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WHETHER “CYBER TRESPASS” LAW IS FOR
SINGAPORE & THE EXPERIENCE OF OTHER
JURISDICTIONS
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.
1
2
3
4
5
Official statistics in 2000 indicated that more than 50% of all households in Singapore
have Internet access.
John Perry Barlow, A Declaration of the Independence of Cyberspace, 8 Feb 1996
(http://www.eff.org/~barlow/Declaration-Final.html), “Ours is a world that is both
everywhere and nowhere, but it is not where bodies live. Your legal concepts of
property, expression, identity, movement and context do not apply to us. They are all
based on matter, and there is no matter here”.
(2000) 3 SLR 26, dated 10 May 2000.
Ibid.
The litigation was commenced in late 1999 but the hearing took place in 2000.
15 SAcLJ
Cyber Trespass Law
183
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,8
Inc, 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
6
7
8
9
10
The courts in U.S. and Canada, (in particular, the U.S.) have had numerous cases
dealing with unwanted activities on the Internet.
Search made via Lexis Nexis as at 1 September 2002, also see “You’ve found the
Web, but where’s the spider?”, P Barton and R Varoujian, IT Law Today, May 2002,
at p. 2, “In the UK, the law is as yet far less well defined, but existing legislation does
at least offer a certain amount of protection.”
962 F. Supp. 1015 (S.D. Ohio 1997).
100 F. Supp. 2d 1058 (C.D. Cal. 2000).
15 I.E.R. Cases (BNA) 464 (Cal. Sup. Ct. 1999).
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Singapore Academy of Law Journal
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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.
PacNet14
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
11
12
13
14
15
Torts, by P Giliker, S Beckwith, (Sweet & Maxwell, 2000) at p 257.
Singapore turned independent in 1965 and was previously a colony of the United
Kingdom. Singapore remains part of the Commonwealth. Its legal history was very
much tied to the common law traditions. In the area of tort law and contract law, it is
very much the English common law with few exceptions created by statutory law.
The Internet is a vast and interactive medium consisting of a decentralised network of
millions of computers all over the globe. To-date, at least 400 million people use the
Internet worldwide. See American Library Association, Inc v U.S., 2002 U.S. Dist.
(E.D. Penn. 2002).
(2000) 3 SLR 26, dated 10 May 2000.
Section 188 Copyright Act (Cap. 63).
15 SAcLJ
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185
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.”
16
17
18
19
“HTML” refers to Hyper Text Markup Language which is a programming language
used to create documents on the World Wide Web (WWW).
“HREF” refers to Hyper Text Reference Link which is an HTML instruction linking
text or graphics to another document or Web site.
This rule provides for a pleading to be struck out, inter alia, on the ground that there
is no reasonable cause of action.
On the refusal to strike out, Lai J indicated that, “In an application to strike out a
pleading, we must take the averments as proved so long as they are not ridiculous or
incredible or patently incapable of proof.”
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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 were intentional21 and
whether the trespass was direct. That said, the issue of whether, on the
facts, an action in trespass could be established in cyberspace is a
fascinating one that involves many legal complexities. Indeed, the court
observed that “it is a vexed question of law whether what is pleaded may
be encompassed within the concept of the common law trespass”.22 The
20
21
22
This is subject to the usual burden of proof at trial.
The Law of Torts, Margaret Brazier, (10th Ed, 1999) at p. 77.
(2000) 3 SLR 26 dated 10 May 2000, “Drawing from what I could comprehend from
the technical details relating to deep linking of Web sites in the Internet with which
this case is concerned, it may be obviously platitudinous to observe that the
complexity in the present case is also to be found in the technical details of deep
linking and the technology of its prevention. This complexity is in addition to and is
quite apart from the vexed question of law whether what is pleaded may be
encompassed within the concept of the common lssssaw [continued next page]
15 SAcLJ
Cyber Trespass Law
187
court may have given its preliminary judicial approval that on the facts,
the action on trespass may well succeed. However, it still begs the
question as to what form of trespass it would be and whether the facts
satisfy the elements of the tort.
Unanswered legal questions arising from the post-PacNet’s
decision in the law of trespass in cyberspace and Singapore
9
It transpired that PacNet’s case did not go to trial. Subsequent to
the dismissal of the defendants’ application to strike out the plaintiffs’
action, parties settled the dispute out of court and a “Notice of
Discontinuance” of the action was filed on 19 June 2001. From the angle
of the development of the law of trespass in cyberspace that would apply
to Singapore, the decision in PacNet opened up a wide array of
possibilities as to how the Singapore courts could approach the area of
cyber trespass in future cases. The unanswered legal questions emanating
from the decision of the High Court in PacNet include: What unwanted
activities on the Internet would constitute as trespass in cyberspace? Will
the courts in Singapore eventually extend the traditional English common
law of trespass to cover trespass in cyberspace having regard to PacNet’s
case? Which form of trespass would it come under - Trespass to land or
trespass to chattels? Would it be necessary to create a new category for
trespass in cyberspace? Is the law of trespass most suitable or convenient?
Is there a better alternative? Should there be legislation23 to address this
aspect of the law instead? Can technology resolve the problems created by
technology?
10
To address the issues above, I will draw guidance from other
jurisdictions24 that have prior experience in this area of the law, in
particular, from the U.S. I will critically analyse the approach used by
these courts and determine if their legislation in this area of the law would
be suitable for consideration in the context of Singapore.
23
24
encompassed within the concept of the common law trespass. There is therefore
novelty in both law and the technology of deep linking of Web sites, both of which
require the most rigorous examination and scrutiny which only a full trial can
ensure.”
There is some legislation on “spamming” from the various states of USA (e.g.
California and Washington). In the UK, the implementation of the Council Directive
96/9/EC was designed to protect the investment in the creation and contents of a
database. Database rights are infringed if either the whole or a substantial part of the
database contents are extracted or utilised without the consent of the owner.
Besides United States and Canada which have some developments, a search of Lexis
Nexis as at 1 September 2002 did not reveal any developments in the United
Kingdom, Australia, New Zealand, Hong Kong SAR, Malaysia etc.
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Issues of CyberTrespass arising from Pacnet25 and the
experience of other jurisdictions
The traditional acts26 of trespass to land and to chattels
11
Before we plunge into identifying the recent spate of unwanted
activities on the Internet, it is useful to take stock of some of the
traditional acts that were accepted by the English common law as acts of
trespass to land and to chattels. This may serve as a useful comparison as
we venture to identify the various types of unwanted activities on the
Internet.
Acts of trespass to land:27 To cause some foreign matter to enter
or come into physical contact with the land of the plaintiff is a
trespass. Firing a gun into the soil, placing a ladder against, or
driving nails into the wall of the plaintiff, encouraging a dog to
run into his land, removing the doors and windows and throwing a
person onto another’s land have all been held by the English
courts as acts of trespass to land.
Acts of trespass to chattels:28 Trespass to goods can assume
various forms. Taking goods out of the possession of another,
moving them from one place to another, or even bringing one’s
person into contact with them, or directing a missile at them have
all been held to be trespasses to chattels.
Points to note on the traditional acts of trespass vis-à-vis trespass in
cyberspace
12
As can be seen, the range of acts that would amount to trespass to
land or chattels is fairly broad and diverse. Invariably, the acts constitute
some form of interference, intrusion and/or intermeddling with the
plaintiff’s property. As we survey the cases in relation to acts of trespass
in cyberspace, this comes out strongly as the thing in common between
acts of cyber trespass and traditional acts of trespass to land and chattels.
This is useful to note as we brace ourselves to receive more cases
involving unwanted activities on the Internet in the days to come. The
25
26
27
28
(2000) 3 SLR 26 dated May 10 2000.
As trespass in cyberspace is unlikely to be trespass to a person, I have excluded it
from the discussion. I have confined the discussion to trespass to land and chattels
only.
Adapted from The Law of Torts, by Margaret Brazier (10th Ed, 1999) at p. 74.
Ibid, at p. 68.
15 SAcLJ
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189
offending acts will be different. Their “techy” names and functions may be
beyond our present imagination. However, if the act that the defendant is
responsible for amounts to an intentional and direct interference and/or
intermeddling with the plaintiff’s property in cyberspace, that is prima
facie an act of trespass.
What are the unwanted Internet activities that may be regarded as
trespass in cyberspace?
13
Deep linking: In the case of PacNet, the offending acts arose from
the unauthorised deep linking29 of plaintiffs’ Web sites by the defendants,
thus causing the plaintiffs to suffer from a loss of revenue in
advertisements.30 Deep linking connects one Web page to another without
going through the host Web page. Such a link may easily cause a surfer to
think that he is still surfing the original Web site rather than having
entered the Web site of a third party via the deep hyperlink. Very often,
deep linking comes with framing and spiders (though not always). Similar
unauthorised acts of trespass by deep linking were used in TicketMaster
Corporation v Tickets.Com, Inc31 (“TicketMaster”). The court in
TicketMaster issued two decisions. In the first, the court held that “the
taking of factual information from a public source was not a trespass”, and
even if it were, the U.S. Copyright Act pre-empted that claim. It was also
observed by the court that it was difficult to see how “entering a publicly
available Web site could be called a trespass since all are invited to enter”.
In the second, the court again found no irreparable injury for the claim in
trespass to chattels even though the court indicated that the trespass theory
had some merit. However, on the facts of TicketMaster, the court was
unable to find any real physical harm to the chattel and there was also
insufficient obstruction of the Web site’s basic function.32 Though the
plaintiff did not succeed in TicketMaster, it would appear that the court
somewhat approved the reliance on the law of trespass to chattels if there
were some actual injury33 to the chattel. Interestingly, the TicketMaster is
29
30
31
32
33
“Deep linking” is also known as “deep hyperlinking”. It refers to the technical act of
connecting one Web page to another without going through the host Web page. Such
a link may easily cause a surfer to think that he is still surfing the original Web site
rather than having entered the Web site of another via the deep hyperlink.
