedies; and (c) the remaining provisions address a range of matters governing actions and proceedings under the Bill, including the extraterritorial application of the Bill.

I will first deal with the criminal sanctions.

Clauses 3 to 6 re-enact and update sections 13A to 13D of the MOA respectively and, therefore, sections 13A to 13D of the MOA will be repealed once this Bill goes through. Thus, clauses 3, 4, 5 and 6, which deal with harassment, in fact, are taken from the MOA, with some minor changes. The penalties are increased quite substantively.

There are five aspects to highlight. First, the Bill makes clear that harassment and related anti-social behaviour are offences, whether committed in the physical world or online; and that must be so. It must be the consequence of the conduct, not where and how that conduct was carried out, that is important. Clauses 3 to 6 are medium-neutral. They extend to words, behaviour or communication used or made by "any means", which will, obviously, include electronic means.

The second of my five points is that illustrations have been introduced in clauses 3 and 4. These illustrations reiterate and signal that the Bill will cover a wide range of anti-social behaviour, such as cyberbullying, bullying of children and sexual harassment. This will be an offence, wherever it takes place, including, of course, in the workplace.

Women who are sexually harassed at the workplace or outside will have a clear remedy. The difference from existing legislation under the MOA is that,

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now, it will be quite clear that online sexual harassment is also criminal conduct. Illustrations in the Bill give an idea of some of the types of behaviour which are covered. The illustrations are not intended to limit the situations which may amount to an offence under the Bill.

The third of my five points is that the Bill provides the Court with a wider range of sentencing options to ensure that the sentence meted out in each case better takes into account the culpability of the offender and the harm caused to the victim.

Clauses 3 to 6 update the existing penalties under sections 13A to 13D of the MOA to better reflect the gravity of the offences.

Some offences will now attract an imprisonment term, where appropriate, instead of merely a fine, as under the MOA. Clause 8 further provides enhanced penalties for repeat offenders. This is not available under the present MOA. Clause 9 empowers the Court to make Community Orders where appropriate, and that is new as well.

For example, take Mandatory Treatment Orders (MTOs), which is a type of community order. Offenders, who harass due to an underlying mental condition, need help to resolve the root causes of their behaviour. MTOs allow such offenders to undergo psychiatric treatment in lieu of other criminal penalties. This approach recognises that there are some people who are ill and it may be better to try and treat them rather than simply send them to jail.

Fourth, the Bill introduces a new offence which is not found in the current legislation and, that is, unlawful stalking. Stalking can be highly disruptive to the lives of many people, often in devastating ways. I will refer to two illustrations.

First example is of American singer Ms Leandra Ramm. She was terrorised by a Singaporean cyber stalker for six years. The man professed his love. He showed his love by making numerous death threats to her. The Court sentenced him to three years' imprisonment. The Court said his actions were a perverse form of "mental assault" and "emotional terrorism". The matter was an "abhorrent case of cross-border cyber stalking".

The second example is of Ms Joanne Lee, a former local journalist, who received countless voicemails and numerous unwanted gifts and letters from her harasser. She eventually quit her job because of the trauma and anxiety. In

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Ms Lee's case, her harasser was eventually fined $4,000.

I think we will agree that a fine is not an adequate response to the harrowing experience that Ms Lee and other victims of such persistent, unwanted attention go through. What they need is for the stalking to stop immediately and permanently.

Clause 7 seeks to address the problem of stalking head on. Instead of trying to look for existing legislation which may or may not cover all forms of stalking and which, even when you find it, does not give you adequate remedies, we seek to comprehensively deal with the issue of stalking in the new proposed legislation.

Clause 7 criminalises a course of conduct relating to stalking and which has the effect of causing harassment, alarm or distress. It revolves around this concept of a "course of conduct". The "course of conduct" referred to in clause 7 will cover acts which may in themselves be innocuous, but which when done repeatedly or in a protracted manner, may cause victims harassment, alarm and distress.

Clause 7 is drawn from the UK's Protection from Harassment Act 1997, as amended by its Protection of Freedoms Act 2012. It also takes inspiration from the Singapore Academy of Law's Law Reform Committee's 2001 "Report on Proposed Legislation to Curb Stalking".

The Bill does not limit the type of acts or omissions associated with stalking. Clause 7(3) provides some examples of such acts or omissions; for example, following the victim, repeatedly sending unwanted gifts and letters and so on.

Clause 7(5) further provides a list of factors to guide the Court in deciding whether a course of conduct is likely to cause harassment, alarm or distress, for example, the frequency and duration of the conduct. The lists in clauses 7(3) and 7(5) are not meant to be exhaustive or to limit the Court's discretion.

It is for the Court to determine whether conduct in each case amounts to an offence under clause 7. Clause 7, as drafted, is not intended to apply to inconsiderate behaviour in the context of neighbours' disputes, for example. That will have to be dealt with through separate legislation, as announced by the Minister for MCCY.

