Firstly, I have to apologise for the delay in this column. This is because I am re-writing it for the second time, saddened by news of the suicide of a gifted young man, Tyler Clementi. This Rutgers freshman killed himself after his roommate webcasted him “live” in a sexual encounter with another man on the Internet. They did so on 19 September and then attempted to do so on 21 September, the day before he threw himself off George Washington Bridge.
It could happen to any of our young people in our universities and schools in Singapore and any where else in the world.
Every teenager has a handphone with a camera these days. The age of technology has magnified the consequences of malice. I want to examine the law on such irresponsible acts.
The 2 main issues raised by Tyler’s case are:
1. Invasion of privacy; and
2. Publication of obscene or censored materials.
Given the nature of this case, civil and criminal proceedings can be taken. Civil proceedings give the victim greater control of the case. In criminal proceedings, the Attorney-General Chambers decide.
The common law tradition that we have inherited does not have a law directly protecting privacy.
However, a victim in Tyler’s position could sue for breach of confidential information. One of the remedies is obtaining an injunction. This is a court order prohibiting someone from doing certain acts. If found out in time, an interlocutory or interim injunction could be applied for. This is a stop-gap measure before the trial takes place. Hence, harm could sometimes be prevented in the nick of time, e.g. if the culprits had filmed but have yet to distribute the videos.
In order to succeed in an action for breach of confidence, he has to prove that:
1. The information is protectable as confidential information;
2. The information was communicated in a manner where the duty of confidentiality can be imputed by an impartial 3rd party or bystander;
3. The recipient has used the information in an unauthorized manner, i.e. outside the scope for which it was communicated; and
4. The usage has caused harm to the disclosing party.
It has been accepted in cases that one’s sexuality is confidential. Therefore, Tyler could keep his sexual orientation, not to mention how he has sex, confidential. Unless of course you are Yoko Ono, who once, not long after John Lennon’s death, screened a video of herself and Lennon having sex in a New York disco. Most people would like to keep their bedroom activities private.
For Conditions 2 and 3, the communication, need not be made directly by the owner of the information. Surreptitiously taken or stolen information has been adjudged to fulfill the condition of communication and unauthorised use. The reasoning is that the owner of the information, having kept it secret, has communicated to the world that he does not want it to be used.
For an interlocutory injunction (as opposed to a permanent injunction) to be granted, the primary ingredient an applicant has to prove is that monetary compensation is not an adequate remedy. This is obvious in a case in which your sex life is being broadcasted to the world.
Again there are no direct provisions in our criminal law on invasion of privacy, unless you are a woman.
We now look at whether the culprits can be charged for circulating or exhibiting obscene material.
If in Singapore, had the two students first taped the sex before webcasting it, they would have been caught under the Films Act for making, possessing and exhibiting an obscene film. The problem here is that it is a direct webcast. If my understanding of the technology is correct, a webcast will involve the action being temporarily stored in the computer of the sender and/or similarly so stored in the RAM of the receiver’s computer before it can be viewed. If this were the case, the two culprits who webcasted Tyler’s sex would have made a “film” and committed the offences of making and exhibiting an obscene film.
POLICIES IN OUR EDUCATIONAL INSTITUTIONS
The prosecution of Tan Eng Hong for sex in a public toilet twinned with Tyler Clementi’s case raises the spectre of sex in public toilets being filmed with handphones and being distributed. What would the law enforcers do against the culprits who took the films? I hope the AG will charge the peeping toms and porn producers-wannabes.
More importantly, what if the sex took place in the bathrooms of our university dorms or school toilets? Such matters do not reach the police often. Educational institutions are likely to step in with their own disciplinary actions. Tyler Clementi’s case went to the police because of his death.
An informal check indicates that our educational institutions do not seem to have any guidelines, at the moment. Since this is where our young people are, we must look into it now.
If there are going to be penalties, who then should be punished? The couple having sex or the peeping toms cum porn producers?
Let us level the playing field with the scenario of sex between a man and a woman. Section 377A (henceforth s377A), which only applies to sex between men, will be irrelevant. In such a scenario, educational institutions should be able to weigh the “wrongs” of the two sides without s377A blurring their judgment.
