Information Technology

Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law

I am happy to announce that my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” is available for pre-order. This is my third book. It started off with a compendium of cases but subsequently evolved into a textbook. It took me about a year to restructure the contents into a textbook.

This book was inspired by the case of PP v Loh Guo Shi [2016] 1 SMC 190. My learned friend, Lim Chi Chau and I represented the accused when he was charged under s. 5 of the Computer Crimes Act 1997. He was accused of deleting his employers’ database. 

When the case came to us, there was no reported case under Computer Crimes Act 1997 nor any local textbooks that could help us in defending his case. All I had was the book Electronic Evidence by Stephen Mason. This book was recommended by Justice Tan Sri Dato’ Mohamad Ariff Yusof (as then he was) when I had a trial before him. 

Fortunately, when I read the documents provided by the prosecution, I saw flaws in the prosecution’s case. One of them was the issue of Internet Protocol (IP) address. I looked at the year of the alleged offence and I realised that the accused was using a Telekom streamyx account. In that year, a streamyx account can be accessed anywhere so long a person has the login and password. During the trial, we got the witness from Telekom Malaysia Berhad to agree with us. There was no evidence that the accused had log on to his account during the time of offence. Further, by reading the log files provided by the prosecution, we discovered that there was a break in the chain of evidence.

The learned Magistrate, Puan Aminahtul Mardiah, acquitted the accused without calling his defence. The High Court had also dismissed the prosecutor’s appeal. The details of this case are also reported in this book. 

I would like to believe that we freed an innocent man by using knowledge beyond the law. By writing this book, I hope to help those who face the same or similar predicament as us. 

Overview

As technology evolves at lightning speed and digitalisation spreads across businesses and people’s lives, a new perspective and a new approach is needed to tackle the issues that come along with emerging technologies. It is natural to expect more and more cases relating to cyberlaw and information technology to be filled in court and even more so to expect digital evidence to be tendered in court.

Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law is the only book on cyberlaw and electronic evidence in Malaysia. Carrying more than 200 local cases and some selected foreign cases with commentaries, this publication looks at areas that have evolved in the digital sense such as civil issues like defamation, privacy and copyright. Current and very much relevant issues such as instant messages, social media postings, admissibility of electronic evidence in industrial relation disputes and digital asset cases are also discussed. Chapters have been devoted to legal practice and technology, the digital economy, electronic signature and electronic commerce.

This illuminating text provides valuable guidance in emerging areas of law. Its structure is held together by a carefully crafted set of headings to ensure that the text is easily accessible. The inclusion of references to many previously unreported cases, including some decisions of the Sessions Court, certainly lends depth to the analysis and discussion in this book.

This practical title is useful for litigators who are involved in matters concerning electronic evidence, information technology and cyberlaw and will be a valuable guide through its carefully structured commentary and insightful analysis.

CONTENTS:

  1. Civil Matters
  2. Cybercrime
  3. Admissibility of Computer-Generated Documents
  4. Presumption of Fact in Publication
  5. Instant Messages, Social Media Postings & Other Electronic Evidence
  6. Electronic Evidence in Industrial Relation Disputes
  7. Electronic Evidence in Family Disputes
  8. Discovery
  9. “.MY” Domain Names
  10. Legal Practice and Technology
  11. Digital Economy
  12. Electronic Commercial Transactions
  13. Electronic and Digital Signatures
  14. Digital Assets
  15. E-Commerce

You may purchase the book at Sweet & Maxwell’s website or any selected book stores.

Bread & Kaya: 2018 Malaysia Cyber-Law And IT Cases – Cyber-Defamation


By Foong Cheng Leong
April 26, 2019

  • In cyber-defamation cases, the High Court has granted damages between RM50K to RM100K
  • Court assumes that you have published something if it originates from your email, Facebook, etc

IN THIS second, of a four-part series, I will talk about the rise of cyber-defamation. The number of cyber-related tort cases filed in the Kuala Lumpur High Court in 2018 increased to 60 over from over 50 cases. Most of these cases were related to cyber-defamation.

The Court dealt with numerous defamatory online postings that went viral. In these cases, the High Court has granted damages between RM50,000 to RM100,000.

