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    12:54 AM Yip Man (Assistant Professor, Singapore Management University)

    Protection from Harassment Act 2014: Offences and Remedies

        

    The Protection from Harassment Act 2014 (“Act”), together with two accompanying subsidiary legislations, came into effect on 15 November 2014. The Act is a culmination of a concerted ministerial effort to bring about legislative change to the laws governing harassment. Bringing together the background to the Act, its general structure and its specific provisions, this entry aims to highlight essential issues concerning the application of the Act.

    Background

    By way of background to the Act, the common law did not always afford protection against harassment. This is because harassment involves disturbance short of actual psychiatric or physical damage outside of the victim’s property. The law of torts protects against such disturbance, including excessive noise, by way of actions in property-related torts such as nuisance. However, the protection of privacy cannot stop there, especially if the victims might have no relevant property interest and are thereby precluded from bringing such tortious claims.

    These shortcomings in the law of torts led the Singapore courts to develop a tort of harassment more than ten years ago. In Malcomson Nicholas Hugh Bertram v Naresh Kumar Mehta [2001] 3 SLR(R) 379, Lee Seiu Kin JC (as he then was) created a new tort of intentional harassment, which had hitherto not been recognised elsewhere. However, quite apart from the impracticality of resorting to expensive litigation to resolve harassment issues, even the creation of this new tort turned out to be insufficient protection for victims of harassment. In fact, the very existence of the common law protection became unclear following AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan [2013] 4 SLR 545.

    The common law tort of harassment aside, there was some statutory protection against harassment in Singapore. The limited statutory protection was, however, spread over several statutes and none was targeted specifically at harassment. The protection arises from the criminalisation of certain acts deemed to be against the public order or as part of the general criminal law. More specifically, protection may be accorded in the form of a protection order in the Women’s Charter, but that is premised on there being a familial relationship between the parties concerned.

    It was against the above backdrop that the Act was presented and passed in Parliament.

    Outline of Act

    The Explanatory Statement provides that the Act “seeks to make provisions to protect persons against harassment and unlawful stalking, and to make consequential amendments to other written laws”. To that end, the Act consists of 22 sections and is organised into four main parts: Preliminary (Pt I), Offences (Pt II), Remedies (Pt III) and General (Pt IV).

    Part I, comprising ss 1 and 2, consists of preliminary provisions, including the important provisions dealing with the interpretation of certain expressions in the Act. Perhaps the most striking characteristic of the interpretative provisions is that they do not set out a definition of “harassment”. Part II, comprising ss 3–10, consists of the provisions dealing with offences created by the Act. Part III, which in turn comprises ss 11–16, deals with remedies. Finally, Pt IV, comprising ss 17–22, deals with several general matters.

    Offences

    Causing of harassment, alarm or distress

    Sections 3 and 4 of the Act create various offences of causing harassment, alarm or distress. The distinction between the two sections is that, whereas s 3 concerns the intentional causing of harassment, alarm or distress, s 4 concerns merely the causing of harassment, alarm or distress.

    As the Explanatory Statement to the Act explains, ss 3 and 4 re-enact ss 13A and 13B of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“MOA”) with suitable modifications so as to extend to words, behaviour or communication used or made by any means including through electronic means, and also with the penalties “increased quite substantively”.

    Since there is no general definition of “harassment” in the Act, it is expected that case law (both local and foreign) read together with the specific provisions, will be helpful in providing some definition. Insofar as local case law is concerned, Malcomson would likely retain some significance in helping the courts determine if a certain act complained of amounts to harassment. Similarly, in considering ss 13A and 13B of the MOA, the High Court in Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 has alluded to a commonsensical meaning of the word “harassment”.

    Foreign legislation and cases could also afford some guidance. In contrast to the Act, other jurisdictions with standalone legislation to provide protection from harassment do set out a general or even detailed definition for “harassment”. Under the UK Protection from Harassment Act 1997, a non-exhaustive and brief description that focuses on the effects of anti-social behaviour on the victim, has been provided: “harassment” includes causing alarm or distress to a person.  

    Fear of provocation of violence

    Section 5 re-enacts s 13C of the MOA relating to “fear or provocation of violence”, with changes to clarify the meaning of the provision. There does not appear to be any Singapore case applying the old s 13C, and the interpretation of s 5 will likely follow established principles of statutory interpretation.

    Threatening, abusing or insulting public servant or public service worker

    Section 6 of the Act protects against the threatening, abusing or insulting of a public servant or public service worker. Section 6 is based on s 13D of the MOA, although with significant differences. The novelty of s 6 is that it extends protection to a “public service worker” who is not regarded as a “public servant” under existing laws, but who is of a prescribed class of employees or workers that delivers services that are essential for the well-being of the general public or the proper functioning of Singapore. The prescribed classes of persons and the services are set out in the Schedule of the Protection from Harassment (Public Service Worker) Order 2014. Examples of a public service worker include a healthcare professional who provides healthcare services at a public healthcare institution and a person who provides education services for students of education institutions specified in the Order. 

    Unlawful stalking

    Section 7 creates the new offence of unlawful stalking: the aim is to deal comprehensively with stalking as opposed to looking to existing piecemeal legislation for assistance. Section 7 is said to be based on the UK Protection from Harassment Act 1997, as amended by its Protection of Freedoms Act 2012. It also draws inspiration from the Singapore Academy of Law’s Law Reform Committee’s 2001 “Report on Proposed Legislation to Curb Stalking”. For an in-depth discussion of this offence, see Chan, “The New Offence of ‘Unlawful Stalking’ in Singapore” (2014) 26 Singapore Academy of Law Journal 333.  

