|Issue 2 - December 2020|
In this issue
SAL Law Reform Committee – Our Recent Highlights and Ongoing Work
|Rounding up the latest in law reform from Singapore and beyond|
Keeping up with reforms to the law can be challenging, particularly in a time of such change. With this in mind, we have compiled the SAL Law Reform Committee Bulletin, summarising some of the key recent developments in law reform, at home and internationally.
In this issue of the SAL Law Reform Committee’s regular bulletin, we highlight ongoing efforts by the Committee and several of its counterpart overseas law reform bodies to address the legal challenges created by new disruptive technologies.
Plus, after a year of unprecedented change, we look at the wide-ranging and enduring positive impact that ambitious, proactive law reform can have.
We wish you all a prosperous New Year!
SAL Law Reform Committee – Our Recent Highlights and Ongoing Work
On 23 September, the Law Reform Committee published the third report in its Impact of Robotics and Artificial Intelligence on the Law series, looking at how liability should be attributed following accidents involving self-driving cars.
The report is intended to assist policymakers in designing the future legal scheme for autonomous cars, taking into account the desire to both encourage adoption of such vehicles, and also ensure high safety standards and effective redress for accident victims.
The report analyses the challenges in determining liability that flow from the fact that a self-driving car’s behaviour is determined by an automated driving system, rather than a human driver. In particular, the report highlights the difficulties likely to arise in trying to apply established liability frameworks – namely, negligence, product liability and 'no fault' liability – to accidents involving such autonomous cars, and compares the differing approaches taken to these issues internationally.
You can read the report here, and – if you’re short on time – there’s a one-minute quick guide to its findings here. The report’s authors also discussed how Singapore is preparing for the arrival of driverless cars with Allen & Overy’s Propel podcast.
Since the Law Reform Committee’s report was published, the Law Commission of England & Wales and the Scottish Law Commission have published a further consultation paper in their ongoing joint inquiry into Automated Vehicles. While focused on broader areas than the civil liability issues considered by the Law Reform Committee, the Commissions’ consultation does consider various issues central to the challenges highlighted in the Law Reform Committee’s report, including in particular the question – when it comes to self-driving cars – of ‘how safe is safe enough?’
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A new statutory tort to better protect those whose private information is misused is the main recommendation of the Law Reform Committee’s most recent report – Civil Liability for Misuse of Private Information – published earlier this month.
In light of the ever-increasing speed and scale at which information can be shared, the Committee considered whether Singapore’s existing privacy and related laws provide effective redress for individuals against serious misuse and disclosure of their private information by others.
Having identified potential shortcomings in the various statutory and common law avenues currently open to victims of such misuse, including actions for breach of confidence or claims under the Protection from Harassment Act, the Committee has recommended the introduction of a new statutory tort to target serious misuses of private information directly.
The proposed law would set out what victims have to show to prove their case, and provide for a full suite of remedies for the physical or psychiatric harm, economic loss or emotional distress they may suffer. In determining whether an actionable tort had been committed, courts would be required to weigh the public interest in protecting privacy against any public interests in favour of disclosure. This will ensure the law remains proportionate and does not, for example, operate to stifle free speech, undermine important investigative journalism or deter the reporting of crimes.
Read the report, or get the one-minute quick guide to its key recommendations here.
This is not the first time the Committee has considered issues relating to invasions of privacy. In 2001, it advocated for the criminalisation of stalking – recommendations that have since been incorporated into the Protection from Harassment Act.
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In its final report of 2020, the Law Reform Committee has proposed amendments to assist judgment creditors in recovering court-awarded monies due and owing to them.
At present, judgment creditors can face difficulties in trying to enforce such court-awarded debts against judgment debtors in Singapore. For example, it may be hard for them to identify what assets the judgment debtor has, or where they are held. Or those assets may be held jointly with a spouse, family member or other third party, in a joint bank account or jointly-owned property.
The Committee’s report analyses the available enforcement mechanisms in comparable jurisdictions, such as Australia, Canada, England and Wales, and Hong Kong. Based on that review, the report recommends legislative changes to, for example, better enable courts to order that a judgment debtor’s jointly-owned property or joint bank account is used to settle debts, while still safeguarding the rights of judgment debtors and innocent third parties who may be faffected.
Further details of the Committee’s proposals and a quick guide to the key issues are available here.