In Datuk May Phng @ Cho Mai Sum & 2 Ors v Tan Pei Pei [2018] 4 AMR 784, HC, the High Court was tasked to assess the damages to be granted to the Plaintiff against the Defendant for publishing defamatory statements in an email to at least four recipients.

It was not disputed that the said email has been circulated among the public via the internet to as many people as possible and the Defendant invited the recipients to read and spread its contents as widely as possible.

The Court held that the said e-mail was not an ordinary email directed to one person, but the said e-mail was written in the context to address the public, to have the said e-mail widely circulated among the public. Therefore, the Court was of the view that the said e-mail had been widely circulated and/or presumed to be so.

The Defendant’s attempt to prove that the e-mail was sent only to the four individuals named therein or five individuals as a whole as contemplated by the Plaintiffs does not change the scenario or fact that such publication in the internet via email is deemed to be wide circulation because the Defendant intended the wide circulation of the said e-mail based on her statements in the said e-mail where the Defendant requested the public to circulate the said e-mail.

The Court held that it is practically impossible to prove exactly to whom the said e-mail had been circulated, there is a presumption by law that such circulation over the internet is presumed to be wide publication and the onus is on the Defendant to prove the limited publication as alleged.

The High Court granted RM80,000 as general damages.

In Mohamed Hafiz Mohamed Nordin v Eric Paulsen and Another Appeal (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-1668-08/2017), the Plaintiff filed an action against the Defendant for defamation arising from an article published on the internet via the website of Portal Islam & Melayu at www.ismaweb.net which went viral on social media.

The Plaintiff is the executive director of ‘Lawyers for Liberty’, a human rights lawyers’ non-governmental organisation, and a well-known human rights lawyer and activist in Malaysia.

The Defendant is a member of the Pertubuhan Ikatan Muslimin Malaysia (Isma), a non-governmental organisation established in 1997. Isma’s main focus is Islamic propagation in the country.

The Plaintiff alleged that the Defendant had uttered a defamatory statement which was published in an article entitled “Jangan Biar Eric Paulsen bebas tanpa perbicaraan” on www.ismaweb.net.

The High Court found that the Plaintiff had failed to prove that the impugned statement was defamatory as he had failed to prove that his reputation has been adversely affected and tainted. The High Court also dismissed the Defendant’s defence of justification and fair comment.

On appeal, the Court of Appeal found that the impugned statement is derogatory, calculated to incite hatred and anger amongst the multi-religious groups and ethnicity in Malaysia.

The impugned statement not only described the Plaintiff as a fraudster, a liar who incites hatred of the Islamic religion, but also as a person funded and supported by foreign entities, such as the United States of America and the European Union.

In their natural and ordinary meaning, impugned statement meant and was understood to mean by reasonable and ordinary readers of the article that the Plaintiff is anti–Islam. Therefore, taking the bane and the antidote of the article published the defamatory statement had only one purpose, that is, to tarnish the plaintiff’s character and reputation.

The Court of Appeal granted damages of RM100,000.00.

In Mohd Khaidir Ahmad v. Mohd Iqbal Zainal Abidin [2018] 1 LNS 1150, the Court of Appeal upheld the High Court’s decision in finding the Defendant liable for defaming the Plaintiff on his Facebook page.

The Defendant had alleged that the Plaintiff, an Assistant District Officer of Temerloh, had abused his power and was corrupt, among others. One of the Facebook postings had an uploaded photograph of the Plaintiff, his son and car together with defamatory statements.

The Facebook postings attracted responses, negative ones at that, on his Facebook page. The allegation of abuse of power and corruption appeared to resonate with the netizens who posted their comments, generally agreeing with the same.

The Defendant denied that the words were defamatory of the Plaintiff, that they were fair comments and disclaimed responsibility for the negative comments by the netizens.

The Court of Appeal upheld the High Court’s decision in dismissing the Defendant’s defence and also upheld the damages of RM50,000 granted by the High Court. The Court of Appeal agreed with the High Court that the Defendant failed to prove that the Plaintiff had received bribes, and rejected the defence of qualified privilege as the postings were made without there being a duty to do so for they were done for his own interest, not that of the public.

