BFM Podcast: LANDMARK #3: INSULTS

I was interviewed by BFM Radio to talk about online insults and the Communications and Multimedia Act 1998 on 18 July 2016.


Last month, a 76-year-old man was arrested by the police for allegedly posting an insulting picture in a Whatsapp group chat. The man, identified as Pa Ya in media reports, was arrested in Petaling Jaya, where he lives, and taken into custody for investigation, under Section 233 of the Communications and Multimedia Act 1998, in Johor. On this month’s episode of Landmark, a series examining how the law shapes society as vice versa, lawyer Foong Cheng Leong explains what constitutes an insult and when it is considered an offense.

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SPAD proposal to rename Uber, Grab raises eyebrows

I was quoted by The Malay Mail Online on the Land Public Transport Commission’s (SPAD) proposal to rename Uber and Grab in their article SPAD proposal to rename Uber, Grab raises eyebrows.

Lawyer Foong Cheng Leong told Malay Mail Online that while SPAD could rename both services, it would take more than just a directive from the transport regulator.

He said the move would require an amendment to the the Land Public Transport Act 2010 to bring the services under the purview of the legislation.

“Once they (Uber and Grab) are included in the Act, the government can dictate the names of the operators,” he said.

However, SPAD later denied reports that it may change the names of Uber and Grab as part of its plan to regulate ride-hailing services.

See also Bread & Kaya: Uber and GrabCar services legal in Malaysia?

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Bread & Kaya: Cyberbullying, stalking and sexual harassment

Bread & Kaya: Cyberbullying, stalking and sexual harassment
By Foong Cheng Leong | Jun 28, 2016

– Current laws narrowly and vaguely defines harassment
– It is high time Malaysia legislates against it

SOMETIME in 2013, Boon Siew Kam met Satish Selvanathan at an event. They developed a relationship, but it fizzled out within a few months.

Boon then blocked Satish on WhatsApp without his knowledge, and the both of them moved on. Boon eventually got married to someone else.

A few months later, Boon initiated contact with Satish and they caught up with each other. She wrote an email apologising to Satish for blocking him.

For some reason, this infuriated Satish and he then started sending unsolicited messages to Boon’s colleagues, her sister, her ex-boyfriend, and even her husband.

He made numerous spurious comments with respect to Boon, to the effect that she purportedly solicits business for sex from her clients, and is an immoral woman unfit to be a partner of her firm.

In one of the emails to Boon’s husband, Satish wrote:

I had extramarital sex with your wife and we agreed on one thing: We would not form any connection/ relationship/ bond of any sort.

Boon had no choice but to seek redress in the High Court. However, she had an uphill battle as there was no recognised tort of harassment in late 2014.

Fortunately, the Kuala Lumpur High Court granted her an interlocutory injunction restraining Satish from contacting her, her colleagues or family until the disposal of the matter at trial [see more details at Boon Siew Kam v Satish Selvanathan & 2 Ors (Civil Suit No. 22NCvC-561-12/2014)].

Meanwhile, in Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Kuala Lumpur Civil Suit No. 23NCVC-102-12/2011), the Defendant alleged that the Plaintiff had sexually harassed her at their workplace.

The Defendant alleged that numerous vulgar and harassing words were uttered to her and they included the following:

– kalau nak cari jodoh cari yang beriman, solat, you kena solat istikarah .. . bila you solat istikarah, you akan mimpi you berjimak dengan orang tu! (If you’re looking for a partner, look for someone pious. You will need to pray. When you pray, you will dream of having sex with that person!)
– you ni asyik sakit kepala saja, you ni kena kahwin tau … you nak laki orang tak? (You’re always having a headache. You need to get married, you want someone’s husband?)
– you nak jadi wife I tak? I banyak duit tau. (You want to be my wife? I have a lot of money).

The Defendant filed a complaint against the Plaintiff to the company and a committee of inquiry was set up to investigate the complaint.

The committee found that there was insufficient evidence to warrant disciplinary action to be taken against the Plaintiff, but a strong administrative reprimand was given.

Aggrieved, the Plaintiff sued the Defendant for defamation and the Defendant counterclaimed for tort of sexual harassment.

The High Court dismissed the Plaintiff’s claim and allowed the Defendant’s counterclaim. She was awarded with RM100,000 in general damages and RM20,000 in aggravated and exemplary damages.

The Plaintiff appealed against the judgment to the Court of Appeal (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-2524-10-2012).

