Proposals for Internet Freedom in Singapore" is now submitted to Dr Lee Boon Yang, the Minister for Information, Communication and the Arts. For those who want to a download of the paper, you can download it from here.
Recently, Dr Vivian Balakrishnan, the Second Minister For Information, Communications And The Arts gave a speech entitled “Navigating the Age of the Internet, Singapore and the New Media” in the Foreign Correspondents Association lunch time talk. In his speech, he discussed the difficulty in regulating cyberspace and reiterated the “light touch” approach that the government has been using to engage issues pertaining to the new media. Here is an excerpt from his speech:
Generally, we adopt a “light touch” approach. Although there is much offensive and untrue material in cyberspace, there is no need, and in fact it is impossible, to pursue each and every transgression. We only need to selectively target those who pose a clear and present risk to the real world. Consequently, we see no need to suppress new media unless specific laws are broken because people have posted seditious or racially offensive content which have come to our notice, and which have gained traction in our society. Race and religion continue to be sensitive and volatile issues that tug at the visceral feelings of people. We had a few such cases in the previous years, and we have not hesitated to prosecute them in court.
I want to sketch out why the touch from the government is not really “light”. Examining past cases showed that the current legislation is not just over-reaching but also can be interpreted broadly such that the offender can be shown (in the legal context) to have broken the law. The best example is the use of the sedition act against the racist bloggers. If you have invoked their wrath without crossing the definite OB markers such as race and religion, you can infer that “light touch” as a tool which the establishment can issue a stern rebuke on issues relating to governance or economy, for e.g., the cases pertaining to Mr Brown and Catherine Lim.
The last interpretation of “light touch” is the government’s choice to exercise the option of ceremonial censorship rather than direct enforcement of the legislation. Recently, the establishment acknowledges that it is difficult to regulate the internet even with the help of technology. For example, through Vivian’s speech, we know that the government only ban 100 pornographic internet sites even though there are millions out there. In that example, the light touch is employed to shift a “harmless” OB marker which is dependent on the evolution of social norms and attitudes of Singaporeans over time.
Despite the call to clarify the OB markers from the civil society to the government, the current status quo is likely to remain. The establishment will possess the advantage to set the political agenda and rules of engagement. Hence it is important for bloggers (particularly younger ones) out there to be clear on the government’s “light touch” approach on both old and new media.
Cherian George, Looking for patterns in 10 years of ‘light touch’ regulation
I have been following the Odex case against the ISPs and downloaders with interest. The matter was brought to public attention came from the Hardwarezone team who identified an online user to be Stephen Sing, the director for enforcement in the company. A post exemplifying his arrogance and gloating over “suing people for illegal downloads” had infuriated many anime fans and members of the blogosphere . A knee jerk reaction happened in the midst of the court cases that forced two dominant ISPs (SingNet and Starhub) to reveal the names of the customers who are engaged in illegal downloading. While the anime fans fought back with a boycott Odex petition and soliciting donations to take on the company, an interesting event happened two days back when District Judge Earnest Lau made a surprise ruling that may set a precedent for online privacy in Singapore . The judge’s 13-pages report  also revealed some interesting details about the responses of Singnet and Starhub on the case, as he has made a ruling contrary to the earlier cases for PacNet. I will like to outline some details about this case, and cast some points that can be facilitated for further discussion.
This landmark case in Singapore has also attracted interest from the international community, particularly the US , as it may set precedent for content providers and distributors to force the ISPs on the disclosure of users engaged in illegal downloading. A few interesting themes have emerged from the case: namely (i) who should be prosecuting the downloaders, (ii) the rights of the consumers against Odex and (iii) protection of privacy for users by the ISPs. The first two themes are covered extensively by Thomas Koshy . The intention of this article is not to discuss whether people should engage in illegal downloading (since the law has stated that it is illegal), but to examine the implications of the case pertaining to online privacy (with regards to the ISPs) and rights of customers on this matter.