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After nine new reports in 2020, the Law Reform Committee expects to complete several further projects in 2021.
Among these are a further report in the Impact of Robotics and AI on the Law series – focused on criminal liability issues – and an analysis of how Singapore’s contract laws apply to smart contracts, complementing equivalent work currently being undertaken by the Law Commission of England and Wales (as to which, see below).
With several projects coming to completion, the Committee also welcomes suggestions for areas of Singapore law that would benefit from its review. Ideas can be sent to [email protected].
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In this ‘Spotlight’, we consider the benefits that flow from law reform work, and how COVID-19 has reiterated the value of a holistic, proactive analysis of where adaptation and evolution of the law is required.
In seeking to measure the benefit or impact of law reform, an obvious – and perhaps the most direct – metric is whether recommended reforms have been implemented by legislators or considered by the courts. For example, past Law Reform Committee proposals on matters ranging from evidence admissibility to the enforcement of foreign judgments and (as mentioned above) the criminalisation of stalking have subsequently been mirrored in Singapore legislation.
Yet, implementation is not the only metric of success. Indeed, to quote a former President of the Australian Law Reform Commission, “a lack of implementation, of itself, does not mean failure. It is not even a very good guide to performance.” Law reform proposals can equally play a broader role in, for example, providing thought leadership or promoting debate among policymakers, industry participants and the public. While the Law Reform Committee’s recent reports on the impact of robotics and AI on the law do not make firm recommendations for changes to the law, for example, it is nonetheless hoped that they will stimulate discussion and provide a guide for policy makers to the issues and challenges they may need to navigate.
In September, the Law Commission of England and Wales took the analysis of such potential benefits further, with the publication of an independent economic analysis of the value of its work. The report concluded that, if implemented, the recommendations from just five of the Law Commission’s projects would generate benefits of over £3 billion over ten years. Combined, the eleven projects analysed in the report were estimated to have the potential to benefit over 27 million people,
In addition to direct benefits in making existing laws more efficient and saving individuals, companies and governments money, the report highlights the ability of law reforms to help improve welfare, modernise the economy, protect the vulnerable, and provide a platform for personal and social development.
Crises and disruptions such as those witnessed in 2020 arguably bring that potential into even sharper focus.
The pandemic has disrupted vast areas of our lives, and exposed many tensions or shortcomings in all countries’ laws. Many of these have required urgent legislative and regulatory intervention by governments. Where law reform agencies can play a key role, however, is in providing an independent analysis of those disruptions, distinguishing those which represent temporary fissures from those where the pandemic has precipitated lasting change, accelerated ongoing trends, or exposed more fundamental shortcomings in the status quo.
This is illustrated by the Manitoba Law Reform Commission’s recent recommendation that statutory requirements that oaths and other declarations be taken with an authorised person physically present (which had been temporarily suspended during the pandemic), be permanently abolished. While the pandemic had undoubtedly highlighted and exacerbated the problems created by those laws, the Commission’s broader-based review was able to demonstrate that, even beyond the current crisis, the requirements had a sustained detrimental impact on access to justice for those in remote communities and failed to reflect advances in communications technology, necessitating permanent reform.
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In October, the Law Commission of Ontario (LCO) issued the first of three issues papers focused on the potential use and regulation of AI and algorithms in the Canadian justice system.
The paper, titled The Rise and Fall of AI and Algorithms in American Criminal Justice: Lessons for Canada, sets out the LCO’s view of the legal, policy and practical issues that the country’s policy-makers should consider before adopting AI technologies widely in criminal proceedings.
Based on an analysis of the recent use of AI and algorithmic tools in pretrial custody or bail assessments in the United States, the LCO identifies various questions regarding fairness, reliability, transparency and access to justice that such use raises. In particular, it highlights concerns around racism and data discrimination – issues that the Law Reform Committee also discussed in its recent report on Applying Ethical Principles for AI in Regulatory Reform.
The LCO expects shortly to publish two further issues papers, focused on the use of AI and algorithms in government decision making and international efforts to regulate such use.
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Ireland’s Law Reform Commission has concluded its review of whether legislative caps or tariffs on general damages in claims for personal injury would be desirable or consistent with the country’s constitution.
The Commission’s report assesses various capping models, and whether each would in principle comply with the constitutional rights to bodily integrity, property and equality before the law.
