Harassment through the Digital Medium A Cross-Jurisdictional Comparative Analysis on the Law on Cyberstalking

• Author: Warren Chik
• Position: Assistant Professor of Law Singapore Management University School of Law LLB (Hons) NUS, LLM (IBL) University College London, LLM (ICL) Tulane University Advocate & Solicitor (Singapore), Solicitor (England & Wales), Attorney & Counsellor at Law (New York)
• Pages: 13-44

Page 13

1. Introduction: Issues in Cyberstalking

Every breath you take, Every move you make, Every bond you break, Every step you take, I'll be watching you. Every single day, Every word you say, Every game you play, Every night you stay, I'll be watching you. The Police Every Breath You Take.

The cyber world is an extension of the real world. It is another dimension where we can work, study and play. The benefits are tremendous; in particular advances in information technology have enabled a whole new medium of electronic messaging without the hurdles of cost, time and effort that we face in the physical realm. On the Internet, people also tend to lose their inhibitions.¹ They create avatars for online gaming and online personas. Sometimes identities are revealed, but sometimes anonymity is kept. Particularly in the latter case, it emboldens people to act as they may not normally do offline.² That is where problems emerge in the virtual realm that has real world consequences.

Why is online stalking more of a problem than offline stalking? Before proceeding to consider the issue, it must be emphasized that whether it is performed online, offline or both, the acts that amount to stalking behaviour are the primary concern. However, the medium is also important for its many implications. First, the ease of use and hence lesser impediments to aggressive behaviour;³ second, the borderless nature of electronic communications medium and concomitant jurisdictional concerns; third, the type of evidence and means of its collection; fourth, the lack of educative and deterrent effect of current laws; and fifth, the lack of effective laws, or of any law at all, to deal with the problem in some countries and in the international fora.⁴

Cyberstalking has become a concern that has translated into law in larger jurisdictions with more matured technological infrastructure such as the United States, the United Kingdom, Canada, Australia and Japan.⁵Although Singapore is geographically small, its 'virtual geography' is borderless. This is due to the high density in electronic and telecommunications connectivity, increasingly sophisticated and technologically savvy users, and the low cost of subscription to the Internet, cellular and other static and mobile forms of electronic and digital forms and channels of communication. Although this may not necessarily translate into a greater number of stalking behaviour within the country, and even though there are no official statistics to show that there has been such an increase, the fact remains that there is a greater likelihood of, and a conducive IT infrastructure and computing environment for, such anti-social harassing behaviour to perpetrate.

There is already evidence of such acts in recent cases that have gone to the local courts, although they have been resolved on other bases of law such as through computer misuse legislation or common law such as the tort of harassment. Although they may have indirectly provided some temporary solution to the problem, it will be demonstrated how they are neither comprehensive nor definitive or unambiguous enough in their application. They are also indirect and the criminal punishments or civil redress as the case may be may not be appropriate. Other existing laws relating to harassment or intimidation are fact- or relationship- specific, and are thus also inadequate to meet the needs of modern society.⁶

In Part 2 of this paper, I will consider the current coverage under Singapore law and show why and how it is inadequate to meet the needs of every victim of stalking, and in particular, cyberstalking. In Part 3, I will make a comparative analysis of the laws in various jurisdictions to see how other countries have dealt with the problem in order to draw lessons from them and also to highlight the rights and interests that have to be considered and balanced in formulating a legislative provision to deal with it. Suggestions will be made as to the appropriate approach in both form and substance to cyberstalking legislation. In Part 4, I will examine what is required in relation to the laws on digital evidence and computer forensics. In Part 5, I will consider the appropriate measures and punishments or redress to deal with stalkers. In Part 6, I will highlight the need for public education in technology and in the gathering and preservation of evidence, and the need to develop technological expertise in law enforcement agents. I will also briefly highlight the issue of prescriptive, adjudicatory and enforcement jurisdiction and the need for international cooperation through the harmonization of laws, in the coordination of procedural investigative efforts, and in recognition and enforcement laws.

2. Cyberstalking in Singapore: Emerging Problems in a Rapidly Digitised Society, the Search for a Solution and the Limitations of Current Laws

2.1. Lack of Comprehensive Coverage

Faced with problems of threatening or unwanted electronic communications, the question arises as to whether cyberstalking as a phenomenon is adequately addressed under the law. Harassment laws to an extent provide for some recourse, but it is not sufficient to address the needs of the individual in a digital environment, not least because such laws are piecemeal and too specific. Current harassment laws can be divided into three categories: Harassment and/or intimidation laws, which are often relationship specific or situational/contextual and those that are generally applicable.

2.2. General

In Singapore, sections 13A and 13B of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap. 184) (MOA),⁷ make 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, based on legislative history, they appear only to cover inter-praesentes behaviour and not to electronic communications where the parties are physically removed.⁸ They also do not cover other forms of behaviour which should also constitute harassment and which are typical to stalking behaviour such as sending messages or gifts, following or tailing someone and conducting electronic or physical surveillance on someone. Moreover, they do not take into account the fact that even without bad intentions,such conduct can have a negative effect on the victim and even on society. There are social concerns Page 14 relating to the act of stalking, particularly in the virtual context, which are not addressed by this legislation, which include the infringement of privacy (i.e. the right to be left alone or right to solitude) and peace.

At the turn of the millennium, the case of Malcomson Nicholas Hugh Bertram & Anor v. Naresh Kumar Mehta⁹ was brought before the Singapore High Court. It involved an ex-employee harassing his ex-employer and company staff via electronic mail, SMS messages, telephone calls and postal mail. It was in this case that the then Judicial Commissioner Lee Seiu Kin first recognized the tort of harassment in Singapore by defining it as "a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person".¹⁰ However, he gave the caveat that the definition is not meant to be exhaustive but was valid to the extent that it "sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law".¹¹ An injunction was given to restrain the ex-employee from continuing his acts on the basis of...