Love.Law.Robots. by Ang Hou Fu

Singapore

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There's a conclusion on a case in Germany I have been tracking for a few years. It's one of the very few cases I am aware of where lawyers actually challenged LegalTech and if they have succeeded, killed an industry.

You can read more about the case (in English) on Artificial Lawyer. Basically, lawyers in Germany have been taking Wolter Kluwer's Smartlaw to Court for what they claim to be an unauthorised practice of law. They claimed that by providing an expert system, Smartlaw was giving legal advice, which could only be performed by lawyers (which Smartlaw wasn't). The lawyers had a victory in Cologne. However, the highest court in Germany has now confirmed that Smartlaw does not give legal advice, so the legality of Smartlaw and document generating solutions is now quite safe there.

Wolters Kluwer Wins Landmark German DIY Doc Generation CaseWolters Kluwer has finally won a landmark battle in Germany for the right of people and businesses to download ‘DIY legal documents’ without the input of lawyers, in what was a key test…Artificial LawyerartificiallawyerNo longer verboten indeed.

The reasoning of the Federal Court of Justice is interesting. It held that because there was a lack of an individual assessment of the case's legal merits, Smartlaw provided no legal advice. This appears reasonable — when a programmer creates an expert system, he does not have a particular individual in mind and never knows his “client”. Besides the heavy type which usually accompanies such solutions, most consumers know that the system is not a complete replacement to seeing an actual lawyer.

What does this mean in Singapore?

Singapore City SkylinePhoto by Stephanie Yeh / Unsplash

Germany is pretty far in most lawyers' minds in Singapore. The differences in legal traditions suggest this decision would not have much precedential or persuasive value if a similar case were brought here.

The definitions of an unauthorised practice in Singapore are different from Germany. Based on the “I call it as I see it” approach to this issue by the courts, this could easily have gone either way.

The Importance of Being AuthorisedA recent case shows that practising law as an unauthorised person can have serious effects. What does this hold for other people who may be interested in alternative legal services?Love.Law.Robots.HoufuI wrote about unauthorised practices recently in response to a case in Singapore. (Free subscription required)

On the one hand, generating legal documents based on questions I ask a client is the hallmark of a lawyer's work, so this must be a legal practice. On the other hand, one doesn't write expert systems by imagining how to ask a real client—rules before templates before particular fact situations.

Thus, having a business proposition based on document generation, like a super-charged docassemble in Singapore, is still risky in Singapore if it clashes with lawyer regulation.

Nevertheless, the decision is still pretty relevant here.

This is one of the most vivid and realistic real-world examples of challenges to LegalTech concerning lawyer regulation. Most people imagine a robot lawyer to be a pretty advanced expert system. It's always been tempting to draw a line from “robot generating legal documents” to “legal advice” and finally “unauthorised practice”. The Germans have done it, and their highest court has answered definitively that they are not illegal. Even if there is a legally persuasive reason in our jurisprudence, it would be odd if we were an outlier.

Furthermore, while the result is satisfying, the reasoning does not give much comfort. The fine line of an “individualised assessment” might be relevant in Germany's context, but another jurisdiction like Singapore might regard the individualised assessment as necessary to protect consumers. For example, do we really want consumers to go away with printing a document that they execute wrongly? The shocking consequence of a failed will may be too much.

Who wants to do an E-Will?COVID-19 offers an opportunity to relook at one of the oldest instruments in law — wills. Is it enough to make them an electronic transaction?Love.Law.Robots.HoufuAn earlier post considering the electronic execution of wills explains why change is prolonged here (free subscription required).

Honestly, I think our authorities would take the pragmatic approach. There's no denying that such expert systems explore a gap that lawyers don't or can't fulfil. An “individualised assessment” may be too expensive in several cases. Many solutions by the authorities and established parties already deploy such an approach and might be dispensing legal advice such as chatbots, wills and court forms for litigants in person. So, killing off this industry or idea at this point seems pretty far fetched.

However, this outcome might be speaking to the current limitations of an advanced expert system. Docassemble can solve many problems, but it can't do everything. On the one hand, it might take us some time to develop a highly advanced expert system, which probably has to be customised for each industry or jurisdiction. On the other hand, there are also user experience issues (clients are distraught and stressed when it comes to legal matters, and a computer asking questions doesn't seem very empathetic).

Divorce HelperDivorce Helper gives you legal information about divorce in Australia. Divorce Helper is free to use and you do not need to tell us who you are.Divorce HelperI find this to be a pretty good (and pretty) example of an empathetic interview.

It's not impossible that a “robot lawyer” will challenge the status quo. Till then, this legal battle might still have a few more stages in it.

#LegalTech #docassemble #Law #Singapore

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Everything changed about the pandemic — we now work from home, learn from home, and attend video conferences rather than phone calls or face to face meetings. Some of this is weird, but some of this is even weirder. One example of the latter is that I have become more used to seeing myself on the screen.

What does this mean for the blog? I will be exploring how to make videos to write posts. This is not a change I would have expected in June when I moved to Ghost. (Certainly, Ghost's membership functions have made it easier to convince me that the effort to learn and produce will be worth it.)

I originally believed that video posts take a lot of effort to create but are also lame. (I read faster than I watch someone.) Now, I have come to believe it can be more fun and engaging. So, you might hear my voice and see my face soon. I ain't a handsome fella, so please don't be turned away!

