By Foong Cheng Leong and Mira Marie Wong and Nur Faiqah Nadhra
– Court decisions on thorny issues of hyperlinked agreements’ enforceability – Heavy price to pay for not reading online terms of any commercial agreement – 8 practical tips to ensure that your electronic contracts are enforceable – Tracking mechanism to track if counterparty accessed terms and condition
These days, many businesses no longer print or provide their entire contract to their customers or suppliers. It is relatively commonplace for businesses to point their contracting partners to the terms contained on a website, i.e. through a hyperlink.
We can see these in application forms, emails, and even in physical or electronic contracts. With the advent of the Covid-19 pandemic, it would be beneficial for businesses to adopt electronic contracts, particularly using hyperlinked contracts or terms, rather than physical contracts.
It creates convenience, not only are they great for easy drafting but it makes editing documents a breeze, it is an attempt to achieve a much more friendly and acceptable clientele experience within business.
However, there are certain issues to be looked at when adopting the use of hyperlinked contracts or terms. One of such situations would be where the contracting parties each have their own terms of engagement with reference to their own hyperlinked contracts or terms. Without a signed contract, this poses a dilemma which contract or terms would apply.
This article addresses the measures businesses may use to incorporate a hyperlink successfully and the current state of law in disputes involving contracts or terms incorporated by reference by way of a hyperlink. Therefore, we will look into the cases below to see how the courts deal with such a dilemma.
English Law Position
In tackling the enforceability of whether the electronics terms and conditions form part of the agreement, the English courts critically analyzed whether a party had taken reasonable steps to ensure that its terms and conditions had been brought to the attention of the other side. The two following courts had based their focus on the conspicuousness of the terms.
In Impala Warehousing v Wanxiang Resources  EWHC 25, Impala issued a warehousing certificate in respect of Wanxiang’s goods pledged to a bank as security. The warehouse certificate was then endorsed to Wanxiang after the sum advance by the bank had been paid off. A dispute arose thereof and parties disagreed where the matter ought to be adjudicated. The back of the warehousing certificate contains a term stating that its latest version of its terms and conditions is posted on its official website. The website contains an agreement stating that, among others, the governing law of the matter is English law and the English court shall have exclusive jurisdiction to adjudicate the matter.
In deciding whether the English court has exclusive jurisdiction, the English High Court held that as a matter of English law where terms are incorporated it must be shown that the party seeking to rely on the conditions has done what is reasonably sufficient to give the other party notice of the conditions. The learned Judge found that the first page of the warehouse certificate contains a clause stating that all disputes shall be subject to Impala’s terms and conditions. At the base of the page the reader is invited to refer to the reverse of the page for additional conditions. On the reverse, the reader is referred to Impala’s website for its terms and conditions.
Thus, the holder of the warehouse certificate knows that the certificate is subject to Impala’s terms and conditions. The High Court held that these steps taken by Impala were reasonably sufficient to give the holder notice of condition. In this day and age when standard terms are frequently to be found on websites, the High Court considered that reference to the website is a sufficient incorporation of the warehousing terms to be found on the website.
Cockett Marine Oil DMCC v Ing Bank NV & Anor  EWHC 1533, on the other hand, involves a challenge of two arbitration awards on the ground that the arbitral tribunal had no jurisdiction. The tribunal held that it had jurisdiction because the terms of the contract between the parties included a London arbitration clause. The claimants had agreed to purchase bunkers from the defendants in two separate transactions. The defendants, being the sellers, had earlier sent a mass email to their customers enclosing their terms and conditions which contained the London arbitration clause which provides for the jurisdiction of the arbitral tribunal in London in the event of a dispute. The parties had a dispute and the defendants brought the matter to arbitration.
In one of the two transactions, it was done through an exchange of email. The defendant sent a copy of its sales order confirmation which contained the particulars of the sale and purchase. The email also stated that “…The fixed terms and conditions are well known to you and remain in your possession. If this is not the case, the terms can be found under the web address [to the defendant’s terms and conditions]”.
The English High Court held that the defendants’ terms and conditions apply to the contract for the supply of bunkers and therefore the arbitral tribunal has jurisdiction. The High Court found that the claimants were aware of the defendants’ terms and conditions since the defendants had taken steps to inform their customers, including the claimants, regarding the defendants’ terms and conditions by way of the said mass email. In respect of the transaction involving the email exchange and sales confirmation order, the High Court further held that the claimant could access the defendants’ terms and conditions by clicking on the hyperlink in the sales order confirmation.
Malaysian Court’s position
Our Court’s approach in assessing whether the hyperlinked contract or terms is similar to the English court’s position. Essentially, there must be a clear and concise notice informing the reader that their hyperlinked contract or terms apply. Therefore, parties who wish their hyperlinked contract or terms to be incorporated must ensure that they provide an avenue for the user to read the terms of the agreement. Simply inserting a hyperlink to the terms and conditions may not be effective in making them form part of the overall contract. The following recent court decisions highlighted the thorny issues of hyperlinked agreements’ enforceability in businesses in whether or not it could be incorporated by reference.
In Able Food Sdn Bhd v Open Country Dairy Ltd  7 CLJ 716, the plaintiff, a Malaysian company, sued the defendant, a New Zealand company, for alleged breach of contract(s) in, among others, supplying instant whole milk powder of unmerchantable quality. The plaintiff demanded, among others, special damages and general damages for loss of profit and loss of market.
The defendant challenged the jurisdiction of the High Court in Malaysia to hear the dispute on the ground that the parties had submitted to the exclusive jurisdiction of the courts in New Zealand. In this regard, the parties had entered into seven (7) sales contracts. Each of the sales contracts (except for one) contains an endorsement with a hyperlink to its terms of trade (“Terms of Trade”) and it reads as follows: “http://opencountry.co.nz/termsoftrade
The Terms of Trade form part of this contract for sale and the parties agree to comply with the Terms of Trade in performing their obligation under this contract. Please be advised that OCD has modified its Terms of Trade please consult the attached terms.”`
The defendant argued that their “Terms of Trade” were incorporated by reference in each of the sales contracts wherein the parties had agreed that New Zealand law would apply and the parties are subject to the exclusive jurisdiction of the courts in New Zealand (hereinafter referred as the “choice of law and jurisdiction clauses”).
The High Court ( 4 CLJ 614) held that the choice of law and jurisdiction clauses were not incorporated in the contracts because the Terms of Trade were not attached to the sales contracts, among others.
However, on appeal the Court of Appeal overturned the High Court’s decision and held that the choice of law and jurisdiction clause was, in fact, incorporated into the sales contracts.
In regard to whether the Terms of Trade were incorporated by reference, the Court reiterated the following basic principles of the law of contract:-
To incorporate a binding term, reasonable notice must be given either before or at the time the contract was made (Olley v Marlborough Court Hotel  1 KB 532 CA).
The terms incorporated should be located in a document where terms are expected to be printed (Chapelton v Barry Urban District Council  1 KB 532 CA).
Whether or not the parties had read the terms, contractual documents signed by the parties would automatically be considered as binding (L’Estrange v F Graucob Ltd  2 KB 394).
Reasonable steps must be taken by the party who inserted the term to bring it to the attention of the other party (Parker v South Eastern Railway Company  2 CPD 416).