The story from the Odex perspective
Before we dwell further in the subject, we recap the background behind this case. We review it from the perspective of Odex, given that it is an official institution. Odex is a Singaporean-based company that licenses and releases Japanese anime for the southeast asia region. In 2006, Odex claimed that they sought a US company, BayTSP inc for a software solution that could track and record instances of unauthorised downloading of anime titles over the internet. Following on their claim, the company conducted searches over a 6-month period from November 2006 to April 2007 on 50 anime titles only using BayTSP’s tracking solution. They found over 400K instances of illegal downloading happening in Singapore. According to Odex , they consulted members of the Anti-Video Piracy Association Singapore (AVPAS) and the Japanese content owners and decided to engage in enforcement action against downloaders in Singapore.
Since March to May 2007, Odex filed applications to court to require the three Internet Service Providers (ISPs) in Singapore to release information identifying the subscribers, whose accounts are utilized to download the unauthorised anime videos over the internet (via bittorent most likely). Odex is represented by the law firm Rajah & Tann for all three cases with the ISPs. As a result, the applications against Singnet and Starhub have been successful. With the information of the illegal downloaders, Odex went on and sent out batches of letters  threatening legal action on the individuals together with the list of anime they download. Anyone who has received the letter by a registered mail can contact the company for an out-of-court settlement within a week, which ranges from S$3K to S$9K per legal contract for Odex not proceeding to sue. In addition, the downloader who settle the case, is also made to sign a non-disclosure agreement that he or she will destroy all copies of the downloaded anime and not continue any further downloading.
Since Singnet and Starhub faces the same ruling, everyone believes that the result would be the same for PacNet. A surprise court ruling last Thursday decided that Pacific Internet (PacNet) is not required to give up the names of its subscribers who may have been engaged in downloading anime. So what happened?
Our first instinct is to ask why the judge has made such a different ruling from the past. It turns out that his report have brought some interesting points that are not known to the public about the case:
- The engagement of BayTSP to track down the illegal downloaders: The lawyers representing ODEX cited the tracking solution to collect details of unauthorized uploading and downloading of content via the internet using the BitTorrent protocol. They cited the acceptance of the solution using a precedent from the case “Paramount Pictures Corp. v John Davis” [US District Court for the Eastern District of Pennsylvania, Civil Action No. 05-0316, 26 July 2006]. What turns out interesting is that the judge pointed out that case itself does not demonstrate the tracking solution but rather the judgement of the expert witness, Mark Ishikawa, an experienced hacker, was accepted. The gist of the matter, according to the judge, is that it is not clear whether ODEX did hire the services of BayTSP on the matter. In order for ODEX to make a strong case, according to the judge, they need to show how the methodology of the tracking solution and its success in tracking down illegal downloaders.
- Why the ruling appears so different : The immediate response from the layman is to question why there is a contradiction between the first two rulings and the current one. It turns out that the story is more than meets the eye. From the judge’s report, we quote the follow passage (section 44):
44. I have not addressed all the other submissions raised by the Defence counsel as they are not necessary for this oral decision. I would also like to explain why my decision differs from the Plaintiff’s application against the other 2 ISPs, namely Singnet (in Originating Summonses 95/2007 and 158/2007) and Starhub (in Originating Summons 157/2007).
(a) For the Singnet case, the orders were made by consent. In particular, counsel for the Plaintiff mentioned for Singnet in those 2 applications to record the consent order before the court.
(b) For the Starhub case, Starhub was represented by counsel. However, the issues raised here were never fully argued before the court.
All in all, in all three cases, the approach each ISP took was totally different and hence it led to the surprise verdict for PacNet which was counter-intuitive to the earlier cases.
After the surprise ruling, Odex has decided to appeal against the ruling and since gone on a PR offensive . They immediately invited Mark Ishikawa to come to Singapore as an expert witness for the appeal and also the Japanese firms to close ranks with them on the case. In addition, to appease the public, they have promised that they will hire an independent auditor to ensure that they have not made money from the lawsuits. Of course, on the business front, they have also put up a new website and launch a new video for demand website.
