Singapore launches the Personal Data Protection Commission & Do Not Call Registry Public Consultation Paper

On 15 May 2013, Singapore Communications and Information Minister Dr. Yaacob Ibrahim announced the launch of the Singapore Personal Data Protection Commission (Commission). The Minister also announced that the Singapore Do Not Call (‘DNC’) Registry will come into effect on 2 January 2014 and the Singapore Personal Data Protection Act 2012 will come into full force on 2 July 2014.

Further, the Commission has issued a public consultation paper on the proposed business operation of the DNC registry. The consultation paper seeks to solicit views and comments from the public and organisations as to the specifics of how the DNC registry should operate.

Any persons who wish to provide feedback on the Consultation Paper should submit their views via email to pdpc_consultation@pdpc.gov.sg before 5 June 2013, 5 pm.

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GE13 Candidates and 114A

Published on LoyarBurok on 16 April 2013.


I am no expert in election laws but GE13 Candidates should take note of this. If you are running a blog, I suggest you moderate or close the comments section until and after the 13th General Election.

The reason why I say so is because s.114A(1) of the Evidence Act 1950 and the Election Offences Act 1954. S. 114A(1) provide the following:

“A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.
In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content unless you prove otherwise.

Also, if you have in any manner facilitated to publish or re-publish the publication, you are presumed to have published the content of the publication.

This means that website owners are deemed to be publishers of contents of a publication although the author of the publication is someone else.

Further, it is not possible for website owner to prove that he is not a publisher due to the wording of the section i.e. the words “in any manner facilitates to publish or re-publish the publication”. By providing a virtual platform, the website owners facilitate to publish or re-publish a publication.

In this regard, you will potentially commit an election offence if someone posts a comment which falls within the scope of corrupt practice. If found guilty of an election offence, the election of a candidate will be declared void (s. 32 of the Election Offences Act 1954).

What I have mentioned is not without basis. A similar scenario had happened after the 12th General Elections. In Kho Whai Phiaw v Chong Chieng Jen (Election Petition No.: 26-01-2008-I), an elector in the Bandar Kuching constituency presented an election petition to have Mr. Chong Chieng Jen’s (representative of the Democratic Action Party (DAP)) election declared void.

The elector sought to have Mr Chong’s election avoided on the ground that the latter had engaged in the corrupt practice of (i) undue influence and (ii) bribery, to procure his victory in the election. The elector alleged, among others, that a letter from one Mr Smith published on the comment section of Mr Chong’s blog site is said to contain certain threatening statement. The elector alleged that Mr Chong had exercised undue influence over the non-Muslim voters in the Bandar Kuching constituency through Mr Smith’s letter appearing on his blog site.

Fortunately for Mr Chong, the High Court held that Mr Smith’s letter was posted by one commentor by the name “Responsible Christian Voter” (‘RCV’). Mr. Smith was the author of the letter and it was RCV who published that letter through Mr Chong’s blog site. The Court held that Mr Chong is therefore not the publisher of the letter. The case is later upheld by the Federal Court. (see Kho Whai Phiaw v Chong Chieng Jen [2009] 3 CLJ 201)

But Mr Chong’s case is pre-114A case. If s. 114A applies, Mr Chong is considered as the publisher of the letter as his blogsite had facilitated the publication of the letter. Mr Chong could potentially commit an election offence if 114A applies. That is the effect of 114A. It creates liability on a virtual platform provider.

This, of course, is not tested in our Courts yet. One may argue that it is the blogsite provider (e.g. Google who owns Blogger.com) but this is only provided that such blog is hosted by such blogsite provider.

Nevertheless, as an abundance of caution, GE13 candidates should close their blog comments section to avoid such actions. Interestingly, Mr Chong’s blogsite has closed its comments section.

A Facebook Page is also another concern. It may be arguable to say postings made by users on a Facebook page is not published by the Facebook page administrator as it appears on a separate page. (Illustrated below).

However, Facebook comments appearing together with the postings by the Facebook administrator (illustrated below) is different. It is arguable that such comments are published by the Facebook page owner.

With this risk of having an election declared void, I hope that the new Parliament will relook into 114A when it convenes in the future.

It’s time to #stop114A.

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Bread & Kaya: Limited Liability Partnership: An alternative business structure

My 5th issue of Bread and Kaya was published by http://www.digitalnewsasia.com/insights/bread-and-kaya-looks-can-be-deceiving” target=”_blank”>Digital News Asia on 1 May 2013.