The Court of Appeal found that the parties had a course of dealings. In all the sales contracts (issued by the defendant and duly accepted/signed by the plaintiff without any comment, modification, or qualification), it was clearly stated that the Terms of Trade formed part of the contract and that parties agreed to comply with the Terms of Trade in performing their obligations under the contracts. The endorsement in each of the sales contracts referred to a hyperlink, to wit, http://opencountry.co.nz/termsoftrade. The Terms of Trade could be found in the hyperlink. The plaintiff, for whatever reason, did not click on or look up the hyperlink. But that does not mean that the Terms of Trade, which are contained in the hyperlink, do not apply.
The Court of Appeal held that the burden was on the plaintiff to look up the Terms of Trade via the hyperlink. The failure on the plaintiff’s part to do so is akin to a contracting party not bothering to avail themselves of the terms, and to read and understand the same, with the benefit of legal advice or otherwise.
The plaintiff argued that the defendant was under a duty or obligation to furnish them with a copy of the Terms of Trade. The Court of Appeal was of the view that there was no such duty or obligation as the Terms of Trade were, as the defendant put it, just a “click away”.
The Court of Appeal found that notice of the Terms of Trade was given at the time when the contract was formed, and it was referred to in a document (Sales Contract) that one would reasonably expect to contain contractual terms. The express notice was given to the plaintiff that the Sales Contracts were subject to the Terms of Trade, which was accessible via a hyperlink provided. There was no ambiguity whatsoever as to where the Terms of Trade were located. Thus, the Court of Appeal was satisfied that the defendant had fulfilled the requirement of having taken reasonable steps to bring the Terms of Trade to the plaintiff’s attention and incorporating it in the Sales Contracts.
Additionally, during product purchase by the plaintiff, it is apparent that there is an exclusive jurisdiction clause. Therefore, the Malaysian Court is obliged to give effect to the exclusive jurisdiction clause unless the plaintiff, as the party sought to avoid the application of the clause, is able to establish that there are exceptional circumstances to justify the contrary. Since there was no convincing evidence to show that the plaintiff has an exceptional circumstance to exclude the express choice of jurisdiction, the most appropriate jurisdiction to hear the dispute would be in New Zealand.
The Court of Appeal further stated that although it would seem unfair in the plaintiff’s perspective to file the action in New Zealand, however, it is what they had agreed upon when they had signed the contract, and so if any inconvenience were to be faced by the plaintiff, it would merely amount to the consequences of their agreement.
In MISC Berhad v Cockett Marine Oil (Asia) Pte Ltd  MLJU 563, the plaintiff had invited tenders for the supply of bunkers via email and in the email, the plaintiff had attached their proposal form and terms and conditions (“the Plaintiff’s Terms”).
In the body of the said email under the heading “Important Note”, the plaintiff set out terms and conditions of the purchase attached to the email. The Plaintiff’s Terms stated that the provisions of the agreement shall be subject to, construed, and interpreted in accordance with the laws of Malaysia, and the parties hereto submit to the exclusive jurisdiction of Malaysian courts.
In addition, the Plaintiff’s Terms stated that the Plaintiff’s Terms constitute the entire agreement between the parties and no modification would be effective unless in writing and signed by both parties.
After a series of emails were exchanged between the parties, the tender was awarded to the defendant. The plaintiff contended that the contract was concluded on the Plaintiff’s Terms when the parties agreed on the price. The defendant, on the other hand, contended that the contract was made on its terms as the defendant’s emails carries a hyperlink to the defendant’s website containing the Fuel Supply Terms & Conditions (“the Defendant’s Terms”) at its footer.
The parties made the necessary arrangements to perform the contract to supply bunkers to the plaintiff by the defendant (“Supply Contract”). The supply went into trouble when the bunkers were detained by the Malaysian Maritime Enforcement Agency for potential offences. The plaintiff then terminated the Supply Contract on the grounds that the defendant was in breach of its obligation to deliver the bunkers free of claims and encumbrances.
After the bunkers were released by the Malaysian Maritime Enforcement Agency, the parties’ solicitors had commenced negotiation with reference to the Plaintiff’s Terms. The negotiation failed and the plaintiff initiated proceedings against the defendant in the High Court of Malaysia for damages arising from the defendant’s alleged breach of contract. The defendant, however, commenced arbitration proceedings in London and consequently sought a stay order pursuant to section 10 of the Arbitration Act 2005 and challenged the jurisdiction of Malaysia’s High Court. In response, the plaintiff applied for an anti-arbitration injunction on the grounds that the English courts have no jurisdiction over the proceedings based on the terms agreed between both parties in the Supply Contract.
On the issue of whose terms apply, the High Court held that the parties are contracted on the Plaintiff’s Terms and therefore, the Malaysian court has jurisdiction to adjudicate the matter. Judicial Commissioner Atan Mustaffa held that the plaintiff had attached their terms during their invitation to tender whereby it clearly states the recipients were invited to tender using the form provided and on the basis that it was the Plaintiff’s Terms that were to apply as found under the heading of “IMPORTANT NOTE”. Although the defendant’s hyperlink to the Defendant’s Terms was stated in the footer of its emails to the plaintiff during negotiation, there was no indication that the defendant’s offer made pursuant to the plaintiff’s invitation was a counter-offer on the Plaintiff’s terms.
In addition, the learned Judicial Commissioner held that the invitation to tender issued by the plaintiff via email was an offer and capable of immediate acceptance and should not be regarded as a mere invitation to treat apart from the specific price made on the forms. The forms included specified time and place of supply, fuel specifications, and terms and conditions therewith, which were already present in the invitation to tender and was not left open for any further discussion.
The learned Judicial Commissioner held that the hyperlink to the Defendant’s Terms was not sufficient to be incorporated into the Supply Contract. There was no step taken by the defendant to draw the attention of the plaintiff to the application of the hyperlink which only appeared in the foot of the defendant’s emails.
The defendant did not make it plain that the Defendant’s Terms were to govern the Supply Contract by giving reasonable notice of the conditions in a visually prominent way. A reference to an inconspicuous hyperlink at the bottom of someone’s signature at the footer of the email does not constitute sufficient notice of intention to contract on different terms.
Tips when incorporating hyperlinked terms
Here are some tips that businesses may use when incorporating these hyperlinked terms during the course of negotiations-
1. Clarity is the key. You should expressly inform your counterparty that your terms apply and are available on a website. For example, the link is accompanied with a notice stating, “Please click here for our terms and conditions of trade”. Do consider placing your hyperlink at the body of the email. Avoid placing the hyperlink anywhere inconspicuous, such as the footer of the email using very small font size. Also, do ensure that the hyperlink is valid and not broken. 2. Insert a date on all your contracts. This is so that you know which version of the terms and conditions you were dealing with in the future. 3. Keep your terms and conditions up to date. 4. Keep a record of your previous contracts. As disputes may arise any time in the future, you may not know which contract is applicable if you have various versions of the contract. Such previous contracts may be recorded by way of a print screen. 5. Employ a tracking mechanism in the system. This could keep track of whether the counterparty had accessed the terms and conditions. 6. Verify whether the terms reflect what have been agreed by the parties. In other words, ensure the terms are parallel to what have been discussed or negotiated with the counterparty. 7. Check the terms thoroughly. Be extremely attentive to the accuracy and the detail of the terms. Staff should be trained to identify any ambiguous terms that may knock back any rights that you may wish to protect, especially when it involves any onerous provision. The court may hold against you for not examining the provisions stated in the terms and conditions. 8. Consider Response Procedure. This is even if you do not have any enquiries regarding the hyperlinked terms provided by the other party. Such response procedure can be in the following manner- a. Open discussion regarding the contract or terms; b. Investigate any problems which may affect your rights; c. Review the terms and decide whether the contracted terms should apply.