I know how to do it technically, and the equipment should not be difficult to get. I will be experimenting, though, so hang on.

What I am reading now

  • I am a big admirer of Suffolk Law School's LIT Lab. I might be biased because they pervasively use docassemble, a free and open-source LegalTech tool. During the pandemic, they have managed to take docassemble further and write a law review article about their experience. It's an encouraging story about building community and marshalling disparate resources for access to justice (A2J). I believe Open Source was an important factor in its success, so hopefully, it is a blueprint for other labs.

Digital Curb Cuts: Towards an Inclusive Open Forms EcosystemIn this paper we focus on digital curb cuts created during the pandemic: improvements designed to increase accessibility that benefit people beyond the populatiSee all articles by Quinten Steenhuis

  • What in the world is Moneyball? It's a strange story whereby a baseball team followed the data by hiring players based on their statistics rather than traditional indicators like reputation and overachieved. Can this be applied to hiring and retaining law firm associates? Legal Evolution suggests it can, but that's not what's interesting about the story. You will read about the intransigence of law firm leaders in the face of data, and you'd be convinced of the importance of leadership in innovation. This is especially the case where the results can be counterintuitive, upsetting, or confusing to leaders. On the other hand, I am sure a law firm leader will be willing to employ “sabermetrics” to achieve the best team on the cheap.

Moneyball for law firm associates: a 15-year retrospective (257) | Legal EvolutionPretty much everything was a counterintuitive curveball. In April of 2006, more than 15 years ago, I wrote a memo to file that would go on to exert aLegal EvolutionBill Henderson

TechLaw.Fest 2021TechLaw.Fest 2021TechLaw.Fest 2021

  • I have always wondered whether I should get Singapore Corporate Counsel Association membership. Quite frankly, the only benefits I see so far are the self-satisfaction of belonging and the somewhat discounted LawNet subscription. Here's something else to consider: the “First” Technology Law Course in Singapore from SCCA. It looks pretty, but I can't find the module details... oh wait, here it is. Since technology law is prevalent and not well taught in law schools (at least during my time), this will be of interest if you need to pick up some substantive knowledge.

SCCA | CoursesCoursesThe title of the course is “EXECUTIVE COURSE IN TECHNOLOGY LAW FOR IN-HOUSE COUNSEL.”

  • If you think it's ridiculous to cough out nearly $2,000 for a bunch of recorded videos (that's why I'm getting in the video business, baby!), you can wait a little longer for a book. It's coming out in October. The introduction to the book outlining its contents is available if you surrender your personal details. Its coverage is definitely broad, so it's useful for fun reading. That's about the only reason why I would get it. It's the second book in Singapore regarding the substantive legal issues of technology, along with several tomes of books on data protection. I am exhausted. Really.

Postscript

I finally managed to do some housekeeping and write a featured post containing all the content I have worked on for PDPC Decisions. I know it's not easy to find the “journey” on the website, so hopefully, you will have a better experience.

Post Updates

As mentioned above, videos are coming to this blog. I haven't decided exactly what kind of content should be in a video. However, I am sure that any tutorial or long-form video will be a full member's privilege. It takes away the vexing question of whether I have to “lock up” posts to provide value to full members and what kind of posts should be public. As I said, I am experimenting with this model, so I will be changing as I go.

Conclusion

I am using my laptop to obscure the mess on my table.

That's it for this newsletter. Maybe there's a chance you will see me in a video for the next one.

(For curious subscribers, there isn't a “swag” shop for this blog. However, if you would like a shiny sticker on your laptop, you can email me with your details, and I can send one for free to you.)

#Newsletter #COVID-19 #docassemble #TechLawFest #TechnologyLaw #DataScience #Singapore

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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A string of high profile acquittals seemed to have shaken the public confidence in Singapore's criminal justice system. First, Parti Liyani's case obtained a parliamentary hearing on what is essentially its fairness. (I wrote about this earlier in the blog) Now, an acquittal of a doctor in a molest case highlights the pain the accused goes through to clear his name. Is there something wrong with the system?

A Focus on Prosecutors

Recently, an Op-Ed from a law professor was published arguing that we should not throw the baby out with the bathwater. I think it offers good insights on the early part of the criminal justice system because of the following reasons:

  • It gives a data-based illustration of how much work a public prosecutor in Singapore does — a prosecutor evaluates nearly 1.3 new cases a day. (Probably worse, because as he mentioned, prosecutors work in teams today).
  • A deeper study into process improvement is warranted. This is also true because criminal law (and the law generally) has become increasingly complex. Furthermore, the Attorney General's Chambers has already gone on a hiring spree, so putting more bodies on the line might have diminishing returns.
  • The ability to pay more attention to a case means that prosecutors have more time to think about whether a case should really move forward. I think that's reasonable.

The best thing about the article is that it highlights the prime importance of prosecutors in the system. Most criminal law students in Singapore quickly learn about the crime control model employed in Singapore. In this model, the accused's rights are less important, and we rely on the police and prosecutor to get the case right to proceed to punish offenders efficiently.

Here’s how Singapore can strengthen its legal processes in light of high-profile acquittalsRecently, Dr Yeo Sow Nam was acquitted of four charges of outrage of modesty, because the “victim” admitted in court that she lied about the allegations against Dr Yeo.TODAYonline

With heavier and complicated workloads and increased public scrutiny, this might indicate that the system needs help.

No Representation without Defence Counsel?