Limited Liability Partnership: An alternative business structure
Foong Cheng Leong
May 01, 2013

- With LLP, entrepreneurs have more options to choose the most preferred form of business vehicle
- This would benefit small businesses (including startups), professionals groups and others

Bread & Kaya by Foong Cheng Leong

THIS month’s topic brings us to the new Limited Liability Partnership Act 2012 which came into force on Dec 26, 2012.

Prior to the introduction of this Act, entrepreneurs who wished to do business had to either register themselves as a sole proprietor/ partner or a body corporate. The new Limited Liability Partnership Act 2012 introduces an alternative business vehicle namely, a Limited Liability Partnership (LLP), offering a hybrid of characteristics between a conventional partnership and a company.

According to the Companies Commission of Malaysia (CCM), LLP features the protection of limited liability to its partners similar to the limited liability enjoyed by shareholders of a company coupled, with the flexibility of internal business regulation through partnership arrangement similar to a conventional partnership.

Any debts and obligations of the LLP will be borne by the assets of the LLP and not that of its partners’. An LLP has the legal status of a body corporate which is capable of suing and being sued in its own name, holding assets and doing such other acts and things in its name as bodies corporate may lawfully do and suffer.

LLP also offers flexibility in terms of its formation, maintenance and termination, while simultaneously has the necessary dynamics and appeal to be able to compete domestically and internationally.

With the introduction of LLP, entrepreneurs will have more options to choose the most preferred form of business vehicle and this would benefit small businesses (startups), professionals groups (e.g. lawyers, accountants or company secretaries), joint ventures and venture capital funds.

The cost of incorporating an LLP is in the region of RM500 as compared to general partnership and corporation which are in the region of RM30 to RM60, and RM1,000 and above respectively.

[RM1 = US$0.32]

Difference between LLP and general partnership

IN a general partnership, partners are jointly and severely liable for all business debts and obligations.

For example, if the partnership had incurred a debt and the debtor sues the partnership for the debt, all the partners will be named as party to the suit, notwithstanding that some partners are not involved in the debt.

The same goes if one partner is negligent; the rest of the partners may be liable for such a negligent act.

The LLP offers limited liability to its partners whereby any debts and obligations of the LLP will be borne by the assets of the LLP. Thus, the named party in a suit involving a LLP would be the LLP itself.

Difference between LLP and a company

According to the CCM, there are many fundamental differences between an LLP and a company. Amongst others, the differences are:

- No issuance of shares;
- Flexibility in making decisions;
- No formal requirement for Annual General Meetings;
- No requirement to submit financial statements to CCM; and
- Accounts need not be audited
- Drawback

However, one drawback of an LLP regime as compared with a conventional partnership is the tax structure.

The Malaysian Bar Corporate and Commercial Committee reported that the Minister of Finance concluded that the tax treatment of LLPs ought to be similar to the tax treatment of companies. Thus, LLPs would be subject to income tax at the rate of 25%.

However, there is a provision that if the capital of a Malaysian tax resident LLP at the beginning of the year of the assessment is not more than RM2.5 million (and subject to some conditions and exceptions), then the applicable tax rate would be 20% for the LLP’s chargeable income of us to RM500,000, with chargeable income in excess of RM500,000 being subject to tax rate of 25%.

This is akin to the tax rate for small and medium enterprises or SMEs.

For more information on LLP, please visit http://www.ssm.com.my/en/LLP-AboutLLP.

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Bread & Kaya: Start-ups, get your house in order

My 4th Bread & Kaya’s column was published on Digital News Asia on 3 April 2013.

Bread & Kaya: Start-ups, get your house in order

- There are a number of things you need to get done before potential investors do due diligence on your start-up
- Seek advice from others, ensure any legal advice is professional, and do due diligence on your investor as well

Bread & Kaya by Foong Cheng Leong
3 April 2013

WHEN I was in high school, I invested a few thousand ringgit on a web-hosting company operated by a ‘friend.’ Unfortunately, the web-hosting company didn’t materialize and I never saw my money again, nor the ‘friend.’ In fact, there was no such web-hosting company!

That was my first failed investment. Looking back, I realized that the investment was purely done by trust. I did not do any background check on the company or even the ‘friend.’

But years later, I was approached by a stranger (at that time) to help his start-up by providing my services to him, in return for shares in his company. I did not invest a single ringgit. I am glad to report that the start-up is doing well, with offices around South-East Asia and other parts of the world.