In terms of damages, the plaintiff claimed those acts of trespass had caused confusion
in the minds of the public between the defendant's 'works' and the plaintiff’s 'works'.
They had also enhanced the value of the defendant's home page, “Movies and Food N
Entertainment Web sites”. The losses of 'eyeballs' or 'hits' in respect of the plaintiffs'
homepage and Web sites led to losses in advertising revenue and other revenue
generating opportunities.
(2000) U.S. Dist. LEXIS 12987; Copy. L. Rep. (CCH) P28, 146.
2000 U.S. Dist. LEXIS 12987 at p 5
A requirement in the U.S. Restatement (Second) of Torts S 218 cmt. E(1977).
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one of those rare instances where the plaintiff could not succeed as the
court applied a strict standard of actual injury. The contrary is seen in most
of the other U.S. decisions.
14
Framing: This refers to the display of content from different Web
pages so that it appears to the user to be within the frame of the original
page i.e. its own host Web site. There are no decided cases on the liability
of any acts of framing in trespass but I would think that if deep linking is
regarded as sufficient for a cause of action in trespass, I do not see why
framing should not. After all, framing and deep linking are all about
creating an impression to the surfer that the information displayed on the
defendant’s Web site appears to be from the defendant and not a
compilation or combination of third party Web sites. In fact, framing is
more misleading than deep linking since the image imported from another
Web site is displayed as though it is part of the current Web page,
surrounded by the current Web page's text and advertising. In framing, the
user typically would not realise that the image actually resided on another
Web site. An action in copyright against the defendant’s act of framing
was taken out in Washington Post v Total News34 but the action was settled
without reaching the courts.
15
Spiders: The leading case for trespass to chattels through the use
of “Web crawlers” or “spiders”35 is probably eBay v Bidder’s Edge
(“eBay”).36 The defendant, Bidder’s Edge (“BE”) continued to Web crawl
the plaintiff’s, eBay Web site beyond the permitted 90 days free trial
without an agreed license. eBay sued BE in trespass as BE had
intentionally and without authority interfered with eBay’s possessory
interest in its computer system. BE’s Web crawlers exceeded the scope of
any such consent when they began acting like robots by making repeated
queries. The case of Register.com, Inc v Verio, Inc37 saw a similar
34
35
36
37
http://www.nd.edu/~pbellia/total.html
‘Spiders”, also known as “robots” are programmed by an administrator and assigned a
specific set of tasks. Spiders continually crawl the WWW, their mission being to
“search and retrieve” information needed to update a search engine’s database. To do
this, the administrator either provides the spider with a URL or directs it to a server’s
file directory. The spider then gathers data at that location, as well as following any
hypertext links it comes along on its way. Though spiders affect sites
indiscriminately, most Internet users, including consumers and businesses, find
spiders to be useful. In fact, most search engine databases are compiled by spiders
that search Web servers and index their contents. Although only a small amount of
the material on the Internet has been indexed, locating any information on the Internet
would be an almost impossible task without search engines such as Google, Yahoo or
FindLaw. (Adapted from Quiler, ‘Cyberlaw: The Continuing Expansion of
Cyberspace Trespass to Chattels’, (2002) 17 Berkeley Tech. L.J. at 421.
100 F. Supp. 2d 1058 (C. D. Cal. 2000)
126 F. Supp.2d 238 (S.D.N.Y. 2000)
15 SAcLJ
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191
complaint where a spider was used by the defendant to scan the database
for new registrants of the plaintiff and their contact information. This was
to send targeted sales pitches for its own ISP and Web hosting services
which were in direct competition with some of the same services offered
by Register.com. The court found that Register.com’s terms of service
were silent on the use of spiders, but the litigation had put Verio on notice
that its spiders were forbidden.
16
Metatags:38 Oyster Software, Inc. v Forms Processing, Inc
(“Oyster”)39 is an interesting case of the defendant’s exploitative use of
metatags from the plaintiff’s Web site and using it on their own. In fact,
the defendant engaged another company to execute the metatags.
Notwithstanding that, the court was satisfied that based on the doctrine of
vicarious liability, the defendant must be liable in trespass for intentionally
interfering with the plaintiff’s Web site without authorisation. While the
interference by the use of metatags could have been negligible, the court
was reluctant to dismiss the plaintiff’s claim on trespass, as the defendant
should not be unjustly enriched41 by its unauthorised use of metatags. As
the decision in Oyster was interlocutory in nature, its utility as a precedent
is in this regard is just as limited as PacNet’s.
17
Cookies:42 The use of cookies and Web bugs43 have drawn more
flak in the area of Internet privacy rather than trespass to chattels.
Commonly, cookies are used to store users' preferences and other
38
39
40
41
42
43
A special HTML instruction embedded in the code of a Web page to provide Web
browsers with information about who created the page, how often it is updated, what
subjects it concerns, and keywords that correspond to its content. Search engines
often use metatags to properly catalogue Web pages.
U.S. Dist., N.D. Cal. 2001
A special HTML instruction embedded in the code of a Web page to provide Web
browsers with information about who created the page, how often it is updated, what
subjects it concerns, and keywords that correspond to its content. Search engines
often use metatags to properly catalogue Web pages.
This point about “unjust enrichment” raises an alternative cause of action for
unwanted activities over the Internet. It will be further explored in the later part of the
article.
A cookie is an electronic file "attached" to a user's computer by a computer server.
A cookie or a Web bug is a graphics on a Web page or in an e-mail message that is
designed to monitor whom is reading the Web page or e-mail. Web bugs are
invisible because they are typically only 1-by-1 pixel in size. They are represented as
HTML IMG tags. Web bugs are also known as “1-by-1 GIFs” or “Invisible GIFs”.
When a Web bug is viewed, the IP address of the computer, URL of the page
that the Web bug is located, time of viewing, type of browser etc will be sent to
a server. Ad networks can use Web bugs to add information to a personal profile of
what sites a person is visiting. A Web bug can be found by viewing the HTML source
code of a Web page and searching for IMG tags. (Source:
http://www.eff.org/Privacy/Profiling_cookies_Webbugs/Web_bug.html)
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information, which allows users to easily access and utilise personalised
services on the Web or to maintain an online "shopping cart." Cookies also
allow Web sites to differentiate between users as they visit by assigning
each individual browser a unique, randomly generated numeric or
alphanumeric identifier. Though cookies generally perform many
convenient and innocuous functions, from the inherent nature of cookies
and Web bugs, there is no doubt that they would constitute acts of
intermeddling with the plaintiff’s Web site especially if the consent of the
user has not been sought. In Re Pharmatrak, Inc. Privacy Litigation,44 the
plaintiffs alleged that the defendants "secretly intercepted and accessed
Internet users' electronic communications with various health-related and
medical-related Internet Web sites and secretly accessed their computer
hard drives in order to collect private information about their Web
browsing habits and confidential health information without their
knowledge, authorisation, or consent45." Put simply, the plaintiffs’ action
in privacy failed as the court concluded that they were seen to have given
their consent to the defendants’ activities of incursion. However, where no
consent is given, it is possible to also argue that there may be a cause of
action in trespass too.
18
Spam: 46 A number of computer network trespass cases from the
United States and Canada came about by the defendants’ transmission of
“unsolicited bulk e-mail”, “unsolicited commercial e-mail, and “junk email” colloquially known as “spam”. Spam is one of the most salient
downsides of the Internet. E-mail, an otherwise extremely useful medium,
is abused by direct marketers and others to sell their products, get their
messages across, or just generally annoy “netizens”. The fact that the
marginal cost of sending such unsolicited messages is practically zero has
magnified this problem to the point that significant time and energy is lost
in trying to prevent spam from reaching users' email accounts.
44
45
46
47
United States District Court For The District Of Massachusetts, 2002 U.S. Dist. Lexis
15293
Ibid.
Use of the term “spam” as Internet jargon for seemingly ubiquitous junk e-mail arose
out of a skit by the British comedy troupe Monty Python. In the skit, a waitress could
not offer a single menu item that did not include spam: “Well, there’s spam, egg,
sausage and spam. That’s not got much spam in it.” Graham Chapman et al., The
Complete Monty Python’s Flying Circus: All the Words (Pantheon Books, 1989).
Use of the term “spam” as Internet jargon for seemingly ubiquitous junk e-mail arose
out of a skit by the British comedy troupe Monty Python. In the skit, a waitress could
not offer a single menu item that did not include spam: “Well, there’s spam, egg,
sausage and spam. That’s not got much spam in it.” Graham Chapman et al., The
Complete Monty Python’s Flying Circus: All the Words (Pantheon Books 1989).
15 SAcLJ
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193
19
An important decision in the United States on spam is the case of
CompuServ, Inc. v Cyberpromotions, Inc.48 (“CompuServe”). The court
concluded that the defendant’s practice of sending unsolicited e-mails to
the plaintiff’s subscribers was an unwanted intrusion into the plaintiff’s
computer systems. It was held to be a trespass49 and should not be allowed.
Such a conclusion is typical in almost all the cases relating to spam. See
also Cyber Promotions Inc. v American Online Inc.,50 Intel Corp v
Hamidi,51 Cyber Promotions, Inc. v Apex Global Information Services,
Inc,52 State of Washington v John Heckel53 (based on state legislation),
Ferguson v Friendfinders Inc54 (also based on state statute law) and
Ontario Inc v Nexxs Online55 (a Canadian case but the decision turned on
the breach of a contractual provision of “Netiquette”). I will analyse the
decision of the Court of Appeal in Hamidi in some detail in the later part
of the article as to whether the defendant’s spam has resulted in actual
injury to the chattel before it can be regarded as trespass to chattels.
