The Singapore Law Gazette

Cancelling Cancel Culture: What Should Legislation Look Like?

Laws against cancel culture are in the works. But the complex sociological nuances driving this phenomenon make cancel culture difficult to legislate against. We examine some challenges and possible legislative features that lawmakers should consider so that a hard-law approach to cancel culture can be effective.

The Creeping Consequences of Cancel Culture

Cancel culture has become a buzzword in today’s society. It is a phenomenon that elicits strong reactions from both its supporters and critics. Fundamentally, cancel culture refers to the act of collectively boycotting and alienating individuals or groups for opinions or conduct regarded as offensive, controversial, or inappropriate in the view of the masses.

Research examining cancel culture identifies three consistent features across instances of the phenomenon: (1) public shaming of unacceptable behaviour and (2) withdrawal of support, which are in turn (3) motivated by wanting to see the target persons experience a consequence or penalty of sorts such as losing employment or other revenue streams.¹Edson C Tandoc, Jr , Beverly Tan Hui Ru , Gabrielle Lee Huei, Ng Min Qi Charlyn, Rachel Angeline Chua and Zhang Hao Goh, “#CancelCulture: Examnining definitions and motivations” (2022) 00(0) New Media & Society.

Occurrences of cancel culture are rife. In 2019, JK Rowling, author of the Harry Potter series, publicly stated her concerns about how the push for transgender rights might ultimately compromise women’s rights. Her critics quickly labelled her a “transphobe”, rallied for her books to boycotted, and clamoured for her publishers to stop paying her royalties. In 2020, talk show host Ellen DeGeneres faced backlash over allegations of creating a toxic work environment for her employees. Her long-running show was met with boycotts and calls for it to be cancelled. Also in 2020, the Internet dug out a string of 2010 tweets posted by Singapore influencer Xiaxue linking Indian migrant workers to molest cases. Social media users denounced Xiaxue as racist and started a #PunishXiaxue campaign that pressured brands that worked with Xiaxue to drop her.

Where celebrities are cancelled, the mob pushes to inflict financial and reputational consequences; the agenda is usually for a target to lose their income or influence. Yet, there is increasing concern that cancel culture may creep towards affecting any regular person who voices a view that turns out to be unpopular by the majority’s standards. This concern, at least in Singapore, was triggered by debates leading up to the repeal of Penal Code’s section 377A (a provision criminalising sex between gay men). Amidst the heated public discourse, worry sprang over how activists on one side of the fence could cancel a person from the other side for expressing contrasting opinions.

Given that section 377A will not be the first and last polarizing issue to hit society, and that individual participation in open discourse will only grow with the proliferation of social media, concerns that the person on the street may face cancellation just for speaking his or her mind appear justified. In as early as August 2022, the government announced plans to legislate against cancel culture. Then in parliamentary debates over the repeal of section 377A, numerous MPs raised questions over how increasing activism may blur the lines between responsible discourse and vicious cancel campaigns. Law Minister Mr K Shanmugam responded by confirming that the Ministry of Law was “looking at measures to deal with the harm caused by cancel campaigns online”.²Singapore Parliamentary Debates, Official Report (23 November 2022) vol 95 (Mr K Shanmugam, Minister for Law and Home Affairs).

Cancel Culture Legislation: More Than Meets the Eye

While legislation may offer hardline fixes to some social problems, mitigating the ills of cancel culture through this approach presents with multiple difficulties.