Today’s column sets out some tips before opening your start-up for funding.

Before you think about attracting investors, you need to get your house in order. Prudent investors would usually do an in-depth due diligence of your company to see, among others, what assets and liabilities you have.

They will check your background, hence you need to make sure it’s squeaky clean. They will obtain a company search report from the Companies Commission of Malaysia to verify the details of your directors and shareholders, shareholding structure and financial reports – so make sure you file your reports on time.

They will also go through your memorandum of association and articles of association (documents that are required before incorporating a ‘Sdn Bhd’). Take some time to read them and amend if necessary. Board and shareholders minutes will also be part of due diligence exercise.

Investors usually come with high expectations. Thus, educate your investors of the nature of your business and industry, business plans, goal, competitors and obviously, monetizing strategy. Over-promising will create legal trouble for you.

When meeting your investors, appoint someone presentable who speaks well to deal with them. This raises investor confidence.

Other than your financial records and information, here are some common matters that should be addressed before the due diligence stage.

1) Intellectual property rights

Intellectual property rights generally refer to your trademarks, copyright, industrial designs, confidential information and patents.

Start-ups generally file their trademarks first as it is affordable. If you have a physical product and the design is new, do consider filing an industrial design to protect the design.

Patents are usually not filed due to budget constraints. A patent application (with the assistance of a patent attorney) costs at least RM5,000 and above. However, if the invention is novel and you think it’s worth protecting, do file it within one year otherwise it will not be afforded protection.

You can file for protection with the Intellectual Property Corporation of Malaysia (MyIPO), or if your business or operation extends to other countries (e.g. Singapore), you should register your rights there too.

A registered intellectual property right gives you the exclusivity over your product, thus you may stop others from using them. Also, the Income Tax (Deduction for Expenditure on Registration of Patent and Trade Mark) Rules 2009 provides tax deduction for the registration of trademarks and patents in Malaysia for certain start-ups.

2) Proper contracts

All terms and conditions between the founders, with merchants, customers, vendors and employers must be properly spelled out. For existing contracts, review them to see whether they are still applicable or have to be changed or terminated.

Here are a few tips:
- In your agreements with customers, investors will look on how revenue is generated and to find any unfavorable terms, etc. Do make sure your contracts (or invoice or receipt) with service providers (e.g. graphic designer, website, software) do not state that intellectual property rights (in particular, copyright) belong to them (by default, intellectual property rights belong to the person who commissioned the work, unless stated otherwise). Such contracts should describe the subject matter in detail and that the rights to the intellectual property are properly assigned to your company.
- If you are using a website or a software application to deal with your customers, put terms of use or services and a privacy policy in place as required by the Consumer Protection (Electronic Trade Transactions) Regulations 2012. Do not rip off terms of use or services and a privacy policy of others as those agreements are drafted specifically for their businesses.

3) Non-disclosure agreement

Before opening your door to investors, do get them to sign a non-disclosure agreement (commonly known as an NDA). This agreement is crucial in making sure that they do not misuse the information they gathered from the due diligence. Such information may include your finance information, source codes and customer data.

Your investors may also want to look into the source codes of your proprietary software. Although an NDA may be signed to protect it, you may want to take an extra step to request that the software due diligence is done by an independent third party.

Also, when dealing with your vendors or employees, get them to sign a NDA. Your information is your asset.

4) Employee matters

If you have employees, make sure that there are employment contracts. If you have promised the employees something (e.g. equity), make sure you state it in writing. Ensure that you have been contributing to statutory contributions such as the Employee Provident Fund (EPF) and Social Security Organization (Socso).

This guide is a non-exhaustive basic guide and merely an idea on what you need to do before attracting investors. Do seek out advisers or mentors for help and advice. Get an experienced lawyer when dealing with terms and conditions. Speak to other fellow entrepreneurs who have done it before for advice.

Most importantly, do due diligence on your investor as well!

Docudeer – Your source of sample legal agreements and documents!
1. General Terms of Services
2. Comprehensive e-Commerce Terms & Conditions
3. Simple e-Commerce Terms & Conditions (Free!)
4. General Privacy Policy
5. Simple Non Disclosure Agreement
6. Letter of Employment

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GE13: Online campaigns get nasty

I was quoted by The Star in their article “GE13: Online campaigns get nasty” on 12 April 2013.