First published on Digital News Asia on 20 and 21 September 2021.
I was asked by The Malaysian Reserve to comment on MICROSOFT Corp’s US$1 billion (RM4 billion) investment to establish its first data centre region in Malaysia, particularly on the data security laws aspect. I said-
Bar Council’s Information Technology and Cyber Laws Committee deputy chairman Foong Cheng Leong said new regulations should be introduced to protect such data centres once they are opened to the general public.
For example, he said the government could set up regulations against the seizure of equipment or surrendering of data to authorities, as well as laws to protect against intermediary liabilities.
Additionally, he said the data centre region would promote further data localisation, particularly for the government to improve data safety and protection.
“It may also be useful for the government to direct its agencies to store their data in such local data centres. Many data these days are held overseas and we do not know where they are stored.
“A data localisation requirement would be useful in helping Malaysians protect their personal data,” Foong told The Malaysian Reserve (TMR) recently.
Since the Covid-19 pandemic, various aspects of our lives have been drastically changed to establish the new normal. The lockdown caused by the pandemic effectively closed our Courts for many months. Physical attendances were not allowed. Nevertheless, the Judiciary remained committed to ensuring the public’s access to justice.
During the early days of the lockdown, the Judiciary tried to encourage more lawyers to opt for online hearings. However, this can only happen if all the parties in the case consent to online hearing. Unfortunately, many lawyers were not receptive to the same and asked their matters to be adjourned to a date where physical attendance is allowed again.
Due to this, many cases have been pushed back and many cases filed in 2020 can only be heard in the 4th quarter of 2021. This goes against the Judiciary’s self-imposed KPI, which requires cases to be completed within 9 months. With this in mind, the Judiciary introduced section 15A to the Courts of Judicature Act 1964 to allow the use of remote communication technology. Currently, cases are done via email, video conferencing and e-Review (Court’s own platform used for case management).
With the introduction of this new provision, no consent is required from any of the parties to have the matter heard online. The Court will only have to decide if it is in the “interest of justice” for the matter to be heard online.
Other new laws were also introduced to deal with effects of the pandemic such as the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 on 23 October 2020. This new law was introduced to provide temporary relief to reduce the impact of the Covid-19 pandemic and the effects of the Movement Control Order. However, unlike other countries, this new law did not cover online remote access to services such as affirmation and notarisation. Physical appearance is still required for affirmation before a Commissioner for Oaths or Notary Public.
On another note, I am happy to announce that my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” is now available on Thomson Reuters’ website and selected bookstores. This 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.
Virtual Hearings Become The Norm
During the Movement Control Order, issued under the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967, to combat the Covid-19 pandemic, our courts allowed hearings to be conducted online through e-Review or online conferencing, provided that the parties agreed to the same and such request for online hearing was based upon the discretion of the court.
The first online hearing at the Court of Appeal was broadcast live on the Internet on April 24, 2020 with the Court of Appeal Panel sitting at their respective premises. [Zhao Fangliang v. Syarikat Pengangkutan Satu Hati Sdn Bhd and Other Appeals (Unreported; Court of Appeal Civil Appeal No J-04(NCvC)(W)-552-10/2019, J-04(NCvC)(W)-554-10/2019 and J-04(NCvC)(W)-555-10/2019); available on YouTube.
The law in relation to remote hearing developed very quickly within a year. Justice Wong Kian Kheong published the first case regarding remote hearing in the year 2020. In SS Precast Sdn Bhd v. Serba Dinamik Group Bhd & Ors  MLJU 400, his Lordship held that remote hearing can be done even without one party’s consent.
The court may order that a hearing of a notice of application or appeal before a Judge in Chambers be heard by way of video conferencing in view of a party’s fundamental right to have access to justice as guaranteed under Article 5(1) of the Federal Constitution. The court may exercise its discretion to proceed with video conferencing in the interests of justice under Order 32 rules 10 and 11(1) read with Order 1A and Order 2 rule 1(2) of the Rules of Court 2012.
In KNM Process Systems Sdn Bhd v. Cypark Sdn Bhd  AMEJ 0540, his Lordship also applied the principles of SS Precast (above) to allow the hearing of an originating summons and notice of application by way of video conferencing. By late 2020, many cases have moved to online hearing save for criminal cases.
Prior to the lockdown, the physical location of a defendant and his witnesses are important when deciding where to conduct the legal proceeding. In Dr Zakir Abdul Karim Naik v. Raveentharan A/L Subramaniam  1 LNS 1149, the plaintiff sued the defendant, an advocate and solicitor practising in Penang, for publishing certain defamatory statements on the latter’s Facebook page. The High Court in Kuala Lumpur allowed the transfer of the proceedings to the Penang High Court. The High Court took into account the place of residence and practice of the defendant and his witnesses and where the subject matter of the defamation arose, i.e. Penang, and that the defendant’s Facebook account was created, edited and used in Penang.
Remote communication technology is now a factor to be considered when deciding whether to transfer proceedings to another court of another location. In Liziz Plantation v. Liew Ah Yong  10 CLJ 94, Justice Su Tiang Joo held that with the experience gained in using remote communication technology in dealing with the movement control order, conditional movement control order and the recovery movement control order that is extant and which were necessitated by the Covid-19 pandemic, the physical location of any one litigant or witness and the issue of having to physically travel to any court has become very much less important [Para 43].
The need for counsel, litigants, and witnesses to physically travel to the court for the hearing of their matters is getting less and less. Hearings and meetings can now be done and are, by reason of the Covid-19 pandemic, encouraged to be done electronically via a variety of Internet platforms such as “Zoom” or “Skype”, not to mention that there are other platforms as well such as “Google Duo”, “Google Hangouts”, “MS Teams” and “Adobe Connect” [Para 44]. Accordingly, the High Court held that it would not be in the interest of justice to allow the transfer application.
In an intellectual property dispute case Muhammad Hafidz Bin Mohd Dusuki v. Hassan Bin Zulkifli  1 LNS 1843, Justice Radzi Harun dismissed an application to transfer the proceeding to the Kota Bahru High Court notwithstanding that, among others, one of the witnesses is of old age and would be difficult to travel due to the Covid-19 pandemic. His Lordship held that the Court is cloaked with sufficient powers and can allow flexibility towards the said person by dispensing his attendance and resort to technology for his evidence taking.
After considering the above factors, the Court will direct the proceedings to be conducted through long-distance communications technology, physically, or a combination of both modes (“hybrid method”). The Court will determine the digital platform and designated location for remote proceedings, along with other relevant instructions. Specific instructions have been laid out for witnesses to give evidence remotely.
We also saw the hearings for the petition for admission to the Bar moving online for the first time in December 2020. Since the commencement of petition for admission to the Bar (going as far back as the 1800s), such proceedings have always been done physically in the Court. Only in recent years it has become some form of celebration where friends and family will attend the event with flowers and gifts, and for photography sessions. On one occasion, one pupil’s friends and family came with a large banner with a large congratulatory note with his face on it. However, such proceedings were put to a halt by the Movement Control Order. This resulted in many pupils, who had finished their pupillage, not being able to qualify as an advocate and solicitor for many months. Fortunately, the Judiciary decided to have the proceeding done online and aired in platforms such as YouTube. This special occasion was not only witnessed by friends and family of the pupils, but also by the nation and the world.