The categories of unwanted activities on the Internet are never
closed
20
From a survey of the relevant case law, unwanted activities on the
Internet, including, deep linking, framing, metatagging, spiders and spam
have generally been regarded as trespass in cyberspace. The list is, of
course, not exhaustive.56 With the rapid advancement of Internet
48
49
50
51
52
53
54
55
56
962 F. Supp. 1015 (S.D. Ohio 1997).
CompuServe has been criticised by Dan L. Burke, ‘The trouble with trespass”
(http://papers.ssrn.com/paper.taf?abstract_id=223513), “Since trespass to chattels
requires some type of physical interference with the chattel, the CompuServe opinion
finds this physical contact in the passage of electrons over the service provider’s
system. To reach this conclusion, the court in CompuServe relied heavily on the only
available precedent, Thrifty-Tel. Inc. v Bezenek, 54 Cal Rptr 2d at 468 (Cal. Ct. App.
1996). The Thrifty-Tel opinion, in turn, analogised the passage of electrons over a
telephone system to the impact of “intangible” particles. In a footnote, the court
concluded that the electronic signals generated by the children were sufficiently
tangible to support a trespass cause of action.”
C2-96-1070 (S.D. Oh. Feb 3 1997).
15 I.E.R. Cases (BNA) 464 (Cal Sup Ct. 1999) – review granted.
No. 97-5931 (E.D. Pa. Sept. 30, 1997)
143 Wn. 2d 824; 24 P.3d 404; 2001 Wash. LEXIS 388.
94 Cal App 4th 1255.
45 O.R. (3d) 40; 1999 Ont Rep LEXIS 173.
There is “Gator”, a downloadable browser plug-in package that works as a pricecomparison tool and "wallet" to fill out online forms. But Gator also sometimes
projects pop-up advertisements from its business partners directly on top of preexisting banner ads on pages like Yahoo, obscuring the original. Pop-up ads such as
the spy/toilet camera that most people reject are often generated by online behavior,
such as sites visited. Given the fuzziness of property rights on the Internet, a host of
trespass issues have predictably emerged. Source: Clyssssssde [continued next page]
194
Singapore Academy of Law Journal
(2003)
technology and the innovative abuse of it, some smart aleck out there will
discover new and exploitative ways of benefiting himself. It could also be
a sheer mischief that may not even have any known criminal sanctions. It
is in such instances that the aggrieved party will have no other option but
to look to the common law for relief, be it under trespass or otherwise. As
what would constitute cyber trespass is less clear than trespass to a person,
land or chattel, the first task is always to identify what the nature of the
offending act is. The issue is whether the offending act is a recognised
form of cyber trespass or can it be an extension of an existing recognised
act by the use of analogy? For instance, it is only sensible to include
framing, cookies and Web bugs to the list of recognised unwanted
activities on the Internet which could amount to trespass even though there
are no decided cases on such activities as trespass. So long as the
offending act fundamentally interferes, intrudes or meddles with the
plaintiff’s rights in cyberspace, there is no reason why a new act should
not be included. As can be seen, the categories are never closed and it is
continually growing.
The “unnatural birth” of the reliance of the law of trespass to
chattels for unwanted activities on the Internet
21
Having identified the various types of unwanted activities on the
Internet which could amount to trespass, it is now necessary to examine
how the common law tort of trespass to chattels came about to be the
cause of action to deal with such problems. Thus far, the majority of the
authorities cited above are contented to accept the offending acts as
trespass to chattels without too much of an inquiry. The consistent trend of
the U.S. courts have been to recognise the unwanted activity on the
Internet as an act of trespass to chattels and then proceeded to apply the
elements to prove trespass to chattels. To-date, not a single U.S. judge has
shed some judicial light as to why it is trespass and not any other cause of
action and why trespass to chattels in particular. In this regard, this is
another important reason why the pending appeal of Hamidi to the
Supreme Court of California is such an anticipated decision and one just
hopes that the mystery will be unravelled.
22
It is interesting to know that the doctrine of trespass to chattels
relied on to control unwanted activities on the Internet actually originated
from a non-Internet case, Thrifty Tel. Inc. v Bezenek57 (“Thrifty-Tel”),
57
trespass issues have predictably emerged. Source: Clyde Wayne Crews Jr , “Trespass
in Cyberspace: Whose Ether Is It Anyway?”, Issue #19, September 10, 2001,
<http://www.cato.org/tech/tk/010910-tk.html>
54 Cal Rptr 2d at 473.
15 SAcLJ
Cyber Trespass Law
195
involving an intrusion on the equipment of a telephone services provider.
In Thrifty-Tel, a long-distance telephone provider sued the parents whose
minor children had been engaged in the unauthorised use of telephone
services, commonly known as “phreaking”. The children had initially
gained access to the Thrifty-Tel system by manually entering randomly
guessed telephone authorisation codes. Thrilled by their little success, they
later acquired and employed software to conduct high-speed automated
searches for access codes. Although the action was in conversion, the
court on appeal substituted its own theory of trespass to chattels (hence, I
term it an “unnatural birth”)! The court concluded that the electronic
signals generated by the children were “sufficiently tangible to support a
trespass cause of action.58” It is not that the decision to apply the law of
trespass to chattels is wrong but it would have helped if there were
reasons59 given by the court as to why unwanted activities on the Internet
is a case of trespass to chattel but not trespass to land, nuisance etc. In
both instances, the courts conveniently assumed that it was a given fact
and proceeded to apply the Restatement (Second) of Torts60 which covers
trespass to chattels to their respective cases before them. The issue here is
whether the American courts have thus far adopted the correct approach in
categorising unwanted Internet activities as trespass to chattels. The
lawyers61 and the court in Singapore’s PacNet62 case were a little more
cautious. The question as to how to classify unwanted Internet activities
was left open by both counsel as either “personal or analogous to real
property”.63 Neither did the court64 hold as to which category of trespass it
should fall under. All that the court decided was that, “it is arguable that a
claim for actionable trespass may succeed.65” In this regard, it is axiomatic
that the position adopted by the courts in U.S. would certainly be
persuasive except where the legal requirements differ in both jurisdictions.
58
59
60
61
62
63
64
65
54 Cal Rptr 2d.
This too also happened in the Singapore High Court in PacNet.
S 218 cmt. E(1977).
(2000) 3 SLR 26, Judgment by Lai J, “These are comprised of a number of items,
which, I was told by learned counsel for the plaintiffs, Mr Thio Shen Yi, may
arguably in law be described as either personal property or property akin to real
property. I will, with respect, adopt the language of the pleadings.”
Ibid.
2000 SLR LEXIS 152, p. 3.
Ibid. This could be one reason why Lai J chose not to explain in the judgment why it
is trespass and specifically whether it is trespass to land or to chattels. Another reason
could be that it was a merely interlocutory application.
Ibid.
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Singapore Academy of Law Journal
(2003)
CyberTrespass and its relation to Singapore’s application of the
English common law of the tort of trespass
23
When applying the common law to new areas and in particular,
seeking to extend the common law to an unfamiliar territory, one should
always return to first principles. As such, it is helpful to turn to the
definition of trespass to goods in Winfield & Jolowicz’s66 textbook on Tort
which seems broad enough. It is as follows,
“Trespass to goods is a wrongful interference with the chattel. It
may take innumerable forms, such as scratching of the panel of a
coach, removing a tyre from a car, or the car itself from a garage
etc.”
The requirements of trespass to goods are fairly settled: the offending act
must be intentional and direct. It is also actionable per se without proof of
damage. Thus, it covers activities such as the unauthorised touching of
museum exhibits, which would not otherwise be protected in tort. There is
some authority in favour of proof of damage, but these cases can generally
be explained as highway cases based on negligence.67
24
The key to this tort is interference68 with the possession and not
the ownership, of goods. It is a valid defence if the claimant has consented
to the interference or if it would be necessary for the preservation and
protection of the goods and reasonable steps were taken. Trespass to goods
is therefore a means by which the claimant’s possession of goods can be
protected from unwarranted interference by others. Street on Torts69 states
the objectives of trespass to goods succinctly as follows:
“This tort protects the plaintiff’s interest in the retention of
possession of his goods. Secondly, trespass protects his interest in
the physical condition of his goods and thirdly, his interest in the
inviolability of his goods i.e. protection against intermeddling.”
(emphasis mine)
66
67
68
69
W.V.H. Rogers, (15th Ed, 1998), at pp. 585- 588.
See Everitt v Martin [1953] NZLR 298 and Slater v Swann (1730) 2 Stra 872.
UK has enacted s 1(b) of the Torts (Interference with Goods) 1977 Act to bring
trespass as one of the categories of “wrongful interference with goods”. Singapore
does not have such a provision. Be that as it may, the position in Singapore need not
be any different as the plain meaning of wrongful interference with goods is quite
generic and is already broad enough to cover trespass to goods.
by Margaret Brazier, (10th Ed, 1999) at p. 68.
15 SAcLJ
Cyber Trespass Law
197
In contrast, trespass to land at common law is quite specific. The tort of
trespass to land is founded70 on an infringement of a person’s possession
of land. Possession can be defined for these purposes as having physical
control of the land. A person who is in possession of land can use the tort
of trespass to defend that possession against any person other than one
who has a superior right to possess the property. Its rationale is not to
protect the integrity or reputation of the plaintiff but to protect the plaintiff
against direct and unjustifiable interference with his or her possession of
land. Trespass also serves as a useful function in determining boundaries
to land and in dealing with persistent trespassers by means of injunctive
relief.
25
Having compared the requirement and rationale of trespass to land
and chattels, I would submit that trespass to chattels is more suitable for
unwanted Internet activities than trespass to land. The emphasis on
trespass to land is in the “possession” and “boundaries” of land. In
trespass to chattels, the emphasis is on the “unwarranted interference”
with the goods rather than mere “possession” of the goods. The latter is a
very relevant consideration for dealing with the unwanted activities on the
Internet. The element of possession is never undermined by the unwanted
activities on the Internet. Further, it would be kind of anomalous to relate
the “cyberspace” to “land”. Indeed, the two are in direct contradiction.
