Monthly Archives: August 2015

Bread & Kaya: Uber and GrabCar services legal in Malaysia?

Bread & Kaya: Uber and GrabCar services legal in Malaysia?

By Foong Cheng Leong
Aug 12, 2015

– The apps appear legal under current laws, but are the drivers?
– Public transport services need to be regulated to ensure they are safe

ON Aug 7, 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.

SPAD said it would bring the matter to court.

This is not the first time the Commission has acted. According to a March 3 report in theSun, No escape for operators violating Land Public Transport Act, 39 private vehicles that were used to offer taxi-like services through different mobile applications like Uber, MyTeksi and Blacklane, were seized.

App-based transportation network companies such as Uber have been subject to ongoing protest and legal actions around the world. Uber has been banned in numerous countries such as Australia, India and Thailand, as well as certain parts of the United States.

GrabCar and Uber are essentially a service which connect users for rides on private cars. For the purpose of this article, I’ll focus on Uber which I am familiar with. I’ve used Uber when I was in the United States and Singapore.

If you’re wondering whether Uber and GrabCar services are legal in Malaysia, there is no express prohibition under the law to have software to connect users for rides on private cars.

According to a report in automotive portal paultan.org, SPAD chairman Syed Hamid Albar said that existing laws are silent on mobile apps offering public transport services, and this meant that SPAD was finding it difficult to rein in foreign and local mobile apps such as Uber and GrabCar, which it claimed were offering illegal public transport services.

However, Uber and GrabCar’s positions are quite clear: They do not provide transportation services but merely connect their users with drivers.

In the Recital of Uber’s Transportation Provider Service Agreement, it is stated:

Rasier does not provide transportation services, and is not a transportation carrier. In fact, the Company neither owns, leases nor operates any vehicles. The Company’s business is solely limited to providing Transportation Providers with access, through its license with Uber, to the lead generation service provided by the Software, for which the Company charges a fee (“Service”).

In GrabCar’s Terms of Use, it states:

The Company is a technology company that does not provide transportation services and the Company is not a transportation provider. It is up to the third party transportation providers to offer transportation services to you and it is up to you to accept such transportation services.

However, the problem lies with the drivers providing the transportation services. Under Section 16 of the Malaysian Land Public Transport Act 2010 (Act), no person shall operate or provide a public service vehicle service using a class of public service vehicles unless he holds an operator’s licence issued under said Act.

A person is deemed to be operating or providing a public service vehicle service if he:

(a) uses or drives a public service vehicle of a class of public service vehicles himself; or
(b) employs one or more persons to use or drive a public service vehicle of a class of public service vehicles,

to operate or provide a public service vehicle service, and

(a) he owns the said public service vehicle; or
(b) he is responsible, under any form of arrangement with the owner or lessor of the said public service vehicle to manage, maintain or operate such public service vehicle.

Based on the above definition, Uber and GrabCar do not seem to fall within the scope. Hence, Uber and GrabCar apps are legal in Malaysia.

Notwithstanding that Uber and GrabCar apps are legal in Malaysia, are Uber and GrabCar’s drivers legal in Malaysia?

Uber and GrabCar drivers can legally provide public transportation service if they are licensed under the Act.

In fact, Uber’s Transportation Provider Service Agreement (PDF) states that an Uber driver (pic above) must “possess a valid driver’s licence and all licences, permits and other legal prerequisites necessary to perform rideshare or P2P (peer-to-peer) transportation services, as required by the states and/or localities in which you operate.”

From this agreement, it is clear that Uber requires its drivers to have a valid licence to provide “rideshare or P2P transportation services” which are essentially transportation services. Drivers without such a licence are committing an offence under Section 16 of the above Act, or can even be considered as breaching Uber’s own Transportation Provider Service Agreement.

Section 16 of the Malaysian Land Public Transport Act 2010 (Act) provides that any person, not being a corporation, who commits an offence shall, on conviction, be liable to a fine of not less than RM1,000 but not more than RM10,000, or to imprisonment for a term not exceeding one year, or to both. [RM1 = US$0.25]

The court may also order the vehicle to be forfeited to the Government under Section 80(4) of the Act.

