The Legal Issues in the Go-Jek Kidnapping Saga

A 7-minute long video recorded by Mr. Kamaruzzaman begins with him stating that he was driving to the police station at Toa Payoh. Jovina Choi, the passenger, was clearly upset and accused Mr. Kamaruzzaman of trying to cheat her of her money. This was because they had encountered an ERP gantry during the ride, adding another S$1.50 or so to the fare. Jovina claimed that she had never encountered an ERP gantry for similar trips. Mr. Kamaruzzaman’s claims was that it was peak hour and thus they were bound to encounter an ERP gantry. Nevertheless, it was clear that both parties were in disagreement and Mr. Kamaruzzaman told Jovina that he would make a police report and lodge a report with the Land Transport Authority, and even suggested that she could do the same.

Jovina was then seen calling someone on her mobile phone, over which she had describedMr. Kamaruzzaman as “a rogue and dangerous person” to the other person on the line, and she expressed her discontent about needing to incur additional transport costs when she finally travelled from Toa Payoh to City Hall (her original destination). The video continues with the person on the other line speaking with Mr. Kamaruzzaman and stating that he had “no right to take her hostage” and that he was “causing her to lose her freedom”.

Such statements, published to a third party, if not true, constitute defamation.

The vehicle was stationary for a while as Mr. Kamaruzzaman speaks to what seemed to be a uniformed officer. At this juncture, Jovina screamed that Mr. Kamaruzzaman had locked the car doors in ‘an attempt to kidnap her’. Mr. Kamaruzzaman and the officer explained to her that the car doors were auto-locked, but Jovina refused to accept that. She dealt her last and final argument with the now infamous line “Is it because I am Chinese?”

The allegation of racism, if unsubstantiated, and published to a third party, may constitute defamation.

The Aftermath

This incident has since ruffled the feathers of netizens and caused many to rally behind Mr. Kamaruzzaman and sparked an online witch hunt against the passenger.

Since notifying Go-Jek of the incident, Mr. Kamaruzzaman had been informed by the company that there was “nothing wrong” with the way he handled the situation and that Go-Jek would not do anything to him. A spokesman reported that “Go-Jek takes all complaints from riders and drive-partners very seriously… A fair outcome has been reached with the driver partner and we are of the view that the matter is now concluded.”

However, details of said “fair outcome” were not revealed.

Did any party breach the Go-Jek Terms of Use?

According to the ‘Go-Jek User Terms of Use’, Clause 4.3.1 states that passengers are obliged “to treat Transportation Providers and other Users with respect, in compliance with the Policies, and not to engage in any unlawful, threatening or harassing behaviour or activities whilst using the Transportation Services or the System”.

In addition, Clause 8.2 of the User Terms of Use states that “Transportation Providers are entitled to charge you a fee for the Transportation Services, which may include… any tolls, road-usage charges, parking charges, and building or area entrance charges necessarily incurred by the Transportation Provider when You or the goods are on-board the Vehicle during (but not before or after) such provision of Transportation Services (without mark-up)”.

There has been no formal response from Go-Jek in regards to the behaviour exhibited by Jovina and whether her conduct had breached the aforesaid Clause 4.3.1. Moreover, Mr. Kamaruzzaman was arguably not in breach of the Terms of Use by incurring the ERP fee during the journey. In fact, he was entitled to charge his passenger for the ERP fee.

It has since been reported that Mr. Kamaruzzaman had received a formal letter from the Land Transport Authority (LTA) informing him that a complaint had been filed against him, and he was interviewed by the LTA on 7 February 2019 as part of ongoing investigations. Mr. Kamaruzzaman appeared pleased with the results of his interview with the LTA, as he has been allowed to continue as a private-hire driver until the LTA makes a final decision after a thorough investigation of the incident. It seems that this decision will only be made after the LTA has had the opportunity to speak with the passenger for her account.

Was there a kidnapping?

Did Mr. Kamaruzzaman truly kidnap Jovina, as she claimed? According to Section 3 of the Kidnapping Act,

“whoever, with intent to hold any person for ransom, abducts or wrongfully restrains or wrongfully confines that person shall be guilty of an offence”.

Given the facts, the conduct of Mr. Kamaruzzaman does not seem to fall within purview of the Kidnapping Act as there was no intent to hold Jovina for ransom.

Did Mr. Kamaruzzaman breach the PDPA?

Finally, does the Personal Data Protection Act (PDPA) apply to this situation? Mr. Kamaruzzaman was clearly recording Jovina, and at a certain point in the video, she is seen moving out of view for a period of time, thus she arguably did not consent to being filmed. Neither do we know whether Mr. Kamaruzzaman had first notified Jovina that he would begin filming her, nor do we know if he had a display inside his vehicle which notifies passengers that they may be filmed.

The  Advisory Guidelines published by the Personal Data Protection Commission in April 2018 (the “Guidelines”) highlight the importance of the notification and consent obligation, which primarily requires organisations to first notify individuals of the purpose of the collection, use and disclosure of their personal data and to obtain the individual’s consent of individuals before they may proceed.

The Guidelines establish the following:

(1)            Generally, the PDPA would apply to Leasing Companies, Hirers and Service Providers in respect of their personal data activities in Singapore.

(2)            The Hirer is not an employee of Go-Jek and is thus an “organization” under the PDPA, and is subject to the PDPA.

(3)            The Hirer may be considered a data intermediary of the Leasing Company in respect of the in-vehicle recording if the Hirer records, stores or retrieves personal data in the in-vehicle recording on behalf of and for the purposes of the Leasing Company. Where the Hirer records, stores or retrieves personal data in the in-vehicle recording on behalf of and for the purposes of the Leasing Company pursuant to a contract that is evidenced or made in writing, the Hirer will only be subject to the Protection and Retention Limitation Obligations. If the Hirer records, stores or retrieves personal data in the in-vehicle recording on his own behalf and for his own purposes, the Hirer will not be considered a data intermediary of the Leasing Company in respect of the recording, and will be responsible for complying with all the Data Protection Provisions in the PDPA.

In brief, consent by the placement of notices must be obtained.  When Jovina decided to withdraw consent by making it clear that she did not want to be captured on camera, the collection of her personal data should have stopped there, unless there was an exception to the requirement of consent in this case. Finally, the posting of the said video (now the subject of a myriad of parodies) was arguably not consented to by Jovina.  However much public sentiment seems to sway in favour of Mr. Kamaruzzaman, given the facts we do know, an offence might just have been committed under the PDPA by him.

 

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