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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BFM Podcast: CAN EMOTIONS BE COPYRIGHTED?

I was interviewed by BFM Radio to talk about illegal downloading of music, songs etc by internet users and the podcast was published on 28 March 2016.

Read: Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.


In 2013, the family of Marvin Gaye sued Robin Thicke, Pharrell and their label Universal for copyright infringement in a little song called “Blurred Lines.” It was alleged that the song veered too similar in vibe to Gaye’s 1977 track “Got to Give It Up.” Last December, Gaye’s estate won and was awarded the largest damages in music copyright history. Pharrell, Thicke and Universal have since filed an appeal this month. Intellectual property lawyer Foong Cheng Leong explains how much of a song can be copyrighted.

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Lawyers want Bar Council to stop fighting innovations, move with the times

Subsequent to my article “Malaysian Bar Council bans lawyers from using virtual offices“, the Malay Mail interviewed me regarding the ban of virtual office. In their article entitled “Lawyers want Bar Council to stop fighting innovations, move with the times“, they stated the following:-

Foong Cheng Leong, who runs a law firm on his own as a sole proprietor, said he used to have a virtual office, where the service provider would provide a receptionist at an office space to take phone calls that would be conveyed to him through SMS, to receive and forward mail to him, and also provide a meeting room for use. Such services and the office premises can be used by other businesses at the same time too.

The virtual office located here only cost him RM1,200 a year, compared to renting an office in Publika, near the Kuala Lumpur courthouse, that currently costs RM4 per sq ft that could amount to RM3,200 a month for a 753 sq ft unit.

“Confidentiality is a valid reason, but I don’t see any problem with it. In the virtual office, the receptionist doesn’t open letters,” Foong told Malay Mail Online in an interview.

The intellectual property and information technology lawyer said big firms do not like virtual offices as small firms using such offices would be able to charge much lower legal fees, compared to large practices that need to cover huge overhead costs like rental and staff salaries.

According to the Bar Council, mid-sized firms in Malaysia have about 30 to 40 lawyers, while big firms have close to 100.

Foong, who works from home and stores clients’ documents there, said his house is more secure than offices, pointing out too that most files are now electronic and transactions are done online.

“IT security is more important than physical security,” he said, adding that he generally meets clients at their office.

The Bar Council issued a circular in March 2014 banning lawyers from using virtual offices. A group of lawyers then met with the Bar Council’s legal practice committee to discuss the ban.

However, the Bar Council later issued a letter dated August 21 this year to the group, saying it would maintain the ban on virtual offices. In the letter sighted by Malay Mail Online, the Bar Council cited issues of solicitor-client privilege, the keeping and storing of physical documents, and the accessibility and traceability of lawyers being compromised through virtual offices.

“Don’t ban virtual offices. Regulate them,” Foong told Malay Mail Online in response

Stephen Furnari, whom I quoted in my earlier article, also published a response to the ban by the Malaysian Bar Council. In this article, Malaysian Bar Bans Virtual Office Rentals, Solos Frustrated, Stephen said:-

Recently, bar regulators around the world have been forced to reconcile outdated rules regarding attorney office space with the realities of modern day law practice. Several jurisdictions have come under fire from attorneys, forcing changes in the law.

Two notable and highly-public examples include the relaxation of the “bona fide” office requirement in New Jersey permitting the use of virtual offices, and the very public federal court battle about New York Judiciary Law §470 and its office requirements for non-residents.

It is no denial that confidentiality is an issue. But as pointed out by Stephen Furnari, the service providers are bound by duty of confidentiality. Receptionists at the virtual offices do not open mails of their clients. I’ve also never wrongly received any letters belonging to another.

Every innovation comes with a risk. Lawyers are storing documents in the cloud but such practice bring immense convenience to them and their clients. It is now a question of benefits against risk.

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BFM Podcast: APPLE VERSUS THE FBI

I was interviewed by BFM Radio to talk about US Government’s request to compel Apple Inc to assist in the access of a suspected terrorist’s iPhone on 24 February 2016.