The article then suggests that defence counsel should get involved earlier in the process to make representations. A representation is essentially a letter to the prosecutor highlighting the facts and arguments in favour of the defence. When done correctly. It discourages prosecutors from bringing a case. Since you don't want to write rubbish to the prosecutor in charge of your case, defence counsel is highly recommended to pursue this.

Having early access to defence counsel can be unrealistic because only the savviest litigants will get defence counsel once they have an inkling that they will be charged (this category of people includes doctors and multinational companies). Furthermore, having defence counsel early might impede police investigations, so the authorities will not make this change lightly.

Many more people will take the plea bargain and try to get on with their lives instead of hiring some defence counsel and giving it a fight either using trial or representations. You never get to hear these stories because they have chosen to bear the consequences without considering whether the system got it right for them. If you cared about the fairness of the system, then this would not be comforting.

A New Perspective with Technology

At this point, I wondered what alternatives are available. It was not obvious to me for a long time, but this is a similar problem that DoNotPay was created to solve. In its earliest version, DoNotPay wrote letters to appeal against a parking fine by fashioning a better appeal. A more recent example features CourtFormsOnline.org preparing eviction letters for tenants to make use of the eviction moratorium.

Digital Curb Cuts: Towards an Inclusive Open Forms EcosystemIn this paper we focus on digital curb cuts created during the pandemic: improvements designed to increase accessibility that benefit people beyond the populatiSee all articles by Quinten SteenhuisThis paper deserves far more space on this blog.

The main idea is to provide an online form that asks an accused questions to find potential points which can assist his case and process these reasons into a representation to be sent to a prosecutor. A criminal defence attorney would probably be beneficial in deciding what points should be included in specific cases. Otherwise, you would be repurposing content found in textbooks like Sentencing Principles in Singapore. (Note that the expert system will also have to consider factors going into conviction too.)

There might be problems with such an approach:

  • Defence counsel does lend an air of professionalism to a representation; if an accused sends a letter (whether it's automated using our solution or not), there are significant risks prosecutors would ignore it.
  • Unlike the traffic fine appeals and eviction moratoriums, determining the success rates of such letters is more difficult. At this stage, the prosecutor's powers are highly discretionary. Did the letter work if the prosecutor reduced the charges? Or if the prosecutor offered a plea bargain? If it's hard to sell this product like this. If people feel that it ain't effective, they are not going to use it.
  • I am not sure Singaporeans would pay $15 a month to access these forms (this is DoNotPay's subscription model). Then again, I paid nearly $800 a year for MediShield, so what's the difference, right?

Conclusion

This is an idea that popped up in my head. It would be interesting to hear if it might work. Feel free to let me know your thoughts!

#Law #Singapore #tech

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Getting a practising certificate might be an annual ritual for most lawyers in law firms in Singapore. Still, a recent case — Choo Cheng Tong Wilfred v Phua Swee Khiang — reminds us of its critical significance in our legal industry.

Suffice to say, because the lawyer did not have a practising certificate, he was not authorised to practice law in Singapore. Because he was not authorised, he was not entitled to any fees for legal work performed.

This rarely comes up because lawyers here must be in law firms to get a practising certificate, so this is an undeniable indicator of whether you are authorised or not. However, the implications are critical for anyone thinking of offering an alternative to law firms. Would you provide your expertise outside of a law firm if you can't get paid for it? By the way, it's a criminal offence too.

Let's say you want to practice law, but you don't want to be in a law firm. For example, maybe you aren't interested in the full service or boutique firm sort of business and are thinking of something radically different. Perhaps you would like to focus on a particular area of law and provide some consultancy, like Radiant Law (NB: Radiant Law is a law firm, more on this later). Maybe the business model is radically different. For example, some of your partners might be accountants or tech specialists, and you can't have them as directors or shareholders in a law firm without special approval.

This issue becomes thorny if you haven't considered it from the start. Imagine you think of an excellent idea for the public. You get funding from a VC, and the programmer who made this product is the other director of your company. If you didn't find out whether your company is providing legal services, you might well have doomed your project with the tint of illegality.

I know it when I see it.

Image by Kevin Phillips from Pixabay

So, what do you need to avoid if you do not want to provide legal services as an advocate and solicitor? Other than acts expressly prohibited under the Legal Profession Act, the case referred to the Turner test at [79] (emphasis added).

(a) Other than those specific acts listed in ss 30(1) and 30(2) of [the Legal Profession Act], an act is an act of an advocate and solicitor when it is customarily (whether by history or tradition) within his exclusive function to provide , e.g. giving advice on legal rights and obligations, drafting contracts and pleadings and pleading in a court of law.

(b) A person acts as an advocate and/or solicitor if, by reason of his being an advocate and solicitor, he is employed to act as such in any matter connected with his profession.

[2021] SGHC 154Tan Siong Thye J:The decision of Choo Cheng Tong Wilfred v Phua Swee Khiang

In the instant case, the lawyer might call himself a “business consultant”, but he gave legal advice (which the court noted is a quintessential service given by lawyers). Furthermore, the clients hired him because of his legal expertise. Therefore, the lawyer provided legal services as an unauthorised person and was not entitled to any fees for over a decade's worth of work.

I hate to say this, but the Turner test is an “I know it when I see it” test. If a user provides his own answers and an algorithm written by a lawyer turns it into a will, is the lawyer providing legal advice? If more law firms start to advise on adopting technology in contracting, would it become illegal for others to do the same?

