Monthly Archives: April 2012

Grave repercussions for internet users

Published on LoyarBurok on 24 April 2012.

Dissecting the presumption of fact relating to publication in the controversial new Bill.

The Evidence (Amendment) (No. 2) Bill 2012 was one of the bills rushed and passed by the Parliament recently. Minister in the Prime Minister’s Department, Datuk Seri Mohamed Nazri Aziz, when winding up the Evidence (Amendment) Bill 2012, said the use of pseudonyms or anonymity by any party to do cyber crimes had made it difficult for the action to be taken against them. Hence, the Evidence Act 1950 must be amended to address the issue of Internet anonymity.

The amendments introduced s. 114A into the Evidence Act 1950 to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet. In simple words, s. 114A introduces 3 circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her.

Although it is stated that the amendment is to cover anonymous persons on the internet, the effect of the amendment is quite wide. You see, we, especially social media network users, generally do not use our real names on the Internet. We use nicknames and pseudonyms. Our home addresses do not appear on our account. We sometimes use fictional characters or even digitalized images of ourselves as our profile picture. All these are done to protect our own privacy. So, if none of my personal details appear on my account, does this mean I am anonymous? If someone’s identity cannot be directly ascertained from his account, I would think that he would be anonymous.

The new s. 114A(1) states that “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. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it. If you have a Facebook page and an user posts something on your wall, you are deemed to have published it!

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network.You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custory or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. So if someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Admittedly, the amendments certainly saves a lot of the investigator’s time. It is very difficult to trace someone on the Internet. It will make prosecution for, among others, defamation, offences under the Communication and Multimedia Act 1998 and Computer Crimes Act 1997 and, election offences much easier. But it is not impossible to trace someone. There are many cases where perpetrators are caught and charged.

I do not see the logic to deem someone to be a publisher. If an investigator is unable to trace the anonymous internet user, then why should the innocent Internet user take the rap? The onus of proof should always be on the prosecuting side. In the English case of Applause Store Productions Limited & Anor v Grant Raphael [2008] EWHC 1781 (QB), the claimants were awarded £22,000 in damages against Raphael, an old school friend, who had created a false personal profile of the claimants on Facebook. The claimants convinced the Court that Raphael was the person who created the fake profile even though he claimed that he had a party at his house and someone in that party created the account.

In summary, the new amendments force an innocent party to show that he is not the publisher. Victims of stolen identity or hacking would have a lot more problems to fix. Since computers can be easily manipulated and identity theft is quite rampant, it is dangerous to put the onus on internet users. An internet user will need to give an alibi that it wasn’t him. He needs to prove that he has no access to the computer at that time of publication and he needs to produce call witnesses to support his alibi.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”. With general election looming, I fear this amendment will be used oppressively. Fortunately, the amendment is not in force yet. I strongly hope that the government will relook into this amendment.

 

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LegalTech Forum 2012 – Giving Your Practice a 21st Century Byte

I will be speaking on “Social Media Marketing for Lawyers” at this event on 15 June 2012. Basically, it will be on:-

  • What can your legal practice generate from social media?
  • How to leverage social media for your legal practice?
  • Case Study: What has Malaysian lawyers benefited from social media.

Details of this event are as follow:-

Highlights

  • Strategic issues on Legal Technology designed specially for Lawyers, In-House Counsels, and Partners
  • Focused conference on Legal Technology which covers the domains of: Awareness, Cloud Computing, e-litigation and Tools
  • An excellent networking platform to exchange ideas and gain knowledge on legal technology
  • Discover how technology can help your firm increase its mobility and flexibility
  • Gather new perspective from your comrades in adapting new technology
  • Explore the significance of e-Discovery and its impact in the courtroom
  • Distinguish the opportunities and threats in moving towards e-Litigation

Event Overview

There are two things that are on most legal practitioners thoughts – 1) making the day to day work easier; and 2) how to increase the billable hours. The advent of technology is changing how law is practiced and is influencing the delivery of legal services. Law firms for instance, are no longer just a centre of legal expertise, they are legal establishments where commercial proficiency, technology and business processes are now as vital as the expertise that makes a great lawyer or legal service provider.

This is the time to take the bull by its horn! LegalTech Forum 2012 is a 2 day conference on the use of technology in legal processes and proceedings. This conference will be an excellent arena to network with other legal practitioners and solution providers, as well as to learn and benchmark from top players in the legal profession.

For more information, please visit http://www.legaltech-ap.com

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Symphony Light & Sounds Services Sdn Bhd & Anor v Irwan Shah Bin Abdullah @ D.J Dave & Ors

Kuala Lumpur High Court Suit No.: S-22-1010-2007

Plaintiffs initiated an action against Defendants for allegedly misappropriating their copyright by way of fraud and deception. The subject matters in dispute are proposals entitled “Malaysia’s 50 years an illuminating Journey”. The Plaintiffs alleged that the Defendants had secretly sent the subject matter to the Ministry of Culture, Arts and Heritage.

Plaintiff claims that their concept of “large format lightings, projections and special effects” for the purpose of outdoor audio visual performance is artistic works pursuant to the Malaysian Copyright Act 1987.

The High Court held that Plaintiffs failed to show evidence that such concept is their creation and it is original.

Case dismissed with costs to be taxed.

Download: [Judgement]

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AV Future Link Sdn Bhd v Inno Supply & Services Sdn Bhd

Kuala Lumpur High Court Suit Nos. D-22IP-61-2010 & D-22IP-60-2010

1. Plaintiff initiated claim for unlawful interference. Defendant counterclaimed for industrial designs (“ID”) infringement. The ID was obtained vide a deed of assignment from a Chinese company.
2. Plaintiff claims that the Defendant is not the rightful owner of the ID and that the ID had been disclosed before the priority date of the registered ID.
3. The High Court held that the challenge on the deed of assignment was not pleaded hence assignment is valid and the disclosure of ID in China is not relevant as the Malaysian Industrial Designs Act 1996 only recognises disclosure in Malaysia and no evidence is led to show disclosure in Malaysia.

Download: [Judgement]

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