The Court of Appeal dismissed the appeal and held that what the Plaintiff did amounts to the tort of intentionally causing nervous shock.

The Court of Appeal however fell short of declaring that there is tort of harassment in Malaysia.

Dissatisfied again, the Plaintiff filed an appeal with the Federal Court. Unfortunately for the Plaintiff again, the Federal Court (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)) dismissed the appeal.

The Federal Court added:

[39] After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it.

The introduction of the tort of harassment is a significant improvement to our laws. Victims of harassment and cyberbullying now have an easier avenue to obtain redress from our Courts.

In my earlier article Bread & Kaya: Cyberstalking, harassment … and road rage, published in July 2014, I said that we do not have specific laws to govern harassment, and hence it is difficult to determine whether an act amounts to harassment without a legal definition.

Section 233 of the Communications and Multimedia Act 1998 criminalises certain forms of harassment, but it must be an electronic communication which is obscene, indecent, false, menacing or offensive in character.

But as we can see, harassment comes in all sorts of forms.

Furthermore, there had have been complaints that industry regulator the Malaysian Communications and Multimedia Commission (MCMC) is selective in prosecuting cases. Not all complaints are acted upon.

Before the Federal Court decision, it was tougher to seek legal redress as there were no reported case laws holding that there is tort of harassment in Malaysia. When the Court of Appeal delivered the decision of Ridzwan, it equated an action for tort of harassment as tort of intentionally inflicting nervous shock.

Such equation is significant because the threshold to succeed in an action for nervous shock is high. A victim needs to prove that he or she suffered some form of psychiatric illness or injury. Normally, this would need to be proven by a doctor, and a victim may not see a doctor immediately.

Further, a victim of harassment does not necessarily suffer such a medical condition. Harassment normally causes distress, annoyance, humiliation or annoyance.

In Malcomson Nicholas Hugh Bertram v Mehta Naresh Kumar (2001] 3 SLR 379, the Singapore High Court defined harassment as the following:

For the purposes of this application I shall take the term harassment to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.

This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

It would be interesting to see how far the tort of harassment could help victims of stalking, harassment and cyberbullying.

The common form of online harassment and cyberbullying nowadays is to set a mob of netizens against a person, or what is known as cyber-lynching.

Many have become victims of such cyber-lynching, and they may not have a legal redress as the attacks are not done by a single person – they could be shared by thousands of people and acted upon by numerous vigilante netizens independently.

Victims would have a hard time finding the perpetrators, and the legal costs would be prohibitive.

It is high time for Malaysia to legislate against harassment.


First published on Digital News Asia on 28 June 2016.

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Event: ASEAN IT Security Conference 2016

I will be speaking at at ASEAN IT Security Conference 2016 on the topic “Dealing with Computer Crimes Within the Organisation: A Case Study on Computer Crimes Act 1997“.


Details about the event

Cyber security is headline news almost constantly because hacks, data theft and high profile breaches are now a part of daily life and almost impossible to avoid. In 2016, a number of new laws will be enacted in the US, Europe and Asia that all have important, and potentially financially punitive, ramifications for Asian-based organizations.

However the C-Suite are not fully conversant with correct strategy by which cyber security investments should be made. This is not a business ROI that can be expected. Cyber-warfare and cyber security investments are akin to military spending. We have to do in the hope that we never use the tools.

This is anathema to many business investments, however the consequences of not taking this approach could lead to legal disputes, customer dissatisfaction, and even loss of jobs and careers at all levels in the organization.

At this conference series, IDC and its partners will share some of the new people, process and technology strategies that the C-Suite should consider to be better prepared for future incidents, and whilst absolute security cannot be guaranteed, making your organization a hard target to breach may well be the solution for the future.

Based on the IDC IT Security MaturityScape, IDC will share how some of the best-in-class organizations globally think about managing their IT Security teams, from board-level reporting to IT operational management.

This holistic view will help the C-Suite, and those that report in to the C-Suite to more eloquently articulate the issues, challenges and requirements that will be critical to ensure that future attack surface is minimized, and suitable crisis management plans and responses are in place.

Attend this event to learn more about how to deflect the latest attacks and what more you can do to deliver a more secure environment to your business.