It is also worth mentioning that the inquest to the death of Nora Anne Quoirin was conducted via Zoom and broadcasted on YouTube. Ms Nora Anne Quoirin, a 15-year-old with an abnormality of brain development, went missing in the middle of the night while staying with her family at a resort located at Negeri Sembilan in August 2019. She was found dead about 10 days later in a stream not too far from the resort. The learned Coroner found in Inquiry into the death of Nora Anne Quoirin  1 LNS 6 that the reason for her death is due to “misadventure”, i.e. she had gone out of the resort on her own and subsequently got lost in the abandoned palm oil plantation.
Defamation on Facebook
The case of Masyitah Binti Md Hassan v. Sakinah Binti Sulong  1 LNS 2108is a defamation case involving many features of a social media posting. This judgment took into account hashtags, the type of reader who will view the posting and how public apologies can be published on social media.
In this case, the Plaintiff, a doula or a birth companion sued the Defendant, a doctor for publishing defamatory postings about the Plaintiff on the latter’s Facebook account. The Defendant had alleged that the Plaintiff was responsible for the death of a baby who died at birth via a home water birth.
The mother of the baby appeared as a witness for the Plaintiff and revealed that the Plaintiff did not attend to the home water birth as a doula but merely as a friend. The baby was already partially delivered when the Plaintiff reached the Defendant’s home during the delivery.
Justice Evrol Mariette Peters found that the Defendant’s Facebook postings were defamatory of the Plaintiff, and the Defendant’s defence of justification fails since the Defendant had failed to prove the truth of the contents of her Facebook postings. The Defendant’s defence of fair comment failed as the comments which were based on falsity, were enveloped in bad faith, and not made in the interest of the public.
The High Court also held that, in deciding the natural and ordinary meaning of the impugned statement, the Court should look into the perspective of a reasonable netizen who is of ordinary and average intelligence, fair-minded, not avid for scandal, not unduly suspicious, and one who understands colloquial Bahasa Malaysia with a spattering of English.
The Defendant argued that the contents of the same had conveyed merely that the Plaintiff had been present at the birth of the baby, and that she had lied about that, and nothing more. The Court did not agree to this argument as it was very clear that the Facebook postings were littered with remarks that were not only disparaging, but accusatory as well. For instance, the hashtags #doulakeji was used, with ‘keji’ referring to vile. The word ‘vile’ is a parlance used interchangeably with ‘evil’, ‘abominable’, and ‘vicious’, which were sufficiently clear to an ordinary man.
In deciding on the damages, the High Court took into account the fact that the defamatory comments were made online on a Facebook account and bearing in mind the rapid forwarding and sharing that online comments are susceptible to, and the length of time that the postings were displayed, which in this case was six months. The Defendant argued that the postings were deleted after six months and, therefore, the news could not have spread at the extent as contended by the Plaintiff.
The Court held that publication over the Internet has wide circulation and the Court may presume such a fact under section 114 of the Evidence Act 1950. The Court also took judicial notice the breakneck speed that online news is susceptible to spreading, as this was a sufficiently notorious fact that the Court could not ignore; compounded by the fact that such news was false.
In addition, the High Court applied section 114A(1) of the Evidence Act 1950 and held that the Defendant is presumed to have published the comments posted by the public on her Facebook posting as she had provided a platform for such purpose.
The High Court ordered, among others, general damages of RM100,000.00. Exemplary or punitive damages of RM100,000 was also ordered in view of the indecorous conduct of the Defendant. Her Ladyship held that the Court cannot turn a blind eye to the activities of quidnuncs, since the moment false news is released into the wilderness of the World Wide Web, that bell cannot be un-rung.
In addition, the High Court ordered the defendant to post an apology on the Facebook timelines of both the Plaintiff and Defendant, within seven days of the decision of this Court, and for such apology to remain at such timelines for six months.
The High Court also dealt with a case where a defamatory Facebook posting had not named or described the Plaintiff but nevertheless, the Plaintiff took legal action against the Defendant. In Ahmad Suhaimi Abdullah lwn. Amir Shariffuddin Abd Raub  1 LNS 687, the Plaintiff sued the Defendant for publishing certain statements on his Facebook account allegedly to be defamatory of the Plaintiff. The Plaintiff and his wife were business partners of the Defendant for a company selling imported cars. The Plaintiff and his wife pulled out from that company. The Defendant published a statement alleging a person had misappropriated the company’s money without naming anyone. The Defendant also alleged that the statement did not specify the Plaintiff’s designation or in relation to his conduct in the performance of his duties, or that the words refer to or are understood to refer to or may refer to the Plaintiff, among others.
In dismissing the Plaintiff’s claim, the High Court held that other than the Plaintiff, his wife and his driver, the Plaintiff did not call any independent witness, namely any witness that is acquainted with the Plaintiff, to testify that the words in the impugned posting referred to the Plaintiff. The Court was also of the view that the Plaintiff’s witnesses are interested witnesses because the Plaintiff himself had admitted that he taught or coached them in giving evidence in Court.
Employee who was dismissed for leaving a WhatsApp group
Last year, I reported that an employee was terminated by her employer after she left the WhatsApp group of the company (Thilagavathy a/p Arunasalam v. Maxis Mobile Sdn Bhd  2 LNS 1050). The Industrial Court held that that the Claimant was in breach of her terms of employment with the company when she failed to follow the reasonable oral and written instructions of the company, i.e. to obtain approval prior to exiting the WhatsApp group.
On appeal to the High Court (Thilagavathy a/p Arunasalam v. Maxis Mobile Sdn Bhd  1 LNS 1062), the High Court overturned the Industrial Court’s decision and ordered the matter to be decided by another Industrial Court Chairperson. The High Court held that the Industrial Court failed to make an objective assessment on the facts and evidence before them in determining whether the employee was guilty based on the charges stated in the show cause notice. Amongst the reasons for the decision is that the Industrial Court ought to take into account that there was no clear notice or warning to the Claimant that she cannot leave the company’s WhatsApp group without the permission of the company.
When the Claimant asked to be re-added to the group, the company refused to do so. The company’s witness also could not confirm that every employee has been informed that they need permission to exit the group. Therefore, it is reasonable to assume that the Claimant has no knowledge that permission is required to exit the group. The Industrial Court had earlier held that the Claimant ought to have cross examined the company’s witness regarding the issue of exiting the WhatsApp group. However, the High Court held that the Industrial Court failed to consider that the Claimant was not legally represented, hence she does not know how to cross examine a witness, and it is not fair to judge the Claimant with technical matters not within her capability as a layperson with no legal background.
On the topic of WhatsApp groups, we also saw defamation lawsuits being filed for publications on WhatsApp groups. In Mohamed Fahamy Mohamed Suyud v. Iscada Net Sdn Bhd  1 LNS 867, the Defendant filed a counterclaim against the Plaintiff for publishing certain alleged defamatory statements on a WhatsApp group. However, the High Court found that the Defendant has failed to prove that those statements referred to the Defendant. The High Court was of the view that pure speculation is not sufficient, and the ordinary reader must have rational grounds for his belief that the words refer to the Defendant.