Another reason for favouring trespass to chattels rather than land is
because the world of cyberspace is only accessible through chattels like
the computer. There are also no real difficulties in treating computers,
databases, servers, processors and networks as chattels too (see later
section on “Harm to the processor only” for a further discussion).
26
Having regard to the above, if there is interference with the
plaintiff’s rights in cyberspace, it can be properly viewed as a trespass to
his chattel. There is some authority with this reasoning. It is well
established that the owner of land has rights in the airspace above his
property, which can be protected by an action in trespass to land. The
leading modern authority is Anchor Brewhouse Developments Ltd v
Berkeley House (Docklands Developments) Ltd71 in which Scott J took the
view that it was important that adjoining owners were left in no doubt as
to their rights in relation to overhanging cranes into their airspace above
their land. He held that an owner of land should not be just confined to
complaining about incursions into airspace which interfere with the use
and enjoyment of his property. A landowner should be entitled to reduce
70
71
The Modern Law of Tort, by K.M. Stanton, (1994) at p. 378.
(1987) 38 B.L.R 82. Adapted from The Modern Law of Tort by K.M. Stanton, (1994)
at p. 68.
198
Singapore Academy of Law Journal
(2003)
the airspace above his property into his possession and he would therefore
be entitled to complain of trespass if another takes possession of it. By
analogy, as much as interference with the plaintiff’s air space directly
above plaintiff’s land is trespass to land, one can reason that the
interference with the plaintiff’s rights in cyberspace is trespass to the
plaintiff’s chattel i.e. it is the computer that grants the plaintiff access to
cyberspace.
27
In trespass to land, it is very straightforward. To walk on the
surface of the plaintiff’s land is enough72 to constitute the tort of trespass.
In the case of unwanted Internet activities, it is quite different from
trespass to land. The emphasis is on the act of trespass rather than the
mere entry per se. In other words, in a case involving cyber trespass, the
offending act is not the defendant’s access to the plaintiff’s Web site
which is opened to all73 but rather the claimant is aggrieved by the
offending party’s intrusive74 activities on its Web server. The latter
amounts to intermeddling with the claimants’ proprietary rights in
cyberspace. This is exactly what the English common law of trespass to
goods seeks to protect - the unwarranted interference by others or to put it
in another way, it is a protection of the claimant’s interest in the
inviolability of his goods. Many of the decided cases on cyber trespass
make clear findings on the offending acts being an interference to the
claimant’s computer network or system and the diminishing value of its
equipment as a result of the defendant’s intermeddling with the plaintiff’s
property. In these cases, the defendants’ liabilities were established.75 For
the above reasons, I would respectfully agree with the approach adopted
by the U.S. courts. I believe the Singapore courts are likely to adopt the
same. But such an approach has been criticised in a few academic
writings.76 Professor Hardy77 suggests that the doctrine of trespass to land
72
73
74
75
76
The Modern Law of Tort by K.M. Stanton, (1994) at p. 378.
The concern raised in the first decision of the TicketMaster’s case was that the
“taking of factual information from a public source was not a trespass”. The court
noted that it was difficult to see how “entering a publicly available Web site could be
called a trespass since all are invited to enter.” 2000 WL 525390 at p. 4.
Lai J correctly pointed out in PacNet’s case at p. 5 of 2000 SLR LEXIS 152 that, “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.”
Refer to eBay and the Oyster’s case. The court in Oyster noted that in eBay’s case, it
was concluded that the defendant’s conduct was sufficient to establish a cause of
action for trespass not because the interference was “substantial” but simply because
the defendant’s conduct amounted to “use” of plaintiff’s computer.
Laura Quiler, Cyberlaw: The Continuing Expansion of Cyberspace Trespass to
Chattels, (2002) 17 Berkeley Tech. L.J. 421, “The nesdddddw [continued next page]
15 SAcLJ
Cyber Trespass Law
199
might better be applied to the issue of unauthorised hypertext linking. As
explained above, I am more inclined to agree with the position taken by
the U.S. courts and disagree with Professor Hardy. There is also tacit
approval by the Canadian78 courts of the approach taken by the U.S.
courts. In any event, it may well be academic since Professor Burke79
points out that though Professor’s Hardy’s analysis sounds in trespass to
land rather than trespass to chattels, the cases on cyber trespass to chattels
are “in reality infused with a hefty dose of trespass to land”. All these
intermixing between the doctrine of trespass to land and chattels started
with the case of Thrifty-Tel where the court applied the doctrine of
trespass to chattels but referred to cases on trespass to land.80
IV
Appreciating the difference between the English
common law and the U.S. Doctrine of trespass to chattels
U.S. Requirement of actual injury to chattels
28
Having ascertained that Singapore can sensibly rely on the
doctrine of trespass to chattels to deal with unwanted activities on the
Internet, we should now focus on appreciating the precedents of these U.S.
cases applying the doctrine. However, before we can meaningfully do so,
we must first understand the stark difference between the English common
law and the U.S. doctrine of trespass to chattels. The key difference lies
with the requirement in U.S. law to find “actual injury” in trespass to
chattels. On the contrary, under English common law, trespass to chattels
is actionable per se, and without proof of damage.
29
The U.S. position is provided in the Restatement (Second) of
Torts81 is explained82 as follows:
77
78
79
80
81
Chattels, (2002) 17 Berkeley Tech. L.J. 421, “The new cyberspace trespass to chattels
has married the doctrines of trespass to land and trespass to chattels, blurring the
traditional boundaries between them.”
See I. Trotter Hardy, The Ancient Doctrine of Trespass to Web Sites, 1996 J. Online
L. art. 7 <http://www.wm.edu/law/publications/jol/hardy.html>
In Ontario Inc v Nexx Online, 45 O.R. (3d) 40; 1999 Ont. Rep., the Canadian Court
considered the whole line of U.S. cases on cyber trespass to chattels and did not
disagree with the approach taken. The Canadian case was resolved on the point of
contract and it was therefore not necessary for the court to discuss the position of
controlling unwanted Internet activities using trespass to chattels.
The Trouble with Trespass, by Dan L. Burke, (1999) at p. 19
<http://papers.ssrn.com/paper.taf?abstract_id=223513
Wilson v. Interlake Steel Co. (1982) 32 Cal 3d 229, 232-233 [185 Cal Rptr 280, 649
P.2d 922]; Roberts v. Permanente Corp. (1961) 188 Cal. App. 2d 526, 529 [10 Cal
Rptr 519].)
S 218 cmt. E(1977).
200
Singapore Academy of Law Journal
(2003)
“The interest of a possessor of a chattel in its inviolability, unlike
the similar interest of a possessor of land, is not given legal
protection by an action for nominal damages for harmless
intermeddlings with the chattel. In order that an actor who
interferes with another's chattel may be liable, his conduct must
affect some other and more important interest of the possessor.
Therefore, one who intentionally intermeddles with another's
chattel is subject to liability only if his intermeddling is harmful to
the possessor's materially valuable interest in the physical
condition, quality, or value of the chattel, or if the possessor is
deprived of the use of the chattel for a substantial time, or some
other legally protected interest of the possessor is affected ....
Sufficient legal protection of the possessor's interest in the mere
inviolability of his chattel is afforded by his privilege to use
reasonable force to protect his possession against even harmless
interference.” (emphasis mine)
Simply put, in order for trespass to chattel to succeed, there must be some
actual injury to the chattel’s physical condition, quality or value. The
exceptions are if the possessor of a chattel has either been disposessed of
the chattel or deprived of the use of the chattel for a substantial time. The
reason for drawing a distinction between trespass to land and to chattels by
the additional requirement of actual injury was explained in CompuServe,
Inc v Cyberpromotions, Inc;84
The interest of a possessor of a chattel in its inviolability, unlike
the similar interest of a possessor of land, is not given legal
protection by an action for nominal damages for harmless
intermeddlings with the chattel. In order that an actor who
interferes with another's chattel may be liable, his conduct must
affect some other and more important interest of the possessor.
…Sufficient legal protection of the possessor's interest in the mere
inviolability of his chattel is afforded by his privilege to use
reasonable force to protect his possession against even harmless
interference.”
It would be apparent from the above that the policy is not to protect
frivolous and nominal claims of trespass to chattels where there is either
negligible or no harm caused to the chattel since one is “afforded by his
privilege to use reasonable force to protect his possession against even
82
83
84
eBay v Bidder’s Edge, 100 F. Supp.2d 1058 (C.D. Cal 2000) LEXIS 7287 at p. 11.
962 F. Supp. 1015 (S.D. Ohio 1997).
Ibid.
15 SAcLJ
Cyber Trespass Law
201
harmless interference”. At first blush, this may sound like a practical
policy to adopt since we come into contact with chattels that do not belong
to us all the time. However, it would soon be apparent that this practical
policy has created a lot of problems for both lawyers and judges in
applying the doctrine of trespass to chattels to control unwanted activities
on the Internet.
30
Unlike the U.S. position, the English common law doctrine of
trespass to chattels has no requirement to show that the defendant’s
intermeddling has caused actual injury to the plaintiff’s chattel. It is
actionable per se, without proof of damage.85 Any unauthorised touching
or moving of an object is actionable at the action of the possessor of it,
even though no harm ensues. English academics have reasoned that this
strict liability may be absolutely necessary86 for the protection of certain
kinds of property (e.g. museum or art gallery exhibits) and that such a
liberal position should be the law. Given the liberal position, the
successful plaintiff will always be entitled to nominal damages at least.87
Therefore, some legal scholars have viewed this tort as an indirect remedy
of the English common law for invasions of privacy. For reasons which I
will explain in the later part of the article, in the context of controlling
unwanted activities on the Internet, I prefer the position adopted by the
English common law to the U.S. requirement of finding actual injury to
the chattel.