Speakers

David Rajoo
Director, Systems Engineering, Symantec Malaysia

Foong Cheng Leong
Advocate and Solicitor, Foong Cheng Leong & Co

Javenn Ng
DPtech Lead & Business Development Director, DPtech

Jayan Arunasalam
Head of Technology & Innovation, Tune Protect Group Berhad

Marcus Lai
Vice President, International Business, DPtech

Peter Leong
Head, Regional IT – Asia, PETRONAS Lubricants International Sdn. Bhd.

Simon Piff
Associate Vice President, Enterprise Infrastructure & Head of IT Security Research, IDC Asia/Pacific

Thillai Raj T. Ramanathan
Chief Technology Officer, MIMOS Berhad

For more information, please visit here.

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LegalHack Series: How to download files from the Malaysian Court Online File Search System

One of the weaknesses of our Court’s efiling system is the online file search system. A user has to pay RM12 (for High Court and above) or RM6 (for Subordinate Courts) to be able to do an online file search for a maximum period of 30 minutes. The time runs upon opening a file on the website (at main page, under Public Services menu).

However, one cannot download a file from the website but one can only view it. The viewing function allows one to view one page at a time and also print one page at a time. Each page takes some time to load and 30 minutes is not sufficient.

This is baffling. Why can’t they put a function to allow users to download the entire file? This is what you get when you roll out a system without proper consultation with the end users.

In any event, to overcome this problem, I found a solution. Here are the steps:-

1. Download the free software PDF24 and install it on your PC.
2. Open the file you intend to download on the Online File Search System (login to the system first).

3. Choose PDF24 as the printer.

4. Every page will be printed as a separate file on PDF24. To merge them, click on the Merge button on top. All the pages will be merged into one file!

5. Save the file.
6. Repeat step 2 to 5 above for other files.

* Tip – Close the file on the search system to stop the timer.

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BFM Podcast: WEB OF EXPLOITATION

I was interviewed BFM Radio on the issue of sexual grooming and sex offenders registry and the podcast was published on 8 June 2016.


Your browser does not support native audio, but you can download this MP3 to listen on your device.

The rise of pedophilia and other sex offences recently have put in the spotlight predatory behaviour both on and offline. Today we look at how the lack of proper regulation is one source of the challenge. We also explore ways to combat online sexual predators.

This report is by Wan Irdina.

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Don’t be penny-wise, startups: lawyers

I gave on a talk on Intellectual Property Law for Startup at a firechat sessions titled “Bridge the Gap between Startups and the Law” organised by BurgieLaw held at the Malaysian Global Innovation and Creativity Centre (MaGIC) on 9 May 2016.

Subsequent to the firechat session, I was featured in The Star in their article “Don’t be penny-wise, startups: lawyers“. An extract of the article produce below:-

Intellectual Property lawyer Foong Cheng Leong said he often got queries from startups on how to protect their ideas.

“It’s usually quite reasonable, but sometimes they try to protect things that can’t be protected,” he said, adding that abstract ideas and business concepts could not be shielded with a patent.

He advised companies to research what they expected from a lawyer, as well as the lawyer’s credentials, before arranging a meeting. This would ensure the lawyer had the correct skill sets.

He noted that many local lawyers were geared to common transactions like property and sale and purchase agreements, and not many had explored tech-related laws.

With 11 years in the industry, Foong said he had seen his share of cases where businesses try to D-I-Y and drafted their contracts without going to a lawyer, only to end up going to a lawyer anyway after things went wrong.

He said while filing a trademark costs around from RM2,000, going to court over a logo or brand name dispute could easily cost more than RM100,000 and take between nine months and a year.

Sometimes running lean also means not being penny-wise and pound-foolish.

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BFM Podcast: WHAT HAPPENS WHEN YOUR SEX TAPE IS PUBLISHED?

I was interviewed by BFM Radio to talk about invasion of privacy in Malaysia and the podcast was published on 27 April 2016.



On March 21th, a six-person jury awarded Hulk Hogan, the stage name of retired professional wrestler Terry Bollea, $140 million in civil damages for a sex tape that gossip website Gawker published in 2012. In doing so, the jury believed that Hulk Hogan’s privacy was violated as the tape was made and distributed without his permission. How far can public interest encroach into privacy rights? Lawyer Foong Cheng Leong explains how such a case would play out in a Malaysian court.

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Compendium of Intellectual Property Cases – Copyright and Industrial Designs Volume 2

I am pleased to announce that the second volume of the Compendium of Intellectual Property Cases had been published by LexisNexis. This volume covers Malaysian copyright and industrial designs cases.

