§ 39 — Operating proscribed online location

39.—(1) A person commits an offence if —(a)

the person is a proprietor of a proscribed online location, whether or not in the course of business; and

(b)

the person invites, solicits or otherwise procures the giving of any benefit —(i)

for, or purportedly for, meeting any expenditure to operate the proscribed online location; or

(ii)

in exchange, or purportedly in exchange, for services provided on or from the proscribed online location.Illustrations

Offering advertising space on the proscribed online location for a price.

Receiving any consideration for the sale of advertising space on the proscribed online location.

Collecting subscriptions for access to any part of the online location.

Inviting donations to support the online location.

(2) Subsection (1) extends to a person who engages in any conduct described in that subsection outside Singapore.

(3) A person who is guilty of an offence under subsection (1) shall be liable on conviction —(a)

if the person is an individual, to a fine not exceeding $40,000 or to imprisonment for a term not exceeding 4 years or to both; or

(b)

in any other case, to a fine not exceeding $500,000.

(4) However, where a court convicts any person of an offence under subsection (1), the court must, in addition to imposing on that person the punishment in subsection (3), order the person to pay as a penalty, within the time specified by the court, a sum equal to the amount of any benefit received in the commission of the offence or the amount that in the court’s opinion is the value of that benefit; and any such penalty is recoverable as a fine.

(5) Where a person is charged with an offence under subsection (1), it is a defence for the person charged to prove, on a balance of probabilities, that the person did not know, and could not with reasonable diligence have ascertained, that the online location was a proscribed online location and had a Singapore link.

(6) For the purposes of subsection (5), a person could not, with reasonable diligence, have ascertained that an online location of which the person is proprietor has a Singapore link, if the person had —(a)

required every end‑user accessing the online location to provide his or her personal particulars and those particulars suggested that the end‑user was not physically present in Singapore;

(b)

required end‑users to enter into contracts that were subject to an express condition that the end‑user was not to access the online location for any service if the end‑user was physically present in Singapore;

(c)

informed prospective end‑users that Singapore law prohibits the provision of access, or any service on or from, the online location to end‑users who are physically present in Singapore; and

(d)

taken such other measures as far as reasonably practicable to ensure that the online location did not, or could not reasonably have, a Singapore link.

(7) However, it is not a defence to a charge for an offence under this section that the accused is subject to any duty under any written law, any rule of law, any contract or any rule of professional conduct, that prevents the person from complying with this section or restricts the person in such compliance.

(8) For the purposes of this Division, an online location has a Singapore link if any information or material included or otherwise on, or any service provided from the online location, is accessible by, or delivered to, one or more end‑users physically present in Singapore.

—(1) A person commits an offence if —(a)

the person is a proprietor of a proscribed online location, whether or not in the course of business; and

(b)

the person invites, solicits or otherwise procures the giving of any benefit —(i)

for, or purportedly for, meeting any expenditure to operate the proscribed online location; or

(ii)

in exchange, or purportedly in exchange, for services provided on or from the proscribed online location.Illustrations

Offering advertising space on the proscribed online location for a price.

Receiving any consideration for the sale of advertising space on the proscribed online location.

Collecting subscriptions for access to any part of the online location.

Inviting donations to support the online location.

(2) Subsection (1) extends to a person who engages in any conduct described in that subsection outside Singapore.

(3) A person who is guilty of an offence under subsection (1) shall be liable on conviction —(a)

if the person is an individual, to a fine not exceeding $40,000 or to imprisonment for a term not exceeding 4 years or to both; or

(b)

in any other case, to a fine not exceeding $500,000.

(4) However, where a court convicts any person of an offence under subsection (1), the court must, in addition to imposing on that person the punishment in subsection (3), order the person to pay as a penalty, within the time specified by the court, a sum equal to the amount of any benefit received in the commission of the offence or the amount that in the court’s opinion is the value of that benefit; and any such penalty is recoverable as a fine.

(5) Where a person is charged with an offence under subsection (1), it is a defence for the person charged to prove, on a balance of probabilities, that the person did not know, and could not with reasonable diligence have ascertained, that the online location was a proscribed online location and had a Singapore link.

(6) For the purposes of subsection (5), a person could not, with reasonable diligence, have ascertained that an online location of which the person is proprietor has a Singapore link, if the person had —(a)

required every end‑user accessing the online location to provide his or her personal particulars and those particulars suggested that the end‑user was not physically present in Singapore;

(b)

required end‑users to enter into contracts that were subject to an express condition that the end‑user was not to access the online location for any service if the end‑user was physically present in Singapore;

(c)

informed prospective end‑users that Singapore law prohibits the provision of access, or any service on or from, the online location to end‑users who are physically present in Singapore; and

(d)

taken such other measures as far as reasonably practicable to ensure that the online location did not, or could not reasonably have, a Singapore link.

(7) However, it is not a defence to a charge for an offence under this section that the accused is subject to any duty under any written law, any rule of law, any contract or any rule of professional conduct, that prevents the person from complying with this section or restricts the person in such compliance.

(8) For the purposes of this Division, an online location has a Singapore link if any information or material included or otherwise on, or any service provided from the online location, is accessible by, or delivered to, one or more end‑users physically present in Singapore.