Vol 8 (2016/17)

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Online Privacy: Issues Faced by Content Holders in Enforcing their Intellectual Property Rights

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The PDF version of this entry can be found here.

Online Privacy: Issues Faced by Content Holders in Enforcing their Intellectual Property Rights

Gabriel Lim Zhi-Hao

I. INTRODUCTION

With one of the fastest Internet connection speeds in Asia1 enabling quick and easy downloading, it is no surprise that online piracy is extremely prevalent in Singapore. In terms of the number of illegal downloads per Internet user, Singapore ranked 4th out of 18 Asian countries in a 2012 survey by Vobile Pte Ltd, a service provider that operates to reduce revenue loss to content owners caused by the pirating of movies and TV content.2 Furthermore, according to a 2013 survey by Sycamore Research and Insight Asia about three-quarters of Singaporean youth aged 19 to 24 access illegally downloaded material, citing reasons such as the ease and free availability of pirated material.3 Indeed, given the proliferation of online privacy, it is surprising that little action seems to have been taken by intellectual property owners to enforce their rights. This article explores the legal difficulties faced by such content owners, and other issues that might hinder their ability to clamp down on infringers.

II. REMEDIES FOR COPYRIGHT AND TRADEMARK INFRINGEMENT

Two main pieces of legislation are involved in regulating the infringement of content rights, the Copyright Act (“CA”)4 for copyright infringement, and the Trade Marks Act (“TMA”)5 for trademark infringement.

A. Copyright Infringement

Per s 119(1) of the CA, a copyright owner has a cause of action against a person who infringes his copyright. The lack of mention of any element of knowledge or intention evince that the tort is of strict liability. Under s 119(2) of the CA, the court may award a plaintiff with damages and an account of profits. These remedies are to be read conjunctively – it is possible for a plaintiff to claim both simultaneously.6 Alternatively, a plaintiff may also elect for an award for statutory damages in lieu of damages or an account of profits via s 119(2)(d) of the CA for a maximum of $10,000 per infringed copyright up to a total of $200,000, unless a plaintiff can prove that his actual loss has exceeded that amount. In deciding whether to award statutory damages, the court will also have regard to a range of factors in s 119(5) of the CA.

It is apposite to note the 2014 amendments of the CA, which gives copyright owners or their exclusive licensees the right to apply for an injunction to disable access to websites that “commit or facilitate infringement of copyright in that material” (s 193DDA(1)(a) of the CA). Websites whose “primary purpose” (s 193DDA(2)(a) of the CA) is to encourage copyright infringement can be blocked. Indeed, the purpose of the 2014 amendments is to catch websites that clearly and flagrantly infringe copyright,7 without being intrusive on Internet users.8

B. *Trademark infringement(

For trademark infringement, the provisions in the TMA that give a trade mark owner a cause of action against any infringers are laid out in s 31 of the TMA, which are similar to that in the CA. The remedy of statutory damages is also available in s 31(5)(c). The cap on statutory damages is higher – $100,000 for each use of a counterfeit trademark, up to a total of $1,000,000 – unless, of course, a plaintiff proves that his actual loss exceeds that amount. The factors to be considered in an award of statutory damages under s 31(6) of the TMA are similar to that in the CA, albeit less extensive.

C. Statutory Damages

Due to the difficulty of proving actual loss in many copyright and trademark infringement claims – such as where an individual illegally downloads a movie for his personal enjoyment – statutory damages may be preferable because it does not require a plaintiff to prove loss.9 The remedy of statutory damages was introduced in 2004 in both the CA and the TMA following the signing of the 2003 US-Singapore Free Trade Agreement.10 Rather than basing damages off compensatory and restitutionary principles, the draw of statutory damages is that it also allows the court to account for punitive and deterrence considerations.11 This implies Parliamentary intent to clamp down on pirating and intellectual property infringement. As aforementioned, s 119(5) of the CA lists some factors for the court to consider in deciding whether to grant statutory damages, inter alia, “the nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise”, “the flagrancy of the infringement”, the need to deter other similar infringements” and “all other relevant matters”. The extensiveness and broadly-worded nature of the provisions allows the court to more appropriately deal with varying degrees of piracy.

Given how prevalent illegal downloading seems to be in Singapore, it is submitted that some flexibility in the award of statutory damages is desirable. It gives copyright owners a right to damages for any copyright infringement per se, regardless of whether or not there was any loss suffered. Indeed, the wide ambit of statutory damages itself can serve to deter potential infringers.

However, it should be noted that despite its apparent ease of application, the Singapore courts have only applied the remedy of statutory damages on very few occasions since its introduction in 2004.12 It is posited that perhaps the cost of litigation, exacerbated by the difficulties in identifying specific downloaders, still serve as a major obstacle that discourages copyright and trademark owners from enforcing their rights. Specifically, for trademark infringement cases, it has been suggested that this is due to the difficulties of determining whether an alleged infringing sign can be considered a “counterfeit trade mark”,13 which is defined in s 3(6) of the TMA.

III. THE ISSUE OF CONFIDENTIALITY WITH TELCO SUBSCRIBERS

The remedy of statutory damages, and the strict liability of the torts of copyright and trade mark infringement, might suggest that content holders can enforce their intellectual property rights with relative ease. However, the primary difficulty that content holders face in bringing an action against infringers is identifying the infringers in the first place. This can be done by tracking the Internet Protocol address (“IP address”) of an individual who has illegally downloaded content. To do so, however, would require Internet service providers (“ISPs”) such as Singtel or StarHub to disclose the personal information of its subscribers.

A. Enforcing intellectual property rights conflicts with the right to confidentiality and privacy

The issue presented itself in the seminal 2008 case of Odex Pte Ltd v Pacific Internet Ltd (“Odex”).14 Odex was a local company that licensed the copyright to distribute anime (Japanese animation) shows. In an application for pre-action discovery of documents, Odex had sought for Pacific Internet, an ISP, to provide the personal information of some subscribers who had allegedly downloaded Odex’s licensed anime shows illegally. The High Court held that only copyright owners and exclusive licensees had the locus standi to enforce their copyright against infringers – since Odex did not fall into either category, its application was denied. However, the court didallow the discovery application for the Japanese copyright owners who had joined in as plaintiffs of the action.15 The Japanese copyright owners – Showgate, Geneon Entertainment, TV Tokyo, GDH KK and Sunrise – eventually obtained the details of alleged infringers and sued two downloaders, Mr. Koh Lian Boon and Mr. Felix Lukman. Koh later settled with the plaintiffs and Lukman was reported to have fled to Indonesia.16

Indeed, Odex presented the clash between copyright owners’ right to enforce their statutory rights under the CA , and the contractual and statutory duty of ISPs to keep their subscribers’ personal information private.17 . However, the law has recognized that an individual’s right to confidentiality cannot be used as a shield to excuse acts of intellectual property infringement. Indeed, in the words of the learned District Judge in Odex: “The right to privacy can never be equated to a right to steal intellectual property in secret”.18 Odex is proof that copyright owners and their exclusive licensees can get ISPs to reveal the identity of infringers.