More broadly, the report notes that laws imposing a presumptive cap on damages are, all else being equal, more likely to be compliant than those imposing a mandatory cap, and that the amounts chosen in a cap will have a significant bearing on questions of a measure’s proportionality.
The Commission’s work followed “considerable public discussion and debate” in Ireland on the cost of motor vehicle, employer and public liability insurance, the availability of insurance cover in certain service sectors, and the role personal injury claims have played in either regard.
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The Law Commission of England & Wales has put forward recommendations to enhance the legal protections available to victims of online abuse, and to make hate speech laws fairer.
In a September consultation, the Law Commission recommended the removal of existing disparities in the way different protected characteristics (race, religion, sexual orientation, disability and transgender identity) are treated under hate crime laws. It also proposed that sex or gender be added to the list of protected characteristics.
Those proposals followed shortly after further recommendations aimed at improving the criminal law protections available to victims of online abuse (abusive messages, cyber-flashing, pile-on harassment, the malicious sharing of information known to be false, and so on), while at the same time ensuring better safeguards for freedom of expression. The proposals seek to address concerns that existing laws over-criminalise conduct in some situations, and under-criminalise it in others.
In what has been a busy period, the Law Commission also recently recommended reforms to various laws related to intermediated securities, the recovery of proceeds of crime, the protection of official secrets, search warrants, misconduct in public office, and how and where couples may get married.
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The Law Commission has also launched two new projects aimed at ensuring that the law supports the emergence of new digital asset and smart contract technologies.
The Commission’s digital assets review will consider how the law applies to electronic documents, cryptoassets and other digital assets, and whether it currently risks impeding the beneficial digitisation of trade and transactions or related innovations. Its initial focus will be on issues of possession, particularly with regard to documents of title, documentary intangibles and negotiable instruments, with a consultation paper planned to be published in the first half of 2021.
The smart contracts work, meanwhile, is focused on identifying possible gaps in the law and any necessary reforms to ensure those laws – in particular contract laws – can accommodate the use of ‘smart contracts’ (that is, contracts that are performed automatically by computer code without the need for human intervention).
Key questions in this regard include when contracts written in code will be considered legally binding, how they should be interpreted by courts, and what the legal consequences and available remedies are if they fail to execute as intended. To inform its scoping of the study, the Law Commission recently published a call for evidence seeking views (and detailing its initial thinking) on these questions, as well as related matters such as the possible use cases for smart contracts and their potential benefits and costs.
The Law Commission’s inquiry mirrors and complements work in progress by the SAL Law Reform Committee to consider the application of Singapore’s contract laws to smart contracts, which it expects to complete in the new year.
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|Issue 1 - August 2020|
SAL Law Reform Committee – Our Recent Highlights and Ongoing Work
In this issue, we examine recent reports published by SAL’s Law Reform Committee to further the discussion – and help policymakers advance the law – in areas impacted by the emergence of new technologies.
Beyond Singapore, there have also been significant recent reform proposals emanating from the UK and Australia. Plus, we take a deeper look at an issue that has been on the radar of a number of counterpart agencies overseas – defamation – where, in our digitally-enabled world, lawmakers face the challenge of balancing the rights of free speech with the protection of individuals’ reputations.
SAL Law Reform Committee – Our Recent Highlights and Ongoing Work
The “Private international law aspects of smart derivatives contracts utilizing DLT” White Paper – co-authored by SAL, ISDA, Clifford Chance and R3 – was recently ranked ‘highly commended’ in the ‘thought leadership and social responsibility’ category of the Financial Times Innovative Lawyers Asia Pacific Awards.
The paper, published in January 2020, considers the private international law (or 'conflict-of-law') aspects of derivatives contracts governed by the laws of Singapore and England and Wales involving distributed ledger technologies (DLT).
While the borderless, decentralised nature of DLT systems – in particular ‘blockchains’ – is often seen as one of their defining features, those same attributes can also leave participants based in different jurisdictions vulnerable to multiple – and potentially inconsistent – assertions of governing law. There may also be conflict-of-law issues regarding where any assets native to a DLT platform are treated as being located for legal purposes, given that traditional geographic boundaries may be more difficult to establish in the context of financial transactions (and related assets) conducted on a DLT platform.
The White Paper identifies specific private international law issues with respect to contract law that may arise when trading derivatives in a DLT environment and proposes recommendations on how these issues might be clarified or resolved.