Pre-action discovery – Finding out who defamed you

A pre-action discovery application is an action filed in Court against parties who are in possession of information of a wrongdoer. In usual cases, such an action is filed against a website operator, whose users had published defamatory comments, to divulge the identity of their user.

This is what had happened in the case of Kopitiam Asia Pacific Sdn Bhd v Modern Outlook Sdn Bhd[2018] MLJU 1450. The Plaintiff filed a pre-action discovery application against the three Defendants after it discovered a defamatory article relating to it on the websites connected to the Defendants. The Plaintiff stated that it intends to file an action for slander of goods against certain parties and required particulars of the said parties from the Defendants.

The 1st Defendant is a company dealing with activities related to payment and to up services via the internet portal industry. The 2nd Defendant is a company providing website registration services. The 3rd Defendant is the provider of the server where the website where the defamatory article was placed.

The 2nd Defendant did not object to the application subject to the information to be released being confined to only information in their possession and/or the release of the said information is within the ambit of law in particular the Personal Data Protection Act 2010.

The High Court granted the order against the 1st and 3rd Defendant as the Plaintiff had indeed stated the material facts pertaining to the intended proceedings which relates to a cause of action for slander of goods. They have also identified the persons against whom the order is sought and is likely to be a party in the subsequent proceedings in the High Court apart from specifying and describing the documents needed.

Other than a website operator, the High Court held that a domain name reseller can be compelled to divulge information of their customer.

In Nik Elin Zurina Binti Nik Abdul Rashid v Mesra.net Sdn Bhd (Kuala Lumpur High Court Suit No. WA-24NCvC-179-02/2018) (Unreported), the Plaintiff sought a pre-action discovery order against the Defendant, who was a reseller of Mynic Berhad, the sole administrator for web addresses that end with .my in Malaysia. The Defendant had assisted in the registration of the domain name Menara.my and the Plaintiff claims that Menara.my had defamed her through a few articles. The Plaintiff wanted the Defendant to divulge the identity of the owner, operator and registrant of the domain name.

The High Court allowed the Plaintiff’s application and ordered the Defendant to divulge the identity of the owner of the website.

Interlocutory injunction – Stopping a person immediately

An interlocutory injunction is an order restraining a person from doing an act pending the disposal of the matter in trial. A trial date is usually fixed a few months after a legal suit is filed. If a person wants a tortfeasor to stop publishing further defamatory statements immediately pending the disposal of the matter in trial, he can file such an application with the Court.

Any person who does not adhere to a Court order can be cited for contempt. In Maria Faridah Atienza v. Hadijah Mohamaed Mokhtar & Anor [2018] 3 CLJ 655, the High Court fined the 1st Defendant RM30,000 and sentenced the 1st Defendant to prison for two weeks after she had failed to pay the fine. The Defendant breached the Court’s injunctive order restraining her from making or publishing any statement against the Plaintiff. She had done so by publishing certain statements on her Instagram account.

In Dato’ Sri Mohd Najib Bin Tun Haji Abdul Razak v Tony Pua Kiam Wee (Kuala Lumpur High Court Suit No. WA-23CY-17-04/2017), the Plaintiff, the former Prime Minister of Malaysia, sued the Defendant, a member of Parliament of Malaysia, for defamation. The Defendant had allegedly uttered and published defamatory statements on a live video which was published as a post entitled “BN Govt abandons all Bills to give precedence to PAS RUU355 Private Member’s Bills” on his Facebook account. 

The Facebook post went viral with 82,434 video views. The Defendant has 310,256 Facebook followers. The Plaintiff also filed an application was interlocutory injunction to stop the Defendant from uttering or publishing the defamatory statement.

The High Court granted the said application and held that the Defendant did not deny that he had published those alleged statements, and such statements are indeed defamatory.

On appeal, the Court of Appeal in Tony Pua Kiam Wee v Dato’ Sri Mohd Najib Bin Tun Haji Abdul Razak [2018] 3 CLJ 522 upheld the High Court’s decision.

[Edit: 29 April 2019 – Leave to appeal to the Federal Court (Civil Appeal No. 08(i)-107-03/2018(W)) has been granted for the following questions-

(i) Whether the test for an interim injunction in defamation proceedings laid down in The News Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36 is good law given the freedom of expression guaranteed by Article 10(1)(a), Federal Constitution?