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It also excludes legitimate courses of conduct, for example, sending of a letter of demand for money owed under a contract or actions by the Police in pursuance of their duties. Such conduct will continue to be lawful.

Fifth, clause 6 extends the existing protection for public servants to workers who deliver services that are essential for the well-being of the general public, but who are not regarded as "public servants" under existing laws. Examples will include public healthcare workers and public transport workers. This is to better protect workers who provide essential public services against abuse.

The phrase "in relation to" the execution of the public servant's or public service worker's duty is a slight departure from the original section 13D. It is intended to indicate that the offending conduct need not be committed during the performance of that duty, as long as it is committed in relation to the performance of that duty. Those are the five points I make as regards the criminal sanction and penalties.

Conduct falling under the Bill may also amount to offences under other legislation, for example: (a) criminal intimidation under, for example, section 506 of the Penal Code; (b) racially or religiously charged offences under, for example, sections 298 and 298A of the Penal Code; and (c) sexual grooming under, for example, section 376E of the Penal Code.

Offences under the Bill will apply to acts committed outside Singapore, under certain conditions. This is to address the ease with which acts of harassment may be pursued using electronic means, transcending territorial borders, for example, by mobile phone and over the Internet.

Take stalking as an example. The offender could be overseas, the offender could commit acts of stalking against a victim and the victim is in Singapore

Under clause 17, if the offender knew or had reason to believe that the victim would be in Singapore at the time the acts were committed, the Court will have jurisdiction over the matter.

There was consensus at the IPS Conference that our harassment laws should apply, even when the offender is overseas, so long as the harm is felt by the victim in Singapore.

Under the Bill, offenders outside Singapore, too, cannot escape liability simply because the acts of harassment were committed overseas, as long as

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the harm is caused to the victim in Singapore. In a similar vein, offenders in Singapore who commit acts of harassment against victims who are outside of Singapore will also not be able to escape liability.

Let me now turn to Part III of the Bill which deals with the self-help and civil remedies. Again, there are five aspects that I would highlight.

First, clause 14 abolishes the common law tort of harassment. All actions for harassment will be covered under this new legislation. This clarifies the uncertainty arising from the two High Court decisions, AXA Insurance and Malcomson, as to whether there is, indeed, a cause of action in the common law tort of harassment in Singapore

Second, clause 11 will create a statutory right to bring an action for damages against a person who has contravened any of clauses 3, 4, 5 or 7. So, quite apart from criminal sanctions, the victim can sue and claim damages against the perpetrator. Damages are, however, not recoverable where clause 6 is contravened as the harm results to the victim in his capacity as a public servant or public service worker. However, damages will still be recoverable if the same acts also contravene clauses 3, 4, 5 or 7. Such damages will be quantified by the courts in accordance with existing common law principles. We do not really need to go into that and try to codify what is long-established law.

Third, victims of harassment and related anti-social behaviour under clauses 3 to 7 may apply to the Court for a Protection Order (PO) under clause 12. So, to explain to Members, this is the kind of architecture that the new law envisages. Earlier, I have said that clauses 3 to 6 exist under current law; and that clause 7 on stalking is new, but the remedies that the victim can get were very limited. Now, we are looking at Protection Orders and Expedited Protection Orders. The purpose of the Protection Order is to protect victims from further harassment. In this context, we also took reference from the 2001 Singapore Academy of Law Reform Committee's Report on Stalking.

What is the effect of the Protection Order? Such an order may require harassers to, first, desist from doing that which is stated in the order: for example, stop sending the unwanted gifts or loitering outside the victim's house; second, remove harassing publications and other forms of communication, if these were the cause of the harassment: for example, to remove a nude photograph of the victim which the harasser had uploaded on an online forum without the victim's consent; third, require the harasser or the

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victim or both to attend counselling or mediation.

Where the harassment arose from published communication, the Protection Order may also require third parties, for example, a publisher or website administrator, in addition to harassers, to remove the offending communication. This seeks to address the nature of online communication, especially over the Internet.

These measures are in line with public sentiment. As I have stated earlier, 83% of those polled by REACH support tougher measures to deal with harassment, both online and offline. They are in favour of giving the Courts powers to order that online comments be taken down if they amount to harassing conduct. The overwhelming public view is that if the harasser does not take those comments down, the Courts should be given the power to do so. The Protection Order achieves this result. Obviously, the underlying point is that the conduct must amount to harassment. And harassment is not a new concept; it already exists in our law. What this legislation does is to make it clear that harassment is harassment, regardless of the means by which it is committed, whether online or offline.