In Reza Kianmehr v. PP [2013] 7 CLJ 265, Reza Kianmehr was convicted and sentenced to a fine of RM2,000 in default of two months’ imprisonment for the offence of operating a public service vehicle service (in local terms, kereta sapu) without a licence under Section 16 of the Act. His car was also ordered to be forfeited to the Government under the same Act.

The reason for regulating public transport service vehicles is simple. We need to make sure public transport is safe to the public. Details of drivers must be recorded and they must meet the minimum qualifications.

Those who escape the system are a risk to users and those on the streets.

Assuming an accident is caused by an unlicensed public transport vehicle driver where the passenger and person on the streets are injured, would the driver’s insurance cover such injuries, or even death?


First published on Digital News Asia on 12 August 2015

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Sarawak Report should sue MCMC for blocking site, say lawyers

I was quoted by Malaysia Insider on their report “Sarawak Report should sue MCMC for blocking site, say lawyers” on 22 July 2015. The relevant extract is below.

However, personal data protection expert and lawyer Foong Cheng Leong told The Malaysian Insider that none of the provisions in the Communications and Multimedia Act 1998 explicitly provided for blocking access to sites.

In justifying its decision, MCMC on Sunday said it had acted according to Section 211 and 233 of the act. Both these sections provide for criminal prosecution against those who have been deemed to publish “offensive” content, or content that intends to “annoy” or “harass” any person.

Under both sections, an offender can be sentenced to not more than one year jail or RM50,000 fine, or both.

But Foong said the more relevant act that MCMC could have used to justify its action was Section 263, which said licensees, which were network providers, had the general duty to assist MCMC in preventing the network being in commission of any offence under Malaysian laws.

“This is the provision that is used to compel service providers to help block a website upon request by MCMC,” Foong said.

However, even this section did not explicitly provide for the blocking of a website.

Service providers are not obligated by law to cede to requests to block certain cites, but they normally comply with such requests since MCMC regulates their licences.

“It is possible to bring this matter to the court and challenge it, one possibility is to say that this is ultra vires what is provided for in the act itself,” Foong said.

Section 3 (3) of the same act states that the act does not allow for the censorship of the Internet, in line of the Multimedia Super Corridor (MSC) Bill of Guarantees, which promised the same.

“And because the act doesn’t explicitly provide for blocking of a website, one can also argue that MCMC is acting beyond its scope (with the block).”

There’s a slight clarification on the use of s. 263. If we look at MCMC’s notice, it did state that the blocking order is made pursuant to s. 263 of the CMA. The exact section is s. 263(2) of the CMA which provides the following:

(2) A licensee shall, upon written request by the Commission or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.

The sentence “preventing the commission or attempted commission of an offence” is key here. No actual offence needs to be committed but an attempt is sufficient to enable MCMC to act against a website. The section does not expressly state “blocking order” but such blocking order is commonly used against unlawful websites such as pornography or drugs websites.

I made further comments in the Malay Mail in their article “Sarawak Report blockage shines light on ‘abusive’ MCMC powers” on this matter:-

Lawyer Foong Cheng Leong, who is well-versed with cyber law, said Section 263(2) has a wide scope and could be interpreted “very liberally” to mean that MCMC can ask ISPs to block a website even when no complaint or police report has been lodged.

“You don’t have to wait for the court to convict the person to block the website,” the KL Bar Information Technology committee chairman told Malay Mail Online when contacted, adding that even prosecution was not a requirement for the section to apply.

Foong said there is “room for abuse” as the MCMC can cite the broadly-worded clause to block websites without reasonable basis, but noted that website owners could seek legal remedy by attempting to have unjustified blocks declared unlawful and beyond the MCMC’s authority.

Both Foong and Amer Hamzah said there appears to be no tribunal available for website owners to appeal to and it is unclear whether the CMA’s Section 82 on resolving disputes through negotiation covers such cases.

The two lawyers suggested safeguards to curb any possible power abuses by MCMC under Section 263 (2), with both saying that the regulator should notify the website owner when it makes a written request to the ISPs to block the websites.

“If you look at the Home Ministry’s website, there is a list of books being banned. Why can’t we have say a list what kind of website has been banned?” Foong asked, adding that a clear avenue for website owners to appeal to the MCMC decision must be provided.

Foong said, however, that some curbs were justifiable, citing as example Islamic State militants’ propaganda as well as existing restrictions on pornography, gambling and drugs.

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