PETALING JAYA: Online campaigning has gone nasty in the run-up to the May 5 general election with cyber troopers from both sides of the political divide going beyond mudslinging at times.

The fight tends to get ugly with vulgar words used freely, sometimes crossing the boundary of racial and religious sensitivity as rival cyber troopers vie to influence public perception.

Both Barisan Nasional and Pakatan Rakyat have accused each other of paying cyber troopers to attack their opponents on social networks.

One example which a non-governmental organisation complained about was the case of pro-opposition cyber troopers uploading a photograph of a woman online last month accompanied by harsh and vulgar comments.

The woman, who is a committee member of the Malaysian Youth Rights Movement, was also threatened with gangrape and murder over her stand on some issues.

Deputy Higher Education Minister Datuk Saifuddin Abdullah condemned the strategies being employed by cyber troopers, saying “they put too much focus on attack”.

“In the long run, these strategies won’t work. The people will start reading these comments and say you are insulting my intelligence’,” said Saifuddin.

Outgoing Jelutong MP Jeff Ooi denies that there are cyber troopers on his party’s payroll, and called for politicians to make a stand against the current tactics employed by cyber activists.

“We (politicians) should not be seen to be condoning abusive commentaries. We have to call a spade a spade. If it were to come from my party, we would have to put them under restraint,” said Ooi.

Supt Ahmad Noordin Ismail from the cyber crime department of the police’s Commercial Crime Unit said nabbing cyber troopers and cyber bullies can be complicated due to a lack of evidence.

“People can make these comments and remove them easily,” he said.

Digital News Asia executive editor A. Asohan said he expected the mud-slinging, and warned that things would get worse as polling day nears.

“The real dirty play will come from the Internet. You will see a lot of accusations flying back and forth while paid bloggers will go on the warpath,” he added.

However, he believed people are smarter these days and would not be easily taken in by what was being posted on Websites.

MCA Youth new media bureau head Neil Foo agreed that it was not a healthy trend for both sides to have a go at each other in an unruly manner.

He said he always reminded the MCA cyber warriors and supporters to be polite, argue based on facts and not be too emotional.

He admitted that there are some who got carried away when egged on by other cyber troopers.

“I’ll ask them to watch the words they use. There should not be any vulgarity or personal attacks. They should stick to the facts,” he said.

Action can be taken against people who post offensive comments online, Kuala Lumpur Bar IT committee chairman Foong Cheng Leong said.

Under Section 233 of the Communications and Multimedia Act, those found guilty of harassing or being offensive online can be fined a maximum of RM50,000 or jailed up to a year or both, he noted.

The same clause also provides that a further fine of RM1,000 can be levied daily during which the offence is continued after conviction.

Foong strongly felt that “while people are free to express their opinions, they should not defame or attack others maliciously”.

Universiti Sains Malaysia psychologist Dr Geshina Ayu Mat Saat said cyber bullies, who preyed on their victims often perceived they had the right to bully.

“They have this sense of entitlement, whereby their way is the best and people should follow them. Their perception is also very lopsided based on their own personal experience and expectations,” she said yesterday.

Dr Geshina Ayu said these bullies were more daring online as they felt that they could get away with it.

“But they failed to realise they are bound by the law, even online,” she said.

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Industrial Designs (Amendment) Act 2013

The Industrial Designs (Amendment) Act 2013 will come to force on 1 July 2013.

In brief, the new amendment provides that a registered industrial design may now be collateralized. It also provide for consideration of public disclosure elsewhere than in Malaysia in determining the novelty of an industrial design. Prior to the amendment, an industrial design is not new if, among others, it was disclosed to the public anywhere in Malaysia.

The maximum duration of protection of a registered industrial designs will be extended to 25 years.

For more information, see Explanatory Statement of the Industrial Designs (Amendment) Bill 2013.

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Bread & Kaya: Looks can be deceiving!

My 3rd issue of Bread and Kaya was published by Digital News Asia on 7 March 2013.

Bread & Kaya: Looks can be deceiving!

- Under Malaysian laws, what amounts to obscene, indecent, false, menacing or offensive in character is quite wide
- Sessions Court decisions perhaps the reasons why Section 114A of the Evidence Act 1950 was introduced

Bread & Kaya by Foong Cheng Leong

A COUPLE of weeks ago, I received a message with the title “Looks can be deceiving!” on my blog’s Facebook page, from an unknown user.