(ii) Whether in light of Article 10(1)(a), Federal Constitution, an application for an interim injunction in defamation proceedings to restrain the further publication of impugned statements must be dismissed where the defendant has:

(a) pleaded and particularized the defences of justification and fair comment on matters of public interest in his Defence; and/or

(b) stated, on oath, his belief as to the truth of the impugned statement, and his ability and willingness to justify the impugned statement?

(iii) Whether the fact that the Speaker of the House of Representatives had ex facie exercised powers under the Standing Orders of the Dewan Rakyat, precludes the entitlement of a plaintiff to establish at trial, the fact that the exercise of such powers was not bona fide, in private law proceedings that refer to such exercise of power?

(iv) Whether a court is entitled in private Jaw proceedings to treat the fact of the Attorney General not having commenced prosecution under Article 145(3), Federal Constitution and/or the explanation for such decision as exonerating the impugned conduct, and such as to allow the court to further conclude by way of judicial notice under section 56, Evidence Act 1950 that no wrongdoing was committed?

Electronic evidence

Presumption of publication – Court assumes that you’ve published it

In Thong King Chai v. Ho Khar Fun [2018] 1 LNS 374, the Plaintiff sued the Defendant for defaming him via email and a closed Facebook Group.

In determining whether the statements were published, the High Court applied the presumption of publication under s. 114A of the Evidence Act 1950. The High Court held that pursuant to s. 114A, the presumption of fact is that the email was published by the Defendant as it had originated from his email address. Similarly, there is also a presumption of fact that the Facebook posting was published by the Defendant through his Facebook account.

The High Court also applied the presumption of fact raising a prima facie inference that postcards and telegrams, in the ordinary course of events, have been published to third parties unless the Defendant proves otherwise (as held in the case of Matchplan (M) Sdn Bhd & Anor v. William D Sinrich & Anor [2004] 2 MLJ 424). Applying the decision in Matchplan to the internet age of publication by email and Facebook, the High Court found that the email and the Facebook posting were published to the persons named in the email’s address list and cc list and also to the persons who had access to the Facebook Group. The Defendant did not provide any evidence to rebut this presumption of fact.

However, the High Court dismissed the action on the ground that the statements were not capable of bearing defamatory meaning and are in fact not defamatory of the Plaintiff. Even if the statements are defamatory of the Plaintiff, the Defendant would be able to rely on the defence of justification and/or the defence of fair comment.

Admissibility of Screenshots

In Norazlanshah Bin Hazal v Mohd Dziehan Bin Mustapha (Kuala Lumpur High Court Suit No. WA-23CY-14-03/2017), the Plaintiff sued the Defendant for defaming him on Facebook.

The Defendant disputed the authenticity of the screenshots which contained the alleged defamatory Facebook posting. However, the learned Judicial Commissioner refused to admit the screenshots as evidence as no evidence was led as to the maker of the contents of these screenshots and none were called to testify, no testimony as to how the screenshots were produced although there as admission that the documents were computer generated and no attempt to admit those screenshots under s. 90A of the Evidence Act 1950.

Part 3 which focuses on cyber-crime cases and other cyber offences will be published on May 3.

First published on Digital News Asia on 26 April 2019

Bread & Kaya: 2018 Malaysia Cyber-Law And IT Cases – Fake News, Private Information & Instant Messaging

THE change of Government after the 14th General Election saw changes to our sphere of cyber and IT laws. The new Government withdrew numerous charges under s.233 of the Communications and Multimedia Act 1998, especially against those who had allegedly spoke against the previous Government.

The Anti-Fake News Act 2018 that was introduced before the 14th General Election was quickly shipped away by the House of Representatives via The Anti-Fake News (Repeal) Bill 2018, but was thwarted by the Senate. One person has been charged and sentenced under this Act.

There has also been an array of interesting cyber- and IT-related cases in our Courts.

An employee was dismissed from his job as his conduct could amount to sexual grooming under the Sexual Offences Against Children Act 2017. His action was recorded and featured in an undercover expose by the Star newspaper team of journalists know as The STAR R.AGE Team.

We saw the first decision on the liability of online service providers i.e whether they are liable for trademark infringement for the sale and advertisement of their Merchants’ products published on their website.