Most recently in 2015, Dallas Buyers Club LLC (“DBC”), the rights owner of the film Dallas Buyers Club, obtained orders from the High Court compelling major ISPs – Singtel, Starhub, and M1 – to release personal information of alleged illegal downloaders.19 DBC then sent letters to alleged downloaders demanding $5,000 for their act of infringement.20 While it is unclear whether DBC was successful in getting compensation from illegal downloaders, this case has come under flak for abuse of process.

B. Speculative invoicing and copyright trolls

It was alleged that Samuel Seow Law Corporation (“SSLC”), counsel for Voltage Pictures (of which DBC is a subsidiary), was involved in abusive practices against alleged downloaders such as “speculative invoicing” or “copyright trolling”. This involves content owners compelling quick settlements from alleged infringers under the threat of litigation. Law Minister K. Shanmugam has noted that such acts are “not wrongful by itself unless it contravenes a lawyer's professional obligations”.21 However, SSLC had allegedly threatened criminal proceedings in their warning letters to alleged infringers. This infringes the Practice Directions and Rulings Guide by Law Society of Singapore (“LawSoc”) that lawyers should not “communicate in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance”.22 LawSoc has claimed that it is taking action against two lawyers involved in the DBC case.23

Indeed, errant practices by lawyers may cause the public to develop stigma against content holders when they rightfully seek to enforce the intellectual property rights. As expressed by a spokeswoman from the Intellectual Property Office of Singapore: “While content owners have the right to enforce their intellectual property rights, this should be done in a way that builds legitimacy and respect for the entire process, and is not susceptible to allegations of abuse”.24

C. Other Difficulties

Other than the intricacies of identifying and suing alleged infringers, there remain other issues that may suppress the future of intellectual property infringement claims. The anonymity conferred by the Internet presents a major issue when tracking infringers. For one, while content holders can compel ISPs to reveal information about alleged infringers, the owner of an IP address may not have committed the act of infringement himself. A tenant who uses his landlord’s Internet Wi-Fi connection to illegally download movies and videos, for example, may not be easily identifiable. Other common scenarios include families and friends who share a Wi-Fi connection, or even public Wi-Fi available in restaurants and shops that are accessible to anyone. This makes it virtually impossible for content owners to track and identify specific individual infringers.

III. CONCLUSION

In conclusion, the pursuit by content holders to enforce their rights seems to be littered with obstacles. The scarcity of case precedent only goes to diminish the threat of litigation against potential and current illegal downloaders, which may encourage them to start or continue with their infringing acts. However, it is also possible that the publicity of cases like Odex and DBC might deter potential infringers. Further with the advent of cheap, easily-accessible options for viewing movies and TV content – notably Netflix – it is submitted that the need for Internet users to illegally download content is likely to diminish. Why risk the penalties of intellectual property infringement when cheap alternatives are so easily available? Indeed, these factors may diminish an Internet user’s desire and need to illegally download content respectively. Hopefully, this will mark the beginning of the end for online piracy in Singapore.

[1] “Singapore's Internet connection speed among top 10 in Asia Pacific: Akamai”, Channel News Asia (17 December 2015), online: <http://www.channelnewsasia.com/news/singapore/singapore-s-internet/2354990.html>.

[2] Parliamentary Debates Singapore: Official Report, vol 92 (7 July 2014) (Ms Indranee Rajah), online: <https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/2R-speech-by-SMS-on-copyright-amendment-bill-2014.html> at 26.

[3] Ibid at 27-28.

[4] Copyright Act (Cap 63, 2006 Rev Ed Sing).

[5] Trade Mark Act (Cap 332, 2005 Rev Ed Sing).

[6] David Llewelyn, “Statutory Damages for use of a “Counterfeit Trade Mark” and for Copyright Infringement in Singapore: A Radical Remedy in The Law of Intellectual Property or One in Need of a Rethink?” (2016) 28 SAcLJ 61 at 15.

[7] Public Consultation on the Proposed Amendments to the Copyright Act (7 April 2014 to 21 April 2014), online: <https://www.mlaw.gov.sg/news/public-consultations/public-consultation-on-the-proposed-amendments-to-the-copyright-.html> at 15.

[8] Ibid at 13.

[9] Supra note 6 at 18.

[10] Ibid at 12.

[11] Ibid at 28.

[12] Ibid at 47.

[13]  Ibid at 32.

[14] Odex Pte Ltd v Pacific Internet Ltd, [2008] 3 SLR 18; [2008] SGHC 35.

[15] Ibid at [76].

[16] Chua Hian Hou, “Duo in illegal-download suit cave in; One settles out of court with anime studios, the other has gone home to Indonesia”, The Straits Times (22 February 2010).

[17] George Wei, “Pre-Commencement Discovery and the Odex Litigation: Copyright versus Confidentiality or Is It Privacy?” (2008) 20 SAcLJ 591 at 17.

[18] Odex Pte Ltd v Pacific Internet Limited, [2007] SGDC 248 at [38].

[19] Cheryl Ong, “Dallas Buyers Club case: Some things to know if you have illegally downloaded the movie”, The Straits Times (9 April 2015), online: < http://www.straitstimes.com/singapore/dallas-buyers-club-case-some-things-to-know-if-you-have-illegally-downloaded-the-movie>.

[20] Irene Tham, “'Pay $5k for illegal download of movie'”, The Straits Times (8 August 2015), online: <http://www.straitstimes.com/singapore/courts-crime/pay-5k-for-illegal-download-of-movie>.

[21] K. Shanmugam, “Written Answer by Minister for Law, K Shanmugam, to Parliamentary Question on Speculative Invoicing” (14 July 2015), online: < https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/written-answer-by-minister-for-law--k-shanmugam--to-parliamentar3.html>.

[22] Law Society of Singapore, Practice Directions and Rulings Guide, Singapore, PDR 2013, para 27(b) online: <https://www.lawsociety.org.sg/DesktopModules/EthicsPortal/attachment/PDR%202013,%20PARAGRAPH%2027%20%20Letters%20Threatening%20Criminal%20Proceedings%20and%20Offensive%20Letters.pdf>.

[23] Tan Weizhen, “Authorities move to ensure illegal downloaders get fair process” TODAY (21 September 2016), online: < http://www.todayonline.com/singapore/ipos-agc-seek-intervene-court-proceedings-alleged-illegal-movie-downloading-case>.

[24] Irene Tham, “AGC steps in as studios seek illegal downloaders”, The Straits Times (17 August 2016), online: <http://www.straitstimes.com/tech/agc-steps-in-as-studios-seek-illegal-downloaders>.

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Blockchain: The Promise of Smart Contracts

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A PDF version of this entry is available here. 