Possible ways to approach the “actual injury” requirement
31
As explained in the paragraph above, the bone of contention in
many of the U.S. cases was the requirement of actual injury to the chattel
before there can be a trespass to chattel. Exactly what type of actual injury
is required remains unclear till today. Since Thrifty-Tel’s recognition of
electronic signals as a trespass, many of the U.S. courts have appeared to
moderate the strict requirement for actual injury and recognised
intangibles such as the passage of electrons as adequate to support a
85
86
87
Leitch & Co. v Leydon [1931] A.C. 90 “An unauthorised use of the bottles, however
innocent, is a trespass on their property. The respondent commits a trespass on the
appellants' property the moment he has the bottle in his hand and does something to
their property to which he knows they object; he is misusing or participating in
misusing the appellants' property, and, if he claims a right to do so, the appellants are
entitled to interdict...a man touches the property of others at his peril…The wrong to
the appellants in relation to that trespass is constituted whether or not actual damage
has resulted therefrom either to the chattel or to themselves.”
Salmond & Heuston on the Law of Torts, Heuston and Buckley, (20th Ed, 1992) at
p 98
Kirk v Gregory (1876) 1 Ex D 55
202
Singapore Academy of Law Journal
(2003)
trespass to chattels claim.88 The prevailing attitudes of the finding of actual
injury generally can be explained in one of four ways: (a) all harm
emanating from the unwanted activities; (b) harm to the processors only;
(c) it is harmful if many do so; and (d) trespass should be actionable per
se.
(a)
“All harm emanating from the unwanted activities”
32
The decision of the majority of the Court of Appeal of California
in the case of Intel Corp. v Hamidi89 is a classic example of “any harm”
would suffice. After Hamidi was fired by Intel, he began to flood the
company's e-mail system with spam. When Intel’s security department
was unable to block or otherwise end the employee's mass e-mails, the
company filed an action for trespass to chattels. Hamidi sent e-mails to
between 8,000 and 35,000 Intel employees on six specific occasions. He
ignored Intel's request to stop and took steps to evade its security
measures. Intel's employees spent a significant amount of time attempting
to block and remove Hamidi’s spam from the INTEL computer systems
that are governed by policies that limit use of the e-mail system to the
company business.
33
The majority had no problems holding that Hamidi’s conduct was
trespassory. It went on to hold that even assuming Intel had not
demonstrated sufficient "harm" to trigger the entitlement to nominal
damages for past breaches of decorum by Hamidi, there was evidence that
Hamidi was disrupting Intel’s business by using Intel’s property. The
court also noted that Intel was hurt by the loss of productivity caused by
the thousands of employees distracted from their work and by the time its
security department spent trying to halt the distractions after Hamidi
refused to respect Intel's request to stop invading its internal, proprietary
e-mail system. The court’s extreme readiness to find trespass was seen in
this line of the judgment:
“Even where a company cannot precisely measure the harm
caused by an unwelcome intrusion, the fact the intrusion occurs
supports a claim for trespass to chattels.”
It is most apparent that the decision of the majority in Hamidi was not too
concerned about finding “actual injury to the chattel” before there can be a
trespass to chattel. In this case, loss of staff productivity, time and
distraction at work were not even directly related to actual injury to the
88
89
Thrifty-Tel. Inc. v Bezenek, 54 Cal Rptr 2d at 468 (Cal Ct App 1996).
15 I.E.R. Cases (BNA) 464 (Cal Sup Ct 1999)
15 SAcLJ
Cyber Trespass Law
203
chattel. In fact, the court appeared to have ignored the requirement of
actual injury to the chattel altogether and it smacks of applying trespass to
chattels as actionable per se without proof of damage required. Surely,
that should be a decision made by Congress and not the courts. It would
not be overstating that the above statement is a blatant disregard of the
U.S. Restatement (Second) of Torts.90
34
Hamidi’s decision is significant, and the dissenting judgment by
Kolkey J is particularly strong. Kolkey J correctly finds that the only
“injury” claimed therein was the time spent reading the spam and opening
and reading unsolicited e-mails cannot be a cognisable injury to the chattel
or to the owner's possessory interest in it. In this case, Intel was not
dispossessed, even temporarily, of its e-mail system by reason of receipt
of e-mails, the e-mail system was not impaired as to its condition, quality,
or value, and no actual harm was caused to a person or thing in which Intel
had a legally protected interest. Kolkey J also noted that neither can a loss
of employees' productivity qualify as injury.
35
I would submit that this view of “any harm would do” is unlikely
to be correct. Such an interpretation goes against the very grain of the U.S.
Restatement (Second) of Torts.91 The TicketMaster’s case rejected this
view and required evidence of physical harm,
“A basic element of trespass to chattels must be physical harm to
the chattel (not present here) or some obstruction of its basic
function (in the court’s opinion not sufficiently shown here).”
Oyster’s92 case also rejected the “any harm would do” interpretation and
the following passage is highly illustrative of the sensible stand taken by
the court,
“The computer is a piece of tangible property. It is operated by
mysterious electronic impulses which did not exist when the law
of trespass to chattels was developed, but the principles should
not be too different. If the electronic impulses can do damage to
the computer or to its function in a comparable way to taking a
hammer to a piece of machinery, then it is no stretch to recognize
that damage as trespass to chattels and provide legal remedy for
it.” (emphasis mine)
90
91
92
S 218 cmt E (1977).
S 218 cmt E (1977).
2001 U.S. Dist. LEXIS 22520
204
(b)
Singapore Academy of Law Journal
(2003)
“Harm to the processor only”
36
In the case of CompuServe, Inc v Cyberpromotions, Inc,93 the
court used the term “processor” to include computers, servers, databases
and routers. There is no doubt that those mentioned in the foregoing would
be accepted as chattels in common parlance. A more technical name for
computer processor is the Central Processing Unit (“CPU”). The CPU is
responsible for handling all instructions and calculations it receives from
other hardware components in the computer and software programs
running on the computer to complete a task.94 The court in CompuServe
held that if the processor suffers actual injury caused by the unwanted
activities on the Internet, that should be regarded as actual injury to the
chattel and an action in trespass to chattels ought to be sustained. I submit
that such an interpretation is a safe and reasonable one. In the case of
CompuServe, the actual injury caused by the defendant’s spam had
commandeered even more computer resources because CompuServe's
computers were forced to store undeliverable e-mail messages and labour
in vain to return the messages to an address that did not exist. The
defendants' multitudinous electronic mailings demanded the disk space
and drained the processing power of plaintiff's computer equipment such
that those resources were not available to serve CompuServe’s
subscribers. Therefore, the value of that equipment to CompuServe was
diminished. In the case of eBay v Bidder’s Edge,95 the court was of the
view that Bidder’s Edge (“BE”) Web crawling was trespass to eBay since
eBay's servers were private property with only conditional access granted
by eBay to the public. It was also undisputed that eBay's server and its
capacity were personal property, and that BE's crawling had used a portion
of eBay’s property. Even if, BE’s searches used only a small amount of
eBay's computer system capacity, BE had nonetheless deprived eBay of
the ability to use that portion of its personal property for its own purposes.
(c)
“It is harmful if many do so”
37
It was argued in the case of eBay that if BE's actions appeared to
have caused injury to eBay and would likely continue to do so and if the
court were to hold BE not liable, it is likely that other auction aggregators
would similarly crawl eBay’s site potentially to the point of denying
effective access to eBay's customers. There is no doubt that this argument
of “it is harmful if many do so” is a compelling one. However, it is lacking
in weight as it is an argument that speaks of the future or mere potential
93
94
95
962 F. Supp. 1015 (S.D. Ohio 1997)
http://www.computerhope.com/jargon/c/cpu.htm
100 F Supp 2d 1058 (CD Cal 2000)
15 SAcLJ
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injury only. The U.S. Restatement (Second) of Torts96 is silent on future or
mere potential injury. Be that as it may, the court in determining whether
there is or there would be actual injury to the chattel must rely on nothing
short of evidence.
(d)
Trespass should be actionable per se
38
There is some support for this view among the U.S. academics.
For instance, Professor Hardy97 prefers that unwanted activities on the
Internet be dealt with under trespass to land rather than chattels. One of
the arguments is that cyberspace is more “land” than “chattels” since
cyberspace is “a space” in the ether world. For reasons given above, I
disagree that trespass to land is more suitable than trespass to chattels.
Another possible view is for the U.S. to control such unwanted Internet
activities using the doctrine of trespass to chattel but without the
requirement of proving actual injury i.e. create an exception for the
Internet. While this may sound attractive, the requirement of actual injury
was a creature of Congress and the better view is that the courts should
defer to Congress for creating such an exception.
A finding that spam is trespass to chattels would comport with the
First Amendment to the Federal Constitution and California
Constitution
39
Besides disagreeing that the doctrine of trespass to chattels should
be extended by the courts to accommodate unwanted activities on the
Internet even if there seems to be no actual injury to the chattel, it was
evident that Kolkey J felt that such an extension of the doctrine would
affect the free flow of communication on the Internet. Though not
expressed in so many words, it was clear that Kolkey J was concerned that
the rights under the First Amendment and California Constitution may be
infringed by the decision of the majority. It is a pity that Kolkey J did not
explain his position on this in full. However, in my view, the majority
opinion by Morrison J on this issue was simply compelling and lucid.
Essentially, the majority held that making a finding that the defendant
should be liable for spam comports with the First Amendment and
California Constitution.
40
Morrison J correctly distinguished at the outset that the First
Amendment protects individuals only from government, not private,
96
97
S 218 cmt E (1977).