- The difference in philosophy on online privacy among ISPs: After the release of the judge’s report, Singnet has suffered an immediate backlash from the subscribers. Immediately, they released a public statement  that they did not ‘consent’ to demands by Odex to hand over details about subscribers. They clarified that they would release such information only under a court order or if the law enforcement or regulatory agencies demand such information from them. On the other hand, Starhub and Pacific contested the case. I can offer two guesses to why this is the case. The first is that Singnet decided that they trusted the court for the judgement of the case and passed the information upon the court order. That comes at the expense of the customers who felt betrayed that the ISP did not put up a fight against Odex, while Starhub and PacNet saw the need that they have to. From a customer service point of view, Singnet did not foresee that a token response might not have triggered such reaction from her subscribers. Another possibility is that the Singnet management thinks that online privacy is secondary since illegal downloading is breaking the law while Starhub and Pacific believe otherwise. Either way, both possibilities open up a grey area. Should ISPs be held responsible for the privacy of her customers?
- Are Singaporeans so afraid of the courts that we do not contest rulings that have serious implications?: Here is another perspective which I have derived from this episode. Clearly, three different judges provided three different rulings to the same case. Singnet might have worked out that there is no point in contesting because the ruling will go in favour of Odex, after all, it is a issue of infringement of copyright which is clearly breaking the law. Starhub and Pacific saw it differently and clearly drew a different conclusion with respect to the ongoing court cases where the ISPs in United States are facing legal challenges from giant media companies such as Viacom. One can make guesses that Singaporeans are not ready to challenge a position which might have possible grey areas involved. Do I detect some form of “kiasi” culture there? I leave that for the reader to make up his or her own mind.
Is online privacy important in Singapore and should the ISPs protect our privacy? These are the important questions for me and I like to hear more from others who might have other perspectives to share on this issue.
Author’s Note: The author is not legally trained and it would be good if any lawyers out there can offer their thoughts in the comments section of this post. I recommend Siew Kum Hong’s post . Reference  does help to shed some light on what Dr Toh See Kiat, the president of AVPAS, views the actions taken by ODEX.
 ODEX director bragging about suing people in online forums?, Tomorrow.SG for the reactions from the anime fans and the bloggers, and the link to the original HardWareZone post that led to the revelation of the Odex director bragging about his crackdown on the downloaders. A wikipedia entry has also been written on this matter .
 Anime case: Odex had ‘no right of civil action’, by Loh Chee Kong, Today Online, Odex case: PacNet need not reveal downloaders’ names to distributor by Ansley Ng, Channel NewsAsia, 23 August 2007 and Odex-PacNet ruling may set online privacy precedent, Straits Times, 24 August 2007.
 ODEX Pte Ltd v Pacific Internet Limited by Siew Kum Hong. An official copy can be downloaded here.
 RIAA-style lawsuits hit Singapore anime scene By Nate Anderson, Ars Technica
 Are anime providers stretching the law? by Thomas Koshy, Today, 21 August 2007.
 Anti-Video Piracy Association, Singapore (AVAPS) website, see the clarification article by ODEX there.
 Odex’s legal threat letter – “Illegal Online Downloads”, Stephen Sing, hosted by DarkMirage.
 Notes from a Conversation with Dr. Toh See Kiat
 Japanese anime firms close ranks with Odex and Odex to hire independent auditor to show sincerity, Loh Chee Kong, Today, 31 August 2007.
 SingNet: We did not ‘consent’ to Odex, The Straits Times, 28 August 2007.
A few trends are emerging in the new media throughout the world. First, the online advertising revenues has superceded the mainstream media in UK and US. As a result, a lot of staff in the newspaper agencies are made redundant and some major newspapers are now potential acquisition targets by major big media corporations. The reason is that most of the mainstream newspapers derive their revenues from advertising. Second, a death threat to Kathy Sierra, a prominent blogger in the US has started a serious discussion for a code of conduct among bloggers. The major proponent for the bloggers code of conduct is Tim O’Reilly, who incidentally started the term “Web 2.0” that documented the 2nd internet revolution. Thirdly, spam and misinformation are slowly creeping into major open web collaborations, for example, the Wikipedia. Cyber vandalism and poison pens prompted tougher legislation in different countries. In this article, I will draw upon a few lessons from recent incidents in the Singapore blogosphere and offer my take as a practitioner on where media policy is heading in Singapore.