Blockchain: The Promise of Smart Contracts

Goh Eng Han

Years ago, no one seriously considered computers capable of being more than work tools. Yet, technology has proven us wrong and today, many are sounding alarm bells about our jobs being done by computers. This article discusses what blockchain is, and its potential application in contract law.

I. WHAT IS BLOCKCHAIN?

The most well-known application of blockchain is the Bitcoin. As explained by the Wall Street Journal,1 “it is a data structure that makes it possible to create a digital ledger of transactions and share it among a distributed network of computers. It uses cryptography to allow each participant on the network to manipulate the ledger in a secure way without the need for a central authority.” New entries can only be made if other network participants verify their validity. All users are involved in maintaining its integrity.

A. What makes it so different from current technologies?

The key difference is that blockchain is not managed centrally. To manage financial transactions, banks and credit card companies like Visa maintain a central group of servers to process all transactions on the system. If there is any issue, the owner of the system can take the initiative and implement changes. Blockchain is the opposite, with its pointedly anti-establishment structure. There is no central authority who can make immediate changes. All users must agree before the blockchain can be modified or updated. Being a decentralised system, there is no one authority or owner of the system that can be pinpointed in the event of system outages.*

B. How does it work? What are some of its uses?

Since the system does not operate from a central unit, or group of units, it promises increased resilience and security. That is why financial institutions are interested in the blockchain. Currently, blockchain is used largely by virtual currencies like Bitcoin and Ether. While same proclaim a detest of overreaching central banks, one key draw for users is increased privacy, leading to Bitcoin’s popularity in online black markets. One example is Silk Road,2 which in various incarnations has been shut down by the FBI for facilitating illegal drugs sales.

II. RELEVANCE TO CONTRACT LAW

While the legal questions surrounding Bitcoin and its exploitation for crime frequently feature on the news, the blockchain’s innate recording function is often overlooked. From a legal perspective, this function can alter the application of contracts in the future, in particular, streamlining contractual transactions to minimise potential breaches

Ethereum is a blockchain that records “smart contracts” instead of currency transactions. Contracting parties can record their contracts in in the blockchain. These are “smart contracts” as they can be programmed to execute certain actions when conditions are fulfilled, such as making a payment to a supplier monthly. Ethereum is touted to automate contracts, since all contracts are created using a standard set of tools on the platform and can execute themselves without continual human input.

This standardisation and automation can sidestep interpretation difficulties while preventing unscrupulous parties from backing out and denying that a contract was ever agreed on. This will make the enforcing of contracts more straightforward, possibly at the cost of reducing the legal manpower required for contract work. This streamlining of contracts will incentivise parties to enter them, which is beneficial for business.

III. DRAWBACKS OF THE BLOCKCHAIN

Although there are real benefits of blockchain-based contracts, various drawbacks mean that drastic changes to the current situation are not likely to happen soon. Decentralising the blockchain across all members effectively increases the cost for them. Blockchain requires a significant amount of computing power, which used to be taken care of by a central authority’s servers and data centres. Encoding fixed contracts into the blockchain also appear to be at odds with the free, flexible nature of contracts, which is essential for commercial decisions and transactions in the economy.

Furthermore, a common problem in blockchain implementations is while they are secure, they are often much slower than systems we have today. In the case of “smart contracts”, the blockchain can only execute a contract after checking the entire database for the required information.3 Unlike other inventions like web search which can run concurrently, this means that contracts over the whole world can only be processed one at a time.4 This is abysmally slow when you compare it to Visa’s processing capacity of 56,000 simultaneous transactions per second. Meanwhile, blockchain’s average confirmation time has been anywhere from 25 minutes to 74 minutes per transaction for the first two weeks of December.5

Finally, blockchain has yet to prove itself as a truly safe platform. As blockchain is coded by humans, it is susceptible to bugs just like other software products.6 Hackers have exploited such bugs to steal large sums of Bitcoin from popular exchanges,7 creating unwanted volatility and confusion. As blockchains are designed to operate without modification after, this means that unlike software updates, bugs will in theory be irreversibly hardwired into the blockchain.

IV. CONCLUSION

“Smart contracts” are unlikely to take the world by storm and put lawyers out of their job anytime soon. More must be done to make this technology a viable and compelling alternative, such as addressing the drawbacks above Similar to recent developments like ROSS automating legal research,8 new technologies are likely to be confined to an assistive role. For now, human judgement trumps computer efficiency in handling complex legal work.

[1] Steven Norton, “CIO Explainer: What Is Blockchain?”, The Wall Street Journal (2 February 2016), online: <blogs.wsj.com>.

[2] “Shedding light on the dark web”, The Economist (16 July 2016), online: <www.economist.com>.

[3] Gideon Greenspan, “Smart contracts make slow blockchains” (5 November 2015), Multichain Blog (blog), online: <www.multichain.com/blog/2015/11/smart-contracts-slow-blockchains/>.

[4] David Gilbert, “Bitcoin’s Big Problem: Transaction Delays Renew Blockchain Debate”, International Business Times (4 March 2016), online: <www.ibtimes.com>.

[5] “Average Confirmation Time”, Blockchain, online: <blockchain.info/charts/avg-confirmation-time>.

[6] “Not-so-clever contracts”, The Economist (30 July 2016), online: <www.economist.com>.

[7] Alex Hern, “A history of bitcoin hacks”, The Guardian (18 March 2014), online: <www.theguardian.com>.

[8] Anthony Sills, “ROSS and Watson tackle the law” (14 January 2016), Built with Watson (blog), online: <www.ibm.com/blogs/watson/2016/01/ross-and-watson-tackle-the-law/>.

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Setting Minds at Ease: The Effectiveness of Recent Amendments to the Mental Capacity Act

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The PDF version of this entry can be found here.

Setting Minds at Ease: The Effectiveness of Recent Amendments to the Mental Capacity Act

Heng Ming Heuy Monica

INTRODUCTION

In March 2016, Parliament amended the Mental Capacity Act1 (“the Act”) with the purpose of empowering more people to make complex choices about their future, as well as to protect mentally incapacitated persons from (primarily) financial abuse. Two amendments stand out: the introduction of paid professionals into the Lasting Power of Attorney (“LPA”) system, as well as the expansion of the Court’s powers over the appointment of the decision-maker.2 This article evaluates the contribution of these amendments to the furtherance of the purpose of the Act in addition to the applicability of developments surrounding the United Kingdom Mental Capacity Act3 [UK MCA] to Singapore law.

MONETISATION OF THE LPA SYSTEM

The first amendment of note is one that enables singles to appoint professional donees to make decisions related to personal welfare and property on their behalf.4 The purpose of this amendment is to pre-empt the spurt in future planning, as predicted from rising singlehood5 and the prevalence of age-related medical conditions such as dementia.6 It plugs a gap in the legal system by accounting for the needs of persons who do not have family members to be their proxy decision-makers. Additionally, the amendment addresses the growing need for deputies, given that the application rate for LPAs remains low7 – which implies that the Court will still be effectively responsible for making decisions for many Singaporeans in the future, through assigning proxy decision-makers.

