Public Consultation Paper No. 1/2015: PROPOSED STANDARD PERSONAL DATA PROTECTION  

On 1 July 2015, the Personal Data Protection Commissioner published the Public Consultation Paper No. 1/2015. This consultation paper is intended to solicit feedback from the data users and data subjects relating to their understanding of the personal data protection.

In order to make the Standard for Personal Data Protection a reliable reference document, the Commissioner will merged three standards namely the Safety Standard, Storage Standard and Data Integrity Standard into one document.
  
According to the Commissioner, this step is in accordance with the requirements of the Personal Data Protection Regulations 2013 and the Personal Data Protection Act 2010. The feedback received through this public consultation paper will be analyzed and the results of this analysis will be used in the preparation of the final draft standard. The final draft will be presented to the 11 classes of data users before being registered by the Commissioner.

The feedback can be downloaded here (in Malay language only)

Source: www.pdp.gov.my

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PDC Seminar on Business Development for Young Lawyers on 31 July 2015

As part of its Professional Development Programme, the KLBC Professional Development Committee (PDC) is pleased to present the above Seminar by Foong Cheng Leong on 31 July 2015 (Friday) from 3:00 pm to 5:00 pm at the KL Bar Auditorium, 4th Floor Wisma Hangsam, No 1, Jalan Hang Lekir, 50000 Kuala Lumpur.

Areas to be covered

• Building your practice
• Getting your first client and expanding your clientele
• Specialisation
• Networking skills
• Improving presentation skills
• Client management

About the speaker
Foong Cheng Leong was called to the Malaysian Bar in 2005. He currently serves as the KLBC Information Technology Chairperson, Co-Chairperson of the Bar Council Information Technology and Cyberlaw Committee, Co-Chairperson of the Ad Hoc Committee of the Personal Data Protection and Deputy Chairperson of the Bar Council Intellectual Property Committee. He is regularly featured in the media notably over topics regarding intellectual property, cyberlaw, data privacy and the like. He also regularly presents at seminars and conferences.

REGISTRATION FEE (inclusive of 6% GST)

Pupils-in-Chambers / Law Students – RM31.80 per participant

Members of the Bar – RM63.60 per participant

Non-Members – RM106.00 per participant

Registration Must be Accompanied With Payment to Guarantee Your Place

Only 150 Seats Available. Click here to register.

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Malaysia amends law to hold publishers responsible for user comments

I was recently interviewed by PRWeek Asia regarding my views of the amendments of the Sedition Act 1948. My email interview is as follows:-

What power do these amendments give the Malaysian government against the tech giants?

Foong: Our laws may not reach foreign tech giants. However, with the new amendments to the Sedition Act and even under the Communications and Multimedia Act 1998, it is possible to block the websites of these foreign tech giants.

What could it cost them potentially to keep operating in Malaysia?

Foong: Possible problems: being criminally liable, servers and other electronic devices being seized as evidence, and so on, during investigation.

What are their options? Self-monitor like Tencent?

A self monitoring practice is possible but it will be costly and time consuming. Unfortunately, we do not have takedown notice provision (other than under our Copyright Act) or laws to protect intermediaries, hence monitoring is required in Malaysia.

One possible option is to have their operations moved out from Malaysia which is detrimental to our economy.

Do you think lobbying will change these amendments?

Foong: Lobbying for laws to protect intermediaries would be recommended. Other than affecting the freedom of expression, it also affects our digital economy. Foreign investors will have to think twice before setting up their operation and putting their servers here in Malaysia.

For the full article, please visit here.

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Bread & Kaya: How the ‘new’ Sedition Act affects netizens

Bread & Kaya: How the ‘new’ Sedition Act affects netizens
By Foong Cheng Leong
Apr 08, 2015

– As with Section 114A, website hosts and FB page owners can be held liable
– Particularly thorny are comments left by others on your portal

BY the time you read this article, the Sedition (Amendment) Bill 2015 – which seeks to amend the Sedition Act 1948 – will be debated in Parliament. The Bill is now published on the Parliament of Malaysia’s website. Click here to download a copy.

The Najib Administration is seeking to update the 1948 Act to now cover electronic publications, and this article will focus on how these amendments may affect the netizens of Malaysia, and website operators in particular.