First, cancel culture remains very much a phenomenon driven largely by social forces and performed by multiple actors. For the sake of understanding cancel culture, broad definitions such as that proffered in the opening paragraph of this essay works. But apply that same definition for the purposes of formulating laws, and the vastness of the conduct and actors that should be subject to legislation becomes an immediate problem. What kinds of behaviour should be considered legally impermissible? Online naming and shaming? Calls to boycott a person or business? Publicising one’s socially undesirable conduct or opinions? Effective legislation ideally encompasses bright-line indicators of what is lawful and what is not; but drawing such lines in the amorphous sands of social behaviour is no easy feat. Besides contemplating what ought to be actionable, any legislation must also define who can be brought to task. As the word “culture” suggests, cancel campaigns are collective endeavours. Even if started by one person, a cancel campaign must garner the support of the masses before it can have real consequences. Should legislation target the instigator of the campaign or all who partake in it? What happens when the instigator cannot be found, does not reside in jurisdiction, or is hidden under layers of anonymity?

Second, the tenet of free speech throws a spanner into the ideological foundations of legislation. Cancel culture becomes a deeply paradoxical issue when overlaid with the notion of free speech. Proponents see it as a means of holding people, especially influential ones, accountable for their words and behaviour. In this sense, cancel culture has been held out as a form of free speech allowing those who wield it to call out social wrongdoers. This approach is supported by NAACP v Clairborne Hardware Co,³458 US 886 (1982). where the US Supreme Court held that calls for the boycott of a white business remained protected by the First Amendment even though such speech could embarrass people or coerce them into action. Critics sing a diametrically different tune: if one faces cancellation and intimidation for voicing an unpopular opinion, free speech will insidiously and slowly be chilled. Faced with this duality, legislation risks turning into a zero-sum game. If passed, laws will be seen binarily as either promoting or stifling expression – a conundrum that sits uncomfortably with the universality of free speech.

Third, any useful legislation must provide utility beyond that of existing laws. Cancel campaigns share similar features with other online ills such as doxing, cyberbullying, trolling, harassment, and even defamation. There are laws already in place, i.e. the Protection from Harassment Act, the Defamation Act, defamation at common law etc, that deal directly with such conduct. More, such as the Online Safety Miscellaneous Amendments Bill, are in the pipeline.⁴Online Safety (Miscellaneous Amendments) Bill (Bill 28 of 2022) How would fresh legislation curbing cancel culture set itself apart from these existing laws such that complainants would not be confused over which cause of action invoke? Or worse, to avoid sticky situations where a respondent attempts to strike a complaint out on the grounds of inappropriate cause of action? Put differently, is cancel culture really so different from other reproachable online conduct to the extent that it requires legislation of its own? If so, what is this discernible difference and how should legislators define it?

The foregoing challenges make legislating against cancel culture an uphill climb. Quoting Mr Shanmugam, cancel culture is “not an easy area to deal with” and any legislation must “try and strike the right balance”.⁵Singapore Parliamentary Debates, Official Report (23 November 2022) vol 95 (Mr K Shanmugam, Minister for Law and Home Affairs). To date, no other countries have laws specifically targeting cancel culture, which means we have no foreign legislation from which to draw lessons and inspiration. Singapore’s legal approach towards cancel culture must therefore be built from scratch. For legislation to provide effective safeguards against the downsides of cancel culture, the factors and features discussed in the rest of this essay may merit consideration.

Offending Conduct Should be Narrowly Defined

At the outset, legislators will face a dilemma between defining the objectionable conduct either broadly or narrowly.

A broad statutory definition promotes flexibility, catches a wider range of conduct, and gives the common law latitude to interpret (according to prevailing social circumstances) what amounts to objectionable conduct. We can perhaps take a leaf out of harassment’s playbook, where harassing conduct is defined very generically in the Protection from Harassment Act as any “threatening, abusive or insulting words or behaviour … or communication, which is heard, seen or otherwise perceived by … [a] victim likely to be caused harassment, alarm or distress”.⁶Protection from Harassment Act 2014 (2020 Rev Ed) s 4.

Likewise, cancel conduct can possibly be defined as being words, communication or behavior that is likely to cause a target to be shunned, ostracised or to suffer financial harm. However, a wide definition like this is problematic. First, it is open to abuse by irresponsible or frivolous complainants. Second, there will be no meaningful difference between cancel conduct and other similar causes of action, namely, harassment. Being shunned or ostracised reasonably causes a victim to also experience alarm or distress on some level. This overlap may render cancel legislation otiose.

