Safeguarding the Virtual Realm: Unveiling the OCHA’s Influence on Singapore’s Cyber Landscape – PDLegal LLC
13 May 2024
Introduction
The advent of online services has revolutionised the way we live, providing unprecedented opportunities for individuals and businesses alike. This digital transformation has facilitated efficient communication, seamless transactions, and global connectivity. However, alongside the myriad benefits, this surge in digital connectivity has also given rise to various forms of cybercrime.[1]Criminals exploit vulnerabilities in digital infrastructure to engage in activities such as identity theft, financial fraud, and data breaches. Phishing attacks, ransomware, and malware have become pervasive threats, targeting both individuals and organizations. The interconnected nature of the online world amplifies the impact of these crimes, transcending geographical boundaries and jurisdictions.
Accordingly, the Singapore Parliament passed the Online Criminal Harms Act[2] (the “OCHA“) on 5 July 2023 to combat these threats. Effective from 1 February 2024, the OCHA empowers the Government to eliminate criminal content from online platforms[3]. The OCHA is designed to address the dynamic landscape of online criminal activities, with a specific focus on scams and malicious cyber activities. The primary objective is to safeguard the public from harms in the digital space, introducing mechanisms that enhance the authorities’ capability to effectively combat online criminal-activities.
This article will summarise the key features of OCHA.
Directions 4
Designated Officers have the power to issue directions to any online service provider, entity, or individual, when there is reasonable suspicion that an online activity is in furtherance of the commission of a specified offence as reflected in Part 1 of the First Schedule of the OCHA[5]. “Specified offences” refer to criminal acts that pose threats to national security, harmony, and individual safety, particularly when conducted online.[6]
In cases involving scams and malicious cyber activities[7], the threshold for issuing directions will be lower. Directions can be given if there is suspicion or reason to believe that any online activity is being carried out in preparation for or in furtherance of the commission of a scam or malicious cyber activity offence.
Depending on the facts of the case, the following directions may be issued:
|
Direction (s) |
Description(s) |
|
Stop communication direction[8] |
Requires the recipient (i.e. a person who has control of the relevant material or the proprietor of the relevant location) to take all reasonable steps:- a) to remove the relevant material; b) to stop storing, posting, providing or transmitting any online material similar to the relevant material; c) to disable access to the relevant location, by a specified time.[9] |
|
Disabling direction[10] |
Requires the recipient (i.e. the provider of an online service, excluding an internet access service or app distribution service) to take all reasonable steps to disable access by Singapore persons to:- a) any relevant material stored, posted, provided or transmitted on or through the recipient’s online service; b) any identical copies of the relevant material stored, posted, provided or transmitted on or through the recipient’s online service; c) any relevant location on the recipient’s online service, by a specified time.[11] |
|
Access blocking direction[12] |
Requires the recipient (i.e. the provider of an internet access service) to take all reasonable steps to disable access by Singapore persons by means of the recipient’s internet access service to any relevant material or relevant location, by a specified time.[13] |
|
Account restriction direction[14] |
Requires the recipient (i.e. the provider of an online service, excluding an internet access service or app distribution service) to take all reasonable steps to disallow or restrict interaction between any relevant account on the recipient’s online service and Singapore persons, by a specified time. Reasonable steps may include the termination, suspension or restriction of one or more functionalities of the online service in relation to the relevant account if necessary.[15] |
|
App removal direction[16] |
Requires the recipient (i.e. the provider of an app distribution service) to take all reasonable steps to stop distributing a relevant app to Singapore persons and stop enabling Singapore persons to download a relevant app, by means of the recipient’s app distribution service, by a specified time.[17] |
Orders[18]
Should an online service not comply with the directions, the Competent Authority[19] has the power to issue an order to limit access to the service or part of the service in order to minimize the exposure of persons in Singapore to criminal activity. Orders complement, rather than replace, the other enforcement measures may be employed to address non-compliance with directions, including prosecution.
Appeal Framework
In the event a party wishes to challenge a Government Direction, it may first apply for reconsideration by a Designated Officer. Similarly, for orders, reconsideration by the Competent Authority is available upon request. [20]
In the event that the application for reconsideration proves unsuccessful, the Appellant can appeal to a Reviewing Tribunal to cancel the direction or order. The Reviewing Tribunal is composed of a District Judge or Magistrate appointed by the President, based on the Cabinet’s advice.[21]
However, the appeal to the Reviewing Tribunal can only occur if:
(a) The Appellant had applied to a designated officer for reconsideration of a direction or to the Competent Authority for reconsideration of an order; and
(b) The designated officer or the Competent Authority has rejected the application for reconsideration.[22]
The Appellant must file the appeal to the Reviewing Tribunal no later than 30 days after the notice of the decision of the designated officer or the Competent Authority was given.[32]
Extraterritoriality
In recognition of the global nature of scams and malicious cyber activities, the OCHA incorporates provisions enabling the issuance of directions, notices, directives, and orders to entities and individuals, even if they lack a physical presence in Singapore. In cases of non-compliance, additional measures may be pursued, including prosecution or the issuance of orders to restrict access to non-compliant online services.