The purpose of introducing the amendments is stated in the Explanatory Statement of the Bill.

On the eve of Malaysia Day 2011, Malaysian Prime Minister Najib Razak pledged watershed changes to enhance the parliamentary democracy system in Malaysia. This pledge was reiterated in July 2012 and a decision was made to repeal the Sedition Act 1948.

“However, events since that date have demonstrated the continued relevance of the Sedition Act 1948 in tandem with recognition for the need for enhanced safeguards against its misuse to stem legitimate criticism of Government and discussion of issues of concern to Malaysians,” the explanatory statement reads.

“Among the issues of concern are the increasingly harmful and malicious comments, postings and publications that jeopardise that most valued ideals of Malaysia – tolerance and racial and religious harmony in a multiracial, multireligious and multicultural nation.

“Even more alarming are calls for the secession of States in the Federation of Malaysia established by the consensus of the peoples of Malaysia and unwarranted attacks against the sovereign institutions of Malaysia, the Yang di-Pertuan Agong and the Rulers of the States.

“It is against this background that the Government has decided to retain the Sedition Act 1948 (‘Act 15’) at this time with the addition of enhanced measures and penalties to deal with the threats against peace, public order and the security of Malaysia, in particular through the irresponsible misuse of social media platforms and other communication devices to spread divisiveness and to insult the race, religion, culture, etc. of particular groups of Malaysians without regard for the consequences,” it says.

The definition of seditious tendency will be amended. It will no longer be seditious to “bring into hatred or contempt or to excite disaffection against any Government, administration of Justice (our Courts).

It will be seditious to excite the secession of a State from Malaysia. It is seditious to insult our Rulers, and to promote feelings of ill will and hostility between different races or classes of the population of Malaysia and, with the new amendments, between persons or groups of persons on the grounds of religion.

The Sedition (Amendment) Bill 2015 creates liability to website operators (I use this term loosely as the Bill uses the words ‘any person’ and thus may include owner, host, editor and subeditor) such as online forums, online news portals, and even Facebook Page/ Group owners.

Sections 3 and 4 of the Bill introduce the words “caused to be published.” Under the newly amended Section 4(1)(c) of the Sedition Act 1948, a person who, among others, publishes or caused to be published any seditious publication is guilty of an offence.

The punishment is now “a term not less than three years but not exceeding seven years.” Previously, it was not exceeding three years and a fine.

So what does “caused to be published” here mean? It seems to cover a website operator who allows a comment to be published on his website (especially in the case where comments are moderated). This also covers a comment or a posting published on a Facebook page.

Further, pursuant to Section 114A of the Evidence Act 1950, the owner, host, administrator, editor or a subeditor of the website is the publisher of that comment – notwithstanding that such person is not the author of such a comment (unless the contrary is proven).

If the offence involves a publication of a seditious comment under the new Section 4(1A) – that is, published or ‘caused to be published’ any seditious comments which caused bodily injury or damage to property – the Public Prosecutor has a right not to allow bail. Such a person will languish in jail until his trial is over.

Further, 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, shall 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.

However, there are exceptions for a website operator if he can prove that the seditious publication was done:

– Without his authority, consent and knowledge and without any want of due care or caution on his part, or
– That he did not know and had no reasonable grounds to believe that the publication had a seditious tendency.

The first exception will not be applicable to a website operator who moderates comments because publication of a comment was done by his authority, consent and knowledge when he approved the comment.

It would however be applicable to an unmoderated website but such an operator must show that due care and caution had been taken.

Nevertheless, the second exception above will be of assistance to a website operator who moderates comments. However, it is difficult to determine what amounts to seditious nowadays (we need a compendium of sedition statements!).

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., as per the new Section 10(1)).

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.

If the person making or circulating the seditious publication by electronic means cannot be identified, a Sessions Court Judge can direct that such publication be blocked (under the new Section 10A).

[Note: This article is subject to amendments in the event that there are new facts or clarifications from the First Meeting of the Third Session of the 13th Parliament (2015)].



First published on Digital News Asia on 8 April 2015.

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BFM Podcast: Suing Illegal Downloaders

I was interviewed by BFM Radio to talk about illegal downloading of music, songs etc by internet users on 13 April 2015.


