Online Vigilantism – Balancing freedom of the internet and the right to privacy

-- By PaulLie - 12 Mar 2020

“It’s worse everyday It’s never ending You flee to Bombay And still, you’re trending” – “Goin’ Viral” from the Broadway musical Dear Evan Hansen

Introduction

On 26 October 2019, a video was posted online showing a man verbally abusing a condominium security guard in Singapore after being told that he needed to pay for the parking fees of his guests. The video quickly went viral and the man was identified in online comments as one Mr. Ramesh Erramalli, a foreigner who was working at JP Morgan. Within 3 days of the video being uploaded, public scrutiny of the incident escalated to the point that a senior government minister issued a chastisement of Ramesh’s conduct on social media. The video triggered demands to JP Morgan calling for Ramesh to be fired, and a number of “activists” also made prank calls to Ramesh’s handphone after his number was revealed in the comments section of the video.

The incident above illustrates a phenomenon of the internet, a form of online vigilantism where socially unacceptable behavior is exposed and perpetrators are publicly named and shamed. Such incidents raise important questions on the tension between the freedom of internet users to call out bad behavior and the right to privacy of the named individuals. This paper will explore how Singapore has attempted to strike a balance on this issue so as to preserve the useful role the internet plays in exposing misconduct whilst at the same time ensuring that such activity does not go too far in becoming an excessive imposition of extra-judicial punishment.

Balancing between competing rights

A good starting point would be to note that neither the right of expression nor the right to privacy are absolute. On the one hand, it is clear that the right to post materials online can be constrained if doing so infringes on the right to privacy of others. An example of this is the criminalization of revenge pornography, where the uploading of intimate materials without the consent of parties can result in penal sanctions. On the other hand, it is also true that people who commit wrongful acts may expect to lose their individual right to privacy to a certain degree, as is the case with media reporting on high profile criminal trials. Although accused persons are innocent until proven guilty, this doesn’t protect them from having to face the court of public opinion at the same time they are being trialed in the court of law.

Traditional legal remedies do not address the problem of balancing the 2 interests above. For example, civil claims for defamation which would typically serve as a self-help remedy against online falsehoods would not apply when the materials uploaded are in fact representative of the truth. In many cases, public overreaction is also due to a lack of context in the materials uploaded and the inability of the subjects of the uploaded material to put forth their own side of the story. Unfortunately, this is not a problem which can be easily addressed under the law of defamation. Extending the coverage of existing personal data protection laws would also miss the mark as it would result in over regulation. Allowing every person the right to demand that any image of themselves be taken down from the internet would invariably stifle the legitimate dissemination of information which is of public concern. One could possibly make the argument that a person who behaves badly in public should implicitly be considered to have consented to the subsequent public scrutiny of his or her actions. An example of this being the intense discussion that followed the release of President Trump’s video recording with Billy Bush prior to the elections.

The new crime of Doxxing

Modern problems require modern solutions. Rather than try to expand on existing legal principles, governments have turned to the adoption of new laws against the unauthorized release of personal and private information (“doxxing”). In Singapore, this was achieved by the amendment of the Protection From Harassment Act (“POHA”), an existing statute which imposes both civil and criminal liability for harassment and unlawful stalking.

Section 3 of the POHA makes it an offence for an individual or entity, with intent to cause harassment, alarm or distress to another person, to use or make any threatening, abusive or insulting communication or publish any identity information of the target person or a related person of the target person, thereby causing the target person or any other person harassment, alarm or distress. The POHA further provides at Section 3(3) that it would be a complete defense if the accused’s (i.e. the person uploading the information) conduct was reasonable. The POHA appears to strike a balance by focusing on the intention of the individual in order to create a distinction between uploading a video for the purposes of highlighting a wrongful act, which is permitted, and uploading the same video for the purposes of harassment, which is prohibited. In addition, the inclusion of a “reasonableness” defense indirectly incorporates a weighing exercise between the public good achieved by the dissemination of information and the harm caused to the identified individual. The potential weakness of such a law however is the practicality of implementation. It is always difficult to establish subjective intentions. In fact, individuals who are victims of bad behavior by others are likely to rationalize that their purpose in exposing the offending party is for the common good, when in reality their actions are more likely to have been motivated by an intent to achieve a form of revenge.

Conclusion

The new law against doxxing came into effect in Singapore on 1 Jan 2020 and has yet to be tested in court. When cases are eventually brought, this paper submits that the lawfulness of uploading material should ultimately be determined based on an objective assessment of whether such acts serve the purpose of disseminating information which are of legitimate public concern.