Profound Implications

Image by S. Hermann & F. Richter from Pixabay

If the definition of providing legal services is too vague, that will cause a chilling effect on any product that borders on legal.

The reason why legal profession regulation is (perhaps) so restrictive is the protection of the public. The decision highlights two areas: lawyers with practising certificates can be regulated by the Law Society, and law firms pay insurance to cover professional negligence claims. There are several other rules relating to how a lawyer must undergo a practice management course before he can practice as an owner of a law firm or in his own name, and restrictions on management and ownership of law firms are also on this basis.

According to a recent article, this is perhaps a vivid illustration of why law firms or lawyers “will always be needed”. It's hard for me to imagine how jurisdictions will give up on protecting the public from fraudulent providers without some form of regulation. This kind of regulation would try to ensure some expertise behind products purporting to be legal.

Vertically Integrated Legal Service | The PracticeNeville Eisenberg and Richard Susskind.The PracticeHLS Center on the Legal Profession

On the other hand, it's hard to pin down what is unique about a lawyer's knowledge or expertise. With enough time on the job and the right training (not necessarily an LLB), Nonlawyers Can Be as Competent as Lawyers in Handling Contracts Work. In fact, lawyers might not possess all the skills required to study a legal process and figure out how to deliver it more efficiently or effectively. If lawyers can't do it properly, why can't someone else have a go at it?

For now, legal services backed by law firms seem to be the current equilibrium. Accounting firms like PwC have their own law firm. Radiant Law might not serve a client found on the street, but they are still a law firm. Perhaps we need a good rethink of what a law firm means today at some level. Furthermore, it would really help if the exceptions (if we have any) for non-traditional law firms were transparent.

Conclusion

Regulation is a serious roadblock if we want to see legal services being delivered in any alternative method. As Susskind and Eisenberg say, incorporating lawyers and law firms might be critical for alternative service providers to go around such issues. However, not everyone can incorporate a law firm or is willing to do this. Hopefully, the authorities can consider more transparent and sensible rules to limit the drawbacks of being unauthorised.

#Law #LegalTech #Singapore

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Ever since I was a law student, I loved BAILII, as well as its international counterparts AustLII and CanLII. This was in the previous decade, where such free sources were still a work in progress. So what if they were ugly? It was free and spared me a trip to the library. Over the years, they have certainly improved. You can still see the echoes of the previous century in the website design of BAILII, but its scope has expanded immensely. You can now read leading cases by subject there, just like a law student.

So, I was impressed when I read that court judgements in the UK will get a new home. BAILII will continue, but I would think the accessibility of such resources would be more secure now that the UK government is behind it.

But this post isn't really about BAILII or the UK. It's about the Singapore Supreme Court judgements page.

Supct | Supreme Court Judgmentslogo

Sneakily, the Singapore Supreme Court judgements went down about two weekends ago while I was deciding how to write this post. It appeared that an iframe on the webpage was misconfigured. It was odd and foreboding. What happened? I panicked. Is this the last time I would get free access to the Supreme Court judgements?

The mystery was solved a few days later — the page is now “enhanced” by CrimsonLogic. So the judgements are now served from the eLitigation website, which is the filing system for the Singapore Courts. If you ignore the different domains, the site now has better search capabilities and the ability to read judgements on a web page rather than PDF. Oh, the icons look cuter as well.

The conversion of PDF judgements to HTML is significant to me. My nightmares converting judgement PDFs to text for machine learning are well-documented on this blog. The conversion appears quite direct with the headers and footers removed. I hope this is fully automated because more work is then required to convert the judgement again for LawNet, now with metadata added and PDF artefacts removed.

Mining PDFs to obtain better text from DecisionsAfter several attempts at wrangling with PDFs, I managed to extract more text information from complicated documents using PDFMiner.Love.Law.Robots.Houfu

This page, however, still remains the most frequently updated page for Supreme Court judgements. Instead of reading clunky PDFs, I can now read them in HTML. The search function is also more powerful. As the archive now goes back to 2000 (including unreported judgements), this resource will probably be the best way to freely access Supreme Court judgements here. It might even rival LawNet for most purposes.

Now that the page is more powerful, it makes the secrecy about it even more confounding. From a UX viewpoint, the way results are displayed make it look like a PDF is the only way to read them. The hint to the search box still suggests that you can only search case titles. Why improve something if you're not going to show it off?!

_ Update 9 August 2021 : I complained about the UX but it looks like it's now corrected. The not so reliable HTML is the main way to access the judgements on the site, while the PDF is hidden in a download PDF button at the top when you view the judgement itself._

This brings us back to BAILII and the UK. As the commentary clarifies, the goal is greater access to justice. Greater access to justice means that judgements are not only accessible to lawyers but to students, researchers, litigants in persons, the media and even the momentarily curious.

My most striking takeaway from the news in the UK is that perhaps the Judiciary or the Attorney-General's Chambers are not the best bodies to provide judgements or legal materials to the general public. In the UK, the National Archives are now in charge (they already do the legislation), and they have the infrastructure and expertise to do this for a large audience.

In Singapore, we hide such pages in the media section. The media would like to have the latest judgements (probably), but we also pack more than 7500 judgements somewhere on the website. We improve the website but don't tell anybody about it. Judgements appear to be converted from Microsoft Word to PDF format, then to HTML, and maybe XML format. Quite frankly, I don't know what all this is for or where it's going.