We also saw a greater adoption of the electronic service of Court documents. In 30 Maple Sdn Bhd v Noor Farah Kamilah Binti Che Ibrahim (Kuala Lumpur High Court Suit No: WA-22IP-50-12/2017), the Intellectual Property High Court granted an application to serve a Writ and Statement of Claim via email and WhatsApp messenger after it could not locate the Defendant at her last known address.

Traditionally, when a Defendant cannot be located, a Plaintiff would normally ask the Court to allow a notice relating to the lawsuit to be published in the newspaper, among others. The current Rules of Court 2012 does not expressly recognise the electronic service of Court documents notwithstanding that people are more mobile these days. Furthermore, the chance of being able to communicate with someone online is much higher than in person.

PKR communications director and Member of Parliament for Lembah Pantai, Fahmi Fadzil’s civil suit against the Malaysian Communications and Multimedia Commission and Nuemera (M) Sdn Bhd (Ahmad Fahmi Bin Mohamed Fadzil v Suruhanjaya Komunikasi dan Multimedia & Anor (Kuala Lumpur Sessions Court Suit No. WA-A52-2-02/2018)) for allegedly failing to protect his personal data which resulted in the leakage of his personal data together with the personal information of 46.2 million mobile subscribers has now been settled. This was one of Malaysians’ biggest data leaks. However, the terms of settlement were not disclosed.

Nevertheless, the lawsuit by Nuemera (M) Sdn Bhd against Malaysian Communications and Multimedia Commission (Nuemera (M) Sdn Bhd v Malaysian Communications and Multimedia Commission(Kuala Lumpur High Court Originating Summons No. WA-24NCC(ARB)-14-04/2018)) over its suspension of their services to the Commission due to the data leakage is pending before the Court of Appeal (Civil Appeal No. W-01(NCC)(A)-318-05/2018). The details of the lawsuit are unknown as the Court documents have been sealed by the Court.

I will summarise all these over four articles as part of my yearly tradition of what happened in the preceding year.

Anti-Fake News Act 2018 – Taking down fake news

The Anti-Fake News Act 2018 was quickly passed by the previous Government prior to the 14th General Election.

According to the explanatory note of the Anti-Fake News Bill 2018, the law was introduced to seek to deal with fake news by providing for certain offences and measures to curb the dissemination of fake news and to provide for related matters. As technology advances with time, the dissemination of fake news becomes a global concern and more serious in that it affects the public.

The Act seeks to safeguard the public against the proliferation of fake news whilst ensuring that the right to freedom of speech and expression under the Federal Constitution is respected. The provision on the power of the Court to make an order to remove any publication containing fake news serves as a measure to deal with the misuse of the publication medium, in particular social media platforms. With the Act, it is hoped that the public will be more responsible and cautious in sharing news and information.

S.4 of the Anti-Fake News Act 2018 makes it is an offence for any person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news.

“Fake news” is defined as any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.

It was reported that one Salah Salem Saleh Sulaiman was charged and punished under s. 4(1) of the Anti-Fake News Act 2018, which carries a punishment of up to six years in prison and a fine of up to RM500,000, for maliciously publishing fake news in the form of a YouTube video under the user name Salah Sulaiman. He pleaded guilty and was sentenced to a week’s jail and fined RM10,000.

Online news portal, Malaysiakini.com, tried to challenge the constitutionality of the Act but failed in the High Court. In Mkini Dotcom Sdn Bhd v Kerajaan Malaysia & Anor (Kuala Lumpur Judicial Review Application No. WA-25-111-04/2018), Justice Azizah Nawawi held that the application should be dismissed as neither Malaysiakini nor its reporters had been charged under the law. She allowed the objection by the Government to refuse the leave application as the applicant is not adversely affected and the action is premature. Malaysiakini appealed to the Court of Appeal (Civil Appeal No. W-01(A)-399-06/2018) but the appeal was subsequently withdrawn.