It contains more than 50 reported and unreported cases on copyright and industrial designs from the Malaysian Sessions Court, High Court, Court of Appeal and Federal Court.

To assist readers, the cases are summarised in a form a catchwords and an index has been prepared to categorise the cases.

The cases have been divided into sections: copyright infringement, criminal offences, industrial design infringement, rectification of registered industrial design. The cases also covers other issues such as non-compliance of contempt, licensing, interlocutory injunction, software copyright, in these intellectual property cases. Many of these judgements are not published by the local law journals and they contain many important points of laws.

You can get a copy from LexisNexis at their website (click here). For the first volume, you can purchase it from here

List of featured cases:-

Acumen Marketing Sdn Bhd & Anor v Putrajaya Holdings Sdn Bhd & 5 Ors (2016) 2 MYIPC 29
Admal Sdn Bhd v The New Straits Times Press (Malaysia) Sdn Bhd & Anor (2016) 2 MYIPC 148
Alpha Home Appliance Sdn Bhd v NSB Home Appliance & Anor (2016) 2 MYIPC 541
Alarm & Automation Supplies (M) Sdn Bhd v Control Point Technology Sdn Bhd & Ors (2016) 2 MYIPC 434
Anchorsol Sdn Bhd v Nehemiah Reinforced Soil Sdn Bhd (2016) 2 MYIPC 470
Aresni-Marley (M) Sdn Bhd v Middy Industries Sdn Bhd (No 1) (2016) 2 MYIPC 522
AV Future Link Sdn Bhd v Inno Supply & Services Sdn Bhd (2016) 2 MYIPC 529
Borneo Rainforest Lodge v Bernama-Malaysian National News Agency (2016) 2 MYIPC 465
Cheah Shuang Ho v Public Prosecutor (2016) 2 MYIPC 313
Chong Kak Hau v Public Prosecutor (2016) 2 MYIPC 324
DF Electronics Sdn Bhd & Anor v Teras Ekonomi Sdn Bhd (2016) 2 MYIPC 82
Dura-Mine Sdn Bhd v Elster Metering Limited & Anor (No 1) (2016) 2 MYIPC 189
Dura-Mine Sdn Bhd v Elster Metering Limited & Anor (No 2) (2016) 2 MYIPC 261
Elster Metering Limited & Anor v Damini Corporation Sdn Bhd (2016) 2 MYIPC 103
Elster Metering Limited & Anor v Dura-Mine Sdn Bhd (2016) 2 MYIPC 39
EOneNet.com Sdn Bhd v Lee Chye Yen & 1 Lagi (2016) 2 MYIPC 220
F & N Dairies (Malaysia) Sdn Bhd v Tropicana Products, Inc (2016) 2 MYIPC 485
Genesis Force Sdn Bhd v Sarawak Coal Resources Sdn Bhd & 2 Ors (2016) 2 MYIPC 116
John Kenneth v Naim Land Sdn Bhd (2016) 2 MYIPC 456
Kohwai & Young Publication (M) Sdn Bhd v Lembaga Pengelda Dewan Bahasa and Pustaka (2016) 2 MYIPC 53
Kean Beng Lee Industries (M) Sdn Bhd v Gafri (M) Sdn Bhd & Ors (2016) 2 MYIPC 561
Lee Chye Yen & 1 Lagi v EOneNet.com Sdn Bhd (2016) 2 MYIPC 235
MediaCorp News Pte Ltd & Ors v MediaBanc (Johor Bahru) Sdn Bhd & Ors (2016) 2 MYIPC 431
Microsoft Corporation v Conquest Computer Centre Sdn Bhd (2016) 2 MYIPC 242
Middy Industries & 2 Ors v Aresni-Marley (M) Sdn Bhd (2016) 2 MYIPC 553
MTV Production (M) Sdn Bhd v Winner Music Production Sdn Bhd & 2 Ors (2016) 2 MYIPC 1
Music Authors’ Copyright Protection (MACP) Bhd v A’Famosa Water Theme Park Sdn Bhd (2016) 2 MYIPC 429
Music Authors’ Copyright Protection (MACP) Bhd v Bandar Utama City Sdn Bhd & Ors (2016) 2 MYIPC 453
Ng Beng Huat v Public Prosecutor (2016) 2 MYIPC 393
Onestop Software Solutions (M) Sdn Bhd & Anor v Masteritec Sdn Bhd & 2 Ors (2016) 2 MYIPC 302
Petraware Solutions Sdn Bhd & Anor v Readsoft Aktiebolag & Anor (2016) 2 MYIPC 211
Plastech Industrial Systems Sdn Bhd v N&C Resources Sdn Bhd & Ors (No 1) (2016) 2 MYIPC 440
Plastech Industrial Systems Sdn Bhd v N&C Resources Sdn Bhd & Ors (No 2) (2016) 2 MYIPC 443
Power-Sys Solutions Sdn Bhd & Anor v Amway (Malaysia) Sdn Bhd & Anor (2016) 2 MYIPC 459
Public Performance Malaysia Sdn Bhd & Anor v PRISM Berhad (2016) 2 MYIPC 276
Public Prosecutor v Chan Chun Tat (2016) 2 MYIPC 419
Public Prosecutor v Daniel Dean (2016) 2 MYIPC 339
Public Prosecutor v Loo Hock Eng (2016) 2 MYIPC 348
Public Prosecutor v Sarawanan (2016) 2 MYIPC 353
Public Prosecutor v Sih Swee Peng (2016) 2 MYIPC 381
Public Prosecutor v Sim Kean Aun (2016) 2 MYIPC 358
Public Prosecutor v Tan Chien Hou (2016) 2 MYIPC 398
Public Prosecutor v Teh Lee Ling (2016) 2 MYIPC 408
Public Prosecutor v Than Soe & Ors (2016) 2 MYIPC 367
Public Prosecutor v Yong Mei Khoon Dan Seorang Lagi (2016) 2 MYIPC 378
Radion Trading Sdn Bhd v Sin Besteam Equipment Sdn Bhd & Ors (2016) 2 MYIPC 60
Readsoft Aktiebolag & Anor v Petraware Solutions Sdn Bhd & Anor (2016) 2 MYIPC 167
Rock Records & Tapes Co Ltd v Season Karaoke Sdn Bhd & 3 Ors (2016) 2 MYIPC 292
Sherinna Nur Elena Bt Abdullah v Kent Well Edar Sdn Bhd (2016) 2 MYIPC 137
Symphony Light & Sounds Services Sdn Bhd & Anor v Irwan Shah Bin Abdullah @ DJ Dave & Ors (2016) 2 MYIPC 143
The New Straits Times Press (Malaysia) Sdn Bhd & Anor v Admal Sdn Bhd (2016) 2 MYIPC 198
Ultra Dimension Sdn Bhd v American Home Assurance Company & Anor (2016) 2 MYIPC 7
Ultra Dimension Sdn Bhd v Ketua Pengarah Lembaga Penggalakan Pelancongan Malaysia & 2 Ors (2016) 2 MYIPC 75
Veresdale Ltd v Doerwyn Ltd (2016) 2 MYIPC 563
World Express Mapping Sdn Bhd v Aim Advertising Sdn Bhd & Anor (2016) 2 MYIPC 13
World Express Mapping Sdn Bhd v THR Hotel (Johor) Sdn Bhd & Anor (2016) 2 MYIPC 21

