14 February, 2017
Singapore Court of Appeal Decides That Entities May Not Seek Recourse Under Section 15 of the Protection from Harassment Act
In the split decision of Attorney-General v Ting Choon Meng and another appeal [2017] SGCA 6, the Singapore Court of Appeal decided that entities, including the Government, could not rely on section 15 of the Protection from Harassment Act (the PHA) to prohibit the publication of false statements against them.
Facts
The respondent to this appeal (the Respondent), i.e., Dr. Ting Choon Meng, is a director of MobileStats Technologies Pte Ltd. MobileStats had previously sued the Ministry of Defence (MINDEF) in 2011 for allegedly infringing its patent in relation to military medical vehicles (the "Patent"). After its Patent was revoked by MINDEF in 2014, the Respondent made several allegations against MINDEF that were published on the website "The Online Citizen" (the TOC Website). This led to the Attorney-General (the Appellant) applying to the State Courts for an order under section 15(2) of the PHA. More specifically, the Appellant sought a declaration that the allegations were false and that they not be published without notification about their falsehood.
The Appellant succeeded at first instance, but this decision was subsequently overturned when the Respondent appealed to the High Court. With this background in mind, we now consider the Court of Appeal's decision.
Decision
The appeal was dismissed in a 2:1 judgment, with the Chief Justice dissenting.
As a preliminary issue, the majority dealt with the question of whether the Government Proceedings Act (the GPA) would provide the Government with the right to make an application under section 15 of the PHA. The majority agreed with the High Court's decision that sections 3 and 36 of the GPA provide only that the Government may enforce its rights by initiating legal action, and do not state whether the rights in question exist in the first place.
(i) Whether the Government can be considered as a "person" under section 15 of the PHA
The first issue in contention was whether the Government could be considered as a "person" under section 15 of the PHA.
The approach adopted by the majority (Andrew Phang JA and Chao Hick Tin JA) was to look beyond the text of the provision, and to also consider the context in which the provision was promulgated, as well as Parliamentary intention at the time of passing the law (see [18]). Based on the Law Minister's Parliamentary speech which directly addressed section 15 and which made several references to "victims", the majority inferred that the Minister's focus regarding "person" in section 15 was solely on human beings (see [22]). This was supported by the fact that the narrower interpretation of "person" was more consistent with the entire scheme and structure of the PHA as compared to the wider interpretation (i.e., as referring to both human beings and entities) (see [36]).
The dissenting judge (Sundaresh Menon CJ) also applied the purposive approach, but reached a different conclusion on this issue. He was of the view that there was nothing to suggest that the definition of "person" under the PHA should vary from that under the Interpretation Act (which included entities) (see [76]). Additionally, there were no grounds as to why section 15 could not grant a remedy that was different from other remedies provided under the PHA. Finally, given that the aim of section 15 was to address falsehood in speech and publication, there was no reason why "person" could not apply to entities as well (see [92]).
(ii) Whether it was "just and equitable" to grant a order under section 15
The second issue at hand was whether, even if section 15 applied to entities, it was "just and equitable" for the Court to grant an order.
The majority highlighted that the way in which section 15(3)(b) was phrased (i.e., the "District Court shall not make an order … unless [it] is satisfied … [that] it is just and equitable to do so") suggested that the Court was to exercise its discretion to grant a section 15 order cautiously. Also, the majority listed a non-exhaustive list of factors that courts may consider when exercising their discretion under section 15(3)(b)(see [43]), namely:
- The nature of the false statement and the seriousness of the allegation made;
- The purpose of the false statement, e.g., whether it was said in jest or for the purposes of satire;
- The impact of the statement on the subject, and the degree of adverse emotional or psychological harm suffered;
- The degree to which the false statement has been publicised to the public;
- Whether the subject has the means to publicise his or her own version of the truth (and on a channel that is accessible to the readers of the false statement);
- Whether the author and/or publisher of the statement has made genuine efforts to point out that the veracity of the statement is not undisputed; and
- The ordinary instances of daily living that may be expected to be tolerated by reasonable persons.