Convergence of New Media in Singapore
For most media policy makers, the biggest headache is the regulatory issues facing new media. In Singapore, the mainstream and new media are governed separately with different set of policies. If you are writing in the mainstream media with a view that counters the establishment, you are chastised by the authorities. Suppose you do the opposite and publish that same article in new media, you are not to be taken seriously. Cherian George has consistently highlighted the issue about “one country, two systems” as a unsustainable system. His argument is relatively simple,
This neat dichotomy has allowed the government’s dual regulatory regime to operate relatively smoothly: regulators apply far stricter standards to mainstream than to alternative media. In theory, in an age of digital convergence, regulations that are not platform-neutral will be unsustainable as they will generate inconsistencies. In practice, however, convergence has not run its course in Singapore; the dichotomy between offline mainstream media and alternative online media persists.
He further conjectured that a few developments in both the new and mainstream media will either lead to divergence between two medias and inevitably lead to inconsistencies in media policy or a possible convergence if certain circumstances are kept in play. The picture is slightly more complex than just both systems are approaching towards an unsustainable state.
Let me pluck three interesting incidents to demonstrate how convergence seemed to be a plausible situation than divergence.
- An informal mechanism of criticism and feedback is established between both worlds.: If you look at the GST hikes, the ministerial salaries and the recent Auditor General’s report, you notice a few subtle changes from the establishment who is evolving their approach towards the critics of the new media. First, when the GST hike is announced, the initial announcement did not take into account about multi-tiered GST and the impact on the middle class. Slowly, the establishment pushed back with their answers to this issue. If you read the budget report highlights of the report, you find yourself reading an academic review (and that is not being sarcastic) of the issues addressed. The ministerial salaries issue has drawn even more fire and awe that even Chua Mui Hoong, a ST journalist had written an article to criticize the salary hike. If you examine beyond the surface, two trends have emerged: first, the establishment are evolving their messages with how the critics respond to their policies and second, the mainstream media is squeezed in a way that they have to write something more critical or see their credibility (which is already diminishing) go further down the drain. Of course, it is a persistent game theoretic situation, given that most players in old and new media are rational, save for the crazy few. If you don’t think or believe that it is happening, the mainstream media is consistently taking stories from Singapore blogosphere.
- Controversy is unsustainable in new media: A lot of conflict between the Singapore blogosphere and the establishment is driven by the single force of controversy. Not all controversial incidents are good but they cannot be bad either with some cases that are actually forces everyone to think about the implications on an issue. I once made this remark during a bloggers’ gathering that the frequency for a major controversy is about once per very fortnight. From NKF, AcidFlask, Wee Shu Min even to the recent Timeshare and Tomorrow.SG incident, one pattern is consistently observed: things do die down.
- Specialist bloggers changing the landscape of Singapore: A respected blogger (who I cannot mention) once offer this view to me, “Celebrity and controversial blogging is the thing of the past two years, and what comes after that is specialist blogging.” Of course, celebrities like Mr Wang, Yawning Bread, Xiaxue and Mr Brown are always there, but the emphasis is changing in view of market forces. Socio-political blogging has suffered with the departure of several high profile young bloggers and the lacklustre activity of other bloggers. Of course, as old bloggers depart, new ones will emerge. Instead, I will talk about another trend happening in new media.
Market Forces teaches Media how to bend and Media ushers market forces how to shift
With events organized by young Singaporeans (who brought back the Silicon Valley culture to Singapore), a different and emerging new media community is forming from the Nexus 2007 conference and BlogOut! event. This community forms from a congregation of technology bloggers (Kevin Lim, James Seng – Tomorrow.SG, U-Zyn – Ping.SG), media socialists (Walter Lim, Ben Koe, Melvin Yuan), the entrepreneur bloggers (SG Entrepreneurs, Entrepreneur27 and The Digital Movement) and other specialist bloggers (Van Tan, Yesterday.SG and the famous and yet under-mentioned Rambling Librarian, Ivan Chew). This converging group formed from several communities are engaging the mainstream media (for example, STOMP and Straits Times) on issues of web 2.0, technology entrepreneurship and interesting cultural events (World Museums Day), that is outside of the traditional community of social-political blogging.
