THE CASE FOR LEGISLATING HARASSMENT IN SINGAPORE

• Published date: 01 December 2014
• Date: 01 December 2014
• Author: GOH Yihan LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore); Assistant Professor, Faculty of Law, National University of Singapore.

It will be argued in this article that the time has come to legislate against harassment in Singapore. While there is undoubtedly both common law and statutory protection against harassment, these solutions suffer from either uncertainty or incomplete remedies. A general blanket legislation addresses this problem and should be considered together with the various specific issues relating to such a statute that have been raised in this article.

I. Introduction

1 Harassment has been in the national spotlight of late. The Minister for Law has said that his Ministry is actively looking at harassment laws, in particular, online harassment.1 There was a conference held to discuss the problems surrounding harassment in Singapore.2 A commentary on the Singapore Law Watch Commentary3 prompted a report in The Straits Times4 highlighting that modern technology has made harassing innocent victims easier. Further, a High Court decision, AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan5 (“AXA Insurance”) — the subject of the commentary just mentioned — has ruled that there is no tort of harassment in Singapore, throwing into uncertainty the status of a tort that was established locally 12 years ago but has otherwise seen little use. These developments show,

simultaneously, the increased legislative concern that victims of harassment be afforded protection, and the reduced certainty in judicial protection forged through the common law. The key question that this article addresses is whether, in light of these developments, legislation should be introduced to govern harassment and, if so, in what form. After examining current common law and statutory protection against harassment, it will be suggested below that a new general legislation should indeed be enacted against harassment.

2 The enactment of any legislation against harassment needs to address several issues. For a start, harassment can, of course, take place in different forms. For example, it can take place either in the physical sphere or virtually, that is, online or through telecommunicative means. The subject of harassment is also varied: there can be sexual harassment, stalking, school bullying, cyber-harassment and so on.6 However, these different forms of harassment share certain similar traits that the common law was, until recently, ill-equipped to deal with: they all involve a series of unwanted conduct that causes disturbance or annoyance to the victim (short of a recognised psychiatric illness or physical harm) and often take place outside of the victim's property. This article does not propose separate legislation to deal with each and every type of harassment. There are simply too many different forms of harassment present and to come for such an approach. Rather, this article proceeds on the basis that a general legislation governing harassment is superior to separate pieces of legislation and evaluates the desirability of legislating harassment as such.

3 In connection with such a general legislation, any new legislation must also consider related issues, such as the definition of harassment, defences and enforcement issues. While the scope of this article largely focuses on the preliminary question of whether there is need for legislation against harassment, it will also consider briefly the details of such legislation. After examining the experiences of other jurisdictions, it will be suggested that any definition of harassment should be sufficiently broad to allow for judicial exposition to cater for specific facts in individual cases, yet not so sparse as to be without legislative guidance. It will also be suggested, among other things, that enforcement of such legislation will be key to its success. To enable its success, perhaps some assistance can be provided to lay litigants who will probably be the main users of such legislation against harassment.

II. Existing protection from harassment

4 In order to consider the desirability of legislating harassment, we must first consider the existing protection from harassment. There is at present protection from harassment both at the common law and statute law. The problem, as we shall see, is that both of these protections are either uncertain or incomplete.

A. Common law protection

(1) Previous limitations

5 The common law did not always afford protection against harassment. This is because, as mentioned above, 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. Specifically, the tort of private nuisance protects the right of a person who has possession of land to enjoy his premises undisturbed. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.7 In Epolar System Enterprise Pte Ltd v Lee Hock Chuan,8 the Court of Appeal recognised these principles and held further that generally, only a person with a proprietary interest, whether by virtue of his freehold or leasehold interest, can sue in the tort of private nuisance. Mere occupation is not enough. Thus, a person who is a mere occupier, even if the wife of the husband-owner, cannot sue. This is further illustrated by the English case of Malone v Laskey,9 where the wife of the manager of a company entitled to live in the affected premises by virtue of her husband's employment was held not to have standing to sue in private nuisance.

6 However, the protection of privacy cannot stop there, especially where there is no property interest which precludes an action in these torts. This covers a wide range of situations like the one illustrated in Malone v Laskey. Many times, the occupier of the premises came into occupation by virtue of a relationship with the owner, such as wife, child or friend. Yet, in these cases, the English cases have held that there is no recourse for disturbance caused to them while on the premises. For example, in Khorasandjian v Bush,10 the daughter of the mother-owner was disturbed by excessive phone calls at the premises. The English Court of Appeal, by a majority, held that she had the right to sue in

private nuisance. He thought that it was “ridiculous” that in the light of changed social conditions:11

… the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or leasehold proprietary interest in the premises in which he or she has received the calls.

7 Ridiculous as the case may be, this decision was overturned by the House of Lords in Hunter v Canary Wharf.12 In that case, Lord Goff of Chieveley held that an action in private nuisance will only lie at the suit of a person who has a right to the land affected.13 Thus ended the English courts' attempt to extend the tort of private nuisance to afford some protection to victims of harassment. However, it must be said that the English position towards such victims is not so dire: there exists English legislation, which we will examine below,14 that affords statutory protection for victims of harassment. This account of the law does, however, shed light on limitations of the tort of private nuisance in protecting against harassment.

8 The other non property-related torts fare no better. It is of course trite law that a person who suffers physical harm or the threat of imminent physical harm can sue in battery and assault respectively. Thus in Amutha Valli d/o Krishnan v Titular Superior of the Redemptorist Fathers in Singapore,15 the High Court defined battery as the actual affliction of unlawful force on a person, and assault as an act which causes another person to apprehend the infliction of immediate, unlawful force on his person.16 A person who is harassed does not generally fall within these definitions. There is normally no unlawful force on victims of harassment, since harassment usually takes the form of unwanted stalking or contact through an intangible medium. There is also normally no apprehension of battery (thus constituting assault) because the unwanted contact is usually through an intangible medium, thereby negating the immediacy that is required for assault to be established.

9 There is a further tort to consider. The case of Wilkinson v Downton17 established that false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable. The requirement of physical injury was later expanded to include recovery for mental shock caused by intentional acts. However, whether couched in terms of physical injury or mental shock (or even a recognised psychiatric illness), it is unlikely that victims of harassment will find recourse in the case of Wilkinson v Downton for the simple reason that there is normally no such injury in harassment cases. While the pain of disturbance is a real one and should not be downplayed, the law requires that there be more than mere disturbance or annoyance. Thus, it is clear that even the non property-related torts, which do not require a proprietary interest, are not able to assist a victim of harassment.

(2) Establishment of a tort of harassment

10 These shortcomings in the law of torts led courts to develop a tort of harassment. The English attempt, started in Khorasandjian v Bush, was halted in Hunter v Canary Wharf, even if Lord Hoffmann in the latter case acknowledged the shortcomings of the present law, and that there is no reason why an intentional tort cannot compensate for mere distress, inconvenience or discomfort, rather than insisting on proof of a physical or psychiatric injury.18

11 The Singapore attempt resulted in the establishment of a tort of harassment in 2001. In Malcomson...