If the couple having sex is women, Section 509 of the Penal Code protecting the privacy of women applies.
Legally, the couple having sex can be charged under s20, Miscellaneous Offences (Public Order and Nuisance) Act, for indecent public behaviour. The maximum penalty for first time offender is either a fine of $1,000 or imprisonment for one month.
However, the photographers or filmmakers have committed more crimes. Under the Films Act, they have contravened:
1. Section 29(1) for making or reproducing an obscene film. It carries a fine between S$20,000 and S$40,000 or imprisonment of less than 2 years or both.
2. Section 29(4) for exhibiting an obscene film. The penalty is a fine between S$10,000 and S$40,000 or to an imprisonment of less than 2 years.
3. Section 30(1) for possessing an obscene film. The penalty is a minimum of S$500 or imprisonment of less than 6 months.
Further, if the couple is female, the are guilty of intrusion of privacy. Section 509, Penal Code,carries the maximum penalty of one year imprisonment or a fine (no stated amount in the provision) or both.
If we compute the fines using the maximum, each of the couple having sex need only pay S$1,000 whilst each of the porn makers are liable for more than S$80,000. These reflect the relative gravity of the two different actions... When you think of it, the couple is merely having sex in an inappropriate place, where their legs gave them away. The photographers are making porn surreptitiously, keeping and distributing them. They have multiplied what the couple is doing behind closed doors, albeit in a public toilet.
Any policies or decisions for such behaviour should reflect the law. This analysis merely shows that any schools meting out heavier punishment on the couple having sex have not acted rationally. They have allowed their hang-ups and prejudices to corrupt their decisions.
More importantly, are we going to send out messages that it is alright to have double standards? That it is alright to peep and tape individuals having sex, distribute these secretly-made porn, just because we are uncomfortable with the idea of people having sex in the cubicles of public toilets?
We do not need a suicide to make us search our souls. We do not need a human sacrifice before we make the right policies. The silent death into a quiet river from a distant bridge should be our bugle call.
PRIVACY AND SECRECY
On an individual level, I would like to make the distinction between privacy and secrecy.
We need not be secretive about our sexual orientation or gender identity, although we should keep our sex lives private.
I do not want to discuss about issues of self-acceptance and coming out. It is out of my depth – except to say that not being secretive about your sexual orientation could possibly help when such evil invasion of privacy happens. You will have less to cope with.
As for the law, clearly Singapore’s law is inadequate.
For civil action, the privacy law of USA is very developed. This is the result of judicial activism. One of its chief proponents is Judge Brandeis, who as a law professor argued for it in a celebrated article published in the Harvard Law Review. Needless to say, when he was made judge, he steered the course of its development.
The law of confidence was originally meant to facilitate commerce. No doubt, it has been used by government to protect state secrets in cases such as “The Spycatcher” or by individuals to protect what they consider private e.g. sexual orientation and HIV status. However, it is inadequate to cover all areas of privacy. Confidential information protects trade secrets. Privacy is not secrecy. It will take too long for our courts to develop a body of law on privacy to cope with the myriad of issues brought by the internet. We are in the age of real time; I think a bill in Parliament is long overdue.
For those who are faced with problems such as Tyler Clementi’s, below are two hotlines where you can seek help:
Oogachaga’s hotline: 626 86 626
SOS’ hotline: 1800-221 4444
I hope you gain a sense of your rights on privacy-related laws this month. My apologies to those whose emails I have not responded to. I think Tyler Clementi’s death has catalyzed a very important and pressing issue.
Until the next time, I dare you all to be brave!
The Lawyer Is In is a monthly column. In the columns, George Hwang will answer questions posed by readers on subjects such as personal and civil rights, workplace issues, discrimination, immigration, sexuality, lasting power of attorney and estate planning. To submit a question, email firstname.lastname@example.org. Responses will be made by placing your question (without identifying you) in an upcoming column, and answering it there. We regret that questions cannot be answered privately.
Disclaimer: The answers, opinions and other information in this column are, usually, of a general nature, even if you think the scenario is exactly the same. They are not legal advice. Neither the writer, www.fridae.com nor anyone involved shall be responsible to readers who rely on them as one. Readers facing legal problems should seek independent legal advice from a qualified lawyer.