Yet, online advertising in Singapore has not taken off. Most businesses have not tapped into the power of new media or are reluctant to adopt new media technologies to take their products and services forward, compare to China, the online advertising revenues is growing at a CAGR above 10%. In fact, the whole southeast asia are experiencing slow growth in online advertising. Hence market forces have not really arrived for many out there to take new media seriously. Another trend that is now becoming popular is corporate blogging. Two years ago, we hear the lonely voice of our first local corporate blogger, Tan Kin Lian, the ex-CEO of NTUC Income. Fast forward two years later, after chairing a recent discussion about corporate blogging, I was approached by some local corporations to advise on best practices on how blogging can help the corporation to move forward in customer services, product launches and internal human resource management.
With the success of new media in the US and UK, the establishment has relented to market forces despite their conservative stance against new media. Ultimately, what excites the establishment is a robust and vibrant economy. Market forces will usher them to look to ways in adapting the new media. In fact, a lot of schools are into blogging, podcasts and videocasts and microfunds are established by various agencies (MDA) to start up new companies in this industry. That comes to a much more difficult question for the policy makers: the more I democratize information, the less control I will have. So, where is that balance between the virtues and vices of new media?
The Chronicles of Mis-Information in New Media: The Spam, Poison Pens and Unfair Commentaries
“When information is democratized, isn’t vandalism just free speech?”
– Stephen Colbert to Jimmy Wales (Founder of Wikipedia)
Inherently, even countries like US and China, the biggest threats in the cyberspace are terrorism and national security. Whether you live in a democratic or autocratic country, you will have no choice to abide by very strong legislation to protect the interests of the state from new media abuse. Increasingly with the democratization of information in the web, the establishment will either create more stringent laws to regulate the media or open up but keeping the fundamentals tighten. The internet has removed the geographical boundaries among nations, and hence, it is no longer possible to stop others from getting information from various sources. Will countries cease to exist with the expansion of the internet? That is a question that we can leave to another day.
With open source collaborations such as the wikipedia, trust and credibility are the major forces in how successful operations by wisdom of crowds are gauged upon. A few pieces of misinformation recently has put the credibility of Wikipedia back in question. Cyber vandalism has already happened in both wikipedia and 2nd Life. Spam is entering into forums, blog comments and emails. However, these forms of cyber vandalism and spam can be mitigated with the introduction of new technology. Does that mean that the old model of closing up looks better? There are two ways of looking into this. The first is that we should restrain the access of information and collaboration of important projects to the privileged few. However, we cannot tap into the wisdom of the many others out there. Another way is to educate the populace and teach them how to make their own judgments when inundated with information. A lot of rhetoric and polemic in the Singapore social political blogosphere stems from the fact that the citizens felt that they are constantly repressed and unappreciated. The opening up can help to soften that rage and get the populace to be passionate about the country in general.
That brings us down to one last issue: poison pens and unfair commentaries. Given the defamation laws in Singapore cover a very wide area, how are public and even private figures held up against poison pens and unfair commentaries? Let me use two incidents to justify why the establishments fear of poison pens are unwarranted. The first incident is about a local company is criticized on their services and business models by an unknown and anonymous blogger. Strangely, another blogger, after reading the article, went and checked out what the anonymous blogger said was true. In the end, this discerning blogger found out that the poison pen was done by the rival of this local company. Hence there is a form of self-correction in the blogosphere that will ensure that the poison pens do not end up going one way.
Another incident is the AcidFlask vs Philip Yeo round two. In the second round, Philip Yeo allowed a blogger (Aaron Ng) to publish the content of the original blog post that he found defamatory. It is important to note that the blogosphere may not like Philip Yeo as a person, but they did not deny him the right to make his point. That reflects the maturity of the blogosphere in general. If we are to champion freedom of speech, the standards must apply to both sides of the house. In the end, the material is published and some bloggers (to the best of my knowledge) have come to their own conclusion who’s right and the answer is surprising. This incident clearly demonstrated that the biggest noise makers in the blogosphere are usually polarized towards both extremes. Clearly, there is a large moderate group who can make up their minds with clear evidence presented. It is a good example to demonstrate how public figures do not need to fear the poison pen if they are willing to release the information (against the wishes of their lawyers).