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Bread & Kaya: Malaysian cyberlaw updates in 2015

By Foong Cheng Leong | Apr 04, 2016

– New, complex cases emerged, and Parliament enacted new laws
– With the advent of the TPPA, we can expect more changes

IN 2015, industry regulator the Malaysian Communications and Multimedia Commission (MCMC) reported that 10 people were convicted of offences under Section 233 of the Communications and Multimedia Act 2010 for, among others, disseminating pornographic material. MCMC also ordered 1,074 pornography websites to be blocked.

There were important developments in Malaysian and global cyberlaws in 2015. New, complex cases emerged in our courts, and Parliament enacted new laws to combat ‘negativities’ created by social media.

Facebook, Twitter and Google

As usual, our most popular online platforms caused rifts and problems. Fortunately, Deputy Communications and Multimedia Minister Jailani Johari stated that MCMC has no plans to require Facebook or any social media users to register with MCMC.

This is because the cost involved and there is a risk that such database may be hacked (see Hansard dated 15.12.2015).

In Mohd Desa bin Ahmad & 1 lagi v Hazudin bin Hashim & 2 lagi (Malacca Sessions Court Civil Suit No: A51-02-01-2015), the Malacca Sessions Court struck off a defamation suit initiated by a couple against the Yang Dipertua Majlis Perbandaran Jasin, Jasin Municipal Council and the Malacca State Government.