On February 16, Apple published a message on its website, outlining to its customers that they would not be complying with a request from the U.S. government. The request was for Apple to unlock the iPhone encryption of Syed Rizwan Farook, one of two perpetrators of a mass shooting in San Bernardino last year. Explaining what’s at stake in the current debate between Apple and the U.S. Government is Foong Cheng Leong, chairman of the KL Bar Information Technology Committee, and a member of the Bar Council Intellectual Property Committee.

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Kuala Lumpur Bar Committee 2016/2017

I am pleased to announce that I have been re-elected as a committee member of the Kuala Lumpur Bar Committee for the year 2016 / 2017.

I have also been re-appointed to chair the Kuala Lumpur Information Technology Committee. This Committee will continue its development of the Kuala Lumpur Bar website, App and membership management system.

The full list of office-bearers of the Kuala Lumpur Bar Committee for 2016/17 are as follows:-

Chairman :
Ravin Singh

Committee members :
Goh Siu Lin
Mohd Amir Sharil Bahari bin Md Noor (Amir Bahari)
Harleen Kaur (Leena)
Foong Cheng Leong
Khaizan Sharizad binti Ab Razak (Sherrie)
Alex Anton Netto
Shashi Devan Thalmalingam
Vinu Kamalananthan
Jacky Loi Yap Loong
Alwin Rajasurya

Representative to the Bar Council: Jeremiah R Gurusamy

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Malaysia must adopt new laws that are more focused on social media abuse

I was quoted by The Rakyat Post on laws and regulations relating to social media in Malaysia.


The sharing of information taken from another individual, without their awareness or knowledge, containing elements of incitement and slander are offences punishable by law, said legal expert Foong Cheng Leong.

He said Malaysia currently had laws on communication offences involving social media, but the government faced difficulties in detecting all the cases that occurred.

“The sharing or dissemination of any information that is libelous or slanderous are clear offences under the law. Doing these things intentionally or unintentionally is completely irrelevant in cases that involved social media.

“Malaysia has the legislation (needed), but it is difficult for the government to control the activities in social media as there is no party monitoring all the data that goes in and out,” he told The Rakyat Post when contacted recently.

He added that all social media users should take their own precautions to avoid becoming victims, apart from depending on the law, because it was impossible for authorities to track every movement in the social media.

“Users must be very careful in using these social media platforms as it is becoming more and more difficult for authorities to track down misconduct by offenders.

“However, the function of social media cannot be reduced as it should be viewed as a healthy approach. If we withdraw the ‘comment’ box on Facebook, then there will not be any healthy discussion,” he said.

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Personal Data Protection Commissioner publishes the Personal Data Protection Standard 2015

On 23 December 2015, the Personal Data Protection Commissioner (“Commissioner”) published the Personal Data Protection Standard 2015 after consulting members of the public. The Standard sets out the minimum standards to process personal data and it is applicable to anyone who processes or has control or authorises the processing of any personal data relating to commercial transactions. Broadly, it sets out the security standards (electronic and non-electronic processing), retention standards and integrity standards.

For more information, please refer to the Personal Data Protection Standard 2015 (in Malay language only). The English language will be released by the Commissioner in due course.

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ITC Legal Tech Forum: Bringing Lawyers and Technology Together

KLBC ITC Legal Tech Forum: Bringing Lawyers and Technology Together on 19 January 2016

The KLBC Information Technology Committee will be organising a one-day Legal-Tech Forum on Tuesday, 19 January 2016 from 9:00 am to 5:00 pm at the KL Bar Auditorium, 4th Floor, Wisma Hangsam, No.1 Jalan Hang Lekir, 50000 Kuala Lumpur.

Lawyers and technology have become undeniably intertwined as the legal marketplace becomes more competitive. We would like to bring together skills from the legal and tech fields to share their knowledge with us on how lawyers will modernize their firms in 2016.

The Forum will cover practical legal-tech issues and inform and educate lawyers on technology and innovation for the legal field. The purpose is to provide the participants with the knowledge on essential legal-tech issues as well as introducing tools and ways which can be used by lawyers for efficiency, improving client service, as well as just keeping up with the times.