The makers of Dallas Buyers Club, the award winning movie starring Matthew McConaughey and Jared Leto, have been aggressively going after online pirates in the United States, Australia and now, Singapore. What set their legal strategy apart from similar efforts in the past, what are the implications for privacy rights, and will internet service providers in Malaysia have to surrender subscribers’ information as well if they extend their litigation to our shores? Intellectual property and privacy rights lawyer Foong Cheng Leong explains.

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

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Bread & Kaya: Malaysian cyberlaw cases in 2014

2014 was another interesting year in cyberspace for Malaysia’s legal fraternity. Numerous sedition investigations and charges were made against statements made online and offline.

Notably, Twitter user @wonghoicheng was charged under Section 504 of the Penal Code and Section 233 of the Communications and Multimedia Act 1998 for “deliberately humiliating and provoking” Inspector-General of Police (IGP) Khalid Abu Bakar on Twitter by likening him to Nazi military commander Heinrich Himmler.

Our courts were also flooded with interesting cyberlaw cases dealing with various issues.

Tracing a person online and 114A

In Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904, the Plaintiffs initiated an action for cyberspace defamation against the 1st Defendant.

In tracing the perpetrator, who had posted defamatory statements on two Google Blogspot websites, the Plaintiffs filed an action called a John Doe action in the Superior Court of California.

In compliance with the court order, Google traced the blogs to two IP (Internet Protocol) addresses which were revealed by Telekom Malaysia Bhd to be IP addresses belonging to the 1st Defendant’s account.

In the same case, the High Court had held that the controversial Section 114A (2) of the Evidence Act 1950 applied retrospectively. (However, the criminal case of PP v Rutinin Bin Suhaimin [Criminal Case No K42-60-2010] states it doesn’t apply retrospectively).

Section 114A (2) provides that the burden of proof lies on the subscriber of an ISP (Internet service provider) to prove that a certain statement was not published by him or her.

The 1st Defendant failed to convince the Court that Section 114A (2) does not apply because the defamatory statements were published before the enforcement date of Section 114A(2).

The Court held that the 1st Defendant had failed to prove that he was not the publisher of the content. The 1st Defendant is now liable for a payment of RM600,000 as damages to the Plaintiffs.

Speaking about 114A, the said section was applied in a few other cases in 2014.

In YB Dato Haji Husam bin HJ Musa v Mohd Faisal bin Rohban Ahmad (Court of Appeal Civil Appeal No D-02-1859-08/2012), the Defendant denied that he was the writer of a defamatory article and the High Court held that there was insufficient evidence to prove so.

The Court of Appeal held that the learned High Court Judge ought to have applied Section 114A and in the present case, the Defendant failed to rebut the presumption in Section 114A.

The Court of Appeal held that as a general rule, once the elements of defamation are satisfied, liability is attached and the defendant’s defence cannot survive on mere denial, and when it relates to cybercrime, Section 114A will assist the plaintiff to force the defendant to exonerate himself from liability.

In Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd [2013] 1 LNS 1446, the High Court held that Mead Johnson was liable for the defamatory postings made by users of Mead Johnson’s Internet forum and website.

The Court, in applying Section 114A, stated that the introduction of Section 114A is the Malaysian legislature’s response to address, amongst others, the issue of anonymity on the Internet to ensure users do not exploit the anonymity that the Internet can provide to escape the consequences of their actions.

In the present case, the Court held that the Defendants failed to rebut the presumptions cast by Section 114A.

Facebook defamation

There were numerous Facebook defamation cases. 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.

Salleh Berindi Bin Hj Othman, who had earlier sued his colleagues for Facebook defamation, lost another Facebook defamation case (Salleh Berindi Bin Hj Othman v Professors Madya Dr Abdul Hamid Ahmad & Ors [2014] 1 LNS 1611) in the High Court.

He alleged that the postings made by the Defendants on the 2nd Defendant’s Facebook wall were defamatory of him. The High Court did not agree with him.

In Foo Hiap Siong v Chong Chin Hsiang [2014] 1 LNS 1196, the Plaintiff sued the Defendant, complaining about the following defamatory statement posted by the Defendant, in the said two Facebook forums named ‘Rakyat Ingin Jadi Bos’ and ‘Ubahkan Politik,’ showing an doctored coloured photograph of the Plaintiff’s face, depicting him with long hair with the top half of a naked body dressed in a bra with certain defamatory comments in Mandarin.