The couple alleged that the Jasin Municipal Council had uploaded pictures of their premises being seized for allegedly failing to pay assessment tax on the Yang Dipertua Majlis Perbandaran Jasin’s Facebook page. The Facebook posting allegedly went viral.

The Sessions Court however struck out the plaintiffs’ suit on the grounds that the plaintiffs had failed to identify who in the Jasin Municipal Council had uploaded the pictures. The Jasin Municipal Council and the Malacca State Government are not individuals, hence they cannot upload the pictures, and the plaintiffs ought to have named the individuals who had uploaded the pictures.

In PP v Yuneswaran a/l Ramaraj (Criminal Appeal No: J-09-229-09/2014), the accused was charged under Section 9(5) of the Peaceful Assembly Act 2012 (PAA) for failing to give at least 10 days’ notice before the Black 505 Rally was scheduled to have been held, to the Officer in Charge of the Police District (OCPD) of Johor Baru Selatan.

The notice had only been submitted to the OCPD on the day of the rally and was signed by the accused, Yuneswaran.

The accused had denied he was an organiser within the meaning of Section 3 of the PAA as the assembly was organised by the Majlis Pimpinan Negeri Parti Keadilan Rakyat, Negeri Johor (PKR Negeri Johor), chaired by Chua Jui Meng, and he had only signed the form on behalf of Chua.

However, the Sessions Court Judge held that he falls within such definition as he had filled up and signed the notification and announced the upcoming assembly using his Twitter feed and Facebook page, both of which would serve to invite the members or public and likely cause them to attend the assembly.

In addition, the Court of Appeal held that Section 9(5) of the PAA is not unconstitutional (thus departing from the earlier Court of Appeal case of Nik Nazmi Nik Ahmad v PP [2014] 4 CLJ 944), and the sentence against Yuneswaran was upheld.

In Network Pet Products (M) Sdn Bhd v Royal Canin SAS & Anor (Civil Appeal No. W-02(NCC)-1454-06/2013), there was a contractual dispute between the parties.

In this dispute however, the first defendant, being the brand owners of Royal Canin, filed a suit against the plaintiff for passing off and using the Royal Canin mark in a Facebook page opened by the plaintiff. The first defendant was successful and the High Court further directed the Facebook account to be deactivated.

The Court of Appeal overturned the High Court’s decision and held that there was no passing off. The Court of Appeal was of the view that the evidence disclosed showed that the first defendant was aware of the activation of the Facebook account from the start and had allowed it to continue.

In any event, the alleged confusion in the use of the Royal Canin mark simply did not exist. There was no confusion in the use of the mark in trade in the traditional sense of ‘passing off.’ The mark was used as denoting products belonging to RCSA. There was no attempt to pass off the first defendant’s products as the plaintiff’s products.

Interestingly, there was a dispute over the ownership of Facebook pages in the Singapore case of Lee Kien Meng v Cintamani Frank [2015] SGHC 109.

The plaintiff sought a declaration that he is the owner/sole administrator of the Men’s Fashion Week and Women’s Fashion Week Facebook pages. The Singapore High Court had reservations on declaring whether a Facebook page could be considered ‘property.’

Facebook Inc has control over the pages and has an unfettered right to remove Facebook pages. This control was strongly suggestive that the plaintiff did not own the Facebook pages above. If it did, it would not require the consent of Facebook Inc before it transferred the Facebook pages and Facebook Inc would not be able to remove the Facebook pages at its own discretion.

The case however did not discuss whether a Facebook page can be considered a transferable software licence.

Last year, I wrote that in Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384, the management corporation of Amber Court Condominium and its council members sued two unit owners of the condominium for allegedly defaming them on Facebook.

The High Court struck out the case after finding that a management corporation has no powers to do so under the Strata Titles Act 1985 and common law. The case went up to Court of Appeal and the Court agreed with the High Court’s views and dismissed the appeal (see Amber Court Management Corporation & Ors v Hong Gan Gui & Anor W-02 [IM] [NCVC] 1840-10/2014).

Last year, I also reported that the Federal Court in Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541 did not endorse Internet research by Judges on their own motion.

Notwithstanding that, in Siti Nur Syahira Binti Abdullah & Ors v Kamri Bin Jini & Ors (Civil Appeal No. KCH-12B-13/11-2014), the learned High Court Judge stated that he “googled” for certain information (at page para 10 – “Based on what I have googled, the width of a Kancil is 1395 mm [1.4 metres]).

