What is cyber-bullying?
Cyber-bullying is simply defined as a form of verbal and written harassment through electronic mediums such as text messaging, websites and social media, among others. Victims find their reputations tarnished as “friends” write humiliating comments or post unflattering photos and videos that encourage an infinite number of participants to post derogatory insults, spread rumours, make anonymous threats or pass judgement.
The consequences of cyber-bullying can be severe
Some victims of cyber-bullying have been driven to commit suicide, others have been forced to change schools, and many more have their reputations and self-esteem damaged, without the case coming to the forefront.
An example of such an incident would be friends in school thinking it harmless to share something embarrassing to a fellow classmate. Let me give you such an example below:
“A boy forgot to zip his shorts after using the little boy’s room and another classmate notices it . Instead of informing him to reduce his embarrassment, the classmate makes fun of him in front of the entire class by saying it aloud and another cheeky classmate takes a photo of his unzipped shorts and posts it online. Several other classmates then share the photo with their friends both within the school and in other schools. The boy is ridiculed by so many people worldwide that he is totally embarrassed and ashamed such that he feels unable to tolerate the ridiculing and wants to end his life….” Is that truly what was intended by the classmate?
The above is a simple example of how a small incident of a young school boy forgetting to zip his trousers that would be exaggerated to such an unimaginable extent. However, that is truly possible with social media these days!
Regulating and enforcing regulations against cyber-bullying has challenges
The internet has become a cornerstone of our social interactions, and it is unrealistic to expect the Media Development Authority or any government department to introduce regulations that will eradicate all instances of cyber-bullying given that any individual can make posts in a matter of seconds.
There are remedies for victims of cyber-bullying in Singapore
I will thus take a brief look at the laws which deter cyber-bullying in Singapore and through which the victims may seek compensation primarily through civil remedies. However, I also examine the criminal penalties applicable under the Protection from Harassment Act.
What is Defamation?
The simple test for defamatory meaning in Singapore is as follows:
- Did the offending statement lower the estimation of the claimant in the eyes of right-thinking members of society generally or
- subject the claimant to hatred, contempt and ridicule; or
- cause the claimant to be shunned or avoided?
The three requirements that is necessary to establish a tort of defamation is as follows:
- the statement must refer to the victim (claimant);
- the statement must be published; and
- the statement must be defamatory in nature.
What is the difference or relationship between defamation and cyber-bullying?
The difference between defamation and cyber-bullying is often unclear as what starts as bullying may result in defamatory statements as the end result.
Simply put, what started out as an online outrage of someone maybe doing an act like not giving up a seat to an elderly person may eventually result in other people making rude and derogatory comments about the impolite commuter who refused to give up his/her seat to tarnish the reputation of the commuter to an extent that it now leads to defamatory comments. Therefore, the initial purpose of highlighting a wrong via social media now results in the exposure of the commentators to defamatory actions where that statement now becomes degrading to the commuter’s reputation. Please be careful what you say online!
In cases of cyber-bullying, it is often clear who the statement is referring to, especially if there is a picture or video. The publication requirement will also be satisfied in a majority of cases since the claimant only needs to show that the defamatory material was read by a single person.
Establishing online defamation can be interesting
It is nonetheless interesting to note that in cases of online defamation, the courts may infer that substantial publication has taken place even in the absence of direct evidence, depending on factors such as the length of time the material was online, the general accessibility of the material, the number of comments left, the popularity of the site it was posted on and the medium via which the material was posted.
For instance, it has been stated that anyone posting material on Facebook must appreciate that it will result in some degree of dissemination at least, and possibly widespread dissemination. The extent of publication is important as it will affect the quantum of damages the victim is allowed to claim.
In Reid v Dukic, the number of “likes” or “comments” that the defendant’s posts received are often not representative of the extent of the publication, and the courts’ willingness to infer substantial publication will no doubt be help victims of cyber-bullying to obtain the compensation that they deserve, instead of merely for the damages which they are able to prove.
The credibility of the publication is considered if a statement is considered defamatory
While intuitively it would seem that most cases of cyber-bullying would fulfill this requirement, McLuhan famously argued that the medium is the message, and one consideration in evaluating whether a statement has a defamatory imputation is the seriousness and credibility of internet publications.
Basically, what it means is if you post something on a site that is not verified and widely published, it may not be as serious as something posted on site that is widely subscribed like “STOMP” or a site like that. However, that may only result in a lesser impact on the amount of damages (financial compensation) awarded, not the correctness of the act.