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On 9 July, the Law Reform Committee published two reports by its Subcommittee on Robotics and Artificial Intelligence focused on the application of Singapore’s laws to robotic and AI systems.
The first – “Applying Ethical Principles for Artificial Intelligence in Regulatory Reform” – identifies issues that law and policy makers may face in promoting ethical principles when reforming laws and regulations to adapt to AI, and provides examples of human-centred approaches that could be taken to address these. While the report does not advocate specific means or level of intervention, it provides a framework for broader consideration by policymakers and others on the best means to achieve human-centred, ethical norm-making and calibration of regulatory responses regarding AI.
The second – “Rethinking Database Rights and Data Ownership in an AI World” – considers whether Singapore’s data-related laws currently operate effectively to promote the beneficial production of, and access to, databases, while also protecting individual rights over personal and non-personal data. Its recommendations include clarification and refinement of certain existing intellectual property laws relating to databases and computer-generated works, and that further consideration is given to a new right for non-personal data, akin to the incoming personal data portability rights.
The reports are the first in a series focusing on different legal areas impacted by the increasingly widespread deployment of robotics and other AI-powered technologies across society. Two further reports in the Impact of Robotics and AI on the Law series – addressing questions of liability where AI systems’ actions result in harm – are due to be published later this year.
The Law Reform Committee hopes that this series will stimulate systematic thought and debate on these issues, not only by policy makers and legislators, but also industry, the legal profession and the public.
You can read both reports, and summaries of their findings, here. An interview with two of the reports’ authors, discussing their findings and the wider implications of the growth of AI technologies, is also available here.
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The Law Reform Committee’s Impact of Robotics and AI on the Law series will be the focus of three sessions at this year’s TechLaw.Fest: Cyber Edition, being held online from 28 September – 2 October.
Panel discussions covering the Rethinking Database Rights and Data Ownership in an AI World and Applying Ethical Principles for Artificial Intelligence in Regulatory Reform reports will be held on 29 and 30 September respectively. The latter date will also see a ‘Knowledge Café’ session at which participants can debate the issues raised by the Committee’s two upcoming reports on liability for harms caused by AI systems.
Attendance is free, and online ticket registration is now open.
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The Law Reform Committee has published six reports since the start of 2020, on issues including arbitration award appeals, insurance law, trusts law and restructuring and insolvency law. In addition, however, it has a broad programme of ongoing work, with projects spanning topics such as:
- the misuse of private information and the remedies available to those affected by malicious disclosures;
- the attribution of civil liability for accidents involving automated cars;
- the application of criminal law to the operation of AI systems and technologies;
- the civil remedies available to judgment creditors when attempting to enforce judgments; and
- the applicability of existing contract law principles to smart contracts.
Laws on alleged defamation have recently come under scrutiny in numerous Commonwealth jurisdictions. Not least, the impact of new technologies – particularly on the speed at which information can be publicly disseminated and by whom – has created new issues with which defamation laws need to grapple. In this ‘Spotlight’, we provide a brief overview of some key recent proposals.
Legislators in England & Wales led the way, passing a new Defamation Act in 2013, aimed at reversing the perceived chilling effect of the countries’ existing defamation laws on debate and free speech.
Most notably, the Act raised the threshold for making out a claim of defamation to proof of “serious harm”, and created defences of ‘truth’ and ‘honest opinion’ (replacing common law defences of ‘justification’ and ‘fair comment’). Greater protections were also given to peer-reviewed scientific or academic works and publications on matters of public interest, while a new ‘single publication’ rule sought to avoid repeat claims about the same material (previously, each hit on a website created a new cause of action). A recent government memorandum indicated that the Act appeared to have achieved its aims and had a “significant positive impact” on the law.
The reforms in England prompted the Scottish Law Commission in 2017 to recommend similar changes to Scotland’s defamation laws. The reforms proposed included adopting England’s ‘serious harm’, public interest and single publication protections, and barring claims for defamation where a statement was communicated only to the person who is the subject of it and no-one else. New legislation which broadly replicates the Scottish Law Commission's recommendations is currently progressing through the Scottish Parliament.
Earlier this year, the Law Commission of Ontario became the latest body to advocate changes to local defamation laws. Its principal focus, however (in contrast to concerns in the UK and elsewhere about defamation laws being used to unduly quell free speech), was to ensure on the one hand that the law was adapted to new communication channels and, on the other, to enhance access to justice for the subjects of defamatory content. To that end, the Commission’s recommendations include measures to facilitate lower-cost, quicker alternative resolution of defamation disputes and to require online platforms to both notify publishers of defamation complaints they receive and take down content if those notices are ignored.