And this is the Supreme Court, the highest court in the land.

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Parti Liyani's case continues to excite, at least among lawyers. In its latest chapter, a foreign domestic worker in Singapore applied for compensation from the prosecution. She was found not guilty of her charges after nearly four years and so raised issues about how the prosecution was conducted as the basis for her compensation. The court dismissed this application.

High Court dismisses Parti Liyani’s bid for compensation from AGCThe High Court judge who acquitted former domestic worker Parti Liyani last year of stealing from her employer has dismissed her application seeking compensation of $10,000 from the Attorney-General’s Chambers (AGC). Justice Chan Seng Onn said yesterday that Ms Parti has not succeeded in proving on…www.singaporelawwatch.sgSuperUser Account

Under the relevant section of the Criminal Procedure Code, the court may order compensation if the prosecution was “ frivolous or vexatious”. The phrase has a particular meaning in civil litigation, and it is reflected here in the admission that it would only apply in limited and exceptional cases. Dissatisfaction with how the prosecution was conducted (which was Parti's main complaint) was not sufficient to meet the “ frivolous or vexatious” standard. It has to be more fundamental, such as an improper prosecution or a malicious prosecutor who had no case.

Even if Parti had cleared this requirement under the statute, she would only be allowed to claim up to $10,000. Based on her calculation, she suffered $73,100 in losses, made up of lost income and expenses she incurred to stay in Singapore for the trial. Given that the process took 4 years (which looks fairly quick to me), a foreign domestic worker's loss of income of about $41,000 probably represents the lowest limits in Singapore.

Seeking compensation, ex-maid Parti Lyani advised to go for mediationA former domestic worker’s attempt to seek compensation for her wrongful conviction took a twist yesterday when the judge suggested that the parties go for mediation instead. Ms Parti Liyani is seeking compensation from the Attorney-General’s Chambers (AGC) after her...The New PaperDavid Sun

(Readers should note that a separate provision in the Criminal Procedure Code covers legal costs of the acquitted in a similar manner, which is also subject to the “frivolous and vexatious” standard.)

The judgment hints at further difficulties with claiming compensation. If the quantum became relevant, the idea that being involved in criminal prosecution causes loss of income would surely be contested. Furthermore, mitigation of damages may be relevant — the acquitted should have, before she was acquitted, raised the issue before the prosecution or the court. Rather than judging the issue in hindsight, you would have to scream that you are a victim of a frivolous and vexatious prosecution in the heat of the proceedings.

If you think that this is a meaningless exercise, it does highlight to the public what the accused experiences during prosecution, and how much such losses are not compensated, even if you are acquitted of any charges.

I do feel some sympathy for the accused persons. However, the spectre of engaging in another round of litigation would be too much for them. Fighting such proxy cases as a public prosecutor would also be a huge waste of public resources.

I personally feel that much more legal aid for accused persons would be helpful. It would enable them to engage lawyers who would help you scream at the judge and prosecution if there was a vexatious prosecution against you.

Since public prosecutors are paid for by the state, I would have wished that legal aid for accused persons is paid for by the state like in many other developed countries. Some might say that helping an accused person, who is likely to have committed a crime, is controversial to most law-abiding Singaporeans.

However, our views may not be so fixed. It seems that Singaporeans are open to assisting the legal costs of strangers, so this idea may be more popular than you expect.

Data Protection in Singapore Strikes a BalanceA rare sighting of a private action under the Personal Data Protection Act of Singapore offers valuable insight into the uniqueness of the data protection regime here.Love.Law.Robots.HoufuIf you think that statutory provisions providing largely ineffective rights are rare, read on...

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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I have been following the Centre of Computational Law at SMU with keen interest. They're the guys who illustrated the history of Singapore law with pretty graphs.

Phang Goh and Soh “THE DEVELOPMENT OF SINGAPORE LAW: A BICENTENNIAL RETROSPECTIVE” at paragraph 62/page 32. (From Celebrate 200 Years of Singapore law with pretty graphs)

They've also been involved in a pretty nifty combination of “Rules as Code” and docassemble.

Brand-new #legaltech
✅ Open Source
✅ Runs on #RulesAsCode
✅ Understands exceptions
✅ Answers legal questions
✅ Gives explanations in English
✅ Gives all valid explanations for each answer
✅ Integrated with @Docassemblehttps://t.co/XQ5jIXH1ck

— Jason Morris💻⚖️🇨🇦 (@RoundTableLaw) June 3, 2021

I've heard a lot about Rules as a Code and I am curious how it could apply to real world applications. So I am definitely going to give this a run and see how far I can go with it.

As such, I was pretty curious to see the Centre in the news. Unfortunately, it's not really about those cool applications of computers and law I mentioned, but something dearer to every Singaporean's heart — jobs. It features SMU's new four year Computing and Law undergraduate course.

BSc (Computing & Law) | School of Computing and Information Systems (SMU)Singapore Management University (SMU)

This excerpt from the news article tells you most of what you need to know about the course.

Students take modules from both the university's law and computing faculties, with an even split of modules across the two fields. The course starts off focusing on areas where there is significant overlap such as intellectual property. Prof Lim said that when they graduate, students will be able to work in various places like tech or legal firms, in roles that may not exist yet.

There are some interesting things written between the lines, so let me extract them here for you.