WhatsApp and Yahoo Chat

Instant messaging has taken on new importance in legal practice and the courts.

In Mok Yii Chek v. Sovo Sdn Bhd & Ors [2015] 1 LNS 448, the High Court finally addressed the admissibility of WhatsApp messages. The learned High Court Judge found that such messages are a document under Section 3 of the Evidence Act 1950 and admissible if agreed to by both parties.

Even if one party doesn’t agree, such a document can be admitted in Court if it meet certain criteria. Such criteria includes whether there is oral evidence that the messages were produced by the computer in the course of the ordinary use of the computer (see Para 24). In this case, a screenshot of the messages would be admissible.

In Ram Kumar a/l Gopal Ram and Anor v Ram Kailash a/l Gopal Ram (Civil Suit No: 22NCVC-317-06/2014), the Court dealt with WhatsApp conversations.

In this dispute between two brothers over a piece of property, the elder brother and his wife (plaintiffs) alleged that they had an arrangement where they would buy the property in the younger brother’s name (defendant). They sought a court order to declare that fact.

However, the defendant claims that the property was bought as a wedding gift for him. In a bid to strike out the case, the defendant tried to use the WhatsApp conversation between the defendant and his sister-in-law against the plaintiff to strike out the case.

However, the Court held that the WhatsApp conversation was insufficient to show that the plaintiffs’ case was plain and obvious unsustainable.

In Alliance Bank Malaysia Berhad v. Amrou Bakour [2015] 1 LNS 666, the High Court Judge refused to grant a further adjournment on the ground that the defendant is uncontactable.

The Judge stated it is highly improbable that the defendant’s lawyer could not contact the defendant in this electronic age when communication can be effected instantaneously by telephone, facsimile, email, short message system (SMS), WhatsApp and other modes of electronic communications.

In Rina Simanjuntak v PP (Criminal Appeal NO: P-05-256-09/2014), a Yahoo Messenger Chat log saved the life of Rina Simanjuntak who had been sentenced to death by the High Court for drug trafficking.

The Court of Appeal held that the High Court ought to have considered the Yahoo Messenger Chat between her and one Dr Jossy, who was her boyfriend and had sent her to India to collect samples of children’s clothes.

The Yahoo Messenger Chat was sufficient to prove that Rina was an innocent carrier and she had no knowledge that she had been carrying drugs.

Our local court cases also revealed that Malaysian youth had been influenced through social media to join the Islamic State (ISIS) as fighters.

In Pendakwa Raya v Mohd Syafrein Rasid [2015] 1 LNS 943, the accused was charged under Section 130J of the Penal Code for attempting to support the Islamic State and attempted to be a member of the same.

It was revealed in this case that the accused was influenced by what he saw about the war in Syria on Facebook. He even joined a few WhatsApp groups which had members sharing information about the Islamic State and their movement in Syria.

He then decided to travel out from Malaysia to join the Islamic State but was caught at the Immigration counter at the Kuala Lumpur International Airport. He pleaded guilty and was sentenced to two years’ imprisonment.

New cyberlaws and amendments

The Malaysian Government has introduced the Sedition (Amendment) Bill 2015 which, among others, creates liability on website operators such as online forums, online news portals, and even Facebook page/ group owners.

The new Section 10(5) of the Sedition Act 1948 compels a person who knowingly has in his possession, power or control a prohibited publication by electronic means, to remove or cause to be removed, such publication – failing which, he shall be liable to a fine not exceeding RM500,000 (US$137,000) or imprisonment not exceeding three years, or both.

As per the new Section 10(1), a Sessions Court Judge, on the application by the Public Prosecutor, can make an order to prohibit the making or circulation of certain sedition publications (that are likely to lead to bodily injury, damage to property, promote feelings of ill will, etc.).

Any person making or circulating the prohibited publication shall remove or caused to be removed that publication, or be prohibited from accessing any electronic device. Any person who fails to do so shall be guilty to a fine not exceeding RM500,000 or to imprisonment not exceeding three years, or both.

There is also news that the Communications and Multimedia Act 1998 will be amended but the details of the amendments are still vague.

However, the new amendments have also been rumoured to include harsher sentences and restrictions on social media users in posting comments or opinions online.

The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution.