However, it is in Australia where the debate is perhaps most active at present. In December 2019, the Australian Law Reform Commission (ALRC) identified defamation as one of its recommended priorities for review in the coming years. As a follow-on, the ALRC also recently hosted a webinar at which speakers from the judiciary, academia and freedom of information groups gave their perspectives on any potential review and reform.
Should the Attorney General support the ALRC's recommendation and refer the matter to it for review, issues that may be considered include defamation online, whether additional remedies or resolution mechanisms are required, and whether nationwide defamation laws should be introduced (at present, defamation laws are governed at State level in Australia, albeit broadly harmonised in accordance with Model Provisions agreed in 2005).
In parallel, however, the Australian State Attorneys-General on 27 July committed to enact in their state laws amendments to the Model Provisions, including in particular mirroring the UK ‘serious harm’ threshold, single publication rule, and ‘public interest’ and ‘peer-reviewed work’ protections. The AGs also agreed to consider together further reforms on the responsibilities and liability of digital platforms for defamatory content published online and any other issues they identify as requiring amendment.
In Singapore, the statutory provisions governing both civil and criminal defamation (the Defamation Act and s499 of the Penal Code respectively) remain substantively unchanged since the pre-internet era. While the common law tort of defamation has evolved and adapted to address several challenges emerging from online publication, questions will doubtless continue to be raised as to whether these collective laws adequately reflect new paradigms and still strike the right balance between the protection of individuals’ reputations and broader rights of free speech.
The challenges raised by the ever-increasing ease and rapidity with which information can now be disclosed also provide the context for the SAL Law Reform Committee’s next report – due to be published shortly – which will consider legal issues regarding the misuse of private information and the remedies available to those affected by malicious disclosures.
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On 31 August, the Australian Law Reform Commission (ALRC) published the final report in its review of Australia’s corporate criminal responsibility laws.
To address concerns that existing rules for attributing the physical and fault elements of an offence to corporations are unjust and unfair, the ALRC has made 20 recommendations to “significantly strengthen and simplify” the current regime.
These include standardising the attribution of criminal responsibility to corporations, and increasing the range of penalty and sentencing options available. The ALRC also suggests extending the law to make corporations criminally responsible for failing to prevent an associate from committing certain crimes overseas on their behalf.
Further details regarding the ALRC’s inquiry and findings are available here.
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Australia: Law Reform Commission hosts Future of Law Reform Webinar series
In December 2019, following a process of public consultation and engagement, the Australian Law Review Commission (ALRC) published the areas it considers priorities for reform and which it recommends reviewing in the coming five years: automated decision making and administrative law; principle-based regulation of financial services; defamation; press freedom and public sector whistle-blowers; and legal structures for social enterprises.
As a follow-on, the ALRC recently held a series of four webinars to start a discussion of these issues and the potential focus of any review, should the matters be referred to it by the Attorney General of Australia.
Further details, including how to watch recordings of each webinar, are available here.
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The Law Commission has recommended reforms to the leasehold property ownership system in England and Wales, with a view to transitioning the property market towards greater freehold home ownership.
The reforms, set out in three reports published on 21 July, include facilitating freehold ownership of flats by “reinvigorating commonhold” as an ownership option for newly-built properties and making conversion from leasehold to commonhold ownership easier.
The Law Commission also proposes changes to improve the regime for existing leaseholders, including simpler, cheaper ways for them to extend leases, purchase their property’s freehold, or exercise a right to manage the servicing, maintenance and/or insurance of their building without acquiring the freehold.
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On 27 July, the Law Commission opened a consultation on draft legislation to modernise the rules on when consumers acquire title to goods under sales contracts. The Law Commission’s focus is on ensuring clarity around online orders and what happens if retailers become insolvent before the consumer receives their goods.
The current law involves “complex, technical and outdated” rules and language on when ownership transfers to consumers, which are largely unchanged since the 19th century and not designed with online transactions in mind.
Broadly, the draft legislation seeks to state in simple terms that ownership of goods purchased online will typically transfer to the consumer when the retailer identifies the goods to fulfil the contract (e.g. by labelling them, setting them aside, or altering them to meet the consumer’s specification).
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