As soon as Pakatan Harapan took over the Government, the Anti-Fake News (Repeal) Bill 2018 was introduced to repeal the Anti-Fake News Act 2018. The explanatory note of the Bill stated that fake news may be dealt with under existing laws such as the Penal Code, the Printing Presses and Publications Act 1984 and the Communications and Multimedia Act 1998. As such, the Act is no longer relevant. The House of Representatives passed the said Bill. However, the Senate rejected the Bill. As of the date of this article, the Anti-Fake News Act 2018 still stands.

Family disputes

Private Information – Leaked nudes

As video recording and photography become easily accessible, our Courts are now stating to deal with electronic files containing intimate and/or private materials.

In Datuk Wira S.M Faisal Bin SM Nasimuddin Kamal v Datin Wira Emilia Binti Hanafi & 4 Ors[2018] 7 CLJ 290, the 1st Defendant, the ex-wife of the Plaintiff, had taken into possession mobile phones and USB Flash Drives belonging to the Plaintiff. It was alleged that one of the flash drives contains files which featured intimate and/or private audio-visuals.

The Plaintiff sued the 1st Defendant and her other family members for the return of the devices. The High Court held that there had been no denial that the devices belonged to the Plaintiff. In view of the aforesaid, the High Court ordered the return of the devices.

In M v S (Joint Petitioners) (Sabah and Sarawak High Court), the High Court had to deal with the expungement of nude pictures allegedly of the wife. The husband and wife were fighting over the custody of their children. Custody was earlier granted to the husband and the wife applied to vary the custody order.  

In opposing the application, the husband exhibited in his affidavit nude photographs of the wife taken from her computer and hand phone without her consent and stated she is a “wild woman” and an unfit mother. The wife applied to expunge several paragraphs and related nude pictures in the said affidavit under Order 41 Rule 6 of the Rules of Court 2012.

The High Court found that the wife did not release the pictures into the public domain. She had stored them privately in her hand phone and laptop computer. It is the husband who accessed them without her permission and gave access to others including law firm staff and court staff by exhibiting them in the affidavit in opposition without any sort of censoring whatever.

Thus, the exhibition of the said pictures of the wife in the affidavit in opposition was a gratuitous and malicious act to embarrass and humiliate her. The exhibition of the uncensored pictures in the husband’s affidavit was therefore scandalous and oppressive. Under these premises, the discretionary power vested in the court under Order 41 rule 6 of the Rules of Court 2012 should come to the aid of the wife.

The High Court also held that, in this day and age, private intimate photographs of a person stored in the computer or handphone should not suggest that person in question is immoral or an unfit parent.

Instant messaging – “WhatsApping” your children

In Lee Chui Si v Teh Yaw Poh (Sabah & Sarawak High Court Divorce Petition No. KCH-33JP-234/7-2017), the High Court found ways to soften the blow of a divorce by introducing the use of electronic messaging. The husband and wife fought over the custody of their children but two of their children do not wish to see their father.

Nevertheless, the learned Judge was of the view that a window of opportunity should be left open for the father to make amends to his two children. As such, in lieu of physical access, access to their father can be given by way of communicating with them via mobile phones (WhatsApp, phone calls, SMS or WeChat). In view of the present strained relationship between the two children and their father, the communication between them should be limited in the early stage and the Judge limited it to one phone call not exceeding ten minutes and two text messages a week. If the said two children respond and feel comfortable with communicating with their father, the number of phone calls and texting can be more than what the court has decreed.

Part 2 which focuses on cyber-defamation will be published on April 26

First published on Digital New Asia on 19 April 2019.

BFM Podcast: THE DAILY DIGEST: TAKING DOWN PATRIOT ACT


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


The Bigger Picture team kicks off a new daily show, where we discuss current issues – both local and global – that have been thoughtfully curated by the team. Netflix has taken down an episode of its comedy show “Patriot Act with Hasan Minhaj”, in Saudi Arabia, after officials from the kingdom complained. The move has sparked criticism, and leads to questions about how streaming platforms will handle censorship.

Produced by: Sharmilla Ganesan
Presented by: Sharmilla Ganesan, Tee Shiao Eek and Tina Carmillia

Make it a point to ‘check and verify web addresses

I was interviewed by The Star Newspaper on the issue of fake websites-

He said a fake website was usually poorly designed and used low resolution images.

“Some of the contents are also too good to be true.

“Some would also request for information such as login or password, which they normally do not ask,’’ he added.