A point of contention, however, is when professionals will be deemed to be acting in the individual’s best interests. While it is clear that acting for the donee’s best interests is a fundamental principle upheld by the Act,8 the concept of “best interests” is complex to define and difficult to practise. In particular, the main tension would be between the professional’s judgments of what is good for the individual, as opposed to the individual’s own preferences. To elaborate, the Act prescribes that the decision-maker must consider a variety of factors, including the donee’s past and present preferences. At the same time, he must know the “right thing” to do based on his own evaluation of the individual’s present circumstances.9 Arguably, a professional donee or deputy who has little knowledge about the individual’s preferences is more likely to employ a paternalistic approach towards decision-making. In other words, his own understanding of what is beneficial for the incapacitated individual may override the wishes of the latter.

In particular, this problem is exemplified when the professional appointed has little to no interaction with the individual, and therefore is unfamiliar with their needs, situations, or wishes. A similar problem has unfolded in the United Kingdom, where a trend of low quality mental capacity assessments has emerged. In its 2014 review of the UKMCA, the House of Lords found that health care professionals were often not closely involved with the care of the intellectually-disabled person,10 and as a result, their medical assessments were shallow and done in a slipshod manner that “nowhere near matche[d] the seriousness of the issues at stake”.11 Going back to the local context, it is submitted that a poor understanding of the provisions for determining best interests by the professional donees and deputies will create similar problems in the quality of service provided, as well as the adherence to the principle of best interests in the Act, especially since there is no requirement that the professionals must be involved with the individual.

ENHANCED POWERS OF THE COURT

The second issue concerns the amendments which allow the Court to take pre-emptive action against abuse of the LPA. The amendments allow the Court to (1) quickly suspend the powers of a donee or deputy when criminal investigations are undergoing – without requiring prior applications; and (2) speedily revoke the same LPA powers if there is significant risk of them being abused.12 A “significant risk” would include the conviction of the donee or deputy of offences related to fraud or dishonesty. An important distinction is that the appointment of the donee or deputy could nonetheless be revoked even if the offence he committed was not in relation to the donor.

This is a laudable development in the law regarding mentally incapacitated persons, as it protects the assets of the unsuspecting donor from being dissipated. Its benefit can be illustrated by its application to Chung Khin Chun K,13 a recent case which the Minister of Social and Family Development in fact referred to14 in his proposal of the amendments.15 On the facts of that case, there was a significant risk that the donor’s property would be dissipated because the donee had been charged with the offences of falsification of company receipts and criminal breach of trust of monies belonging to the donor.16 The new amendments would resolve this undesirable situation as firstly, the donor’s assets would be preserved during the course of investigations through an order of suspension per s 36A. Secondly, the LPA could be revoked under s 20 such that the problematic donor could be removed and replaced with one the Court deemed fit. The amendments are thus “sensible precaution[s]” that empower the Court to act on the behalf of the vulnerable, even before abuse occurs.17

A criticism, however, lies in the fact that this safeguard is applied later in the scheme of the LPA than what is preferred. What this means is that these powers of the Court become useful only after the LPA has been approved by the Public Guardian, where in fact it would be more logical to root out potential risks at the application stage through a robust vetting process. As voiced by critics like Member of Parliament Joan Pereira, prevention outweighs cure.18

Here, it is important to recall that the principle of the individual’s autonomy is at the heart of the Act (see s 3(1)). As reiterated by Minister Tan Chuan Jin in his parliamentary speech, to interfere in the application process – i.e. to control who the applicants select as their donee(s) – would contravene this principle and perhaps discourage citizens from even applying for the LPA at all.19 Furthermore, it would compromise the capacity of the Public Guardian in providing objective reports to the Court in the course of investigations.

It is therefore submitted that the greatest opportunity for change occurs at the “intermediate” stage of LPAs, which is the period of time following the clearance of the LPA application prior to the materialisation of abuse. To elaborate, the Office of the Public Guardian may employ supervisory methods such as audits to keep an eye on high-risk cases. The risk level of cases can be determined by a checklist of factors including the value of the assets involved, the identity of the donee (e.g. foreigner or person unrelated to the donor) and the donor’s age (which hints at the likelihood of age-related conditions like dementia arising).20 Further, the United Kingdom’s “first year weighted” approach21 to assessing risk in LPAs can be applied locally: As of 2015, the UK Office of the Public Guardian has moved away from classifying cases according to static risk levels; instead, risk levels are commensurate with the type of deputy involved. For instance, cases with first-year deputies are categorised as high-risk, while cases with professional deputies are generally categorised as low-risk. The former cases are later allocated different risk levels depending on the UK Office of the Public Guardian’s re-evaluation of the cases, using annual reports supplied by the deputies. This approach to risk assessment maximises the allocation of resources to the overseeing of cases, and awards high-risk cases greater attention.

CONCLUSION

In conclusion, the key amendments made to the Act in 2016 are meritorious – enhancing the options for future planning as well as strengthening the protection of the LPA against potential abuse. Nevertheless, there remain practical considerations that Parliament can work on to improve the implementation of the Act. It is envisioned that the Act will be a beacon of hope for Singaporeans seeking security when their mental capacity is lost.

[1] Cap 177A, 2010 Rev Ed Sing

[2] Supra note 1 at s 12 and s 17

[3] Mental Capacity Act 2005 (UK), c 9

[4] Neo Chai Chin, "More decision-making options mooted for mentally-incapacitated" TODAY (7 December 2015) <http://www.todayonline.com/singapore/more-decision-making-options-mooted-mentally-incapacitated> (accessed 30 November 2016)

[5] Charissa Yong, "More young people in Singapore staying single" The Straits Times (11 March 2016) <http://www.straitstimes.com/singapore/more-young-people-in-singapore-staying-single> (accessed 30 November 2016)

[6] Janice Tai, "One in 10 people over 60 have dementia, new Singapore study claims" The Straits Times (25 March 2015) <http://www.straitstimes.com/singapore/health/one-in-10-people-over-60-have-dementia-new-singapore-study-claims> (accessed 30 November 2016)

[7] “Out of the adult resident population of three million, only about 0.7 per cent have applied for an LPA thus far.” From Lorna Tan, "Draw up an LPA before it's too late" The Straits Times (23 October 2016) <http://www.straitstimes.com/business/invest/draw-up-an-lpa-before-its-too-late> (accessed 30 November 2016).