Speakers are Edmund Bon Tai Soon, Fahri Azzat, Richard Wee Thiam Seng, Jason Kay and Mohd Izzat Ghazali (Gizzat).

Certain tech startups will also provide a short introduction of their services and how their services can assist lawyers in their practice.

Participating legal tech startups
– Be Lazee – making commerce conversational again with concierge and on-demand services.(http://www.bemalas.com/)
– BurgieLaw – to A calendar module software to schedule an appointment with lawyers. (http://www.burgielaw.com/)
– Firegent – an easy way to automatically identify, sort and extract data from documents to create reports, charts, perform – analysis and retrieve them quickly. (http://firegent.com/)
– GiveReceipt – a web app that lets you quickly create and send out e-receipts to your customers. (http://www.givereceipt.com/)
– Intelllex – a productivity suite for lawyers. Its core technology is an intelligent search engine. Other features include a law notes taking application and a knowledge management application. (https://www.facebook.com/intelllex/)
Office Parrots – a career platform for young lawyers to find out more about firms they can work with and to bring transparency to the market. (http://www.officeparrots.com/)
– ZeptoExpress – an online platform to get dispatch services in real time.
– SecondCRM – How Business Automation Improves Client Services for your Law Practice. (http://www.secondcrm.com/)

To register, please visit here

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Malaysian Bar Council bans lawyers from using virtual offices

The Malaysian Bar Council has finally put a lid on the use of virtual office by lawyers. In their letter dated 21 August 2015 to a group of lawyers (“Group”) (which I am a part of), it stated:

Having considered the reasons and proposals put forth by the group of lawyers during its meetings with the Legal Profession Committee, as well as the Memorandum prepared by one of your members, the Bar Council is of the view that crucial issues such as the cardinal principle of solicitor-client privilege, keeping and storing of physical documents, accessibility and traceability of lawyers are being compromised through the practise of such mode of offices.

In light of the above decision, you are required to take immediate and necessary steps to ensure compliance with the relevant Rules and Rulings of the Bar Council, the Legal Profession (Practice & Etiquette) Rules 1978 and the Legal Profession (Publicity) Rules 2001 and cease to operate through virtual office with immediate effect.

History of the Ban

On 7 March 2015, the Bar Council issued Circular No. 49/2014 entitled “Law Firms Operating Through Virtual Offices” (Circular 49) with the following statement:

The concept of a virtual office essentially means there is no physical presence of a law office. The office is “virtual” as it is merely a front, consisting of generic office facilities operated by another company offering the services of a receptionist and/or interchangeable meetings rooms, used by various parties (whether lawyers or not) paying for such services. Any telephone calls made to a lawyer utilising this arrangement are received by the receptionist, on the lawyer’s behalf, who would then convey the communication to the lawyer concerned, for example in a text message through a short message service (“SMS”).  Documents are also received, on behalf of the lawyer, by the receptionist.  The services of the receptionist and/or use of meeting rooms at a virtual office are shared by other lawyers and/or companies and/or businesses.

The Bar Council is of the view that lawyers practising through virtual offices are in breach of Ruling 7.03 of the Rules and Rulings of the Bar Council Malaysia, which provides as follows: Where an Advocate and Solicitor shares an office or premises with another person (whether an Advocate and Solicitor or not), the office or premises must be partitioned off with separate and distinct entrances, with no connecting door between the two offices or premises.  This Ruling shall not apply to Advocates and Solicitors who are partners of the same law firm.

Where a law firm operates through a virtual office, a further cause for concern arises in respect of confidentiality and the safekeeping of information, including files and documents, which appear to be lax in such virtual offices.

Members are therefore advised to cease such operations with immediate effect, as the Bar Council may take disciplinary action against lawyers who are reported to be operating through virtual offices.

The Group subsequently got in touch with the Bar Council and meetings were held with the members of the Legal Practice Committee (LPC) to clarify and discuss on the ban. A moratorium was granted pending the discussion between the Group and the LPC. This moratorium was subsequently lifted with the letter of 21 August 2015.

Notwithstanding the said ban, it is unclear what type of virtual office is banned by the Bar Council. There are many service providers in Malaysia who term their service as a virtual office service but they differ from each other.