First, Students graduate with a Bachelor of Science (BSc), not a Bachelor of Laws (LLB). This means they can't apply for admission to the bar when they graduate. It's possible to progress to a JD in SMU Law, which would allow you to practice, but that would mean 6 years of studies instead of the usual 4.

Second, the article appears to concede that graduates might not be able to find work which takes full advantage of their skills.

If you would like to know what jobs exist in LegalTech in Singapore right now, you can take a look at Legal Tech Jobs:

Legal Tech Jobs filtered for jobs with location “Singapore”. By the way, that single job does not require a computer science degree.

In all, a course combining law and computers like this is going to require (1) bold students, and (2) students who have bold and supportive parents.

But maybe we are looking at this the wrong way. This isn't for lawyers who want to code. They are for coders who want to law. And if you want to look at it from that perspective, many things start to make sense. Take a look at the mix of subjects in the compulsory part of the degree:

https://s3-us-west-2.amazonaws.com/secure.notion-static.com/393cec40-d09f-47c6-b192-1d82c501a801/Untitled.pngScreenshot from https://scis.smu.edu.sg/bsc-computing-law/curriculum (as of June 2021)

Some knowledge of intellectual property law is going to be helpful for someone building solutions. Contract law, company law and the like are going to be beneficial for someone who is going to start a company, even if it isn't strictly in LegalTech. Torts, data protection, criminal law? Good to know, and will be very useful if you were thinking about Access to Justice. I am less familiar with the Computing Core section, but they seem more focused on creating products and running software development than I expected. Throw in some project management experience, and you have a unique candidate who can hit the ground running.

Would I take a course like this when I was 18? I don't think so. Students would generally expect to follow a well-trodden path to a career they already know. As a law student, it would be a lawyer. Maybe, as a backup plan, an in-house lawyer.

This is still an alternative career, but in an age of disruption, being able to think outside of your silo would be excellent preparation for a long and fruitful career. If I could speak to my 18-year-old self, I would tell him to carefully look at this.

#Singapore #LegalTech #Law #Training

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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A lot of people in Singapore know about the Personal Data Protection Act in Singapore (PDPA). A lot of people also know about the Personal Data Protection Commission (PDPC). The PDPC enforces the PDPA. The PDPC has a good reputation amongst most Singaporeans for its proactive approach to protecting the personal data of ordinary Singaporeans. To most people, this is the data protection regime in Singapore. Full stop.

Far fewer people (and I dare say professionals too) are aware that there is a “right to private action” hidden somewhere in the PDPA. Section 48O, to be exact.

Now who would want to experience the stresses of litigation , paying legal fees (most of which can't be recovered) and the prospect of losing?

Someone with an axe to grind, like the parties in Bellingham v. Reed. It's the first case to test the right to private action in the High Court of Singapore (and possibly the Court of Appeal as well). As a result of the parties' honourable public service, we now know the limitations of the right to private action.

A Private Action Goes Nowhere

This tortured litigation started when a fund manager moved to a competitor. To drum up the new business, the fund manager contacted a potential customer using information from his previous role. What started as a breach of confidence action suddenly morphs into a data protection action when the fund manager's ex-employers added the affected data subject to the litigation.

In the court below, the data subject obtained a court order for the fund manager to stop using his data. This was in spite of the fund manager already stating clearly that he would not be using the personal data of the data subject or contacting him.

The appeal turns on whether the data subject suffered “loss and damage” as a result of the breach of the PDPA. On the facts, a monetary loss seems far-fetched. The data subject argued instead that he suffered “distress and loss of control over personal data”. This wasn't a type of damage commonly recognised under the law, like personal injury or monetary loss. Did the PDPA create a new kind of damage to be found under a private action?

The High Court held that the answer is no. The PDPA “was not driven by the need to protect an absolute or fundamental right to privacy”. A “privacy right” was not part of Singapore's constitution or implied by Singapore's international obligations. The Court commented that:

The purpose of the PDPA was as much to enhance Singapore’s competitiveness and to strengthen Singapore’s position as a trusted business hub as it was to safeguard individuals’ personal data against misuse.

Since the data subject only suffered distress and loss of control over personal data, which were not recognised under the law, the appeal succeeded and the data subject's orders was set aside.

Leave the Private Action Behind

Oddly, the balance struck here could eviscerate the private action under the PDPA. What kind of damages can an affected individual claim for a breach of data protection obligations other than distress and loss of control over their own data?

On the key question of whether the PDPA's private action recognises new heads of damages such as emotional distress or loss of control over personal data, I don't expect the Court of Appeal to come up with a different answer. There might be alternative explanations, but the policy behind it is quite clear.

Firstly, a right of private action would probably end up with lots of litigation against companies, many of which can be for fairly minor breaches. We might be using too much judicial resources on many small matters. Companies might end up being stuck in a mire of lawsuits instead of innovating.

Secondly, many of the structures of the legal system in Singapore would not benefit such private actions. This includes the nearly complete absence of class action suits in Singapore. A private suit is likely to be an exhausting and expensive affair, which would leave many individuals out in the first place.

Thirdly, and this was recognised at the High Court at paragraph 94, there are better avenues for individuals to vindicate themselves. Most importantly, the PDPC has powers to enforce the PDPA, and many of these remedies mirror what an individual would most likely want from an action. This includes the dreaded financial penalty, the basis of which is on compliance with law rather than what loss or damage was suffered. It's notable that an affected individual can appeal the PDPC's decision.