The alternative (and better) approach is to define cancel conduct more narrowly. For instance, qualifiers can be added to the above definition: cancel conduct may be described as being communication or behaviour by X against Y in response to Y having expressed an opinion or viewpoint that X disagrees with, and where X’s communication or behaviour instigates or procures others to shun, ostracise, or to cause financial harm to Y. This way, the potential for abuse is reduced because the legislation can only be invoked in online attacks arising from differences in opinions. The ambit of the legislation’s applicability is also greatly circumscribed, but this ought not be a problem because more generic forms of online vitriol are already being addressed by current laws that deter doxing, harassment, cyberbullying, and defamation. Cancel culture legislation should cover only cancel campaigns, and rightly so.

The threshold for offending conduct should be pitched at a level to capture content and behaviour that is not yet harassing or defamatory (since harassment and defamation laws can address such conduct). At the same time, the bar cannot be so low that it catches conduct that is reasonable, fair, and justified. This is a tricky balance that legislators must strike.

Answering the “Who” Question Must Involve Considering the Realities of the Internet

Legislation must also elucidate who can sue and be sued. Will the law protect only natural persons, or can body corporates also seek redress under it? The latter appears to be more sensible, given that social media now imbues companies and organisations with a personality of sorts, and allows them to take positions and express views on issues. For example, many brands and businesses openly sponsor and support the annual LGBT Pink Dot. In fact, brands and businesses are arguably more susceptible to boycotts and cancellations and may suffer enormous financial repercussions in the wake of such attacks.

If Parliament intends to protect body corporates from cancel culture, such must be made abundantly clear in the legislation to avoid a reprise of Attorney-General v Ting Choon Meng and another appeal⁷(2017) 1 SLR 373. ­– a case in which the Court of Appeal had to grapple with whether the government (and by logical extension, body corporates) could seek relief under substantive provisions of the Protection from Harassment Act.

The follow-up question of who can be sued is linked to this next point about how cancel culture legislation must be structured to deal with the realities of the Internet. Having previously passed legislation combating other types of online ills such as harassment and fake news, Parliament ought now to know that anonymity afforded by the Internet can majorly impede the identification of a perpetrator. It has proven to be difficult, if not impossible, to ascertain the identity of an offender who hides behind a shell account or virtual private network. And if a true offender cannot be found and made the subject of a court order, courts must be empowered to make alternative orders against internet intermediaries (i.e. Facebook, Twitter, Instagram, Tiktok etc) compelling these platforms to remove offending content from their sites. The power to act against content hosts is not new: it is already present in legislation such as the Protection from Harassment Act⁸See Protection from Harassment Act 2014 (2020 Rev Ed) s 15C and s 15D, which allow disabling and targeted correction orders to be made against internet intermediaries for the publication of false statements. and the Protection from Online Falsehoods and Manipulation Act.⁹Protection from Online Falsehoods and Manipulation Act 2019 (2020 Rev Ed) Part 4 generally, which allows various orders to be made against internet intermediaries in respect of falsehoods published on their sites. This is an aspect for which Parliament can eschew reinventing the wheel in favour of borrowing from existing legislation.

Answering the “who-can-be-sued” question also necessitates considering the collective nature of cancel culture. Cancel campaigns thrive on virality. What recourse does a victim have against if an unquantifiable horde of online accounts share and repost the offending content? It is most certainly not feasible to name every offending account as a respondent to a complaint. Let us assume that a complainant successfully identifies and obtains an order against the original publisher of offending content; forcing the originator to remove what he or she posted will not change the fact that the post might already (by the time the order is obtained) have been shared and republished by hundreds, if not thousands, of others. One way to stem this ripple effect would be for courts to issue orders not only against named respondents, but also against “any other persons” who have published the offending content. This amounts, in effect, to an order against the world at large, which a complainant can choose to serve on and enforce against any account that has posted the offending content. A complainant who successfully obtains this order may choose to publicise the order to reap whatever deterrent effects it provides.