[8] s 3(5) and 6 of the Act

[9] BHR and Another v BHS [2013] SGDC 149 at [56]

[10] House of Lords, Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: post-legislative scrutiny (Report of Session 2013-14, 13 March 2014) at para 66

[11] Supra note 9 at para 69

[12] Supra note 1 at s 36A(3)(b)(i) and s 17(3)(b)(i)

[13] Chung Khin Chun K (by her deputy Mok Chiu Ling Hedy) v Yang Yin and others [2015] SGHC 215

[14] Singapore Parliamentary Debates, Official Report (14 March 2016) vol 94 (Tan Chua Jin, Minister for Social and Family Development)

[15] Mental Capacity (Amendment) Bill 2016 (Bill 11 of 2016)

[16] PP v Yang Yin [2015] SGHC 3

[17] Robert Hurling, "Singapore: Mental Capacity Act Amendments", Hyphen Law [2016] <http://www.hyphenlaw.co.uk/site/blog/hyphen-blog/singapore-mental-capacity-act-amendments> (accessed 30 November 2016)

[18] Supra note 13 (Joan Pereira, Member of Parliament for Tanjong Pagar)

[19] Supra note 13

[20] Supra note 13 (Denise Phua Lay Peng, Member of Parliament for Jalan Besar)

[21] Office of the Public Guardian, Fundamental Review of the Supervision of Court Appointed Deputies by the Public Guardian (Report to Parliament, December 2014) at para 77

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"The Geeks Shall Inherit the Earth": Two-way Influences amongst Fintech, Finance and Law

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"The Geeks Shall Inherit the Earth": Two-way Influences amongst Fintech, Finance and Law

Chew Jia Yi Joan

INTRODUCTION

“The geeks shall inherit the earth” is a phrase articulated by a Fintech company in Silicon Valley.1 While the “geeks” behind Fintech may not yet have taken over Singapore, Singapore was recently named as one of the world’s top 2 Fintech hubs.2 Clearly, Fintech will continue to influence local society, in particular its financial industry. This article aims to evaluate the two-way influences amongst Fintech, the financial industry and legal regulation mechanisms, as well as consider plausible future developments to their relationship.

A. Definition of Fintech

Fintech represents the innovative convergence of finance and technology. It can be defined at both the service and industry levels. In terms of a service, it involves the provision of financial services using new technologies, such as mobile phones and the Internet. In terms of industry, it refers to a non-financial business providing services such as payment without collaborating with a company specialising in financial services.3 Some well-known examples of these are Apple Pay and Alibaba’s AliPay.4

B. General Social Impacts

One of the areas in which Fintech is most relevant to the average Singaporean’s life is perhaps digital payments. Across the world, mobile payments alone were expected to grow by 60.8% in 2015, largely due to regulators’ willingness to allow new Fintech companies to operate without a banking license.5 Another important factor for this was new technology allowing for the implementation of novel solutions at far less than what it would have previously cost.6 In addition, the continued recovery of mature economies was also a contributing factor.7 Given the predicted stabilisation of global markets rather than strong growth,8 it is plausible that the rapid growth of Fintech services might slow down, but it is unlikely to stop completely.

On a larger scale, Fintech might be able to help hedge the financial consequences of an aging society, such as through peer-to-peer (P2P) lending services.9 Singapore is unquestionably a rapidly ageing society, with over 25% of the population reaching old age by 2030.10 The exact impact of Fintech on an aging society remains to be seen, but there will probably be some form of impact in future as both these elements are here to stay.11

FINTECH’S INFLUENCE ON THE FINANCIAL INDUSTRY AND ITS REGULATORS

Apart from impacts on society in general, it is likely that Fintech will have a strong influence on the financial services sector. As the legal and financial industries are closely connected, the impact of Fintech on the legal sector cannot be ignored as well. An analysis of such an impact is important given the significance of the financial and legal industries in Singapore—these industries are critical for Singapore to maintain its status as a regional economic and legal hub.12 As the influence of Fintech in the local context might not be completely visible at present, relevant examples from other jurisdictions will also be mentioned.

A. Fintech Services Offered by Banks

Some Fintech services offered by banks can be said to be at odds with some of the core principles traditionally governing banking operations. Firstly, banks have traditionally been proponents of calculated risks, such as their facing the risk of mortgagees being unable to pay back their mortgages in an economic downturn. This is because they have the chance to profit from such risks if their calculations are accurate. However, in the market of certain Fintech services such as digital payments, there is a focus on minimising risk because profitability does not stem from such risks.13 Secondly, building good relationships with customers has always been important in banking, but Fintech services such as digital payments do not place as much emphasis on the quality of relationships with customers. 14 As such, it is plausible that there may be an eventual separation of the banking and Fintech industries.15

However, there are some areas in which the fundamental principles governing Fintech and banking operations have not been in direct conflict. Rather, in these areas, Fintech has merely resulted in a shift in the type of business banks undertake. Such a shift would be beneficial for financial regulators. For instance, in the wake of the 2008 financial crisis, banks have acknowledged the importance of transactions, apart from their traditional risk-taking, as a means of generating profit. The ability of digital payments to facilitate such transactions would complement, rather than hinder, the banks’ developing an ideal transactional framework.16 Indeed, Internet banking has resulted in at least 50% of over-the-counter payments in some Chinese banks.17 Given that it might be harder for banks to check the authenticity of a customer’s over the Internet as compared to looking at the physical person, legal regulations focusing on Know Your Customer (KYC) and Anti-Money Laundering (AML)18 regulations will only continue to grow in importance. Indeed, the Monetary Authority of Singapore (MAS) has recently embarked on a project to create a national KYC utility, and has acknowledged that there might even be a need for more advanced types of KYC guidelines.19

B. Fintech services offered by companies other than banks

As for Fintech services belonging to non-financial companies, there has been a rise of services that threaten the very existence of the formal banking sector. These companies, with their services such as Bitcoin, involve peer-to-peer networks managed by the Internet community.20 This compromises the need for financial institutions in this area. This development also potentially makes it harder for legal regulations, as there are arguably more parties to regulate than in traditional banking. However, at the same time, this obstacle is not insurmountable as some Fintech services leave a permanent financial record of each transaction through usage of blockchains.21 This would be of some comfort to regulators as it would aid in their continuing to play their roles effectively.

Furthermore, Fintech services might also benefit regulators of traditional financial institutions in terms of reducing their workload. The new Fintech companies will be able to help traditional financial institutions achieve some of the outcomes that legal regulators have been aiming to achieve with the financial sector, such as developing Singapore into an international financial centre.22 To do so, legal regulators have to ensure financial institutions cut costs and deliver quality financial services. Fintech companies can help regulators achieve such outcomes through competition. For instance, American Fintech start-up Lending Club’s expenses as a share of its loan balance is about 2%, less than half the equivalent for conventional moneylending services.23 This results in better deals for customers, who are increasingly shifting away from traditional banking platforms. Hence, such competition will force financial institutions to work towards the goals that regulators have been setting for them all along,24 helping regulators in this respect.