And if you can prove harassment – that is, illegal conduct – then you will get a set of remedies to try and deal with the illegal conduct. If you are sending flowers repeatedly, you can be asked to stop. If you are persistently outside the girl's house, following her about, you can be told to stop. If you have uploaded a nude photograph, you can be told to take it down, and website administrators can be told to remove it and not put it up again. That is what we seek to do.

The Protection Orders will be granted where clauses 3, 4, 5, 6 or 7 have been contravened, or any one of them has been contravened, and contravention is likely to continue, or the respondent is likely to commit a contravention, and it is "just and equitable" in the circumstances to do so. So, whether the orders will be made really depends on the court and the facts and circumstances of each case.

In cases of urgency, the court may grant an Expedited Protection Order (EPO) under clause 13 against harassers and third parties, as the case may be. The effect of the Expedited Protection Order is similar to that of the Protection Orders, which I have explained earlier. EPOs can be granted where the offending conduct is likely to have a "substantial adverse effect on the victim or the victim's day-to-day activities". Examples of such effect could be changing routes to work, work patterns or daily routines; if the victim is forced to change

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how he/she goes to work; or the victim is forced to put in place additional security measures in his/her home; or the victim has to move out of his or her home; or the victim is forced or withdraws from social interaction. But, of course, the Court also has to look to see whether the victim is behaving unreasonably or whether, indeed, the conduct amounts to harassment vis-a-vis a reasonable person. And this list is not exhaustive.

The absence of any of the types of conduct or changes of patterns of conduct that I have outlined does not necessarily mean that an Expedited Protection Order may not be granted. It really depends on the facts in each case and the approach we have taken in the Bill is to give the discretion to the courts. That is how our laws have always worked.

To help laypersons navigate the Court process without involving lawyers, it is our intention that the Protection Orders and the Expedited Protection Orders will be governed by a set of simplified Court procedures and Court forms. One of the comments that repeatedly came out from the conference and following the conference, is that going to lawyers and going to the Courts both take time and money, and often the victims will not be in a position to do so. We are very mindful of this, and this is really focusing on the man or woman in the street who is harassed and victimised. Therefore, we will try and make sure that a set of processes are put in place which will simplify applications to the Court as far as possible, even without the need for lawyers, and to have expedited processes in Courts which can give orders immediately within a matter of a day, or two days, sometimes. Victims really should not be frustrated by the process in their bid to seek redress.

A severe approach will be taken towards breaches of Protection Orders and Expedited Protection Orders. The Bill criminalises such breaches, save for breaches of an order to attend counselling or mediation. Breaches of such orders will amount to offences under clause 10 and may attract a fine or imprisonment or both.

Fourth, in striking the balance between legislation, criminalising the conduct and self-help, getting recourse through criminal law or claim for damages through a civil claim, we should not make those the only avenues; that is, it should not be the case that every time a person is harassed or experiences a wide range of conduct that amounts to harassment, the victim is forced to always either go and file a criminal complaint or bring a civil claim. There are many victims who will feel that as long as there is some redress, without having to claim damages, they would be satisfied because their feelings

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of alarm or distress would be settled or as long as the truth is set out.

We should really give the people the ability to help themselves and try and sort out matters themselves wherever possible. Take attacks against someone involving lies, untruths, inaccuracies – 75% of those polled by REACH were of the view that such conduct should, ipso facto, be treated as harassment. Our view really is that we should not criminalise all such conduct, and that we really should keep to the definition of harassment, which already exists in the law, and simply give greater remedies. So, to be criminal, the conduct must fall under the categories listed in clauses 3 to 7. We have not changed the law, only updated it, as I have explained.

Instead, if there are falsehoods, and let us say it is harassment, or it is borderline harassment; or maybe nearly harassment; or not harassment but it is a clear falsehood, then the victim has the right to ask the relevant parties that the falsehoods be corrected, maybe through publication of replies, which may set out the correct facts. Some victims of harassment may well choose that route instead of having to make a criminal complaint, as I said earlier, or launch a civil claim and claim damages. They just want the truth to be out and they do not want to escalate the matter further, and we should allow that. So, it is a lower tier of remedy rather than having to go to the criminal and civil law all the time and make claims.

Of course, if the offending party or websites refuse to carry the clarification or the response, or the correction, or a notification that the true facts can be found somewhere else, or the victim's reply is not able to get the same level of visibility as the falsehood, the law should provide some recourse.

Going back to public opinion, 82% of those polled by REACH felt that people should have a legal right to require that factual inaccuracies about themselves be corrected. This is the thinking behind clause 15. But there will be no claim for damages and there will be no criminal sanctions. If you choose not to file a criminal complaint, if you choose not to make a civil claim, if you choose to, say, look, I just want to clarify or correct it in some form, and the manner of correction is left to the court, then that is all that you will get. You do not get money, you do not get to send the other person to jail. And it is a very simple —

Deputy Leader of the House, Mr Heng Chee How, you have to ask for an extension of time.

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