Damages as a Distinctive Feature

Cancel campaigns seek to inflict financial consequences on their targets. This happens when the mob rallies for a celebrity to lose her endorsements, for a restaurant to lose its customers, or for a regular person to lose his job. Therefore, it is imperative for cancel culture legislation to entitle successful complainants to monetary compensation.

That said, enacting an appropriate model of compensation will be challenging. On what basis should damages be awarded? Should we embrace the distinction between general and special damages, where the former compensates for reputational harm while the latter compensates for expectation-type losses such as loss of income or profit? Lawyers familiar with defamation law will attest to the immense difficulty inherent in proving causation when seeking special damages. A restaurant may ask to be compensated for revenue loss after being subject to a cancel campaign. But how does one prove conclusively that the revenue dip was directly caused by a respondent’s conduct, and not some other vagaries to which businesses are regularly subject? Also, where objectionable online conduct is concerned, complainants often want speedy relief (no one likes having negative content about them hanging around the Internet for too long). The high evidential threshold for special-damages type compensation prolongs proceedings and does not bring about quick relief.

Statutory damages are a possible alternative. For example, claimants in copyright-infringement actions are entitled to statutory damages, the amount of which is statutorily capped and determinable by courts based on fixed factors enumerated in the Copyright Act.¹⁰Copyright Act 2021 s301. This regime of compensation presents itself as a viable halfway-house approach. For one, courts retain a degree of flexibility and discretion: judges can quantify damages based on the unique facts of each case (such as the severity of the respondent’s conduct, the virality of the offending content, whether there is a need for wider deterrence etc). At the same time, there is no risk of unnecessarily protracted proceedings because the factors that a court must consider are statutorily fixed, and the quantum of damages awardable is capped.

Parliament should also consider whether complainants should be entitled to damages for emotional distress. Allowing so would be the preferable option, given how likely it is that victims may react emotionally to cancel campaigns. If damages for emotional distress are to be permitted, it is best for such a right to be clearly stated in the legislation so that the situation in Reed, Michael v Bellingham, Alex (Attorney-General, intervener)¹¹(2022) SGCA 60. can be avoided. In this case, the Court of Appeal was tasked with deciding if the vague term “loss or damage” in section 32 of the Personal Data Protection Act allows a party whose personal data has been compromised to claim damages for emotional distress. The Court of Appeal said yes, but not without first embarking on a painstaking analysis that could otherwise have been averted by clearer legislation.

The risks of financial harm are more pronounced in cancel culture compared to other types of undesirable online conduct such as harassment, stalking, cyberbullying, and trolling. Expressly entitling complainants to damages as compensation for monetary loss is what will differentiate cancel culture legislation from existing legislation against other Internet misconduct (so that cancel culture legislation does not seem otiose). Therefore, Parliament must give due thought to devising a regime of damages that is fair, robust, and well-articulated.

Conclusion

With so much ink spilled over the prospects of regulating cancel culture, legislation appears to be impending. Be that as it may, any phenomenon driven largely by social forces and collective action “must primarily be addressed by culture, not law”.¹²Niall Coghlan, Are Our Laws on Freedom of Speech Fit for Purpose in the Age of “Cancel Culture”? (2020) (winning essay of the Jonathan Brock QC memorial Essay Prize 2020). Legislation, while inevitable, must be accompanied assiduously by softer approaches such as public education that fosters responsible, sensitive, and considerate dialogue. Hard law should not be regarded as the sole panacea to an inchoate social issue set to evolve further with changes in social attitudes and technology. But if hard law is to be wielded, it must be formulated with the nuances, quirks, and challenges of cancel culture in mind.