Wikipedia defines “virtual office” as ”a virtual office provides communication and address services without providing dedicated office space”. The California State Bar Standing Committee on Professional Responsibility and Conduct has a different view on virtual office. In a matter concerning “virtual law office practice” (VLO), it described the VLO with the following features:

In her VLO, Attorney intends to communicate with her clients through a secure internet portal created on her website, and to both store, and access, all information regarding client matters through that portal. The information on the secure internet portal will be password protected and encrypted. Attorney intends to assign a separate password to each client after that client has registered and signed Attorney’s standard engagement letter so that a particular client can access information relating to his or her matter only. Attorney plans not to communicate with her clients by phone, e-mail or in person, but to limit communications solely to the internet portal through a function that allows attorney and client to send communications directly to each other within the internet portal.”

In an article entitled “PRACTICING LAW WITHOUT AN OFFICE ADDRESS: HOW THE BONA FIDE OFFICE REQUIREMENT AFFECTS VIRTUAL LAW PRACTICE” by Stephanie L. Kimbro, M.A., J.D. the learned author described VLO with the following features:

The features of a virtual law office and methods of communicating and delivering the legal services online differ depending on the features available in the technology chosen to set up the virtual law office. These features will continue to evolve with the technology, but the key feature that will remain the same is the client portal, which requires a unique username and password. Once inside the secure virtual law office, the client may then have access to his or her case file, documents, invoices, text communication with the attorney, interactive calendar, and forms. In addition, the client may also have the ability to pay invoices online, sign online engagement letters, or hold video conferences or real time chat.

In the article entitled “The Rise of the Legal Virtual Office” by Stephen Furnari, the learned author stated that “virtual” law practice comes in various forms and this include, virtual law firm (a law practice that does not utilize a central office to house attorneys or permanent staff), virtual law firm (an unbundled office rental arrangement where firms get the business presence of a traditional office and have access to its resources, such as an address to receive mail, a physical location to meet clients, conference rooms, receptionist and admin services, and temporary office space), and virtual legal services (actual legal services that are provided and delivered exclusively online using SaaS applications)

Whether the Bar Council’s definition would fall within the scope of a VLO defined above is unclear. Nevertheless, Circular 49 stated that “the concept of a virtual office essentially means there is no physical presence of a law office” and the lawyer is sharing office with third parties.

But it is clear that those who have their law office at home with certain administrative functions outsourced would not be caught by the ban.

With the advent of broadband, cloud services and other new technological features, a traditional law practice has changed. Working files are no longer kept in our paper files but stored in our PC or even in the cloud. Lawyers do not need a physical file to work but with only a device which may or may not belong to him since one can access them using cloud services. Technology has evolved so much and so quick that a laptop can even now become a tablet and vice versa (e.g. Windows Surface 3). In two years, a smart phone can become your only computer (according to an article by Wired). Traditional physical offices may one day be redundant to some lawyers and could even be reduced to an electronic device.

The Bar Council will certainly need to address and be open to these technological advancements. Malaysian lawyers should be encouraged to move ahead with times and adopt new technological advancements to be competitive and on par with any international lawyers.



First published on LoyarBurok on 2 November 2015.

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Malaysian Personal Data Protection Commissioner publishes draft Codes of Practice

The Malaysian Personal Data Protection Commissioner has published the draft Codes of Practice for the banking and finance industry and also for the communications sector. Members of the public are invited to provide their feedback before 22 September 2015 by sending their comments to:-

KERTAS KONSULTANSI AWAM (KTA) BIL. 2/2015 / KERTAS KONSULTANSI AWAM (KTA) BIL. 3/2015 (Delete the necessary)
Aras 6, Kompleks KKMM, Lot 4G9,
Jabatan Perlindungan Data Peribadi
Kementerian Komunikasi dan Multimedia Malaysia
Persiaran Perdana, Presint 4,
Pusat Pentadbiran Kerajaan Persekutuan,
62100 Putrajaya.

or email or fax to kmohan@pdp.gov.my and 603-89117959 respectively.

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