Bellingham, Alex v Reed, Michael

• Jurisdiction: Singapore
• Judge: Chua Lee Ming J
• Judgment Date: 25 May 2021
• Court: High Court (Singapore)
• Docket Number: Registrar's Appeal No 24 of 2019 (District Court Originating Summons No 170 of 2018)

Bellingham, Alex

and

Reed, Michael

[2021] SGHC 125

Chua Lee Ming J

Registrar's Appeal No 24 of 2019 (District Court Originating Summons No 170 of 2018)

General Division of the High Court

Civil Procedure — Appeals — Leave — Party relying on all three grounds for leave to appeal — Whether leave to appeal should be granted

Statutory Interpretation — Construction of statute — Purposive approach — Scope of “loss or damage” under s 32(1) Personal Data Protection Act 2012 (Act 26 of 2012) — Section 32(1) Personal Data Protection Act 2012 (Act 26 of 2012)

Statutory Interpretation — Construction of statute — Purposive approach — What amounted to distress that was actionable under s 32(1) Personal Data Protection Act 2012 (Act 26 of 2012) — Section 32(1) Personal Data Protection Act 2012 (Act 26 of 2012)

Held, allowing the appeal:

Whether there was contravention of ss 13 and 18 of the PDPA

(1) Bellingham had contravened s 13 of the PDPA by using Reed's name to obtain his e-mail address without his consent, by obtaining Reed's e-mail address without his consent, by using Reed's name and e-mail address to contact him without his consent, and by using the fact that Reed was an investor in the Edinburgh Fund, without his consent, to market QIP's services to Reed: at [39].

(2) The use of Reed's personal data for the above purposes exceeded what a reasonable person would have considered appropriate in the circumstances and thus also contravened s 18 of the PDPA: at [39].

(3) Pursuant to s 17 read with the Second Schedule para 1(c), the Third Schedule para 1(c) and the Fourth Schedule para 1(d) of the PDPA, the collection, use or disclosure of personal data about an individual that was publicly available did not require the consent of the individual. Although Bellingham had obtained Reed's e-mail from Reed's LinkedIn account, which was a public source, he would not have been able to find Reed's e-mail address without the use of Reed's name. Where personal data that was publicly available was obtained only through the unlawful use of other personal data, s 17(1) of the PDPA could not apply and the personal data so obtained could not be collected, used or disclosed without consent. In the present case, therefore, Bellingham was not entitled to collect, use or disclose Reed's e-mail address without his consent: at [35] to [37].

What was the scope of “loss or damage” under s 32(1) PDPA

(4) The term “loss or damage” in s 32(1) of the PDPA was limited to the heads of loss or damage under common law, and did not include distress or loss of control over personal data: at [93].

(5) The ordinary meaning of the text. The text of s 32(1) of the PDPA and the context of the provision within the PDPA did not assist in ascertaining whether the term “loss or damage” should include or exclude distress. However, read in context, the term “loss or damage” excluded loss of control over personal data. In every case where there had been a contravention of any provision in Pts IV–VI of the PDPA, there would inevitably be loss of control over personal data. Section 32(1) of the PDPA therefore could not have been intended to apply where the alleged loss or damage was simply a loss of control over personal data: at [44] and [47].

(6) The legislative purpose. The specific purpose of s 32(1) of the PDPA was to create a statutory tort and to allow a right of action on that basis: at [47].

(7) The Minister's statements in Parliament did not evince an intention that the PDPA should follow the positions adopted in the jurisdictions that were studied in every respect. Whilst the PDPA was intended to be in line with international standards for data protection, it was nevertheless developed to suit Singapore: at [55].

(8) There were express references to some form of emotional harm (humiliation, loss of dignity, injury to feelings and distress) in the relevant legislative provisions in Canada, New Zealand, Hong Kong and the UK. Cases in the UK had also interpreted the relevant provision in the EU to include compensation for distress, and the relevant provision in UK to include compensation for distress and loss of control over personal data. Yet, Parliament decided to refer only to “loss or damage” in s 32(1) of the PDPA without any reference to any form of emotional harm or loss of control over personal data: at [56].

(9) There was good reason for not adopting the positions in Canada, New Zealand, Hong Kong, the EU and the UK, as these positions had been driven primarily by the need to recognise the right to privacy. The position in Singapore was different. The purpose of the PDPA was as much to enhance Singapore's competitiveness and to strengthen Singapore's position as a trusted business hub as it was to safeguard individuals' personal data against misuse. Section 3 of the PDPA showed that the PDPA took a balanced approach and that it was not driven by any recognition of the right to privacy as a fundamental right: at [57], [73] and [75].