The High Court held in favour of the Plaintiff and with cost of RM20,000 and further awarded general damages, aggravated damages and exemplary damages to the total sum of RM50,000.

In an action against the Defendant for publishing defamatory statements through emails (Mox-Linde Gases Sdn Bhd & Anor v Wong Siew Yap (Shah Alam High Court Civil Suit No 22-1514-2010), the High Court applied the principle of presumed publication on emails.

The court held that there is a legal presumption that emails are published on being sent without actual proof that anyone did in fact read them.

Under defamation law, a defamatory statement must be published in order to have an actionable cause of action. Using this presumed publication, it is not necessary to prove someone has read the defamatory statement.

Such a legal principle was applied to materials sent in post such as telegram and postcards. It seems that the court had expended this presumption to email, notwithstanding that emails do sometimes get diverted into the Spam folder or get rejected by the recipient server.

Others

In Dato’ Ibrahim Ali v. Datuk Seri Anwar Ibrahim [2015] 1 CLJ 176, the Court dealt with the liability of an office bearer of an association with respect to contempt of court.

In 2013, president of Malay right-wing group Perkasa, Ibrahim Ali, was jailed for a day and fined by the High Court for contempt of court over a posting on the website http:www.pribumiperkasa.com/ made by one Zainuddin bin Salleh, a member of Perkasa.

The posting is said to be outright contemptuous of the court. The High Court held that Ibrahim Ali was liable for the posting made by Zainuddin on that website by virtue of his position as president of Perkasa.

In the appeal before the Court of Appeal, Ibrahim claimed that the posting was made on a website which is not the official website of Perkasa. He also claimed that he is not liable for the posting because he had no actual knowledge and had no control as to the so-called offence.

The Court of Appeal dismissed the first ground but agreed with Ibrahim on the second ground and overturned the conviction.

Sex bloggers ‘Alvivi’ (Alvin Tan Jye Yee and Vivian Lee May Ling) were freed from the charge under Section 298A of the Penal Code (Tan Jye Lee & Anor v PP [2014] 1 LNS 860) for posting their controversial ‘Hari Raya Greeting’ which contained the couple’s photograph enjoying the Chinese pork dish Bah Kut Teh with the ‘Halal’ logo with, among others, the words ‘Selamat Berbuka Puasa (dengan Bah Kut Teh … wangi, enak, menyelerakan!!!…’

The post had allegedly created enmity between persons of different religions under Section 298A of the Penal Code. The Court of Appeal, in striking out the charge under Section 298A of the Penal Code, held that the said section had already been declared invalid by the Federal Court in another case.

The dispute over the use of the word ‘Allah’ in the Herald – The Catholic Weekly had an interesting point over the use of Internet research by judges.

In 2013, the Court of Appeal, in deciding to overturn the High Court’s decision allowing the of the word ‘Allah,’ conducted its own research via the Internet and relied on the information and points obtained therefrom to substantiate its judgments (see Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur [2013] 8 CLJ 890 on Pages 959-960).

Upon the overturn of the appeal, the Titular Roman Catholic Archbishop of Kuala Lumpur (see Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541) filed an application for leave to appeal to the Federal Court (permission is required before one can appeal to the Federal Court and it must satisfy certain thresholds). The Federal Court however refused to grant leave.

The majority judgement by the Chief Justice of Malaya (Arifin Zakaria, on Page 584) held that those views obtained from the Internet were merely obiter (said in passing – not binding but persuasive) whereas Chief Justice of Sabah and Sarawak Richard Malanjum held that leave ought to be granted as the suo moto (on its own motion) research sets a precedent binding on the lower courts yet untested before the Federal Court, and also that the Court of Appeal relied upon the materials gathered suo moto from the Internet in upholding the impugned decision (on Page 617).

It seems that the Federal Court did not endorse such suo moto research by the Court of Appeal Judges.

Closing

Last year, I wrote a ‘wishlist’ of laws to be introduced to govern or deal with cyberspace issues. Out of the five proposed laws, two of them may be potentially addressed with the proposed anti-harassment law.

I understand that the drafting of this anti-harassment law is at its infancy stage and may not be introduced so soon.