First Decision on a Persons Unknown Injunction in Cyberspace
In most litigation cases, the defendant is usually named. However, the use of the Internet has made it harder for a plaintiff to trace the identity of a wrongdoer. This is coupled with internet users’ assertions of their right to remain anonymous for, among other things, their own safety, right to privacy and speech and expression.
Where a defendant’s name is unknown, it is still possible to file an action against such person in Malaysia. We have seen this in land possession matters and accident matters. It is now possible to file an action against “persons unknown” in Malaysia in respect of matters arising from the cyberspace sphere.
In Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v. Persons Unknown & Anor  7 MLJ 178, the High Court granted an ex parte proprietary injunction and Mareva injunction against “persons unknown” as the 1st Defendant. In this case, the Plaintiff was a victim of cross-border cyber fraud known as a “push payment fraud” where the victim is tricked over emails to make a payment for a legitimate transaction into a different bank account under the control of the fraudster.
The Plaintiff, a German company, was in communication with its South Korean counterparty. The fraudster, being Persons Unknown, deceived the Plaintiff into paying into the 2nd Defendant’s bank account the sum of EUR 123,014.65 (approximately RM600,000.00) by infiltrating the email communications between the Plaintiff and the South Korean counterparty. The Plaintiff thought it was making a genuine payment to its South Korean counterparty for a commission payment. Instead, the fraudster had siphoned the Plaintiff’s monies away.
Justice Ong Chee Kwan delivered the first known decision on a Persons Unknown injunction. After going through a series of English cases against Persons Unknown, his Lordship held-
 It is not usually the case that a defendant is described as ‘Persons Unknown’. Nevertheless, the Court can grant interlocutory orders against the 1st Defendant — being Persons Unknown. In cases like the present which involve cyber fraud and fake email addresses, the fraudster or fraudsters are unknown. English case law have allowed for similar injunctive orders against ‘Persons Unknown’. There is nothing in our Rules of Court 2012 that would prevent the Writ of Summons and applications from being filed against Persons Unknown.
 As stated above, there is nothing in our Rules of Court 2012 prohibiting the making of an order against Persons Unknown. In fact, Order 89 of the Rules of Court 2012 for summary proceedings for possession of land allows for a defendant reference to Persons Unknown.[See Fauziah Ismail & Ors v Lazim Kanan & Orang-Orang Yang Tidak Diketahui  7 CLJ 37 (CA); the commentary in Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law, para [8.098] to [8.100]].
This case clears the doubt on whether action can be taken against Persons Unknown in respect of matters arising from the cyberspace sphere. With the increase of online scams and fraud, we can expect similar cases to be filed in Court so that victims of these cybercrimes are able to seek redress and preserve their assets.
Short Term Lodging – AirBnB Effect
The Federal Court finally resolved the issue of whether a management corporation has the power to ban short term lodging. In Innab Salil & 8 Ors v. Verve Suites Mont’ Kiara Management Corporation  1 LNS 2318, the Defendants operated and/or caused to be operated a short-term rental in the Verve Suites. The Plaintiff, being the management corporation, passed a special resolution, which was then incorporated into its House Rule No. 3, to stop the operation of short-term rentals in the Verve Suites. The Plaintiff then filed an action against the Defendants to stop them from breaching House Rule No. 3. The Defendants argued that the management corporation does not have the power to pass House Rule No. 3 as it is beyond their powers provided under section 70 of the Strata Management Act 2013.
On appeal, the Court of Appeal ( MLJU 1496) held, among other things, that the Strata Management Act 2013 was to advance the interest in communal living within a strata scheme. Therefore, it would defeat the spirit and purpose of the Act for the proprietors, such as the Defendants, to use their residential units in the form of a business enterprise such as short-term rentals. The majority of the residents had voted against the same. The wish of the majority had to be taken heed of, hence there could never be any violation of section 70(5) when House Rules No. 3 was adopted.
The Federal Court ( 10 CLJ 285) held that by-laws passed pursuant to section 70 of the Strata Management Act 2013 stipulated in subsection (2) are justifiable if they exist for the good of the strata community. In other words, even if the State Authority permits the use of the land for commercial purposes, such use is still subject to other laws in force, in particular to section 70 of the Strata Management Act 2013. Hence, the passing of House Rule No. 3 is not unlawful. The Federal Court also held that the arrangements by the Defendants are nothing more than mere licences, and therefore do not amount in law to “dealings” within the ambit of section 70(5) of the Strata Management Act 2013.
Accordingly, House Rule No. 3 is not ultra vires section 70(5). As concurrently found by the High Court and the Court of Appeal, the said House Rule was enacted for the many legitimate purposes under section 70(2) or for that matter, for the purposes under which the Plaintiff has established under section 59 of the Strata Management Act 2013. As such, the Federal Court held that the said short-term rentals in this case amount to licences and not tenancies.
TT Dotcom Sdn Bhd v Low Wey Heng & Ors  1 LNS 2136 is a case that concerns Anton Piller orders against operators of short term rental business. An Anton Piller order is a court order that allows a plaintiff to, among others, search the premise(s) of the defendant to obtain evidence without prior notice or warning.
In this case, the 1st and 2nd defendants, having subscribed to the plaintiff’s single home-user internet service plan by the name of “1 Gbps Home Package” for the use of 3rd and 4th defendants’ short term rental businesses i.e. an AirBnB business, were found to have allegedly tampered with the service line to enable multiple access which enable internet connectivity outside and beyond the named location to other units unspecified in the forms for subscription.
This had allegedly contravened the General Terms and Conditions signed, where it was stipulated that the plaintiff’s services should only be intended for personal use and any providing or sub-providing to 3rd parties is prohibited.
The plaintiff contended that the defendants breached the contract with the plaintiff as they had (i) unlawfully provided and extended the Wi-Fi connectivity or internet service for unlawful use of 3rd parties, and (ii) conspired to injure the plaintiff by unlawful means which had deprived the plaintiff of the monetary benefit it could have gained. The unlawful connection and usage is also a deliberate interference with the plaintiff’s trade and business.
The plaintiff contended that in order to carry out the unlawful activities, they have in possession certain and custody of certain electronic equipment. The plaintiff then obtained the Anton Piller orders for, among others, its search team to carry out enforcement activities by searching and seizing those equipment and by conducting a LIVE TEST Recording.
Understandably, given the draconian nature of an Anton Piller order, a stringent threshold must be met in order for the Courts to grant an Anton Piller order. The High Court held that the plaintiff has complied with all legal requirements to grant the order. The Court dismissed the contention that the plaintiff’s sales agent is aware of the 1st and 2nd defendants’ AirBnB business. The Court held that as the name of the package suggest, it is a package for home subscription and clearly was not meant for commercial and business subscription / subscribers (where the latter obviously requires higher volume of internet connectivity). A dwelling or residence that is monetized or commercialized as an Airbnb is not at all a Home. Taking into account of the 1st to 4th defendants’ deliberate effort to abuse the Internet service provided by the plaintiff, the plaintiff established a strong prima facie case. In this regard, the learned Judge was of the view that the Anton Piller orders were necessary because-
(a) It was necessary to negate any notion that the earlier tests had been tampered with or manipulated by the plaintiff (because the previous investigation/tests were carried out without the presence of the 1st to 4th defendants). (b) The Anton Piller order has specified a limited number of units i.e to run LIVE TESTS in 2 unoccupied units with Wi-Fi facility. This refutes the allegation by the defendants that the applications for an Anton Piller orders were a fishing expedition. (c) The disclosure required was only in respect of certain listed items which were discovered and identified even before the investigation under the first Anton Piller order. (d) The enforcement of the Anton Piller order was done under the supervision of the Supervising Solicitors who had ensured that it was carried out without any disruption to the operations of the 1st to 4th defendants’ premises. Furthermore, there has been no evidence led by the 1st to 4th defendants to prove of such disruption. (e) If the Defendants had any objections against the Anton Piller orders, they could have applied for a variation or a stay of the execution of the first Anton Piller order but this was exactly what the 1st to 4th defendants have either failed, refused, or neglected to do.