See I. Trotter Hardy, The Ancient Doctrine of Trespass to Web Sites, 1996 J. Online
L. art. 7 <http://www.wm.edu/law/publications/jol/hardy.html>
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Singapore Academy of Law Journal
(2003)
infringements upon speech rights.98 In a trespass case, the speaker's rights
are pitted against a property owner's rights and the equation must be
different.99 It would have been anomalous that a trespasser or an uninvited
guest may exercise general rights of free speech on property privately
owned and used non-discriminatorily for private purposes only.100 The
court correctly rejected the assertion that private property took on public
character because it had characteristics "functionally similar to facilities
customarily provided by municipalities." To hold that Intel had the right to
exclude others from speaking on its property and that Intel should not be
required to exercise its right in a "content-neutral" fashion, would in my
view be the correct policy. To put it simply as Morrison J did - content
discrimination is part of a private property-owner's bundle of rights and
Intel had the right not to welcome Hamidi.
41
Morrison J’s reasoning was equally convincing when he
articulated how the injunction would comport with the California
Constitution. Hamidi contended that his right to send e-mail to Intel
employees was protected by the California analogue to the First
Amendment, which provides,
"Every person may freely speak, write or publish his or her
sentiments on all subjects, being responsible for the abuse of this
right. A law may not restrain or abridge liberty of speech or
press."102
While the court accepted the open character of the Internet, Morrison J hit
the nail on its head when he distinguished private e-mail servers from the
Internet. It would be strange to regard the former as traditional public
forum103 since it is private property and intended for business use only. An
argument that Intel's server had been transformed into a public forum
merely because it permitted some private use by employees104 would go
against the property regime. In any event, Hamidi had other alternatives to
exercise his right of free speech. The injunction merely prohibited Hamidi
from sending unsolicited e-mails to addresses on INTEL's computer
98
99
100
101
102
103
104
George v Pacific-CSC Work Furlough (9th Cir. 1996) 91 F 3d 1227, 1229.)
(376 U.S. 254 11 L Ed 2d 686, 84 S Ct 710.)
(Lloyd v. Tanner (1972) 407 U.S. 551, 568 33 L Ed 2d 131, 142, 92 S Ct 2219
(Lloyd).
Cal. Const., art. I, § 2, subd. (a).
Ibid.
(Cyber Promotions, 948 F. Supp. at p. 446.) Nor is a private company, which chooses
to use e-mail, made a public forum.
See Perry Education Association v Perry Local Educators' Assn. (1983) 460 U.S. 37,
47 74 L. Ed. 2d 794, 806, 103 S. Ct. 948 (limited access to outside organisations does
not transform school mailbox system into a public forum).
15 SAcLJ
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systems but Hamidi was free to send mails, electronic or otherwise to the
homes of Intel employees. In my view, Morrison J’s grounds for holding
that free speech has not been infringed is an extremely sensible
interpretation of the First Amendment rights. He has struck the right
balance between encouraging free speech and maintaining property rights
and ridding unwanted activities on the Internet to maintain peace and
harmony in the world of cyberspace. The latter is so important for carrying
out seamless transactions and stimulating constructive innovation in the
ether world.
V
Is Hamidi likely to succeed on appeal?
42
Hamidi’s pending appeal to the Supreme Court of California is a
very important one for the legal development and clarification of the use
of the doctrine of trespass to chattels to control unwanted activities on the
Internet. Thus far, the U.S. decisions applying trespass to chattels have
been fairly fragmented in its application of the doctrine and also
inconsistent105 to some extent. Most judges struggle over the requirement
of actual injury to the chattel.
43
First of all, I would be very surprised106 if the Supreme Court of
California would not endorse the use of trespass to chattels to control
unwanted activities on the Internet. If they do, I hope the court will make
the concerted effort to reason out in some detail why it would endorse the
use of trespass to chattels to deal with such problems and not some other
causes of action. Secondly, if the court so decides, I would surmise that
the approach adopted in CompuServe is likely to be regarded as the correct
approach i.e. the need to find actual injury to the chattel if the unwanted
activities on the Internet such as, spam had in effect harmed the computer
processors.107 Such actual injury would include, undue consumption of
disk space, draining processing power, diminishing value of the computer
equipment and decrease in the utility of the computing facilities. In the
case of Hamidi, as Kolkey J rightly pointed out, mere taking up time to
read spam and the frustration and distraction at work caused by spam
cannot be regarded as actual injury to the chattel or dispossessed or
deprived from use of the chattel for a substantial period of time. No stretch
of imagination would make the impact felt by Intel’s staff meet the
105
106
107
There are academic writings that have expressed the difficulty to reconcile the
decisions of eBay and Ticketmaster which reached different results though with fairly
similar acts of complaint.
I refer to the analysis that I had given in the earlier part of the article that this tort is
suitable.
Such as undue consumption of disk space, draining processing power, diminishing
value of the computer equipment, decrease in the utility of the computing facilities.
208
Singapore Academy of Law Journal
(2003)
requirements of S 218. Thirdly, as the U.S. Restatement (Second) of
Torts108 clearly requires actual injury to the chattel to be proven before an
action in trespass to chattels can succeed, any abrogation of this doctrine is
for the Congress and not the courts. Therefore, Hamidi’s appeal is likely to
be allowed on the last two counts. If the appeal is allowed, the case is
likely to be remitted back to the lower court to determine whether on the
facts of Hamidi’s case, there was actual injury to Intel’s chattel, as defined
by the Supreme Court of California.
44
If the Supreme Court of California so finds, it may not even be
necessary for it to deal with the issues arising from free speech. If it does,
I believe that Morrison J’s opinion will be upheld for the reasons that I
have given above.
The US Requirement in Singapore
45
The requirement of actual injury to the chattel may be here to stay
in the U.S. before there can be an actionable trespass to chattels for cases
dealing with unwanted activities on the Internet. It is, therefore, useful to
engage in a discussion as to whether Singapore should likewise require
actual injury in trespass to chattels to deal with the woes in cyberspace. It
is clear that in Singapore, the tort of trespass to chattels is actionable per
se, without proof of damage. Suppose that the Singapore courts choose to
adopt the U.S. position that there is a need to find actual injury to
plaintiffs’ chattel for an action in trespass to chattels to succeed, - would
the plaintiff in PacNet’s case be able to discharge that burden? The
plaintiff may not. There was no evidence that by virtue of the defendant’s
offending acts, the plaintiff’s system was affected inter alia, by slower
performance, abnormal behaviour, congestion, consumption of plaintiff’s
bandwidth and slower downloads for plaintiffs’ users. Neither did it
deprive plaintiffs the ability to use that portion of its personal property for
its own or subscribers’ purpose.
46
I would submit that Singapore’s position on trespass to chattels
should remain as actionable per se, without proof of damage. Requiring
the plaintiff to prove actual injury to the trespassed chattel may cause
grave injustice109 to the plaintiff. It is my submission that it is unnecessary
to complicate the cause of action by imposing an additional requirement of
actual injury to the chattel. As seen in the unenviable position that the U.S.
judges are in, showing actual injury can be an uphill task in the world of
cyberspace. Such a requirement potentially increases the costs of
108
109
S 218 cmt E (1977).
See Oyster’s case, U.S. Dist., N.D. Cal. 2001.
15 SAcLJ
Cyber Trespass Law
209
litigation. Data and statistics will have to be extracted, compiled and
tendered as evidence in court by the parties to evidence some form of
actual injury. It also lengthens the process of litigation. In my personal
view, it is really quite unnecessary. The only argument I think that one
may make in favour of requiring actual injury in trespass to chattels is to
weed out frivolous and unmeritorious claims. This argument can be easily
dismissed. The tortious act is the act of trespass and the law of trespass
seeks to protect one’s chattel from interference. So long as there is
evidence of interference or intermeddling, it really should not matter
whether any “actual physical harm” was done to it. I am reinforced in my
view when I consider the rationale of using trespass to chattels to control
unwanted Internet activities. The mischief here is to hold those responsible
for the undesired interference and intermeddling in cyberspace so that the
rights of Internet users are not mindlessly violated. That would appear to
be the policy. One should also be mindful that not all interference and
intermeddling in cyberspace would cause some form of physical harm to
the chattel. What if there is no physical harm to the chattel but the
unwanted activity is simply an interference/intrusion/intermeddling with
the plaintiff’s property amounting to trespass? Should the law deny such a
claim? I think not. I am satisfied that the Singapore position in proving
trespass to goods should remain unchanged i.e. the tort is actionable per se
without proof.
VI
Alternatives to trespass in chattels to control unwanted
Internet activities
47
While the U.S. courts seem to be contented with accepting
trespass to chattels as the best cause of action in dealing with unwanted
activities on the Internet, notwithstanding the decision in PacNet, it is still
open for lawyers and judges to consider suitable alternatives. In this
section, I offer my reasons as to why nuisance and unjust enrichment are
not appropriate alternatives. I also take the opportunity here to highlight
two pieces of useful U.S. legislation and the use of MAPS as one of the
means of deploying technology to address the “ills” created by
technology.
Whether Cyber Nuisance is for Singapore?
48
110
Professor Burke110 argues that,
See Dan L. Burke, ‘The trouble with trespass”
(http://papers.ssrn.com/paper.taf?abstract_id=223513) at p. 30.
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Singapore Academy of Law Journal
(2003)
“A form of cyberspace nuisance claim, containing a healthy dose
of real property doctrine, might better accommodate the peculiar
calculus of benefits and harms in cyberspace.”
Burke is of the view that applying the doctrine of trespass to chattels on
unwanted Internet activities would be too stifling for more innovation and
informal bargaining arrangements. In litigation, it also limits the court’s
discretion to tailor ownership rule to the specific situation. Burke prefers
flexible or “muddy” entitlements to better accommodate diffuse societal
values that would not be internalised by clear-line property rules. He
concludes that the “correct property theory might be nuisance to Web
sites rather than trespass. Nuisance lies only if the cost of the intrusive
activity outweighs the benefit111”
49
I cannot agree that extending the tort of nuisance to unwanted
Internet activities will be a preferred doctrine. “Nuisance” at common law
has traditionally developed as a land112 based doctrine. There are no real
compelling reasons to extend nuisance from land to cyberspace. While the
common law is meant to evolve to suit the changing needs of society, the
courts should be slow to change fundamental concepts at the slightest call.