    Section 7 revolves around the concept of a “course of conduct”. The three requisite elements are centred on this concept. The first element requires that the course of conduct “involves acts or omissions associated with stalking”. Section 7(3) provides examples of such acts or omissions, which are not meant to be exhaustive. The second element is that the course of conduct under s 7(2)(a) “causes harassment, alarm or distress to the victim”. The third element is that the acts or omissions satisfying ss 7(2)(a) and 7(2)(b) are also intended, known or reasonably ought to be known by the alleged offender to cause “harassment, alarm or distress” to the victim.

    Remedies

    Action for statutory tort

    Section 14 of the Act makes it clear that the common law tort of harassment has been statutorily abolished and civil proceedings can only be brought under s 11 of the Act, which creates a statutory right to bring an action for damages against offenders who have, “on a balance of probabilities”, contravened ss 3, 4, 5 or 7 of the Act.

    Notwithstanding the breadth of civil remedies provided for in the Act, a “civil contravention” of s 6 does not afford a right to damages, unless the same acts complained of also contravene ss 3, 4, 5 or 7 of the Act on the balance of probabilities.

    Nevertheless, proving that one is a victim of an offence under ss 3, 4, 5 or 7 does not automatically entitle one to an award of damages. Section 11(2) of the Act further provides that such damages may be awarded in respect of the contravention as the court may, “having regard to all the circumstances of the case, think just and equitable”. “Just and equitable” is not an unfamiliar phrase in a statutory provision, and is usually inserted to afford greater latitude of discretion to the courts to deal with each case as the circumstances require.

    Protection orders and expedited protection orders

    The signature remedy under the Act is the protection order, whether expedited or not. Under the Act, a protection order may be sought from the District Court pursuant to s 12. Section 12(2) provides that a District Court may grant a protection order where on a balance of probabilities certain situations are proved. In addition, s 12(3) continues to provide that a protection order may be made for various purposes: prohibiting the respondent from doing anything in relation to any person; requiring that no person shall publish or continue to publish any offending communication; referring the respondent and/or victim to attend counselling or mediation; and the giving of any direction “as is necessary for and incidental to the proper carrying into effect of” the making of an aforesaid order. Section 12(4) provides that the protection may be subject to exceptions and conditions. As highlighted by Mr Shanmugam in his Second Reading speech, the court will look at the facts and circumstances of each case to decide the most appropriate order to make. In exceptional cases, the District Court may, where it is just and equitable in all the circumstances to do so, grant an expedited protection order pursuant to s 13 on the prima facie evidence of certain specified matters.  

    False statements of fact

    Section 15 introduces a “self-help” remedy that is targeted at helping victims being harassed by false statements that have been made about them. In cases involving false statements being made in relation to a victim, Mr Shanmugam had explained in the Second Reading speech that s 15 will enable the victims to help themselves, instead of being forced to file a criminal complaint or bring a civil action for damages, neither of which could truly provide relief to the victim in some cases. Indeed, in some cases, a victim might simply wish for a correction or clarification of the falsehood, even if the conduct could come under the requirements for a protection order under s 12.

    Victims of false statements can apply to the District Court for an order that “no person shall publish or continue to publish the statement complained of unless that person publishes such notification as the District Court thinks necessary to bring attention to the falsehood and the true facts”. Section 15(3) states that such an order may be issued by the District Court if it is satisfied on a balance of probabilities that the relevant statement is false and it is just and equitable to do so. 

    Exempt Class of Persons 

    The ambit of operation of the orders under ss 12 and 15 of the Act is clarified in the subsidiary legislation: Protection from Harassment (Exempt Class of Persons) Order 2014. Under this Order, no protection order, expedited protection order or such order under s 15(2) of the Act prohibiting publication of an offending communication or statement shall be made against persons who are:

    (a)    in the business of operating network access,  transmission or routing of data, displaying an online index of search results to end users; 

    (b)    publish the offending communication or statement in the course of providing the abovementioned services;

    (c)    not the originators of the offending communication or statement; 

    (d)    make no selection of the audience of the communication or statement; and 

    (e)    provide the abovementioned services in an automatic manner. 

    In other words, the ss 12 and 15 orders are not intended to be applicable to service providers who publish offending communications or statements originating from other parties by way of “automatic” reproduction or transmission in the course of business. The exemption is sensible for if otherwise, these essential services would be greatly disrupted by the introduction of the Act, nor are these service providers the real culprits. A balance is thus struck between protection and practicability. 

    Application and Enforcement

    The success of any statute, especially one that is intended to be easily used by members of the public, depends on mechanisms for its application and enforcement. To that end, the State Courts have set out clearly the processes members of the public can make use of to, among others, apply for a protection order, an expedited protection order or to sue another for harassing conduct. The State Courts’ write-up may be found here

    * This blog entry may be cited as Yip Man, "Protection from Harassment Act 2014: Offences and Remedies", Singapore Law Blog (30 December 2014) (http://www.singaporelawblog.sg/blog/article/73)

    ** See also Goh Yihan and Yip Man, “The Protection from Harassment Act 2014 – Legislative Comment” (2014) 26 Singapore Academy of Law Journal 700

    *** A PDF version of this entry may be downloaded here

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