Where does the future lie?
A lot of naysayers, cynics and critics will tell you that the new media will be eventually subdued. The only reason why it is subdued is because people allow the process of being subdued. Others think that new media is a positive experiment to slowly opening up debate and discussion for a civil society. Another group of people believe that some people have already made up their minds to believe what they read in new media. My opinion is that the final answer should lie somewhere in the middle. That balance should lead to a positive and optimistic view about the two medias in the future.
One interesting observation to support my first point about the informal system of feedback and criticism established between both medias is the model adopted by the two other socio-political news aggregators (other than Tomorrow.SG and Ping.SG): Intelligent Singaporean and Singapore Surf, which both adopts a manual curation of blog posts and news. Singapore Surf balances news with the mainstream and new media to provide a perspective traversing both worlds.
Straits Times has published a report today (9 June 2007) on citizen journalism. According to James Seng, the report did not reflect what is really happening in the ground and mainly become a device to glorify STOMP instead of giving credit to many others who have contributed to citizen journalism in Singapore, for example, Kevin Lim and his backpack.
This article is generated from talking, meeting and crowdsourcing from many interesting bloggers during different gatherings and events. I thank them for their thoughts and opinions which make this whole discussion interesting.
Last Saturday, I attended the forum “Freedom of Speech – How Far Can We Go?” organized by the NUS Democratic Socialist Club. While you may have read a detailed transcript  and various reviews [2-5] from various bloggers to what transpired in the event, my intention is to provide a perspective drawn from the forum and make an honest attempt to answer the question, “How far can we really go?”.
To answer the question, we examine the untenable positions in the freedom of speech debate in Singapore. The extreme positions can be either you have the right to make any statements and not take responsibility or you do not give or entrust others the right to make any statements at all. Let’s start from the second position and work backwards. The establishment has established several out of bound (OB) markers, from politics to racial and religious issues where free speech cannot transgress. The play “The Campaign to Confer the Public Star on JBJ” by Eleanor Wong was open to public viewing last year. In fact, nothing happened to her and there was a public forum discussing this issue in the National Library Board. If that is the case, can we negotiate to expand the boundary? The answer is yes and it depends on whether people can abandon their fear and apathy to put the money where the mouths are.
Once you established that you have the capacity to challenge the boundaries of the OB markers, we can look at the first position in perspective. Recent articles on the “No Pork” podcast in Singapore Angle by my fellow colleagues have brought up this question about moral responsibility exercised by our community. Are our community prepared to stand up and take responsibility in condemning controversial remarks, unjustified smearing or bullying and intimidation of others’ views who may or may not agree with yours?
The key word and answer to the question we posed is responsibility. It is the social responsibility of the community (for example, bloggers) to keep each other in check on issues which we are free to speak. The community I spoke of is not a lynch mob and must offer reasonable and valid reasons to why they cannot condone someone for making remarks that cross the OB markers. If we can look after ourselves, we would stop providing the State free ammunition and excuses to find ways and means (e.g. counter-insurgency tactics) to police us.
How far can we really go? If we are not ready to challenge the boundaries of free speech because of fear and apathy and be prepared to take responsibility to keep each other in check in the midst of crisis, the landscape will always be remain in the current state.
I thank Huichieh for helpful comments and reasoning behind this commentary.
 Agagooga, NUS Democratic Socialist Club: “Freedom of Speech – How Far Can We Go?”.
 Aaron Ng, Freedom of Speech – How far can we go?
 Charissa, Review: “Freedom of Speech – How Far Can We Go?”.
 Kitana, Freedom of speech, prejudice and the ambit of the law
 Xenoboy Proposed Free Speech Curbs Helps Speechless & Grows Economy