Will Increased Penalties Lead to Greater Compliance With the PDPA?When the GDPR made its star turn in 2018, the jaw-dropping penalties drew a lot of attention. Up to €20 million, or up to 4% of the annual worldwide turnover of the preceding financial year, whichever is greater, was at stake. Several companies scrambled to get their houses in order.Love.Law.Robots.Houfu

Furthermore, the Protection of Harassment Act (which has received far more attention from the government) could provide a more effective route for any intrusion into privacy.

So even though it appears odd that the private action would be extremely limited under the PDPA, this “balance” might be palatable. The private action looks likely to remain as a relic for the most irrational parties. It speaks volumes that the only reported case of a private action in more than 5 years of the PDPA is going to the Court of Appeal.

Is a Constitutional Right necessary?

While I agreed with the result, the reasoning left me unsatisfied. By adamantly insisting that the PDPA was different from other privacy and data protection regimes in western liberal democracies, the High Court appeared to suggest that we compromised something by striking a balance. Or worse, that we are involved in a switch and bait whereby we have meaningless rights in the PDPA.

Any talk about human rights should keep a close eye on its efficacy, in this case whether data subjects can enforce their rights effectively. It's quite clear that individuals can't realistically take companies to task on data protection on their own. The PDPC has had far more success using its enforcement powers.

So, maybe the Court of Appeal can come up with a better way to explain this. However, I wouldn't be holding my breath on this one. This case is a rare sighting, and cases like this will remain rare.

In the meantime, we should train our focus on the PDPC. Full stop.

#Privacy #Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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This one flew under the radar for some time. Jigyasa was first decided in March 2020 and then reconsidered almost a year later in 2021. (It was published in March 2021, and I am not sure whether the original decision was ever published in 2020 because neither I nor my robots noticed it). During that period of time, COVID happened. Ostensibly, that event allowed the penalty to be reduced from $90,000 to $30,000. Given the circumstances, it might be quite a reprieve for this respondent. Overall though, the decision brings troubling news for everyone else.

To summarise the details, the respondent is a sole proprietor providing Human Resource services. It is a small outfit dealing in “an extremely niched industry”. The personal data consisted of confidential 360 performance reports. As far as I am aware, 360 reports are generally prepared for upper, and middle management folks and consist of such good nuggets as “person should handle more complex responsibilities” and “slow support”. They were released in the wild through a misconfigured web application. The proprietor has no idea what these things do. As a result, these reports stayed on the Internet for 7 years.

Thing 1: The original penalty was harsh

As I mentioned, a $90,000 penalty is eye-catching. You don’t need a big data science chart to figure that out.Just play with the levers on the PDPC’s search, and you will find only three organisations that scored a $90,000 or higher penalty: Ninjavan, SingHealth and iHis. They aren’t sole proprietors.

If you want a big data science chart though, I can share one from a project I did last year.

This is up to March 2020, so does not include the latest cases since then. Other notes in the original post still apply.This is up to March 2020, so does not include the latest cases since then. Other notes in the original post still apply.

Ninjavan can be justified on the sheer scale of the breach (over 1 million persons affected). SingHealth and iHIS can be justified on the sheer scale (over 1 million persons affected, including the Prime Minister), as well as the medical data involved. To join this rarefied gang, we have Jigyasa, which left reports of 671 people online, causing (at least) one of the affected to fail his job interviews for over two years (allegedly).

Since we are doing this exercise, let’s move slightly lower than the $90,000 penalty. In Horizon Fast Ferry (2019), a company operating ferry services exposed the personal data (including passports) of nearly 300,000 passengers. They didn’t have a data protection policy or officer either. Frankly, they didn’t tell their contractor to do anything about data protection, so the overall impression was cluelessness as well. The penalty? $54,000.

Of course, there is no magic formula for determining the penalty, and each case considers “the specific facts of the case to ensure that the decision and direction(s) are fair and appropriate for that particular organisation”. However, these cases don’t exist in a vacuum, and fairness requires considering whether each respondent is treated fairly compared to the others.

If one compares the millions and thousands of people affected in other cases and the 671 in Jigayasa, which resulted in similar or lower penalties, then there must be something special about Jigyasa.

We now arrive at the decision’s most controversial premise. In arguing for a lower penalty, the respondent claimed that because the information was collected under an exception under the PDPA and disclosed without consent, the breach was less serious. This sounds intuitive the first time, but what has consent to do with the severity of the breach? This is a breach of a protection obligation, not an obligation to get consent.

The PDPC decided instead to give the argument a roundhouse kick and charge that a higher degree of protection was required because consent was not required. In fact, the PDPC argued that not having to get consent had a consequence:

The quid pro quo for organisations having the liberty to collect, use and disclose personal data without consent for evaluative purposes, and to keep opinion data beyond the reach of data subjects for access and correction, is that they are expected to put in place more robust measures to comply with the Protection Obligation.

I was stunned by the “ quid pro quo ” argument made by the PDPC and wanted to find out whether I missed something. The decision does not cite any support that the exclusion framework for evaluative purposes implies a quid pro quo approach.