“Your browser or a good virus scanner would also warn that the website you are visiting is a suspicious site,” said Foong.

Foong said those operating fake websites could be punished under, among others, the Penal Code and Trade Marks Act 1976.

The article did not reproduce my entire interview. For completeness, I will elaborate the further points above. Other than the above points to spot a fake website, one can spot a fake website by first looking at the URL. If the URL of the page is suspicious, the page is likely to be fake.

In respect of the offence, it may amount to cheating under s. 415 of the Penal Code. The website owner may also initiate an action for trade mark infringement and passing off against the operator. If the design, logo or image of the website owner is used, this could amount to copyright infringement.

In order to take action against these unknown websites operators, the website owner may file a complaint with the domain registrar or website hosting provider, or even those advertising the fake pages e.g. Facebook.

The website owner should also warn the public about the existence of these websites.

BFM Podcast: CRACKING DOWN ON “FAKE NEWS”

The government is just about ready to roll out legislation that will crack down on fake news. We mull over what this means- will controlling the internet stifle our freedom to exchange information? And can these laws really help solve the issue of fake news? What is fake news?

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

Hijacking hardware in stealth mode

I was featured by The Star in their article “Hijacking hardware in stealth mode“. I was asked to comment about malicious cryptomining Malaysia.

Under our law, malicious cryptominers can be punished with the Computer Crimes Act 1997, says Bar Council information technology and cyberlaw committee deputy chairman Foong Cheng Leong.

“It can be considered unauthorised access to computer material or unauthorised modification to computer material,” he adds.

If found guilty for unauthorised access, the cybercriminal can face up to a RM50,000 fine, a five-year jail term or both.

At present, digital currencies such as bitcoin are not recognised as legal tender in Malaysia.

But cryptocurrency exchangers are required to report their activities to Bank Negara.

This reporting obligation, the central bank was reported as saying, is the first step in making activities in the cryptocurrency business more transparent.

Foong says while it is not recognised as legal tender, it doesn’t mean cryptocurrency is illegal.

“You can still use digital currencies to purchase things. It is up to the buyer and seller,” he adds.

However, he points out that cryptocurrency may also be misused, particularly in the black market for illegal purposes like money laundering, purchase of drugs and other undesirable items, to avoid detection.

“I foresee more crimes and disputes may arise from there,” Foong says.

Bread & Kaya: Dear Attorney General Tommy Thomas, we need to speak about our Malaysia cyberlaw and IT laws reforms

By Foong Cheng Leong | Jun 22, 2018

– Act is clearly against the very fundamental principal of “innocent until proven guilty”
– Need law to curb creation of fake news, especially if created to stoke racial or religious sentiments

Repeal of 114A of Evidence Act 1950

WHEN s. 114A was introduced in the Parliament in 2012, a protest was held by netizens to urge the Government to repeal s. 114A. The #stop114A campaign was held and Malaysia had it first Internet Blackout Day to protest this section.

S. 114A provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely 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.

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 custody 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. If someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”.

Position of intermediaries (e.g. platform providers)

Currently, many platform providers are vulnerable to be sued or charged in Court for what their users do. For example, an online forum owner would be liable for publishing defamatory statements made by their users pursuant to s. 114A of the Evidence Act 1950. Online marketplace operators may also be sued because their users sold counterfeit products.

It would be ideal for the Government to induce new laws to protect such platform providers but also the punish errant platform providers. For example, a one-strike or three-strikes rule. Under such proposed one-strike rule, an aggrieved person may file a complaint against the platform provider to remove certain postings. If the platform providers remove such posting within a specific time, the platform provider should be absolved from liability. However, if it fails to do so, it will be liable for the acts of its users.

S. 43H of the Copyright Act 1987 is a good example on how to deal with intermediary’s liable in respect of copyright infringement.

In this regard, the Sedition (Amendment) Act 2015, which is not in operation yet, should be repealed. The said amendment creates, among others, liability on website operators such as online forums, online news portals, and even Facebook page/ group owners. [Read http://foongchengleong.com/2015/04/bread-kaya-how-the-new-sedition-act-affects-netizens/]

Specific laws to govern blocking of websites or other electronic platforms.