RESPONSE OF THE FINANCIAL INDUSTRY AND ITS REGULATORS TO FINTECH

Although the shift towards Fintech has not been a total bed of roses for financial institutions and their regulators, they have tried to keep abreast of developments in this area and ensure their continued relevance.

For instance, banks might actively take steps to hinder the development of Fintech. This is because banks have no clear financial incentive to support Fintech start-ups. On the contrary, some aforementioned aspects of their operations are arguably threatened by Fintech start-ups. Such steps are apparent in countries such as the United Kingdom, where HSBC and Barclays have closed the accounts of some digital currency operators and refused to give them merchant identification for receiving direct debit payments.25

Such pushback from financial institutions leads to a greater role for legal regulation in the financial industry as a whole. For instance, during his term in office, former United Kingdom Chancellor of the Exchequer George Osborne promised legislation to help Fintech firms obtain capital. This included a proposal to force banks who refuse to grant them loans to refer them to alternative sources of funds, such as crowdfunding.26 It is plausible that given the context of both Singapore and the United Kingdom aiming to become Fintech hubs,27 Singapore might also introduce similar regulations to actively aid Fintech start-ups resolve cash flow issues.

An area in which Singaporean regulators are already helping Fintech companies is their navigation of the complex legal landscape. At present, apart from the aforementioned KYC and AML regulations, there are many other regulations that both banks and Fintech start-ups have to deal with in launching their services. Despite such regulations aiming to make Fintech safe for society to utilise, some of them may not have fully caught up with the novel business models that Fintech services employ, which would hinder true innovation in the field.28 In response to this problem, the MAS has recently allowed banks and Fintech start-ups to apply to join a ‘regulatory sandbox’, in which certain legal and regulatory rules will be relaxed to allow for the testing of new Fintech services.29 Companies will then be able to focus on developing their services while only focusing on compliance with the more important regulations which will not be relaxed during the ‘sandbox’ phase, such as some AML rules.30 Should these experiments prove successful, the Fintech services would be applied on a broader scale, upon which they would then comply with all relevant legal regulations. Thus, this scheme will aid both banks and Fintech start-ups to better understand the relevant regulations and comply with them, without stifling their experimentation.

Greater legal regulation may also lead to increased popularity of Fintech services amongst the general population Increased government regulation of the Fintech sector may help to overcome ordinary consumers’ security-related concerns regarding Fintech. For instance, online payment systems, particularly those involving P2P transfers, may be more vulnerable to personal data theft than traditional payment methods.31 It also does not help that there has been a steady rise in scams involving online credit transfers, such as when sellers do not deliver goods after the buyer has paid for them online.32 This comes despite companies such as PayPal helping buyers obtain refunds from errant sellers.33 This indicates a plausible role for greater legal regulation to prevent exploitation of innocent users of Fintech services. With greater regulatory control over the sector, potential Fintech users may have these fears allayed. This would thus aid the growth of the local Fintech customer base.

CONCLUSION

In conclusion, it has been shown that there is a strong influence by Fintech on existing financial institutions and their regulators. Although Fintech has resulted in banks facing more difficulty in certain aspects of their operations, it has arguably benefitted financial regulators in some areas, such as through increasing their relevance. Vice versa, banks and regulators can also hinder or aid the growth of the Fintech sector, though it seems that regulators are playing a greater role in Fintech’s expansion. Indeed, Commentators have suggested that regulators can do even more to aid the shift towards Fintech, such as through facilitating the establishment of courses focusing on digital financial services for students trained in business and Information Technology (IT).34 Although all governments face restricted ability to undertake regulatory commitments,35 this limitation might be particularly pertinent in Singapore where resources are generally scarce. Thus, it would be ideal if regulators could find low-resource ways to better regulate the “geeks” behind the Fintech sector, enabling its growth while increasing protection of users.

[1] Ravi Menon, “A Smart Financial Centre” (Keynote Address delivered at the Global Technology Law Conference, 29 June 2015), online: <www.mas.gov.sg/news-and-publications/speeches-and-monetary-policy-statements/speeches/2015/a-smart-financial-centre.aspx> [Menon, “A Smart Financial Centre”].

[2] Jun Jie Woo, “To be a FinTech Hub, Singapore Needs RegTech”, Today (27 October 2016), online: <todayonline.com>.  

[3] Yonghee Kim, “The Adoption of Mobile Payment Services for “Fintech”” (2016) 11:2 IJAER 1058.

[4] Ibid.

[5] Ross P Buckley & Ignacio Mas, “The Coming of Age of Digital Payments as a Field of Expertise” (2016) 1 U Ill J L Tech & Pol’y 71.

[6]  Ibid at 78.

[7] Ibid at 71.

[8] Interview of Franziska Ohnsorge, Chief Economist, Development Propsects Group, World Bank by Grzegorz Siemionczyk (21 January 2016) at online: <www.worldbank.org/en/news/opinion/2016/01/21/
it-is-not-then-that-the-global-economy-has-returned-to-normal> .

[9] Christopher Chan, “Hedging the Aging Society: Challenges to the Insurance Market and Law in Singapore” (2016) [unpublished, archived at Social Science Research Network Electronic Library] at 13-14.

[10] Ibid at 1.

[11] Chan, supra note 9 at 14.

[12] Sarah Kogan, “Singapore’s Legal Sector: The Fight for Market Share”, The Business Times [of Singapore] (15 February 2015), online: <businesstimes.com.sg> .

[13] Buckley & Mas, supra note 5 at 73.

[14] Ibid at 75.

[15] Ibid at 87.

[16] Ibid at 77.

[17] Weihuan Zhou, Douglas W Arner & Ross P Buckley, “Regulation of Digital Financial Services in China: Last Mover Advantage?” (2015-2016) 8: Tsinghua China L Rev 25 at 35.

[18] Alan Gelb, “Balancing Financial Integrity with Financial Inclusion: the Risk-based Approach to Know Your Customer” (2016) Center for Global Development Policy Paper 74.

[19] Ravi Menon, “Singapore’s Fintech Journey—Where We are, What is Next” (Address at Singapore FinTech Festival—FinTech Conference, 16 November 2016), online: <www.mas.gov.sg/News-and-Publications/Speeches-and-Monetary-Policy-Statements/Speeches/2016/Singapore-FinTech-Journey.aspx>.

[20] Buckley & Mas, supra note 5 at 79. 

[21] Michael Mainelli & Alistair Milne, “The Impact and Potential of Blockchain on the Securities Transaction Lifecycle” (2016) SWIFT Institute Working Paper No 2015-007 at 3.

[22] Monetary Authority of Singapore, “Overview” <www.mas.gov.sg/About-MAS/Overview.aspx> (accessed 28 November 2016).

[23] “The Fintech Revolution”, The Economist (9 May 2015), online: <economist.com> .

[24] Menon, “A Smart Financial Centre”, supra note 1. 

