WHETHER “CYBER TRESPASS” LAW IS FOR SINGAPORE & THE EXPERIENCE OF OTHER JURISDICTIONS

• Published date: 01 December 2003
• Citation: (2003) 15 SAcLJ 182
• Author: TAN BOON HENG
• Date: 01 December 2003

This article explores whether the common law of trespass is suitable for dealing with numerous unwanted activities on the Internet. In Singapore, the only decision that has addressed this issue is Pacific Internet v Catcha. Com Pte Ltd(2000) 3 SLR 26. Unfortunately, the decision by the High Court was an interlocutory one and the dispute was subsequently settled out of court. In an attempt to examine the issue more deeply, many of the leading U.S. decisions are discussed in this article. This article concludes by suggesting that the common law of trespass to chattels is a viable cause of action to deal with unwanted activities on the Internet.

I Introduction

Unwanted Internet activities — an inevitable evil

1 Singapore has striven to be a connected island nation in the use of advanced technology. The nation’s efforts have paid off with a high Internet penetration rate1 among its households. Many children as young as four to five years old now attend basic computer appreciation classes to get a head-start. With a thriving electronic commerce and more prevalent Internet usage, Singapore naturally has its fair share of unwanted activities on the Internet - such are the growing pains of an emerging cyberspace. As in many instances, the state of the law is unfortunately several steps behind2 the world in action. This was true for Singapore when the first case on interference over the Internet, Pacific Internet Ltd. v Catcha. Com Pte Ltd3 (“PacNet”), was heard in the High Court4 in 2000.5 It is with this backdrop that I write this article.

2 The plaintiffs’ counsel and the court in PacNet relied on a rarely used tort, the common law of trespass, as one of the causes of action to make the defendants liable in deep linking the plaintiffs’ Web site. Though a couple of jurisdictions6 had considerable experience in dealing with unwanted activities on the Internet, others like Singapore, had yet to fully experience the extent of applicability of the English common law to deal with such problems. In fact, at the material time, there was no applicable English or Commonwealth case law. It remains so today.7 The court in PacNet came to the conclusion that it was arguable that a claim for actionable trespass may well succeed at trial. While the case identified the offending act on the Internet and applied the law of trespass, the High Court left it open as to whether it was applying trespass to land or to chattel. As PacNet was a decision made at an interlocutory hearing, it also left many unanswered questions that this article seeks to explore. These questions include: what are the types of unwanted activities on the Internet? Should they be dealt with under trespass to land or chattels? Is there some other cause of action more appropriate than trespass?

3 With the help of U.S. cases, I will consider the range of offending acts in cyberspace, including; “deep linking”, “framing”, “spidering”, “metatagging”, “spamming” and the use of “cookies”. I will then analyse the Singapore position as to whether trespass in cyberspace should come under trespass to land or chattels, taking into account how the U.S. cases have singularly converged towards trespass to chattels. I propose to show that while the U.S. courts arrived at the correct result in relying on trespass to chattels, the reasoning used by the U.S. courts was somewhat absent or lacking. Though a fairly comprehensive range of U.S. cases will be considered, the focus will be on CompuServe, Inc v Cyberpromotions,8Inc, eBay v Bidder’s Edge9 and Intel Corp. v Hamidi.10 Before concluding, I will offer a possible framework for the Singapore courts and the Parliament to consider adopting in dealing with unwanted activities on the Internet. Finally, I will suggest that the common law doctrine of trespass to chattels has proven versatile to address some of the problems created by the Internet. This affirms the school of thought that some traditional laws may be suitably interpreted to cater to the needs of cyberspace. I hope to

show that this is an instance where storing new wines in an old wineskin is preferred to devising new laws to address the problems at hand.