There was a real possibility that the defendants may destroy the evidence within their possession. The Court recognised that the defendants’ alleged abuse would not have discovered had the plaintiff not conduct a random inspect on the usage of their Wi-Fi connectivity. It can be seen that many technical manoeuvres can be discreetly carried out without the knowledge of the service provider. Stemming from this fact, the Court held that it can be inferred that concealment and possible destruction of evidence (crucial to prove the unauthorized connections link setup by the defendants) is definitely a real possibility. In addition, the devices for connectivity are within the control and possession of the defendants. The 1st to 4th defendants’ alleged breach could only be further demystified or unravelled through proper investigation and inspection on the devices for wi-fi connectivity installed at defendants’ premises.
Furthermore, the application contained specific undertakings and safeguards, with two supervising solicitors to supervise the execution.
Thus, there were no meritable grounds for the Court to set aside the Anton Piller orders.
Discovery of the Identity of Social Media User
Last year, I reported that it is possible to file an action to obtain information about certain Facebook users in Malaysia. In Universiti Utara Malaysia v. Facebook Inc (Alor Setar High Court Originating Summons No. KA-24-1-01/2019), Facebook agreed to disclose basic subscriber information of certain Facebook users who allegedly have published defamatory statements against the Plaintiff (also known as a pre-action discovery order). However, in usual cases against foreign defendants, one would need to make a formal application to Court to have the court documents served overseas through, among others, the assistance of our Government and the foreign government or judicial authorities of that country. This is a long and complicated process.
The Court has also now allowed the service of court documents on Facebook Malaysia Sdn Bhd (“Facebook Malaysia”) as the Court found that Facebook Malaysia is the agent of Facebook, Inc under Order 10 Rule 2 of the Rules of Court 2012 (Abu Jamal Bin Sulaiman & Anor v Facebook, Inc (Kuala Lumpur High Court Original Summons No. WA-24NCVC-57)). In this case, the Applicants, who are husband and wife, filed a pre-action discovery order against Facebook, Inc to obtain information about certain Instagram users who had allegedly defamed them.
Instead of applying to have the court documents served on Facebook, Inc in the United States, the Applicants obtained an ex parte order to have the court documents served on Facebook Malaysia. Facebook, Inc then applied to set aside the ex parte order on the ground that Facebook Malaysia is not an agent of Facebook, Inc and has never authorised them to accept documents on behalf of Facebook Inc. Furthermore, Facebook, Inc and Facebook Malaysia are separate legal entities.
The High Court dismissed Facebook Inc’s application to set aside the service of the ex-parte order with cost of RM5,000. The High Court was of the view that:-
(1) any reasonable man would conclude that Facebook Malaysia is indeed an agent of the Defendant by virtue of implied contract in existence between them as there were numerous online publications such as publication on the Prime Minister’s Office on the attendance of the then Prime Minister and Communication Minister at the official opening of Facebook Malaysia, and New Straits Times report with the caption “It’s official: Facebook opens office in Malaysia”; (2) Facebook Malaysia is involved in the marketing and sales support services based on a search from the Companies Commission of Malaysia; (3) nothing was adduced to show that Facebook Malaysia had officially declared that it is not part of or an agent of the Defendant and vice versa; and (4) the Applicants’ solicitors had earlier sent a letter to Facebook Malaysia regarding this matter and Facebook, Inc had replied to the Applicants’ solicitors directly stating that “We are responding in our capacity as Facebook, Inc which operates Facebook for Malaysia users”. Accordingly, if Facebook Malaysia is not Facebook, Inc’s agent or has locus standi to act for Facebook, Inc, it should have returned those letters/documents straight back to the Applicants’ solicitors. Facebook Malaysia had failed to mention specifically that it is not an agent of the Defendant.
The High Court also held that when Facebook Malaysia was officially opened or launched in Malaysia, Facebook, Inc. was indeed conducting business in Malaysia. It follows that it can receive any mode of originating process on behalf of its principal here in Malaysia.
There were numerous malicious and defamatory remarks made by eight Instagram accounts which have reduced the Applicants into as though they are criminals and an irresponsible couple who does not deserve any respect from society. The defamatory words used, among others, are that the couple are kidnappers, paedophiles rapists, Satan practising black magic etc. The couple is experiencing great difficulties to identify the right party to sue, and the many court procedures to be adhered to, creating a great stumbling block for them to seek justice.
The Court was of the opinion that it will be highly prejudicial and cause grave injustice to the Applicants as though their rights to bring the actual culprits to court will be completely shut. There is no prejudice caused to the Defendants but on the other hand, the Applicants and family are still receiving continuous accusations and slanders. Even if there are some shortcomings or non-compliance on the part of the Applicants regarding the service of the court documents, such irregularity can be cured by Order 2 Rule 1 of the Rules of Court 2012.
Electronic service of court documents
Prior to the enforcement of Rules of Court (Amendment) 2020, Order 10 rule 1 of the Rules of Court 2012 provides that a writ and originating summons shall be served personally on each defendant or sent to each defendant by prepaid AR registered post, addressed to his last known address. The Rules of Court 2012 was silent as to whether such court documents can be served via electronic means other than by way of facsimile.
The Rules of Court (Amendment) 2020, which came to force on 15 December 2020, introduced service of Court documents by means of electronic communication in accordance with any practice direction issued for that purpose. As of the date of writing, no such practice direction has been issued yet. Perhaps the Court may soon expressly allow the service of court documents by email and other instant messages applications such as WhatsApp, Facebook or WeChat. Our Courts have in the past allowed service of court documents in certain selected cases (for example, see 30 Maple Sdn Bhd v. Noor Farah Kamilah binti Che Ibrahim (Unreported; Kuala Lumpur High Court Suit No. WA-22IP-50-12/2017); Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v. Persons Unknown & Anor  7 MLJ).