[25] Martin Arnold & Sam Fleming, “Regulation: Banks Count the Risk and Rewards”, Financial Times (November 14, 2014), online: <ft.com> .

[26] Arnold & Fleming, supra note 25.

[27] Ibid.

[28] “Piecemeal Regulation is Hindering US Fintechs”, Business Insider (17 October 2016), online: <businessinsider.com> .

[29] Monetary Authority of Singapore, Media Release, “MAS Issues “Regulatory Sandbox” Guidelines for FinTech Experiments” (16 November 2016), online: MAS Media Releases <www.mas.gov.sg/News-and-Publications/Media-Releases>.

[30] Weilun Soon, “MAS Issues Guidelines for Fintech Regulatory Sandbox”, The Business Times [of Singapore] (16 November 2016), online: <businesstimes.com.sg> .

[31] Jennifer Windh, “Peer-to-peer Payments: Surveying a Rapidly Changing Landscape” (2011) Federal Reserve Bank of Atlanta at 17.

[32] Huiwen Ng, “$1m Lost to Online Purchase Scams”, The Straits Times (28 November 2016), online: <straitstimes.com> .

[33] Windh, supra note 31 at 18. 

[34] Buckley & Mas, supra note 5 at 86. 

[35] Joseph E Stiglitz, “The Role of the State in Financial Markets” (Paper delivered at the World Bank Annual Conference on Development Economics, 1993), (1994) Proceedings of the World Bank Annual Conference on Development Economics 19 at 33.

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The Case For Removal Of HIV-Related Immigration Restrictions In Singapore

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The PDF version of this entry can be found here.

The Case for Removal of HIV-Related Immigration Restrictions in Singapore

Foo Ee Yeong Daniel

INTRODUCTION

In 1998, persons suffering from Acquired Immune Deficiency Syndrome (AIDS) or infected with Human Immunodeficiency Virus (HIV) were explicitly listed as “prohibited immigrant[s]” under s 8(3)(ba) of Singapore’s Immigration Act1 to protect Singapore’s public health in the wake of a global HIV epidemic.2 This manifested in a ban on HIV-positive foreigners from entering the country. While the ban on foreigners on short-term visit passes was quietly lifted in 2015, persons with HIV or AIDS are still prohibited from long-term visits to Singapore – the official reason being that “the public health risk posed by long-stayers is not insignificant”.3 This article aims to study the reasons for s 8(3)(ba) and the existing HIV-related immigration restrictions, and submits that they should be repealed and removed respectively.

THE CASE FOR REMOVAL OF HIV-RELATED IMMIGRATION RESTRICTIONS

A. The restrictions are an outdated model intended for an unpredictable epidemic

It is submitted that the restrictions on HIV-positive immigrants no longer serve their original purpose as a response to an unpredictable epidemic on a global scale. The context in which HIV-positive foreigners were listed as “prohibited immigrants” in 1998 concerned a dramatic increase in the number of HIV infected residents: Singapore had almost 200 reported cases, and more alarmingly, 42 new cases of HIV and AIDS were reported in 1991, vis-à-vis the 61 cases between 1985 and 1990. Against this backdrop of domestic increase in HIV infections was our large number of HIV-positive foreigners: 2,813 foreigners had been tested to be HIV-positive while in Singapore, 80% of whom were work permit holders and applicants.4 The “policy on the repatriation and permanent blacklisting of HIV-positive foreigners”5 was Singapore’s consequent response to that global crisis, as we were perceived to be “particularly vulnerable… [given] people coming into Singapore in far greater numbers, and Singaporeans [travelling] abroad even more frequently”.6

It is submitted that this policy is outmoded. Today, the rate of new HIV cases has generally been constant at about 450 new reported cases each year since 2008.7 The rate of HIV infection is generally maintained unlike in the past; treatment and control measures have made the disease much more predictable, and the heavy response we opted for decades ago is arguably inappropriate given the relatively moderate scale at which HIV spreads today.

Furthermore, immigration restrictions have become a disproportionate response to the severity of HIV, which today has reduced dramatically. The policy against HIV-positive foreigners was recommended when HIV was “new, fatal and no effective treatment was available”;8 HIV was considered a “death sentence”.9 This is no longer the case today as “more than 5,000 Singapore residents [live] with HIV” and there is “effective treatment for the disease”. In fact, HIV-positive persons on antiretroviral therapy may be “successfully virally suppressed” and “not infectious to other people”. In this vein, it is submitted that any prohibition on HIV-positive immigrants despite their non-infectiousness is disproportionate to the alleged “public health risk” they pose.

B. The restrictions are ineffective in reducing the spread of HIV

Increasingly, it is clear that Singapore’s policy against HIV-positive immigrants does not reduce the type of public health risk it purports to.11 Since 97% of HIV contraction in Singapore is through sexual intercourse,12 the main persons at risk are sexual partners of infected persons, who only transmit HIV via certain kinds of sexual behaviour; no health risk is posed to the general public through casual contact. Persons infected with HIV are thus significantly different from persons infected by other contagious diseases that make their very “presence in Singapore dangerous to the community”,13 and should not warrant the same immigration restrictions they do. Most importantly, punitive measures such as immigration restrictions have been proven to be relatively ineffective in preventing transmission, and in fact “may limit the uptake of HIV voluntary testing and hinder adherence to HIV treatment”.14 In this vein, it is submitted that an HIV-positive person should not be banned from long-term stay in Singapore while a person suffering from a different type of sexually transmitted disease is not, since these are all ‘controlled’ diseases that are not effectively reducible by immigration restrictions.

Furthermore, concerns that foreigners (aware or unaware of their HIV status) may (intentionally or unintentionally) spread the disease would generally be well controlled under Singapore’s strict domestic laws against HIV infection.15 In particular, an immigrant who knows he has HIV,16 or for whatever reason does not know he has HIV but has reason to believe that he has or has been exposed to a significant risk of infection, must disclose this risk to his sexual partner before engaging in sexual activity, or be liable to criminal charges as per s 23(2) of the Infectious Diseases Act.17

In any case, the risk of HIV spreading is greatly ameliorated by the availability of anonymous HIV testing, increasing public education about HIV in schools and workplaces,18 guidelines to manage HIV at the workplace, and advancements in public health practices19 – all of which would be readily available to both the HIV-negative populace and HIV-positive immigrants to mutually prevent infection.

In this vein, it is further submitted that the distinction between the public health risk posed by short-term visitors and long-term visitors is arbitrary; the duration of one’s stay is much less a variable of a person’s infectiousness, compared to more important factors such as one’s knowledge, disclosure and treatment of the disease – all of which are generally well regulated in Singapore.