Online statements meant as jokes might be considered defamatory, or not
Some online statements about other people are intended to be jokes and are not meant to be indicative of a person’s character. For example, a photo of Knievel, a well-known sportsman, with his arms round his wife and another woman with the caption “Evel Knievel proves that you’re never too old to be a pimp”, which was published on the ESPN website was held not to be defamatory. Similarly, many insults are thrown in online games, with many gamers considering such ‘trash talk’ to be part of the entire gaming experience. That said, jokes made in bad taste or which may be taken seriously by the audience may be taken to be defamatory in nature.
In Bryce v Barber, the court ruled that posting indecent images of children on the claimant’s Facebook profile with the comment “Ray, you like kids and you are gay so I bet you love this picture, ha ha” had crossed the line and was defamatory. Local author Gary Chan also suggests that defamatory meaning should be assessed from the point of view of the segment of the internet community that is likely to view the message posted, taking into account the relevant social norms in those groups.
He argues that, taking context into account, even a simple statement imputing another user to be a “troll” would be potentially defamatory in the eyes of reasonable internet users, seeing as trolling is seen by the online community as the “activities of a seriously misinformed or deluded user”.
New protection against cyber-bullying in Singapore introduced in 2014
Another important area of law that is relevant to cyber-bullying is harassment, which has quickly gained prominence since the Protection from Harassment Act (POHA) was enacted in 2014. Law Minister K Shanmugam specifically addressed the issue of cyber-harassment in the second reading of the Protection from Harassment Bill, acknowledging that “cyber-space makes harassment easier, and in some ways, more egregious, because it can be anonymous, borderless, viral and permanent”. As such, POHA has provisions designed to counter some of these features.
Section 19 prevents publishers from hiding behind the cloak of anonymity, and provides that if the identity of the publisher cannot be ascertained, he may be identified by a unique identifier, for example an internet location address or username. This enables victims to apply for Protection or Notification Orders without finding out the publisher’s real name. To address the borderless and viral nature of online publications, the court is empowered under ss 12, 13 and 15 to grant Protection Orders which are enforceable against all publishers, which includes all those who repost the offensive material on other platforms.
This means that the Court has the power to even order the owner of the website and anyone who publishes such posts to remove that post with an Order of Court. It will include websites, social media platforms and any online sites. As all sites are registered with a particular webhost, therefore the Court can order the host to remove that post!
The substantive provisions of POHA are ss 3 and 4, which make it an offence to use threatening, abusive or insulting words or communications via the internet which cause harassment alarm or distress. Offenders may be liable to a fine, imprisonment or both, while section 11 allows victims to bring a direct civil claim against the offender. Unfortunately, there has not been reported cases of such offences but this simply means that the aggressor may be either fined or imprisoned.
The key distinction between ss 3 and 4 appears to be the emphasis on intention and directness respectively. Under s 3, one must intentionally cause the victim harassment, alarm or distress to be guilty of an offence, but the victim does not need to directly perceive or hear the distressing words or behaviour. On the other hand, s4 covers unintentional conduct, provided the victim hears, sees or perceives the threatening, abusive or insulting words or behaviour which are (objectively) likely to cause him harassment, alarm or distress.
The illustration to s 4 is a classic example of cyber-bullying, where X posts a vulgar tirade against Y on a website accessible to all of their classmates, and demonstrates that X is guilty under s 4 even if Y only discovers the distressing post because he is told by a third party. Together, it is seems likely that most instances of cyber-bullying will be covered by ss 3-4, though presently it is still slightly unclear when conduct will be serious enough to constitute harassment, alarm or distress, with courts simply stating that these terms should be given their “common-sense meaning”.
The important lesson is–DO NOT take re-posting of someone’s online post on any form of social media lightly as your innocent act of sharing or reposting could result in you being the offender too!
If you are a victim of cyber-bullying, you have legal options to obtain redress
The recent developments in the law on defamation and harassment will make it much easier for victims of cyber-bullying to obtain redress.
The potential of online material going viral has been taken into account by the courts, and cyber-bullies will not be able to get away with making disparaging statements by implication with the flexible approach to ascertaining defamatory meaning. Meanwhile, POHA covers cases where there is no damage to the victim’s reputation, so long as the victim can show that he was caused harassment, alarm or distress.
Have more questions on cyberbullying and defamation for Pratap?
Pratap will be one of the lawyer panelists speaking on cyberbullying and defamation at Collision 8 on 8th June 2017 from 6.30 pm to 8.30pm. Join us and ask him your questions on protecting yourself from cyberbullying and defamation.
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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.