Considerations such as whether there are any viable alternatives or that the
application of the existing common law principles to a new, changing or
emerging set of circumstances would lead to absurdity and may warrant a
facelift of the common law. In this case, I do not think it is warranted. The
elements to support a cause of action in nuisance are also not quite
applicable to dealing with unwanted activities on the Internet. They
largely relate to interference with the enjoyment and use of land. Firstly,
consider the requirement of “continuity”113 in an action in nuisance. A
nuisance cannot be established on the basis of a single occurrence only.
However, the law should impose liability on the defendant even for a
single unwanted Internet activity. There should be no requirement of
“continuity” in interference in cyberspace. Secondly, in nuisance, the law
111
112
113
Supra note 108, at pp. 29-30.
Winfield & Jolowicz on Torts, by WVH Rogers, (15th Ed, 1998), p. 494; Winfield
(1930-32) 4 C.L.J. 189 at 190, “Private nuisance is generally defined as an unlawful
interference with a person’s use or enjoyment of land, or some right over, or in
connection with it.” The elements of the tort are very “land” based i.e.: physical
injury to land (for example, by flooding or noxious fumes); substantial interference
with the enjoyment of land (for example, smells, dust and noise); and encroachment
on a neighbour’s land (for example, by spreading roots or overhanging branches).
Some of the considerations for a cause of action in nuisance are: what are the
protected interests to land, the character of the area, the requirement of continuity, the
time at which the interference occurred, whether the plaintiff is of abnormal
sensitivity etc. Source: K.M. Stanton, “The Modern Law of Tort”, (1994) at p. 390394.
15 SAcLJ
Cyber Trespass Law
211
also draws a distinction between the level of interference in the day and in
the night. This is obviously not relevant in the world of cyberspace.
50
While Burke’s concern of not stifling innovation is real and valid,
however, a balance must be struck between fostering innovation and
maintaining law and order. Between the two, providing legal certainty for
the smooth conduct of commerce is of a higher national interest. If the law
is unclear and left to self-regulate in the ubiquitous and pervasive world of
the Internet, public confidence may be lost and foreign investments may
be jeopardised. For reasons above, I would respectfully differ from
Professor Burke’s view. Trespass to chattels is preferred114 to nuisance as
the required elements for trespass to chattels are applicable in dealing with
unwanted Internet activities.
Whether the unjust enrichment doctrine should apply to unwanted
Internet activities for Singapore?
51
Burke further raises an interesting proposition that claims in
restitution such as unjust enrichment115 or accounting for profits may be
used to address unwanted Internet activities as much as they have been
used in real space to deter unauthorised uses of another’s chattel.116
Though the tort of restitution based on unjust enrichment has been in
existence for the last 20 years, it remains a very amorphous doctrine. The
actual ambit of the cause of action is unknown.117 Though not always true,
it is generally applied to fact situations involving a trust or fiduciary
relationship. In the case of unwanted Internet activities, the plaintiff rarely
knows the defendant and there is unlikely to be any trust or fiduciary
relationship. In cases of unwanted Internet activities, it is not always that
114
115
116
117
That said, there is a Canadian authority, Parker v C.N. Enterprises , No. 97-06273
(Tex. Travis County Dist. Ct. Nov. 10, 1997) where the court held that the
unauthorised use of Ms. Parker's e-mail address constituted common law nuisance
and trespass and granted a permanent injunction against the defendants, C.N.
Enterprises. Attempts to get more details of this case were not successful.
Dan L. Burke., ‘The trouble with trespass”
(http://papers.ssrn.com/paper.taf?abstract_id=223513) at p. 32.
Ibid at p. 32, footnote 142, “See, e.g. Olwell v Nye & Nissen Co., 173 P.2d 652 (Wash
1946) (requiring defendant to pay for unauthorised use of plaintiff’s egg-washing
machine). This theory has apparently been asserted in one or two successful bulk emailers. See Anne E. Hawley, Comment, Taking Spam out of your Cyberspace Diet:
Common Law applied to bulk unsolicited advertising via electronic mail”, (1997) 66
UMKC L. Rev. 381.
Torts, by Giliker and Beckwith (2000) at p. 11, “Restitution is a growing area of civil
liability, the proper scope of which remains unclear. The law of restitution intervenes
where the defendant has been unjustly enriched at the expense of the claimant. Rather
than compensating the claimant, it seeks to restore to the claimant the amount by
which the defendant had been wrongfully enriched.”
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(2003)
the defendant stands to gain or benefit in the monetary sense from his tort.
The offending act is sometimes for sheer pleasure, mischief or vengeance.
52
That said, there is one case where the plaintiff’s action in trespass
to chattels failed but could have succeeded on “unjust enrichment”. In
Oyster Software, Inc v Forms Processing, Inc,118 the plaintiff, a software
company alleged that the defendant infringed upon its trademarks and
copyright by copying metatags from its Web site and using them in the
defendant’s corporation Web site. The plaintiff also sued in trespass to
chattels and in unjust enrichment. The court held that the plaintiff “could
not prevail on its trespass claim because the interference by the
defendant’s robots was negligible”. The court noted that Oyster has
presented no evidence that the use of the robot interfered with the basic
function of Oyster’s computer system. However, on unjust enrichment, the
court commented,
“The Court has found no cases that address the specific
requirements for making a prima facie case of unjust enrichment
in the context of the Internet where the alleged infringement is the
use of trademarked terms in metatags…Oyster may seek treble
damages with respect to any unjust enrichment it may be able to
establish, assuming that it presents sufficient evidence to persuade
the jury that Oyster's infringement was wilful and to persuade the
Court that an accounting is justified.”
For reasons given in the paragraph above, it is unlikely that the above
dicta in Oyster will be followed. I would submit that it would truly muddy
up the waters of restitution if it is applied to unwanted Internet activities
where there is unjust enrichment. I would argue that the common law
should not be overly malleable to the extent that the various doctrines of
tort lose their original identities. We should allow the doctrine of unjust
enrichment to develop within its current framework. It is, after all,
regarded as a fairly new area of the law. Negligence took many decades to
fully mature after the doctrine of duty of care evolved from Donoghue v
Stevenson119. Such a sentiment is best summed up in the following extract,
“It might be tempting to argue that English law either accepts the
principle of unjust enrichment, or it does not. However, the theory
of unjust enrichment has many ramifications, some of which have
been accepted by the courts, some of which have been rejected,
118
119
2001 U.S. Dist. LEXIS 22520.
[1932] All ER Rep 1
15 SAcLJ
Cyber Trespass Law
213
and still more of which (perhaps the majority) have yet to be put
to them.”120
VII
California and Washington “spam” legislation
53
The purpose of this part of the article is to explore whether it is
necessary for Singapore to enact helpful pieces of legislation to deter
unwanted Internet activities. In this regard, the experience of U.S. is
helpful. The states of California121 and Washington122 have adopted
different legislative methods to regulate spam. The State of Washington’s
legislation to regulate spam is particularly interesting. The Act provides
that anyone sending a commercial e-mail message from a computer
located in Washington or to an e-mail address held by a Washington
resident may not use a third-party's domain name without permission,
misrepresent or disguise in any other way the message's point of origin or
transmission path, or use a misleading subject line - a per se violation of
the Consumer Protection Act, chapter 19.86 RCW (CPA). As can be seen,
the statute does not purport to ban spam. If it does, it may potentially raise
First Amendment issues since it regulates content and there are other ways
to minimise the harm of spam besides legislation. What the legislation
does in the State of Washington is merely to require the sender to tell the
truth i.e. not to falsify or misrepresent or disguise spam so that recipients
of spam can elect whether to read them or not. To invoke the legislation,
both the sender and recipient must be located within the state. The
legislation is not extra-territorial in nature and the effect is limited to the
state only. In my view, it sounds like a very fair minded and reasonable
piece of legislation.
54
The legislation withstood the scrutiny of the court in State of
Washington v Jason Heckel.123 Heckel, an Oregon resident, sought to
market a book on how to profit from the Internet, sending between
100,000 and 1,000,000 spam messages per week to his targets. The
complaints alleged that Heckel's messages contained misleading subject
lines and false transmission paths. The text of Heckel's spam was a
lengthy sales pitch that included testimonials from satisfied purchasers and
culminated in an order form that the recipient could download and print.
The State alleged that respondent had violated Washington Review Code
ch. 19.86 and, in turn, the Consumer Protection Act, by using false or
misleading information in the subject line of spam, and through other
120
121
122
123
The Law of Restitution, Hedley and Halliwell, (2002), p. 18.
California Business & Professional Code S 17538.4.
Consumer Protection Act, chapter 19.86 RCW (CPA) and RCW 19.190.020(1)(b).
143 Wn.2d 924; 24 P.3d 404; 2001 Wash. LEXIS 388.
214
Singapore Academy of Law Journal
(2003)
misrepresentations. The trial court dismissed the State’s suit concluding
that the Act violated the dormant Commerce Clause of the U.S.
Constitution. On appeal to the Supreme Court of Washington, the court
held that the Act limits the harm that deceptive commercial e-mail causes
Washington businesses and citizens. The Act prohibits e-mail solicitors
from using misleading information in the subject line or transmission path
of any commercial e-mail message sent to Washington residents or from a
computer located in Washington. The court was persuaded that the local
benefits of the Act outweigh any conceivable burdens the Act places on
those sending commercial e-mail messages. Consequently, the court held
that the Act was sufficiently limited and would not violate the dormant
Commerce Clause of the United States Constitution. In the Californian
code, it also applies to situations where the recipient and the service
provider’s server are located within the state only. It defines “unsolicited
e-mail”124 and requires the sender to title125 the unsolicited e-mail in a
certain manner and it requires the sender to stop126 the unsolicited e-mail if
the recipient notifies the sender to discontinue it. In violation, penalties127
are stipulated. Though there have been legal challenges made against such
codes, they are not relevant in the context of Singapore as those
challenges128 relate to the code being contrary to U.S.’s First Amendment
which guarantees Free Speech.