While it is acknowledged that HIV infection rates are still higher than before Singapore implemented its current HIV-related immigration restrictions in 1998, it is submitted that lifting our immigration restrictions would have negligible effect on the current domestic spread of HIV. Firstly, overall HIV infection rates among adults are stabilising worldwide;20 Singapore’s HIV infection rates are not out of the ordinary, and removing HIV-related immigration restrictions would not reasonably lead to an exceptionally large number of HIV-positive foreigners entering Singapore. Secondly, the spread of HIV carried by immigrants may be circumscribed, for instance, by continuing to require mandatory testing for long-term visitors21 and/or subjecting them to the same laws relating to HIV infection as those applying to all Singaporeans.

C. Repealing s 8(3)(ba) would reduce stigma and better satisfy public conscience

It is submitted that removing HIV-related immigration restrictions would better achieve Parliament’s underlying objective to promote inclusiveness and reduce stigma today. When Parliament crafted HIV-related laws, they were concerned with treating patients “humanely and with great compassion” as they and their loved ones undergo “great suffering and social stigma”.22 However, this had to be balanced with “protecting innocent people” from contracting HIV,23 which led to prohibitions on HIV-foreigners from entering the country while HIV-positive Singaporeans remained to seek treatment at home. Noticeably, this by implication seems to unfairly characterise HIV-positive immigrants as a group distinct from “innocent people” in society, even though HIV-positive persons are in many cases victims of circumstance. Given our many health and social support systems, as well as the treatability of HIV that may even render an infected patient ‘risk-free’, the protection of both HIV-positive and negative persons today is not a zero-sum game. It is thus submitted that Parliament’s previous concern about balancing the interests of HIV-positive and negative persons today should be adjusted such that HIV-related immigration restrictions are removed.

Further, Parliament should repeal s 8(3)(ba) as a matter of public conscience. Since the late 20th Century, HIV-positive persons have ranged from married wives infected by their husbands, to children infected perinatally, to blood donees via transfusion, to health care workers via clinical procedures.24 97% of HIV contraction in Singapore is through sexual intercourse, and this is not limited to individuals engaging in high-risk sexual behaviour – often victims have sexual partners’ whose HIV status was either undisclosed or unknown. It therefore seems unjust that the HIV-positive foreigner is labelled a “prohibited immigrant” alongside charges on the public,26 outlaws,27 prostitutes,28 procurers,29 vagrants,30 and persons seeking to overthrow the government by violence31 as our laws should seek treat them with compassion accordingly.

To this end, it is submitted that HIV-positive persons should be allowed to enter Singapore as ‘lawful’ immigrants and stay long-term should they choose to, without being ‘exceptionalised’ and ‘othered’ as a group whose mere presence is a danger to public health – a widespread perception that is taught as untrue, and would be better proven with the removal of s 8(3)(ba). Such a legal reform would enhance the inclusiveness of our whole community, which includes both HIV-positive and negative persons.

CONCLUSION

Removing HIV-related immigration restrictions would not be an unprecedented policy, and Singapore has the benefit of gleaning from the experience of many other countries that have done this. From 2000 to mid-2013, there was a more than 50% reduction in the number of territories with HIV-related travel restrictions – from 96 to 43.32 In particular, the United States had a similar experience to Singapore’s: first applying a blanket ban on HIV-positive foreigners given its large influx of immigrants and the explosion of the AIDS epidemic in the 1980s, before removing the restrictions on short-term travellers in 2006, and eventually removing the ban entirely in 2010 – a process catalysed by vocal opposition from the international community.33 Changing a law typically takes time and effort, and the process requires the community to voice its concerns and what it thinks is right. This article hopes to aid in this respect, as part of former and ongoing efforts by other members of the community to do the same.

[1] Immigration Act (Cap 133, 2008 Rev Ed),

[2] Parliamentary Debates Singapore: Official Report, vol 69, col 939 (4 September 1998) (The Minister for Home Affairs (Mr Wong Kan Seng)),

[3] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>.

[4] Parliamentary Debates Singapore: Official Report, vol 70, col 24 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[5] Supra note 3.

[6] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[7] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[8] Supra note 3.

[9] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[10] The Straits Times, “Ban on entry into Singapore eased for foreigners with HIV”, online: <http://www.straitstimes.com/singapore/ban-on-entry-into-singapore-eased-for-foreigners-with-hiv>.

[11] Parliamentary Debates Singapore: Official Report, vol 69, col 937 (4 September 1998) (The Minister for Home Affairs (Mr Wong Kan Seng)).

[12] Supra note 7.

[13] s 8(3)(b), Immigration Act (Cap 133, 2008 Rev Ed).

[14] UNAIDS Report 2013, page 92.

[15] ss 22 to 25A of the Infectious Diseases Act (Cap 137, 2003 Rev Ed).

[16] Ibid at s 23(1).

[17] Ibid at ss 23(2).

[18] Parliamentary Debates Singapore: Official Report, vol 86, col 1969 (11 January 2010) (Mr Khaw Boon Wan).

[19] This is similar to the considerations made by the United States in deciding that HIV infection is no longer a “significant public health risk”, as per the Department of Health and Human Services, “Medical Examination of Aliens – Removal of Human Immunodeficiency Virus (HIV) Infection From Definition of Communicable Disease of Public Health Significance”, online: <https://www.gpo.gov/fdsys/pkg/FR-2009-11-02/html/E9-26337.htm>.

[20] AVERT, “Global HIV and AIDS Statistics”, online: <http://www.avert.org/global-hiv-and-aids-statistics>.

[21] Immigration & Checkpoints Authority, “Medical Examination for Successful Applicants of Employment Pass, Long-Term Immigration Pass and Permanent Residence”, online: <https://www.ica.gov.sg/news_details.aspx?nid=4497>.

[22] Parliamentary Debates Singapore: Official Report, vol 70, col 29 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[23] Parliamentary Debates Singapore: Official Report, vol 70, col 34 (26 February 1999) (Dr Lily Neo (Kreta Ayer-Tanglin)).

[24] Parliamentary Debates Singapore: Official Report, vol 70, col 25 (26 February 1999) (The Senior Minister of State for Health (Dr Aline K. Wong)).

[25] The Straits Times, “455 new cases of HIV reported in Singapore in 2015, most patients got virus through sex”, online: <http://www.straitstimes.com/singapore/health/455-new-cases-of-hiv-reported-in-singapore-in-2015-most-patients-got-virus-through>.

[26]Immigration Act (Cap 133, 2008 Rev Ed), s 8(3)(a).

[27]Ibid at s 8(3)(d).

[28] Ibid at s 8(3)(e).

[29] Ibid at s 8(3)(f).

[30] Ibid at s 8(3)(g).

[31] Ibid at s 8(3)(i).

[32] Global Report UNAIDS report on the global AIDS epidemic 2013, page 92, online: <http://www.unaids.org/sites/default/files/media_asset/UNAIDS_Global_Report_2013_en_1.pdf>.

[33] National Institutes of Health, United States National Library of Medicine, “The Impact of Removing the Immigration Ban on HIV-Infected Persons”, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3263303/>.