Conclusion
As technology continues to evolve, so do the tactics employed by cybercriminals. Therefore, a dynamic and adaptive approach to cybersecurity is paramount. In a world where the internet’s influence continues to expand, Singapore’s commitment to adapt to the evolving digital landscape is evident through the enactment of OCHA. The OCHA attempts to strike a balance between harnessing the benefits of the digital realm and mitigating its potential harms. By tackling concerns like online harm and harassment, OCHA endeavors to cultivate a safer and more responsible online environment.
While the full extent of OCHA’s enforcement is yet to be observed due to its recent implementation, with effective enforcement, the OCHA’s impact will shape the digital landscape, and the forthcoming issuance of Codes of Practice adds a layer of significance. Particularly for internet service providers (“ISPs”) and app operators, this evolving legal landscape transforms the operational contours of their entities. The anticipated Codes of Practice may provide ISPs and app operators with specific guidance on compliance, offering a comprehensive framework comprising best practices, security standards, and protocols tailored to prevent and address online criminal activities. Adhering to these guidelines ensures not only immediate compliance but also empowers these entities to identify and proactively mitigate potential risks associated with emerging legal frameworks.
Beyond mere compliance, embracing the regulatory framework outlined by the OCHA becomes a strategic move in cultivating user trust. In the digital domain, user trust is the cornerstone for sustained growth and innovation. This dedication to security not only safeguards the interests of users but also positions ISPs and app operators as responsible custodians of the digital landscape.
Maintaining a vigilant and proactive stance is not merely a recommendation, it is an imperative necessity. To navigate the intricate complexities of the online legal landscape in this era of constant evolution, stakeholders must possess a nuanced understanding of the evolving legal obligations. The OCHA, with its forward-thinking approach and emphasis on collaboration between regulatory frameworks and industry players, is not just a set of rules. It will be a guide for shaping a digital future that prioritizes safety, responsibility, and innovation.
Contributed by Peter Doraisamy, Sathya Narayanan & Sebastian Lee.
Sources: –
1. MHA Press Release on Introduction of the Online Criminal Harms Bill
4. MHA Press Release on Commencement of the Online Criminal Harms Act (OCHA) on 1 February 2024
6. Online Criminal Harms (Reconsideration Application and Appeal Fee) Regulations 2024
7. Online Criminal Harms (Reviewing Tribunals) Rules 2024
8. Online Criminal Harms (Service) Regulations 2024
[1] Available at https://www.mha.gov.sg/mediaroom/press-releases/introduction-of-the-online-criminal-harms-bill/
[2] Online Criminal Harms Act 2023 (No. 24 of 2023)
[3] Available at https://www.mha.gov.sg/mediaroom/press-releases/commencement-of-the-online-criminal-harms-act-ocha-on-1-february-2024
[4] Online Criminal Harms Act 2023, sections 6 & 7
[5] Online Criminal Harms Act 2023, First Schedule, Specified Offences and Scam or Malicious Cyber Activity Offences
[6] These offences are meticulously outlined in the First Schedule of the Online Criminal Harms Act 2023.
[7] Online Criminal Harms Act 2023, First Schedule, Specified Offences and Scam or Malicious Cyber Activity Offences
[8] Online Criminal Harms Act 2023, section 8
[9] Online Criminal Harms Act 2023, section 8
[10] Online Criminal Harms Act 2023, section 9
[11] Online Criminal Harms Act 2023, section 9
[12] Online Criminal Harms Act 2023, section 10
[13] Online Criminal Harms Act 2023, section 10
[14] Online Criminal Harms Act 2023, section 11
[15] Online Criminal Harms Act 2023, section 11
[16] Online Criminal Harms Act 2023, section 12
[17] Online Criminal Harms Act 2023, section 12
[18] Available at https://www.mha.gov.sg/mediaroom/press-releases/commencement-of-the-online-criminal-harms-act-ocha-on-1-february-2024
[19] Pursuant to s. 3(1) of the Online Criminal Harms Act 2023, the Minister may appoint a public officer from a Ministry or department of the Government; or an employee of a public authority, under the charge of the Minister to be the competent authority.
[20] Available athttps://www.mha.gov.sg/mediaroom/press-releases/commencement-of-the-online-criminal-harms-act-ocha-on-1-february-2024
[21] Available at https://www.mha.gov.sg/mediaroom/press-releases/commencement-of-the-online-criminal-harms-act-ocha-on-1-february-2024
[22]Available at https://www.police.gov.sg/Advisories/Online-Criminal-Harms-Act/Appeal-to-Reviewing-Tribunal
[23] Available at https://www.police.gov.sg/Advisories/Online-Criminal-Harms-Act/Appeal-to-Reviewing-Tribunal
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