The Parliamentary debates regarding the exceptions in the PDPA did not mention the evaluative purpose specifically. I did find this explanation regarding the exceptions in the PDPA:

Sir, Mr Desmond Lee asked about the exceptions provided in the Second to Fourth Schedules. These are based on the overarching intent of ensuring adequate protection for individuals without placing onerous burdens on organisations to comply with the law. They also take into account international practice and Singapore’s context. For example, exceptions apply in certain circumstances or situations where obtaining consent for the collection, use or disclosure of personal data may not be feasible. Such situations include collection of personal data for life-threatening emergencies. Exceptions are also necessary to enable certain organisations to effectively perform their functions, such as investigations or legal proceedings.

It’s not easy to square both passages together, but the message now appears to be that information collected under the evaluative exception should be treated as riskier than others.

Even though the PDPC claimed that this quid pro quo structure only applies to the evaluative purpose exception, it’s hard not to see how the argument can easily apply to any other exception. This includes the new exceptions, such as business improvement purposes. These new exceptions are not “necessary” to perform business functions and ultimately benefit the consumer in some way, so there can be a quid pro quo arrangement too. Given this decision, organisations must look into the data they are storing and pay special attention to data collected under an exception.

However, if you have been mindful of data protection in the first place, you would already know that whatever personal data you have should be protected, regardless of how they were collected.

Thing 3: Penalties can be arbitrary, avoid them if you can

I wasn’t expecting that relying on an exception to collect data would result in heavier penalties. The impression I had was that they were meant to reduce the compliance burden of companies.

There are several ways to rationalise the impact of this decision. The PDPC already said this reasoning is limited to evaluative purposes. Each case stands on its own. The PDPC continually reminds the public that each case and each penalty is due to its unique circumstances. I have not read a decision whereby the PDPC refers to a past decision as a basis for the calculation of the penalties. We can sweep this decision under the carpet as it did for a year hiding behind COVID-19.

Will Increased Penalties Lead to Greater Compliance With the PDPA?When the GDPR made its star turn in 2018, the jaw-dropping penalties drew a lot of attention. Up to €20 million, or up to 4% of the annual worldwide turnover of the preceding financial year, whichever is greater, was at stake. Several companies scrambled to get their houses in order.Love.Law.Robots.Houfu

I instead feel that the best response to a decision that I think is cruel, arbitrary or irrational is to think of ways out of it. Unlike criminal law, where the best action to avoid speeding tickets is by not speeding, the PDPC’s approach to active enforcement suggests more alternatives. These include voluntary undertakings (NEW in the amendments) or an expedited decision.

In a voluntary undertaking, the respondent has more control over the outcome of a case. We are talking about * remediation, not mitigating factors.* We are also talking about the respondent’s plans, not the PDPC’s directions.

Furthermore, I haven’t read any media outlet that attempts to explain a voluntary undertaking in the context of a data breach. You might not even know there is a new section on the PDPC’s website.

Unfortunately, to quickly develop a remediation plan that would satisfy the PDPC, you will need professionals specialized in the field. I believe that this is really the strongest case for hiring your own data professionals, especially in light of the new amendments to the PDPA.

#Privacy #Singapore

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Officially, lawyers read judgements to find the law. However, it’s often far more interesting to see how your peers get into trouble. Sometimes it’s a cautionary tale hiding between the lines. Judges mostly tend to be polite and cautious about their criticisms. It is a community, after all.

This judgement, however, is dedicated to criticising the lawyers on record. In short, liquidators appealed a case to the court of appeal, our highest court. They would like to advance a significant legal point in their area of law. The Court of Appeal obliges by appointing a court of five judges, more than the usual number.

The case starts to stink when the respondent fails to file arguments in the appeal. They wouldn’t even argue in the hearing as an ordinary party would. If pressed, they would say that they would adopt their case in the court below, meaning there is nothing more to say.

Oh, and if they were pressed even further, the respondents agreed to say that the liquidators and the respondent settled the dispute.

In dismissing the appeal, the Court of Appeal repeated the time-honoured adage that the court does not rule on “hypotheticals”. There has to be a live dispute with more than two sides fighting for different conclusions.

Some people might wonder why the court has to be so anal about this. If a party needs help, why can’t the court assist? In this case, the liquidators were concerned about the operation of a rule of law which affected their work. Beyond the dispute between two parties, some people need answers.

In this case, however, the requirement of a live dispute was critical. As only one party argued the appeal seriously, the court is deprived of the arguments against the appeal. The legitimacy of such a holding is likely to be always in question.

It’s easy to argue that counsel went too far in this case. However, it’s difficult not to sympathise with why they did it. Due to the scarcity of cases that come to the courts and go all the way to a written judgement with legal ramifications, being involved in a “test” case is critical for ambitious lawyers. Perhaps they thought that this would be the case. As one party goes into liquidation, the motivations of the other party to continue fighting changes. A settlement, whatever the merits of the case, is forthcoming. The test case is gone.

Personally, the rules for determining whether the Court of Appeal can be involved might be too strict. Singapore isn’t a big country where several cases, each with a different nuance, comes knocking on the Court of Appeal’s door every day. By excluding too many cases, the Court of Appeal may be depriving itself of opportunities to develop laws.

Far, far away, in another jurisdiction, an apex court finds that seeking $1 damages is sufficient for the court to hear the case. This was even the case when the defendant essentially gave up and changed its ways. It prompted this inspired dissent: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.” Consider this, though: Not every case before the Supreme Court gets heard; four Supreme Court judges in the US must decide to take up a case before it can be heard.

These issues are complex and the solutions are not so obvious. The Singapore Court of Appeal is definitely trying to take on more cases and develop law. However, this one is not going to be one of them.

#Singapore #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu