Monthly Archives: December 2012

Can a franchise agreement be executed before the registration of the franchise in Malaysia?

In a recent High Court case, the Court held that a licence agreement can qualify as a franchise agreement and a licensor cannot offer to sell or provide a franchise until his franchise is registered in Malaysia.

Munafya Sdn Bhd v Profquaz Sdn Bhd

The Defendant operates an Islamic education system or syllabus for preschool children under the name Children Islamic Center (CIC). CIC is a franchise registered with the Ministry of Domestic Trade, Cooperative and Consumerism (“MDTCC”) and also with the Ministry of Education (“MoE”) (collectively referred as the “Ministries”).

Before the said registrations with Ministries, the Defendant entered into a licence agreement granting the Plaintiff the right to operate the CIC.

After the necessary preparation was done, the Plaintiff discovered that CIC was not registered with the Private Education Division of the MoE. The Plaintiff demand proof of registration but the Defendant failed to do so. However, the Defendant subsequently took steps to register CIC with the Ministries. Before the grant of the registrations, the Plaintiff terminated the agreement and demanded for, among others, a refund of RM35,000.

In allowing the Plaintiff’s claim, the High Court held that, among others:-

1. Notwithstanding that the agreement is in essence a licence agreement and the word “franchise” is not pleaded, the Malaysian Franchise Act 1998 is applicable. Under s. 6(1) of the said act, a franchisor shall register his franchise with the Franchise Registrar before he can make an offer to sell the franchise to any person.

2. In view that the Defendant had failed to register its CIC franchise with the Ministries before the signing of the licence agreement, the Defendant cannot offer or give the CIC licence to the Plaintiff. Therefore, the Plaintiff’s termination is not premature.

The judgement can be downloaded by clicking on the “Pay with a Tweet or Facebook” button below.

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Malaysia Personal Data Protection Act to come into force Jan 1

The Star Newspaper reported that the Malaysian Personal Data Protection Act 2010 will be in force on 1 January 2013.

However, at the time of publication of this blogpost, the date of enforcement has not been gazetted in the Government Gazette.

It’s alarming that the Deputy Minister has taken the view that consent to process personal data must be express and cannot be implied or assumed. It is certainly impractical to obtain express consent for all sorts of commercial transactions. For example, when someone visits an eCommerce website and transacts on the website, the website owner must obtain express consent for each personal data collected from the user. This may be some form of pop up or option for the user to click before he can proceed further. Imagine this popup and option appearing everytime new data is collected. Some data are collected in the background in order for the website to work. It’s disruptive to both the owner and user.

Another example is when data is passed to a service provider of the data user for the former to provide services to the data subject. Assuming express consent is required, the service provider will need to approach the data subject for consent. Data subject will have a lot of calls asking for consent!

I hope that the Commissioner will take a different approach ie by recognising implied consent.

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Date of Coming into Operation of the Franchise (Amendment) Act 2012

The Malaysian Ministry of Domestic Trade, Co-operatives and Consumerism has appointed 1 January 2013 as the date on which the Franchise (Amendment) Act 2012 comes into operation.

For a write up on the changes to the Malaysian Franchise Act 1998, please see our article “Amendment to the Malaysian Franchise Act 1998

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Anonymity, is your time up?

A. Asohan, my fellow comrade from the Stop 114A Committee, quoted me in his article in Digital News Asia regarding internet anonymity. I am an advocate of privacy rights and to me certainly would extend to online privacy. We now live in a world where enterprises are hungry for personal data to be exploited commercially. It can trace, among others, your habits, preferences and history.

Anonymity, is your time up?

 A. Asohan
Oct 26, 2012

 

Anonymity has a rich tradition and can be essential for some forms of online discourse

  • Yet it can be easily abused – should sites like DNA require identification for posting comments?

WE start, with a nod to Dickens, with a tale of two lawyers, both speaking about the contentious amendment to the Evidence Act 1950 that the Malaysian Government has bulldozed through.

The Government first said the law was formulated to bolster prosecution against online defamation and sedition – it later changed its tune to say it was to tackle terrorism and cybercrimes – by making it tougher for online commentators to hide behind anonymity.

[Further analysis of the wording in the legislation however suggests that it would actually encourage anonymity by making all parties up and down the online access supply chain legally liable and presumed guilty.]

In one forum discussion on the Evidence (Amendment) (No2) Act 2012, or Section 114A, Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee, while acknowledging the mischief that anonymous commentators can cause, said that most Malaysians prefer to comment and engage anonymously.

“Clearly we all want to be anonymous online, in order to protect ourselves,” he said.

I was one of the panelists in that discussion, which was moderated by Jacqueline Ann Surin, co-founder and the editor of The Nut Graph. We had worked in The Star together, and I just muttered to her, “Not me,” and she nodded, “Not me either.”

Sure, we old-school journalists may not have understood the concept of personal branding in today’s online world, but we’ve always known about the value of our bylines. A journalist’s byline is our mark – it tells you who we are and what we stand for. Why would we want to hide it behind a shield?

We trust ourselves to be able to be critical without being defamatory, to be able to call a spade a spade without resorting to name-calling, to get to the heart of the matter without the need to insult.

In all my online interactions – whether it is on tech or political sites, whether it is on forums dedicated to role-playing games or my beloved and oh-so-depressing Liverpool Football Club, on my Facebook and Twitter accounts – I use my real name. My thoughts and what I believe in are part of my identity; they make up who I am.

So I never needed to shield myself behind anonymity. Not that I can’t see its value either. Another lawyer at yet-another forum discussion on Section 114A, K. Shanmuga, Member of the Malaysian Bar, pointed out that there is a rich and respected tradition of anonymity in political discourse, dating back a few centuries.

Without going into details, much of British political satire depended on anonymity – or more accurately, pseudonymity, where an assumed name or pseudonym was used instead of the author’s real name. In literature, women had to use male pseudonyms to be taken seriously, let alone get published.

The Federalist Papers, a collection of essays promoting the ratification of the US Constitution, was published anonymously, but was actually written by Alexander Hamilton, James Madison, and John Jay.

“Satirists such as Jonathan Swift and Alexander Pope published anonymously, often for legal and political reasons,” Robert Folkenflik, emeritus professor of English at UC Irvine, writes in theLos Angeles Times.

“Anonymity protected Swift from arrest when a reward was offered for the author of his Drapier’s Letters, pamphlets advising the Irish not to take copper half-pence from England. The novels of Daniel Defoe, Samuel Richardson, Laurence Sterne, Tobias Smollett and Fanny Burney were all anonymous,” he adds.

Whistleblowers and inside sources require anonymity to protect themselves when they reveal information of public interest, especially in Malaysia, where the authorities prefer to shoot the messenger rather than prosecute the perpetrator.

So, granted, anonymity has its place in discourse. But it should never be taken as an excuse to be a jerk. In many cases, anonymous online commentators take it as their due, and end up only proving John Gabriel’s “Greater Internet F***wad Theory,” pardon the language [or the asterisks, rather].

Not just in Malaysia, but throughout the greater online world, there has been a growing movement against anonymity – especially when there is no need for it. And yes, you can criticize the Malaysian Government and some of its decisions without being seditious or defamatory, as Digital News Asia founder Karamjit Singh did when he described the proposed Budget 2013’s RM200 smartphone rebate as stupid.

Social media networks like Facebook and LinkedIn have helped prepare us for this. When you think about it, social media loses at least half its value you don’t use your real identity.

Indeed, Facebook marketing director Randi Zuckerberg believes that putting an end to anonymity online could help curb cyber bullying and harassment.

“I think anonymity on the Internet has to go away,” she said during a panel discussion on social media hosted byMarie Claire magazine, The Huffington Post reports. “People behave a lot better when they have their real names down. … I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.”

Google began cleaning up YouTube’s comments section by encouraging users to post their real names, taken from their Google+ account — since Google requires the real name of someone signing up for a Google+ account,PCWorld reported.

Google’s former chief executive officer and current executive chairman Eric Schmidt has gone on record to describe online anonymity as “dangerous.”

“Privacy is incredibly important,” he said, adding, “Privacy is not the same thing as anonymity.” He went on to saythat “if you are trying to commit a terrible, evil crime, it’s not obvious that you should be able to do so with complete anonymity.”

We have had discussions about anonymity in our comments sections at DNA recently. When we launched the site in May, it was important to us that DNA provided a platform for insightful, interesting, honest and critical conversation about the tech ecosystem.

I am happy to say that has been the case, at least most of the time. When we noticed some “this sux” and “that sucks” comments coming in, we implemented “ground rules,” advising readers that we will delete comments that do not abide by them.

There have been some that have breached this, but we haven’t yet taken the prerogative to remove them, since such strident calls for attention have largely been drowned by the more intelligent conversations going on around them.

But lately, we’ve noticed what can only be described as “questionable comments” being posted in stories about entrepreneurs and startups in our Sizzle/ Fizzle/ Slow Burn section. “Questionable” because they were posted by “silhouettes” and/ or had content which made sense only if they came from the competitors of the companies in question.

That’s just not cricket. It’s sock puppetry of a different nature or name, but smelling just as foul. And we also realized that as we cover more companies, and as the start-up space here becomes more mature and crowded, as companies vie not so much on different ideas, but on different implementations of essentially the same idea, the competition is only going to get stiffer, and perhaps uglier.

And such foul play may find expression in our comments section.

We don’t want that to happen. One way of preventing this is to make identification a prerequisite for posting comments. We are loath to do so, but will take what action is needed to preserve the integrity of the site, and the generally high level of discourse that takes place here.

But we would like to hear from you, dear readers. Tell us if you would support such a move if it came to the crunch, and why; or if not, why not. Give us the pros and cons. Let’s hear from you.

And yes, you can do so anonymously, if you prefer. 🙂

When I said, “Clearly we all want to be anonymous online, in order to protect ourselves”, it wasn’t referring to the right of anonymity to posting comments and opinions online. I wasn’t referring to the right of anonymity in the narrow sense.

To me, the right of anonymity is the right to control your information online. I don’t want to be posting my full name online. I don’t want my potential clients to be googling my name to find pictures of me partying in my heydays. I would like to use an online pseudonym on Twitter and blog so that, among others, potential clients/employers/competitors don’t know what I do daily, who my family members are etc.

I think the video below summarises the problem without the right of anonymity.

The video above basically shows a gifted clairvoyant who finds out about numerous information above a few people he met. The gifted clairvoyant can be seen “reading” those people’s lives accurately.

[Read below for spoiler]

It was later shown that the gifted clairvoyant had a team of people scouring the Internet for information of those people.

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