In the case at hand, the Appellant had not demonstrated that it was just and equitable for a section 15 order to be granted. The majority found that the TOC Website had provided a balanced view of the facts by posting the Appellant's reply to the Respondent's allegations. Also, one of the allegations made related to a narrow facet of the Appellant's conduct which did not severely impugn the fundamental element of the Appellant's character or personality. Thus, it was not just and equitable for the Court to grant a section 15 order.
Conversely, Menon CJ stated that the Respondent's allegations were serious and depicted the Appellant as being dishonest and having acted in bad faith in the eyes of a reader and viewer, and held that it was just and equitable to grant the section 15 order.
Implications
In light of this decision, it is clear that entities, including government agencies, may not seek recourse under section 15 of the PHA against parties who make false allegations against them. However, these entities may consider relying on other avenues such as the tort of defamation and/or the tort of malicious falsehood, where appropriate. Meanwhile, individuals such as company directors may still rely on section 15 of the PHA to seek relief.
A copy of the published decision can be found on Singapore Law Watch here.
Errant Online Retailers on CASE's Radar
In light of the steady increase in the number of e-commerce related complaints received over the past 2 years from 485 in 2014, to 636 in 2016, the new executive director of Consumers Association of Singapore (CASE), Mr. Loy York Jiun, has pledged to focus CASE's efforts on helping consumers deal with errant online retailers.
A key difficulty in taking action against errant online retailers is that some of these retailers may be situated overseas, and do not fall within the Singapore courts' jurisdiction.
In response, Mr. Loy has suggested collaborating with trading platforms, which have establishments in Singapore, in crafting a refund policy. This policy may, for example, allow consumers to raise any complaints about the transaction or the product within a short time frame. The trading platform, which would act as an escrow, would then only release consumers' monies to retailers upon the expiry of this time period.
Other proposed measures by CASE include:
- Collaborating with the Singapore Ministry of Trade and Industry in crafting industry standards that can serve as a point of reference for e-commerce transactions;
- Assisting consumers who have purchased defective goods or fail to receive the goods that they have purchased;
- Lobbying for amendments to consumer protection laws so that companies would be precluded from collecting prepayments unless they offer consumers some protection in exchange; and
- Leveraging various avenues, especially that of mass media and social media, to provide advice more expeditiously to consumers.
Product Recall of Glass Gas Cooker Hobs
Earlier in January, the Standards, Productivity and Innovation Board (SPRING Singapore) issued a safety advisory alerting the public in relation to 6 models of glass gas cooker hobs manufactured by a multinational home appliance manufacturer (the Affected Models). SPRING Singapore advised consumers to stop using the Affected Models due to the risk that the glass cooker tops may shatter when the hobs were in use. SPRING Singapore also issued a mandatory product recall notification for the Affected Models. The Swedish manufacturer of the cooker hobs has since recalled the Affected Models and offered purchasers the option of a refund or a product replacement, as well as a S$100 voucher as gesture of goodwill. The company has also been actively reaching out to customers who have registered their warranty details for the products.
Regulation of controlled goods in Singapore
Gas cooker hobs are listed as one of 45 different types of "controlled goods" under the First Schedule of the Consumer Protection (Safety Requirements) Regulations (the Regulations), issued pursuant to the Consumer Protection (Trade Descriptions And Safety Requirements) Act.
SPRING Singapore, the Safety Authority for the purposes of the Regulations, is the relevant regulator for controlled goods.
The Regulations provide, amongst others, that the Safety Authority may:
- Investigate into any complaints/incidents about damage or injury caused by any registered controlled goods;
- Investigate into any incidents involving misuse or uncertified modification/incorrect testing or certification of controlled goods;
- Suspend or prohibit the supply of any registered controlled goods; and
- Require a registered supplier of controlled goods to effect a recall of products with safety concerns, and take such steps as may be necessary to inform users of such goods of the potential dangers the goods pose.
The registered supplier will also be required to notify all suppliers who obtained those controlled goods from him, directly or indirectly, of the suspension or prohibition of supply. Failure to comply with the obligations to effect a product recall or to notify downstream suppliers of any suspension or prohibition of the supply of a registered controlled good are punishable offences.
For further information, please contact:
Andy Leck, Principal, Baker & McKenzie.Wong & Leow
andy.leck@bakermckenzie.com