In PP v. Mohamad Faezi bin Abd Latif 5 LNS 42, the learned Sessions Court Judge produced a helpful table consisting of sentences for those who had pleaded guilty at first instance under a section 233(1)(a) of the Communications and Multimedia Act 1998 charge. The table is reproduced below (together with the sentence in that case):
PP v. Ranendar Bijoy Bhattacharyya(Kuala Lumpur Sessions Court Suit No. WA-63-1024-10/2019)
The offender posted fake content using application service Facebook
A fine of RM5,000 in default of 3 months’ imprisonment
PP v. See Foo Hoong (Petaling Jaya Sessions Court Suit No. BB-MS4-63-29-9/2019
The offender sent obscene video to the complainant using application service Facebook Messenger
A fine of RM10,000 in default of 4 months’ imprisonment
PP v. Ruziman bin Kamaruzaman (Petaling Jaya Sessions Court Suit No. BB-MS3-63-28-9/2019)
The offender sold obscene content using application service Telegram
A fine of RM8,000 in default of 12 months’ imprisonment
PP v. Azhar bin Mamat (Kuala Lumpur Cyber Court Suit No. WA-63-130-01/2018
4 charges under s 233(1)(a)The offender sent offensive communications using application service Facebook
A fine of RM5,000 in default of 1 month imprisonment for each charge
PP v. Mohd Shariman Shahir bin Omar (Kuala Lumpur Cyber Court Suit No. WA-63-785-12/2017)
The offender sent offensive communications using application service Facebook
A fine of RM10,000 in default of 6 months’ imprisonment
PP v. Mohd Nazri bin Sulaiman (Klang Sessions Court Suit No. BI-63-14-7/2017)
The offender sent false communication using application service Facebook
A fine of RM7,000 in default of 3 months’ imprisonment
PP v. Ng Thai Quen (Kuala Lumpur Cyber Court Suit No. WA-63-199-08/2017)
The offender sent offensive communication using application service Facebook
A fine of RM7,000.00 in default of 3 months’ imprisonment
PP v. Mazlan bin Yusoff (Kuala Lumpur Cyber Court WA-63-202-08/2017
The offender sent offensive communication using application service Facebook
A fine of RM7,000 in default of 3 months’ imprisonment
PP v. Kamarzaman bin Mustafa(Kuala Lumpur Cyber Court Suit No. WA-63-209-08/2017)
The offender sent false communication using application service Facebook
A fine of RM5,000 in default of 3 months’ imprisonment
10 charges under s 233(1)(a)The offender sent obscene communications on his Twitter account, comprising still images and videos depicting the male genitalia with lewd and lascivious captions. The offender also posted obscene communications on his Twitter account to promote his reproductive health product. The Sessions Court Judge commented that this case appears to be the first in this country involving commercial exploitation of obscene communication on Twitter.
A fine of RM5,000 in default of 3 months’ imprisonment on each charge, totalling RM50,000 in default of 30 months’ imprisonment
Notwithstanding the sentencing trends above, the learned Sessions Court Judge stated that the sentencing trends merely serve as a guide on the prevailing trends and the range thereof. It does not in any way take precedence over the Court’s judicial discretion on sentencing. The learned Sessions Court Judge stated that “sentences are not binding precedents, but are merely historical statements of what has happened in the past”.
Contempt proceedings against Malaysiakini
In Peguam Negara Malaysia v.Mkini Dotcom Sdn Bhd & Anor 7 CLJ 173, the Attorney General obtained an ex parte order for leave to initiate contempt proceedings against the operator of the online news portal Malaysiakini (1st Respondent) and its Chief Editor (2nd Respondent) in the Federal Court for certain contemptuous comments made by the readers of Malaysiakini. The Respondents filed an application to set aside the ex parte order. In dismissing the said application to set aside the ex parte order, the Federal Court held that the Respondents were the publisher of the comments based on the following facts:
(1) the 1st Respondent facilitated publication; (2) the editorial policy allowed editing, removing and modifying of comments; (3) only upon being made aware by the police, the 1st Respondent indeed removed the comments; and (4) evidence revealing that the editors of the 1st Respondent reviewed postings on a daily basis.
The Federal Court also held that, by virtue of section 114A of the Evidence Act 1950, the Respondents are presumed to have published the impugned comments. The Federal Court found that a prima facie case of contempt in the form of scandalising the Court had been made out.
The matter was then heard by a seven-judge panel on the issue of whether the Respondents are liable for contempt of court over the readers’ comments (Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd & Anor  1 LNS 89). The Federal Court recognised that there were difficulties faced by the Court in pinning down the role of publication on the internet content provider when the comments were made and posted by third parties. The Federal Court held that the Malaysian Parliament must had resolved this difficulty by enacting section 114A of the Evidence Act 1950.
In rebutting the presumption, the Respondents relied mainly on three measures to safeguards itself from pre- and post-publication comments by third party subscribers. The first by its terms and conditions warning subscribers that abusive posting offending any law or which create unpleasantness would be banned. Second, it installs a filter program which disallows the use of certain foul words. Failing that filter any article or comment would not get posted. This filter program is also used to review third party comments. Third is the peer reporting system. This process entails other users or readers of the online news portal to report on offensive comments. Only upon the receipt of such report will an editor immediately examine and decide on the removal of the same. It is for this reason, the 1st Respondent reserves the right to remove or modify comments posted at its discretion. In this way, the 1st Respondent’s take down policy would be effectively implemented.
The Respondents also argued that it is not practical or possible for the 1st respondent to moderate all the comments posted by third parties as they have a high volume of about 2,000 comments received per day with 25,000 online subscribers. The process of peer reporting is thus resorted to.
Nevertheless, the Federal Court found that the Respondents had failed to rebut the presumption of publication under section 114A of the Evidence Act 1950. The Federal Court held that the 1st Respondent is the owner of its website, publishes articles of public importance, allows subscribers to post comments to generate discussions. It designs its online platform for such purpose and decides to filter foul words and rely on all the three measures it has taken.
In other words, the 1st Respondent designs and controls its online platform in the way it chooses. It has full control of what is publishable and what is not. It must carry with it, the risks that follow from allowing the way its platform operates. The 1st Respondent cannot be heard to say that its filter system failed to filter offensive comment when it deliberately chooses only to filter foul language but not offensive substance. The 1st Respondent cannot be allowed to turn their news portal into a runaway train, destroying anything and everything in its path, only because their riders are the ones creating such havoc albeit made possible by their train.
As for the 2nd Respondent, the Federal Court held that section 114A is not applicable to the Chief Editor as there was no evidence to show that he was owner or the host or the editor on the online news portal and that he is the person who reserves the sole discretion to edit or completely remove any comments by a third party. Therefore, the 2nd Respondent is found not guilty of contempt of court.
The Federal Court meted out a sentence of RM500,000 against the 1st Respondent to serve public interest, where the sentence must not be too lenient in order to provide a deterrence effect. The Respondents’ unreserved apology, and their cooperation with the police and the courts were also taken into account. The contempt committed was much more severe than previous cases on contempt, stating that there were baseless allegations of corruption, and that the comments made were “beyond any bound of decency”. The 1st Respondent subsequently managed to raise more than RM500,000 through public donations within hours of the Federal Court’s sentencing.
The use of Court’s “Artificial Intelligence” (AI) system in Criminal Proceedings
Last year, I reported about the use of artificial intelligence system to aid judges in passing sentence for criminal cases in respect of drug possession under s. 12 of the Dangerous Drugs Act 1952 and s. 376 of the Penal Code. There is now more information about this system as it is published by the learned Magistrate Jessica Ombou Kakayun in her judgment of Public Prosecutor v Denis P. Modili  5 LNS 21.
According to her judgment, to analyse and provide the recommendations to pass the sentence, the artificial intelligence system requires important information called parameters. For instance, under s. 12(2) of the Dangerous Drugs Act 1952, information regarding the weight of the drugs, the age and employment record of the accused are required. Once this crucial information is entered into the system, the artificial intelligence system will generate its own recommendations (either the sentence of fine or imprisonment) and this will reflect in a percentage form. Whichever percentage is higher, the recommendations provided are mere guidelines to assist the presiding judge to decide in applying the correct sentencing principles according to past precedents. This, in turn, will avoid disparity of sentences among the judicial officers. By meting the sentences accordingly, this will likely reduce any possible upcoming appeal to the higher courts since a uniform standard of sentencing principles is applied. The issue of sentencing principle being manifestly inadequate or excessive by the presiding officer will lessen and/or even be avoided in the future.