All blocking orders should be made public and their detailed reasons to block websites. Currently, there is no public list other than one independently maintained by Sinar Project and reasons given are usually one-liners (e.g. in breach of s. 233 of the Communications and Multimedia Act 1998).

However, there could be specific websites which need not be reviewed due to national security issue, among others. As we all know, blocked websites can still be accessed via other means.

Blocking orders should also be made by the Courts rather than the arbitrary decision of the Minister. The current s. 263 of the Communications and Multimedia Act 1998 is used by the Ministry of Communications and Multimedia to direct internet service providers to block platforms in order to prevent the commission or attempted commission of an offence under any written law of Malaysia. In the past however, we have seen websites being blocked due to political reasons e.g. medium.com and bersih.org.

The Anti-Fake News Act 2018 and Sedition (Amendment) Act 2015 have provisions for websites to be blocked by way of application to the Court. All these blocking order sections and s. 263 of the Communications and Multimedia Act 1998 should be replaced with one single law to govern blocking of electronic platforms.

The law should also allow any person such as users of the platforms to challenge any blocking orders. When the previous Government decided to block medium.com, as far as I know, the site owners did not file any challenge in Court to unblock their website. Many netizens were denied access to informative and educational content from medium.com. There were no specific laws allowing them to challenge the block. They were also unsure if they could meet the threshold to file an action for judicial review.

Specific channels to allow litigants to obtain information about wrongdoers

In the present case, a person who wishes to obtain information about another person, for example another Facebook user who had defamed or harasses him, would need to go through a long and expensive process to obtain such information. Normally these wrongdoers will use platforms provided by foreign companies to attack another user.

It would be ideal if a straight forward process be made to such person to obtain such information. For example, filing a request to the Government for it to request the same from the platform providers.

SS. 211 and 233 of the Communications and Multimedia Act 1998

S. 233 of the Communications and Multimedia Act 1998 (which is similar to s. 211) has been used by the previous administration against dissent. 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. I concur with the Bar Council on this.

However, I suggest that new laws be introduced to stop contents which can cause hatred and disturbance about certain individuals or organisations. We cannot have people sending fake messages which can cause a riot, for example.

Anti Fake News Act 2018

Many calls have been made to repeal the Anti Fake News Act 2018, which came into operation weeks before the 14th General Election. One person has been sentenced and many have been investigated for spreading fake news. Prime Minister Dr Mahathir Mohamad has confirmed that this Act will be repealed.

Notwithstanding such calls to repeal the law, I am of the view that there should be laws to curb the creation of fake news especially those created to stoke racial or religious sentiments. Note that s. 233 of the Communications and Multimedia Act 1998 requires a communication to target a certain person. Fake news may not necessary be targeting a certain person. It could target a race and a place, for example.

Revamp of the Admissibility of Electronic Evidence

Currently, almost every document printed by a computer is admissible under s. 90A of the Evidence Act 1950. This section should be examined to define clearly on what admissible and not admissible.

The Court’s electronic system should also be upgraded to allow the admissible of all forms of electronic media such as songs, videos and animated files. Currently, lawyers have to burn those evidence in a CD to be filed in Court. This defeats the open justice system where all Court proceedings are accessible to the public.

[Postscript] In addition, the Court’s file search system should also be updated. Currently it allows a user to conduct a file search for 30 minutes (per ticket) via its slow system. It loads page by page and one cannot download all the documents at one go. It should be revamped to allow a user to download the entire file with one single fee.

Laws to protect netizens

New laws should be introduced to criminalise cyberbullying, stalking and harassment. It is noted that this type of acts these days are not made directly against a person.

Government should also study the criminalisation of maintaining cybertroopers. Many organisations in the world including Governments use the services of cybertroopers to attack individuals. They would send threatening, harassing or annoying messages, posting private information of that individual and create fake content about that individual.

Lastly, what we need is meaningful and effectively consultation with the Government. The previous administration had basically shoved us with laws with little consultation. I remember when our #Stop114A team went to meet the then Deputy Minister of Law, V.K Liew, to hand in our petition to repeal s.114A, he said that the Bar Council needs professional advice. I trust that the new Government will make a wise choice in deciding the right people for the right job.


First published on Digital News Asia on 22 June 2018

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