In the message, the user claimed that a certain celebrity was having an affair with another celebrity. Unknown to the user, I happen to know former and I alerted that celebrity.

A day after that, the user deleted her account! Fortunately, I saved a screenshot of the message.

Coincidentally, I found that someone had searched for the celebrity’s name on the day the message was sent and landed on my blog. My blog captured the transaction, together with the Internet Protocol (IP) address, time-stamp and other details. It was the only transaction searching for the celebrity’s name.

There was also a record to show that the user clicked on the link to my blog’s Facebook page. From this, there is a possibility that the author had found my blog using the celebrity’s name (and my blog appears on the first page of search results) and decided to send me that message.

A query on the IP address shows that the user resides in Malaysia and is thus subject to the laws of Malaysia. The celebrity may file an action in court to obtain the user account details of the IP address if she wishes to. Alternatively, she may make a police report against that person.

The lesson of the story is: If you want to do naughty things online, remember to mask your tracks (e.g. by using proxies); otherwise the law will come knocking on your door. Internet trolls have been living amongst us and many still roam the streets of cyberspace.

This brings me to the topic of this article: Section 233 of the Communications and Multimedia Act 1998.

Section 233 makes it an offence to post any content which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

Anyone who does so is liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one year, or both, and shall also be liable to a further fine of RM1,000 for every day during which the offence is continued after conviction. It’s a widely used tool by law enforcers to nab Internet trolls.

[RM1 = US$0.32]

What amounts to obscene, indecent, false, menacing or offensive in character is quite wide. Making prank emergency calls (PP v Sow Kuen Chun; Criminal Case No. 63- 01- 2008); and insulting the Sultan (PP v Muslim bin Ahmad; [2013] 1 AMR 436); offensive comments (Nor Hisham Bin Osman v PP; Criminal Case No: MTJ(2)44-14-2010)), and (PP v Rutinin Bin Suhaimin (Criminal Case No. K42-60-2010)) are examples where people were charged under Section 233.

[Click links above to download case files]

PP v Muslim bin Ahmad and PP v Rutinin Bin Suhaimin are both recently decided cases and they relate to the Perak constitutional crisis. Both men had allegedly posted offensive comments towards the Sultan of Perak after Barisan Nasional took over the state of Perak. Both men alleged that they did not post the comments, notwithstanding that the IP addresses point to them.

Muslim bin Ahmad was acquitted by the Sessions Court and Rutinin bin Suhaimin was discharged by the Sessions Court without his defense being called. The prosecution had apparently failed to show that the persons who posted the offensive comments were the accused.

I am told that the impact of the said Sessions Court decisions was one of the reasons why Section 114A of the Evidence Act 1950 was introduced – that is, to facilitate the prosecution in proving the identity of the maker.

To recap, under Section 114A, a person is deemed to be a publisher of a content if it originates from his or her website, registered networks or data processing device of an Internet user unless he or she proves the contrary.

This new law sparked a massive online protest dubbed the Malaysia Internet Black Out Day or also the Stop114A.

However, the High Court subsequently overturned said Sessions Court decisions. Rutinin Bin Suhaimin’s defense was called. Interestingly, the learned High Court judge was of the view that calling the Sultan of Perak names has the tendency to cause annoyance or abuse to any person, thus falling within the ambit of Section 233.

Muslim Bin Ahmad was handed a fine of RM10,000 for each charge and six months’ imprisonment. He pleaded for a “binding over order” (released on probation).

However, the learned High Court Judge warned that a binding over order “would send the wrong message to would be offenders and the public at large that offensively uncontrolled and virulent comments can be indiscriminately posted on the Internet without any or serious repercussions. And that is not a message that this court would like to send out.”

Surprisingly, Section 114A of the Evidence Act 1950 was never relied on by the Courts. In fact, the High Court in PP v Rutinin Bin Suhaimin said that 114A is not applicable because the postings were made before the enforcement date of 114A (July 31, 2012).

This ruling is interesting as it may be a defense for website owners who can argue that 114A does not apply to posting made by their users prior to July 31, 2012.

Nevertheless, these laws and cases serve as a reminder that the Internet is not a ‘wild, wild west.’ Netizens need to be accountable for what they say. Further abuse by netizens attracts further legislations by Government.

Unfortunately, website owners now face the brunt of 114A due to the actions of their users. Their pleas for the repeal or amendment of 114A are still unanswered.

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