In Public Prosecutor v Denis P. Modili(supra), the counsel of the accused objected to the use of the artificial intelligence system in determining the sentence of the accused on the grounds that the use of the artificial intelligence system is a breach of Article 5(1) of the Federal Constitution which provides that that no person shall be deprived of his life or personal liberty, and Article 8 of the Federal Constitution which provides that all persons are equal before the law and entitled to the equal protection of the law. Further, the use of artificial intelligence system by the Court will influence the outcome and thus is prejudicial to the accused.
However, the learned Magistrate held that the issue of breach of constitutional rights is not within her competent jurisdiction. The matter should be decided by the higher court. Nevertheless, the learned Magistrate held that the artificial intelligence system is a mere guideline to assist the Court so as not to depart from the true spirit of a reasonable sentencing principle. The presiding officer may agree or depart from the sentence recommended by the artificial intelligence system. Ultimately, the sole discretion rests on the presiding judge in determining the sentence of the accused. Accordingly, the accused was sentenced to 12 months imprisonment notwithstanding that the artificial intelligence system recommended that the accused to be sentenced to 10 months.
However, on appeal to the High Court, the learned High Court judge allowed the appeal and reduced the sentence to 6 months. However, no reason was given for the reduction of the sentence and the issue of constitutionality was not addressed by the Court.
Guidelines on Digital Assets
Towards the end of 2020, Securities Commission Malaysia issued the revised Guidelines on Digital Assets to regulate Initial Exchange Offerings (IEO) and Digital Asset Custodians (DAC). The aim is to promote responsible innovation in the digital asset space, while managing emerging risks and safeguarding the interests of issuers and investors.
The guideline is applicable to the following parties: a body corporate that seeks to raise funds through a digital token offering, a person who seeks to operate an IEO platform, and a person intending to provide the services of safekeeping, storing, holding or maintaining custody of digital assets for another person.
The guideline provides, among others, that IEO platform operators will be required to conduct due diligence on the issuer, review the issuer’s proposal and disclosures in the “whitepaper”, and assess the issuer’s ability to comply with the requirements of the guidelines and the SC’s Guidelines on Prevention of Money Laundering and Terrorism Financing.
In 2021, we can expect more interesting developments in the cyberlaw and IT sphere.
– In the e-hailing sector, Loh Guet Ching v. Myteksi Sdn. Bhd. (Berniaga atas nama Grab) & 2 Ors (Kuala Lumpur High Court Suit No. WA-25-296-10/2020) is an interesting case on the position of e-hailing drivers vis-a-vis e-hailing companies. Ms Loh brought a case against Grab at the Labour Department after she was terminated as an e-hailing driver. She had alleged that she is an employee, thus entitled to bring an action against Grab for unlawful dismissal. However, the Minister of Transport refused to refer the matter to the Industrial Court. A judicial review application was thereafter brought against the Director General of the Department of Industrial Relations, among others. While the matter is still pending before the High Court, perhaps the recent UK Supreme Court decision, Uber BV and others v. Aslam and others  UKSC 5, would have some bearing on this case, where the UK Supreme Court upheld the UK’s Employment Tribunal’s decision that Uber drivers are considered workers rather than self-employed.
– Another e-hailing case is Gabungan Pertubuhan Teksi, Kereta Sewa, Limosin Dan Teksi Lapangan Terbang SeMalaysia-GTSM v. Grabcar Sdn Bhd (Kuala Lumpur High Court Suit No. WA-22NCvC-801-12/2020), where a RM100 million class-action lawsuit was mounted by Malaysian Association of Taxi, Rental Car, Limousine and Airport Taxi against Grabcar. The association claimed that Grabcar was running an illegal e-hailing service which contravened the Transport Act 2012, the Competition Act 2010 and the Federal Constitution. Grabcar’s service was alleged to be in violation of the right to livelihood, rights and interests of taxi drivers. As at the time of writing, the matter is still pending in Court.
– The Court of Appeal recently affirmed the High Court’s previous decision in Robert Ong Thien Cheng v. Luno Pte Ltd & Anor  3 AMR 143 and held that intangible cryptocurrency such as bitcoin falls within the ambit of “things” under section 73 of the Contracts Act 1950. The decision gives certainty to the modern business world whilst adapting to the digital revolution. The Malaysian courts are seemingly moving in the right direction to keep up with this digital age.
– The Government has also recently gazetted the Emergency (Essential Powers) (No. 2) Ordinance 2021 under the current state of emergency. This Ordinance reproduced a large section of the Anti-Fake News Act 2018, which was repealed by the Pakatan Harapan government.
However, unlike its predecessor, this Ordinance is limited to “fake news” relating to Covid-19 or the proclamation of emergency. There are also no illustrations of what could amount to an offence unlike its predecessor. Nevertheless, spreading fake news about the effect of Covid-19 vaccines or that certain persons had contracted Covid-19 would clearly be an offence under the Ordinance.
In respect of “proclamation of emergency”, it was reported by Malaysiakini that the de facto Minister of Law, Takiyuddin Hassan said that it is fake news to claim that the Government sought an emergency declaration because it lost its majority in the Dewan Rakyat. Those spreading “fake news”, whether in Malaysia or outside Malaysia, will face a fine not exceeding RM100,000, or an imprisonment for a term not exceeding 3 years, or both. Those providing financial assistance in spreading fake news or failing to remove any publication containing fake news will also commit an offence amounting to a fine not exceeding RM500,000, or an imprisonment for a term not exceeding 6 years, or both.
First published on Digital News Asia on 27 and 29 April 2021 and 2 May 2021. Article updated with the case of TT Dotcom Sdn Bhd v Low Wey Heng & Ors.
This book was inspired by the case of PP v Loh Guo Shi  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.
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.
Admissibility of Computer-Generated Documents
Presumption of Fact in Publication
Instant Messages, Social Media Postings & Other Electronic Evidence
Electronic Evidence in Industrial Relation Disputes
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  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  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 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  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.
[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  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?
Presumption of publication – Court assumes that you’ve published it
In Thong King Chai v. Ho Khar Fun  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  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.
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.
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.
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.
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 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
Foong Cheng Leong is an Advocate and Solicitor of the High Court of Malaya and also a registered Malaysian trade mark, industrial designs and patent agent.
He had served the Malaysian Bar and Kuala Lumpur Bar in the following capacities:-
1. Kuala Lumpur Bar Committee (2013 to 2020)
2. Chairperson of the Kuala Lumpur Information Technology (2012 to 2020)
3. Co-Chairperson of the Bar Council Ad-Hoc Committee on Personal Data Protection (2013 to 2016)
4. Co-Chairperson of the Bar Council Intellectual Property Committee (2019 to present)
5. Co-Chairperson of the Bar Council Information Technology and Cyberlaws Committee (2015 to 2017)
He is also the author of the following books-
1. Compendium of Malaysian Intellectual Property Cases consisting of the following two volumes
a. Vol 1- Trade Marks