Before the dispute on the legality of the sale of vaping products started, the Malaysian Government introduced a new law to prohibit the sale of tobacco products (Reg 10 Control of Tobacco Product (Amendment) Regulations 2015).

Any person who does so shall be liable to a fine not exceeding RM10,000 or imprisonment for a term not exceeding two years, or both. Any person who is thinking of launching a startup to sell and deliver cigarettes online can now bin that idea.

Online harassment

Last year I wrote about the passing of the Singapore Protection from Harassment Act 2014. Prominent blogger Xiaxue was the first or one of the first persons who took advantage of this new law by putting in an order against the operators of the satirical Facebook page SMRT (Feedback).

The Singapore Government tried to invoke the new law to protect itself from harassment but the Court held that the protection is not available to the Government (Ting Choon Meng v Attorney-General and another appeal [2015] SGHC 315).

Sadly, the Malaysian Government has not introduced such laws to protect individuals from harassment. It is noted that Section 233 of the CMA does provide some form of protection from harassment, but it is limited to electronic harassment which is obscene, indecent, false, menacing or offensive in character.

I later found out the Singapore anti-harassment law was ‘inspired’ by the online harassment against the son of prominent Malaysian bloggers Timothy Tiah and Audrey Ooi (Fourfeetnine).

In Ooi’s blog, she quoted the Singapore Minister of Law as stating: “In another case, cyberbullies targeted the baby of a blogger. The blogger had given birth prematurely because there was a life-threatening condition during the pregnancy. Cyberbullies called her baby an ‘alien’. They said the baby should be euthanised. This was really quite sickening behaviour. It comes from basic bullying instincts of some, unchecked by any notion of civil conduct, and aided by anonymity.”

It is unfortunate that our Government had not introduced any new law to address this problem, notwithstanding that such harassment is happening to fellow Malaysians.

Nevertheless, the Court of Appeal did recognise sexual harassment as an actionable tort – that means one can file a civil suit against the harasser instead of filing a report with the authorities such as the police or MCMC.

In Mohd. Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd. Nor [2015] 4 CLJ 295, the Court of Appeal held that sexual harassment falls within the category of tort of intentionally causing/ inflicting nervous shock.

With this case, it is arguable that harassment may be actionable in Court if it fulfils the element of tort of intentionally causing/ inflicting nervous shock.

Ride-sharing, other developments

The year 2015 finally saw the battle between app-based transportation network companies such as Uber and local taxis arriving in Malaysia.

On Aug 7 2015, Malaysia’s Land Public Transport Commission (SPAD) announced on its Facebook page that it had seized 12 cars alleged to have been providing public vehicle services without a licence, under Uber and GrabCar.

Local taxi drivers had also taken matters on their own hands by ‘arresting’ Uber and GrabCar drivers in the Kuala Lumpur City Centre (KLCC) area.

While the battle is still on going in Malaysia, the Singaporean Government introduced a new law called the Third-Party Taxi Booking Service Providers Act 2015.

The Act is designed for a ‘light-touch approach’ and imposes only the basic requirements necessary to protect commuter interests and safety, but at the same time it aims to preserve the fundamental tenets of Singapore’s taxi regulatory policies (see Third-Party Taxi Booking Service Providers Act 2015 Comes Into Force On 1 September 2015 by Drew & Napier, PDF).

In the lead-up to the Bersih 4 demonstration [which called for the resignation of Prime Minister Najib Razak as well as institutional reforms – ED], the websites bersih.org and sarawakreport.org were ordered to be blocked by MCMC on the grounds that they “violate national laws.”

Although the blocking order, purportedly under Section 263(2) of the Communications and Multimedia Act 1998, had been made for some time, activists and the media started to question MCMC’s moves. No actual offence needs to be committed but an attempt is sufficient to enable MCMC to act against a website.

Nevertheless, the block against bersih.org was subsequently lifted after its operator issued a letter of demand to MCMC to lift the block.

Nevertheless, I am made to understand that the amendment to CMA will include express powers to block certain websites.

In closing …

With the advent of the Trans-Pacific Partnership, we can expect more changes to our laws. The Trans-Pacific Partnership Agreement (TPPA), of which Malaysia is a signatory, will require signatories to amend their laws to comply with the provisions of the TPPA.

The TPPA includes a specific section on electronic commerce (e-commerce). For example, a signatory to the TPPA shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.

There are also provisions to deal with personal information, online consumer protection and electronic spam.


First published on Digital News Asia on 4 April 2016.

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