II Singapore’s test case

The English common law of trespass

4 The necessary starting point for this article is to discuss Singapore’s maiden experience with the law of trespass in cyberspace and illustrate how it all began. But before we proceed with PacNet’s case, a brief note on the English common law of the tort of trespass would be in order to set the legal context in place. The tort of trespass (one of the oldest11 torts in English law), now takes three forms - trespass to the person, to land and to chattels. All three torts have the same characteristics. The tort must be committed intentionally, direct and it must be actionable per se i.e. without proof of damage. The aim of trespass is generally to vindicate the claimant’s right to be free from interference either to the person, real property or goods. Singapore’s tort law is largely based on and evolved from the English12 common law. While the common law of trespass has evolved well to protect against interference to the person, land and chattels, -with the explosion of the Internet13 and the rapid advancements in Web technology, conventional legal norms are continually being challenged. The discussion that follows will show that the tort of trespass has thus far been malleable enough to respond to the issues raised in the ether world. A nagging question will be whether extending the common law of trespass is the best way to deal with the escalating number of unwanted activities on the Internet.

PacNet 14

5 The plaintiffs commenced proceedings against the defendants for the common law tort of trespass, copyright infringement, passing off and breach of statutory duty under the Copyright Act.15 The plaintiffs’ causes of action were founded on the defendants' unauthorised linking of the

plaintiffs’ Web sites to the defendants’ subsidiary Web pages, which the plaintiffs described as commercially exploitative at their expense and without the plaintiffs’ consent. The plaintiffs thus sought a declaration that; the defendant was not entitled to enter or cross the plaintiffs’ properties with the unauthorised intent to copy the relevant HTML16 and reproduce the relevant HREF17 for the defendants’ own commercial benefit, an injunction, damages, interest and costs. Defendants sought to strike out the plaintiff’s Statement of Claim for trespass pursuant to Order 18 Rule 1918 of the Rules of Court and under the inherent jurisdiction of the court. The primary ground relied on by the defendants to strike out the cause of action was based on the argument that the plaintiffs’ Statement of Claim disclosed “no reasonable cause of action.” The main submission of the defendants was that their intention to carry out an unauthorised act did not transform their lawful access into the plaintiffs’ Web sites into trespass. The defendants pointed to the fact that the plaintiffs had made their Web sites available to users on the Internet.

The first judicial record in Singapore on the law of trespass in cyberspace

6 The court at the first instance dismissed the defendants’ application to strike out and the defendants appealed. In affirming the decision of the lower court’s refusal to strike19 out the Statement of Claim pleading trespass as one of the causes of action, the court rejected the defendants’ submission and held that:

“I am of the view that there is no merit in these submissions. From first to last the access was unauthorised, as the plaintiffs have averred and therefore it is arguable that a claim for actionable trespass may succeed… It is not incredible and certainly not ridiculous to assert that the plaintiffs have consented to a visit to the Web sites, and even downloaded a copy of it for personal use, but have not consented to the kind of commercial exploitation as alleged, in which case the access may be unlawful.”

7 It is pertinent to note that the judge made a preliminary observation on the facts that it would be arguable that the plaintiffs’ claim based on the common law of trespass may well succeed at trial.20 For the purpose of this article, the decision is significant, as it is the first judicial authority in Singapore, albeit, a dicta, that unwanted activities on the Internet can arguably be seen as trespass in cyberspace. It appears that the court’s decision was chiefly premised on the fact that the defendants’ commercially exploitative activities on the plaintiffs’ Web sites were clearly unauthorised notwithstanding that the defendants’ access per se, was not unlawful.

The type of trespass and the elements of the tort

8 It is widely accepted as procedural law in Singapore, that in an application to strike out a Statement of Claim for no reasonable cause of action, the court in hearing such matters would not go into a minute examination of the merits. However, in order to arrive at a conclusion that the plaintiffs had a reasonable cause of action as pleaded, the court must at least have been satisfied that the elements of the tort of trespass were made out on the facts. If not, the court would not be in a position to reasonably conclude, prima facie, that the plaintiffs had a reasonable cause of action. Bearing in mind that the decision of the High Court in PacNet was not a decision that was made after trial, but an application to strike out the claim, I make the following observations. Firstly, though the court identified the offending acts (i.e. the deep linking of Web sites), the court did not comment, on the facts, as to which form of trespass the offending acts would come under (i.e. whether trespass on land, person or chattels). That could have been an important and convenient starting point of judicial analysis. Secondly, it would have been helpful if the decision had discussed whether the defendants’ unauthorised acts...