55
The above legislation may help to control spam if they are framed
within acceptable limits while not to totally ban spam. The above codes do
strike a fine balance and should serve as decent models for Singapore to
consider. As the Singapore courts have yet to deal with any civil litigation
on spam, it may be prudent to hold back such a piece of legislation until a
couple of civil suits on spam have been considered by the local courts.
124
125
126
127
128
Unsolicited e-mail in the code is defined as any “e-mailed document or documents
consisting of advertising material for the lease, sale, rental gift offer, or other
disposition of any realty, goods, services, or extension of credit that meet both of the
following requirements: (1) the documents are addressed to a recipient with whom the
initiator does not have an existing business or personal relationship; (2) the
documents are not sent at the request of, or with the express consent of, the
recipient.”, S 17538.4 (e)
“the subject line of each and every message shall include <ADV: …>”, S 17538.4 (g)
“ Upon notification by a recipient of his or her request not to receive any further
unsolicited faxed or e-mailed documents, no person or entity conducting business in
this state shall fax or cause to be faxed or e-mail or cause to be e-mailed any
unsolicited documents to that recipient.”, S 17538.4 (c)
“Any violation of subdivision (c) is an infraction punishable by a fine of five hundred
dollars for each and every transmission.”, S 17538.4 (i)(d)
See State of Washington v John Heckel, supra note 51 and Ferguson v Friendfinders,
Inc. 94 Cal App 4th 1255; 2002 Cap. App. LEXIS 2. The courts held that the
respective codes did not abridge Free Speech.
15 SAcLJ
Cyber Trespass Law
215
Indeed, though the problems created by spam is so hateful, I suspect that
the U.S. Congress is also adopting a “wait and see” approach before it
decides whether any Federal legislation is necessary. Issues such as which
model it should take,129 whether it can withstand the scrutiny of the courts
and how it can be enforced are very material considerations.
VIII
Maps130 - Using technology to resolve the ills created by
technology
56
Instead of legislation, there is much support for more innovation
in technology131 to resolve the ills created by technology, such as spam.
The fear is that legislation will over regulate and stifle the free flow of
communication that is needed to harvest creativity and innovation. It is a
fair argument. One example of such an innovation in technology that
counteracts the ills of technology is the Mail Abuse Prevention System
(“MAPS”).132 MAPS is a California non-profit company that co-ordinates
a group boycott by Internet Service Providers (ISPs) for the purpose of
reducing the flow of spam. The managers of MAPS create and maintain a
"Realtime Blackhole List" (RBL), which consists of a list of Internet
addresses. MAPS places on the RBL any Internet address from which, to
the best of their knowledge, spam has originated. They also place on the
RBL the address of any network that allows "open-mail relay" or provides
"spam support services." MAPS makes the RBL list available to ISPs and
other network administrators on a subscription basis. ISPs that subscribe
to the RBL can, if they elect, set their mail handlers to delete all e-mail
originating from an address appearing on the list and vice versa. That is,
when an RBL-subscribing ISP receives a request to transmit e-mail to or
from a subscriber, it checks the sender's numeric Internet address against
the list of blackholed Internet addresses. If it finds a corresponding match,
MAPS deletes the message. The blackholed address then disappears from
the subscribing ISP and its customers’ Internet access.
129
130
131
132
For instance, is the California model preferred to the State of Washington’s model?
David G. Post, “Of Black Holes and Decentralized Law-Making in Cyberspace”,
< http://www.temple.edu/lawschool/dpost/blackhole.html>
The three leading providers of e-mail accounts in the United States said that they had
started to work together to develop ways to reduce unwanted commercial messages,
known as spam, which are increasingly clogging customers' mailboxes. America
Online, Microsoft and Yahoo are calling for technical changes in the way e-mail is
passed around cyberspace to make it easier to determine who really sent it and what it
is about. Each company has developed its own technologies to identify and discard
spam, and they boast of these in their advertising. Source: U.S. E-Mail Providers Join
Hands to Fight Spam, Straits Times dated 29 April 2003.
http://maps.vix.com/rbl/
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Singapore Academy of Law Journal
(2003)
57
While there is no doubt that the innovative use of technology to
counter the ills created by technology is good policy and should be
encouraged, I take the view that relying on technology alone to do the job
may not be adequate. There will always be instances where the creator of
technology – mankind, will outwit technology, and that is where the law,
hopefully with some foresight, would come in to net the culprits. The
advantage of such innovation in technology is that it eases the pressure of
the legislative organ in having to rush out pieces of incoherent,
incomprehensible and over-blocking legislation that frustrates more than
facilitates, only to be struck out by the courts. As such, I would submit
that technology and legislation can work hand in hand to deal with spam
and other unwanted Internet activities. Drafters of legislation should take
time to link-up with the technologists and legal practitioners to keep
abreast with the developments in order to know when it is the best time to
work on legislation and how it may be legislated.
IX
The likely approach that the Singapore Courts would
adopt in dealing with unwanted Internet activities
58
In summary, having considered the case of PacNet and the
experience of other jurisdictions in dealing with cases on trespass in
cyberspace, it is submitted that the Singapore courts and legislature could
consider adopting the following approach in dealing with unwanted
Internet activities:
A Possible Framework
(1) Identify the offending or unauthorised Internet act(s) and consider
whether the nature of such act(s) may be regarded as trespass133 in
cyberspace.
(2) Consider whether trespass is the most suitable cause of action or
should it be nuisance or an action in unjust enrichment.
(3) If trespass is the most suitable, consider whether it should be
trespass to land or chattels. For reasons submitted above, I
recommend that the doctrine of trespass to chattels is preferred.
(4) Apply the requirements of trespass to chattels134 (and not trespass
to land or person) i.e. whether it is intentional and direct, if so, it
is actionable per se.
133
134
As discussed, the law of trespass is most suitable relative to nuisance or an action in
unjust enrichment.
As discussed, trespass to land or person would not be suitable for unwanted Internet
activities.
15 SAcLJ
Cyber Trespass Law
217
(5) When referring to the U.S. decisions on trespass in cyberspace,
the Singapore courts should disregard the portions where the U.S.
courts attempt to identify evidence of actual injury to the chattel
by the unwanted Internet activities.
(6) The interpretation of actual injury by the U.S. courts may be
relevant in the context of Singapore only after liability has been
established wherein the court then proceeds to assess the quantum
of damages to be allowed.
(7) In the area of law reform, Parliament should seriously explore
whether to introduce legislation similar to or along the lines of the
California Business & Professional Code or Washington’s
Commercial Electronic Mail Act to regulate the use of spam.
(8) As suggested, this could be done after the courts have had the
occasion to deal with a couple of civil suits in relation to spam.
That would give a fair idea to all concerned how to better tailor
the legislation to tame the mischief.
X
Conclusion - New wine in an old wine skin is good in this
case
59
The tort of trespass has always been a poor cousin to the tort of
negligence. For a long time, the tort of trespass had attracted little
attention and interest both in the world of academia and litigation.
However, the havoc created in the ether world has brought about a
renewed interest in this medieval cause of action in tort. Issues of trespass
in cyberspace have, in the recent years, challenged the traditional
principles of the common law of trespass to chattels to provide a ready
relief for the aggrieved users of the Internet. Thus far, it has withstood the
test of legal and judicial scrutiny in the U.S. and Canadian courts to
emerge as a suitable and viable doctrine to control unwanted activities on
the Internet. As trailblazers in applying the tort of trespass to chattels to
deal with those who interfere with the legal rights of users in cyberspace,
other jurisdictions including Singapore, will find the wealth of U.S.
precedents a very useful resource.
60
The consistent trend of cyber trespass cases applying the age old
law without any difficulty is a good indicator that the doctrine has proven
not to be too outmoded to be outwitted by the latest forms of Internet
trespass. This affirms the school of thought that traditional laws may be
suitably interpreted or modified to cater to the world of the Internet in
some instances. I submit that this is an instance where storing new wines
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in old wine skin is preferred to devising some new and alien doctrine135 to
deal with the problem. As we all know, new technologies will always
emerge faster than the progress of the law. While new doctrines may be
specifically designed to cater to the present problems, it may well be
overtaken by events and become inadequate the very next day. That is not
what the law should be. The beauty of the common law remains and it has
survived the rigours of transformation throughout the centuries. I am
optimistic that the tort of trespass to chattel is an answer to trespass in
cyberspace. There is no need to reinvent the wheel.
TAN BOON HENG∗
135
∗
Source: http://cyber.law.harvard.edu/ltac98/final.html. Benjamin Adida, Lauren B.
Fletcher, Lydia Sandon, Enoch Chang, Michelle Hong and Kristina Page in a joint
paper titled, “The Future of Trespass and Property in Cyberspace” dated 10 December
1998 suggested that a regime based on the concepts of “containers” and “control”
allows for a more efficient and flexible interpretation to deal with cyber trespass;
“Common law trespass imposes too many unnatural restrictions when applied to
cyberspace. Instead, a regime based on the concepts of containers and control allows
for a more efficient and flexible interpretation of these issues. Property in cyberspace
is defined using containers, entities, and control. In cyberspace, a container is
something which may not even have an important physical manifestation, such as the
protection encryption provides. These are called virtual containers. An entity, in the
same respect, may be a Microsoft Word document. Control in cyberspace is harder:
there isn't necessarily only one briefcase to which someone should be handcuffed.
Overall, all entities are in some sort of container, some containers are located within
parent containers, and all containers have some inherent permissions. Finally, the
persons identified as the owners of a container are responsible for the maintenance of
all of the above legal and technical mandates in order rightfully to claim unauthorised
access. For without an obvious barrier to entry, a user should assume that a container
is public in the relevant sense.”
District Judge, Subordinate Courts, LL.B. (NUS), LL.M. (UC, Berkeley)