(10) Comparing the possible interpretations against the legislative purpose. Interpreting the term “loss or damage” in s 32(1) of the PDPA narrowly to refer to the heads of loss or damage applicable to torts under common law would further the specific purpose of s 32(1) of the PDPA as a statutory tort. There was nothing in the PDPA that indicated otherwise: at [76].

Whether Reed suffered loss or damage directly as a result of Bellingham's contraventions of ss 13 and 18 of the PDPA

(11) It was indisputable that Reed had to prove that he suffered loss or damage within the meaning of s 32(1) of the PDPA. It was not disputed that Reed had not suffered any financial loss, psychiatric injury or nervous shock as a result of Bellingham's contraventions of ss 13 and 18 of the PDPA. Reed's argument was that he had suffered emotional distress and loss of control over his personal data directly as a result of Bellingham's contraventions of ss 13 and 18 of the PDPA: at [89] and [90].

(12) There was no evidence that Reed suffered distress. Reed's affidavits did not show evidence of any distress. As for loss of control over personal data, Reed's e-mails showed that he was concerned over the security of his personal data and Bellingham's misuse of that data. Further, Reed's distress and loss of control over personal data did not constitute “loss or damage” within the meaning of s 32(1) of the PDPA: at [92].

Application for leave to appeal

(13) It was well established that leave to appeal could be granted if there was: (a) a prima facie case of error; (b) a question of general principle decided for the first time; and (c) a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage: at [96].

(14) Leave to appeal ought to be granted if it was shown that a decision had been made in error, be it an error of fact or of law. However, an error of fact had to be one that was clear beyond reasonable argument; the court should not have to delve into the facts in detail. An applicant for leave to appeal who alleged a prima facie error had to demonstrate something more than just his disagreement with the decision. Otherwise, this ground would be satisfied in every case in which leave to appeal was sought. As for error of law, an applicant seeking leave to appeal on the ground of prima facie error of law had to show something more than just disagreement with the court's decision on the law: at [100].

(15) Reed's application for leave to appeal was granted as grounds (b) and (c) were satisfied: at [97].

Case(s) referred to

Abdul Rahman bin Shariff v Abdul Salim bin Syed [1999] 3 SLR(R) 138; [1999] 4 SLR 716 (folld)

Essar Steel Ltd v Bayerische Landesbank [2004] 3 SLR(R) 25; [2004] 3 SLR 25 (folld)

IP Investment Management Pte Ltd v Alex Bellingham [2019] SGDC 207 (refd)

Jones v Tsige (2012) ONCA 32 (refd)

Karen May Hammond v Credit Union Baywide [2015] NZHRRT 6 (refd)

Kaye v Robertson [1991] 19 IPR 147 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862; [1997] 3 SLR 489 (folld)

Lim Meng Suang v AG [2015] 1 SLR 26 (refd)

Lloyd v Google LLC [2020] QB 747; [2020] 2 WLR 484 (distd)

My Digital Lock Pte Ltd [2018] SGPDPC 3 (distd)

Nammo v TransUnion of Canada Inc [2012] 3 FCR 600 (refd)

Rabi Chitrakar v Bell TV 2013 FC 1103 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (folld)

Vidal-Hall v Google Inc [2016] QB 1003 (distd)

Facts

The appellant, Alex Bellingham (“Bellingham”), was employed by IP Real Estate Investments Pte Ltd (“IP Real Estate”) as a marketing consultant. He was later seconded to IP Investment Management (HK) Ltd (“IPIM HK”). Both IP Real Estate and IPIM HK were part of the IP Investment Management group of companies (“IPIM Group”).

Bellingham was, among other things, tasked with taking charge of and managing an investment fund known as the “Edinburgh Fund”. All the investors in the Edinburgh Fund were customers of IP Investment Management Pte Ltd (“IPIM”) and IP Real Estate (the “Customers”). IPIM was also part of the IPIM Group. Bellingham later left his employment with IP Real Estate in January 2017 and consequently, his secondment with IPIM HK also ended. He then joined a competitor of IPIM known as Q Investment Partners Pte Ltd (“QIP”) as its “Head of Fund Raising”.

In August 2018, Bellingham contacted some of the Customers, including the respondent, Michael Reed (“Reed”). In his email to Reed, Bellingham mentioned Reed's investment in the Edinburgh Fund. Reed then contacted IPIM querying the fact that QIP had information about his investment in the Edinburgh Fund. Demands were then made by IPIM against Bellingham to return all copies of confidential and/or personal data of the Customers and for Bellingham to undertake not to make any further unauthorised use of such information. Bellingham sought to explain that the information alleged to be confidential was publicly available.

In October 2018, IPIM and IP Real Estate filed...