Singapore’s Protection from Harassment Act 2014 came into effect on Nov 15 2014. It was reported that Singapore blogger Xiaxue is the first person or one of the first persons who had obtained a protection order under this law against online satire site SMRT Ltd (Feedback) for trolling her online.


First published on Digital News Asia on 17 March 2015.

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Exploring the Digital Landscape in Malaysia

I’ve been provided with a report by UNICEF Malaysia entitled “Exploring the Digital Landscape in Malaysia”. It has quiet a bit of interesting facts and figures. Some of them are:-

1. One study based on data collected in 2010 and entitled Young people and New Media—Social uses, Social shapings and Social consequences, 50.5 per cent of the respondents aged 14–16 spent four or more hours a week phoning and texting, social networking and playing new media games using a variety of tools. About 17 per cent of them spent more than 12 hours a week on such activities. Respondents who reported sending and receiving over 80 text messages a week were significant: 29.8 per cent received in excess of 80 text messages a week, while 27.8 per cent sent in excess of 80 messages a week. More than a third (35.6 per cent) of respondents spent between one and 12 hours a week in cyber cafes; of these, 2.9 per cent spent 12 hours a week in cyber cafes

2. 68 per cent of participants in the CyberSAFE in Schools National Survey 2013 reported using the Internet for social media and 44 per cent use the Internet to do research for school. Social media use was higher among the older age groups (16–18 and 18+), with more than three-quarters in these age cohorts reporting that they use social media.

3. Young Malaysians are active users of social media, and children and young people (aged 13–24) make up nearly half of the Facebook users in the country

4. In the CyberSAFE in Schools National Survey 2013, one-quarter of the students said that they had been bullied online at some point. Half of them said they had never been bullied and others were unsure. Half of the participants knew at least one person being bullied online. Common forms of cyberbullying included someone being rude or sending nasty messages, being left out or ignored. Cyberbullying using Facebook and blogs is the most common, followed by SMS.

5. To date, Malaysia has not introduced specific legislation targeting crimes against children or adolescents as they interact with others through the Internet.

Read more about it at http://www.unicef.org/malaysia/UNICEF_Digital_Landscape_in_Malaysia-FINAL-lowres.pdf.

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BFM Podcast: Sedition, Porn and Torrents

I was interviewed by BFM Radio to talk about the regulation of social media space in Malaysia on 17 February 2015.


The Inspector General of Police Tan Sri Khalid Abu Bakar recently cautioned Malaysians to be mindful of what they post on social media platforms like twitter in order not to get on the wrong side of the law. Foong Cheng Leong, a lawyer who specializes on internet law, discusses how the social media space is regulated in Malaysia, the limits to freedom of speech on the internet, and our government’s position on the net neutrality debate.

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

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Invitation to serve KLBC Information Technology Committee for term 2015/16

Dear Members of KL Bar and Pupils-In-Chambers,

The KLBC Information Technology Committee (“KLBC ITC”) for the term 2015/16 is calling for volunteers to serve on the committee which is established for:
• Promoting the use of IT by lawyers;
• Exploring new ways in which IT can improve members’ professional practice;
• Responsible for improving the communication of the KL Bar Committee with members on issues and concerns of members;
• Responsible for the enhancement of the IT system at the KL Bar Secretariat;
• Overseeing the management of the KL Bar Website (www.klbar.org.my) and all other Social Media network that it operates;
• Creating public awareness on Laws related to Information Technology;
• Professional Development Courses on Laws related to Information Technology for members;

The Projects for the term will be
• Revamping the KL Bar Website and Membership Management System
• Digitising the Petition Files
• KL Bar App

The inaugural meeting will be held on Monday, 16 March, 2015 at 6:00 pm at the KL Bar Meeting Room, 4th Floor, Wisma Hangsam, No.1 Jalan Hang Lekir, 50000 Kuala Lumpur.

The KLBC ITC is calling for volunteers who are keen to serve and promote the interests of your fellow members in the legal profession. If you are keen to serve, please email melissadass@klbar.org.my (latest by 12 March 2015). Please state your name and place of practice/pupillage as well as email address/contact numbers for easy reference.

Warm regards,
Foong Cheng Leong
Chairperson
KLBC Information Technology Committee

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