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MY Legal History: Lecture on Traditions of The Bar by Dato Dr Peter Mooney – 28 February 2000

Last year, I found a box full of cassettes at the Kuala Lumpur Bar Secretariat. They were recordings of various Kuala Lumpur Bar events in the late 1990s and early 2000 where smartphones were not widely available yet (perhaps not even in existence).

One of the cassettes had the label “Lecture on Traditions of the Bar by Dato Dr. Peter Mooney”. The late Peter Mooney was a very well-known lawyer who, like many early lawyers of Malaya, came from the United Kingdom. Many of his contemporaries had left for home or had passed on. Peter Mooney served as the Attorney General of Sarawak and Vice President of the Bar Council. He was also one of the founding partners of Skrine. He passed on recently at the age of 92.

I have converted into a podcast using a device I bought online (above). Some parts of the podcast is a little bit fuzzy due to the age of the cassette (16 years old!).

This is my favourite part of the podcast:-

“The independent of the Bar is absolute essential if the system is to work properly and it essential to the liberty of the subject. Justice will be done only if there is a strong bar which is courageous and as well as independent”.

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Bread & Kaya: Cyberbullying, stalking and sexual harassment

Bread & Kaya: Cyberbullying, stalking and sexual harassment
By Foong Cheng Leong | Jun 28, 2016

– Current laws narrowly and vaguely defines harassment
– It is high time Malaysia legislates against it

In Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Kuala Lumpur Civil Suit No. 23NCVC-102-12/2011), the Defendant alleged that the Plaintiff had sexually harassed her at their workplace.

The Defendant alleged that numerous vulgar and harassing words were uttered to her and they included the following:

– kalau nak cari jodoh cari yang beriman, solat, you kena solat istikarah .. . bila you solat istikarah, you akan mimpi you berjimak dengan orang tu! (If you’re looking for a partner, look for someone pious. You will need to pray. When you pray, you will dream of having sex with that person!)
– you ni asyik sakit kepala saja, you ni kena kahwin tau … you nak laki orang tak? (You’re always having a headache. You need to get married, you want someone’s husband?)
– you nak jadi wife I tak? I banyak duit tau. (You want to be my wife? I have a lot of money).

The Defendant filed a complaint against the Plaintiff to the company and a committee of inquiry was set up to investigate the complaint.

The committee found that there was insufficient evidence to warrant disciplinary action to be taken against the Plaintiff, but a strong administrative reprimand was given.

Aggrieved, the Plaintiff sued the Defendant for defamation and the Defendant counterclaimed for tort of sexual harassment.

The High Court dismissed the Plaintiff’s claim and allowed the Defendant’s counterclaim. She was awarded with RM100,000 in general damages and RM20,000 in aggravated and exemplary damages.

The Plaintiff appealed against the judgment to the Court of Appeal (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-2524-10-2012).

The Court of Appeal dismissed the appeal and held that what the Plaintiff did amounts to the tort of intentionally causing nervous shock.

The Court of Appeal however fell short of declaring that there is tort of harassment in Malaysia.

Dissatisfied again, the Plaintiff filed an appeal with the Federal Court. Unfortunately for the Plaintiff again, the Federal Court (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)) dismissed the appeal.

The Federal Court added:

[39] After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it.

The introduction of the tort of harassment is a significant improvement to our laws. Victims of harassment and cyberbullying now have an easier avenue to obtain redress from our Courts.

In my earlier article Bread & Kaya: Cyberstalking, harassment … and road rage, published in July 2014, I said that we do not have specific laws to govern harassment, and hence it is difficult to determine whether an act amounts to harassment without a legal definition.

Section 233 of the Communications and Multimedia Act 1998 criminalises certain forms of harassment, but it must be an electronic communication which is obscene, indecent, false, menacing or offensive in character.

But as we can see, harassment comes in all sorts of forms.

Furthermore, there had have been complaints that industry regulator the Malaysian Communications and Multimedia Commission (MCMC) is selective in prosecuting cases. Not all complaints are acted upon.

Before the Federal Court decision, it was tougher to seek legal redress as there were no reported case laws holding that there is tort of harassment in Malaysia. When the Court of Appeal delivered the decision of Ridzwan, it equated an action for tort of harassment as tort of intentionally inflicting nervous shock.

Such equation is significant because the threshold to succeed in an action for nervous shock is high. A victim needs to prove that he or she suffered some form of psychiatric illness or injury. Normally, this would need to be proven by a doctor, and a victim may not see a doctor immediately.

Further, a victim of harassment does not necessarily suffer such a medical condition. Harassment normally causes distress, annoyance, humiliation or annoyance.

In Malcomson Nicholas Hugh Bertram v Mehta Naresh Kumar (2001] 3 SLR 379, the Singapore High Court defined harassment as the following:

For the purposes of this application I shall take the term harassment to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.

This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

It would be interesting to see how far the tort of harassment could help victims of stalking, harassment and cyberbullying.

The common form of online harassment and cyberbullying nowadays is to set a mob of netizens against a person, or what is known as cyber-lynching.

Many have become victims of such cyber-lynching, and they may not have a legal redress as the attacks are not done by a single person – they could be shared by thousands of people and acted upon by numerous vigilante netizens independently.

Victims would have a hard time finding the perpetrators, and the legal costs would be prohibitive.

It is high time for Malaysia to legislate against harassment.


First published on Digital News Asia on 28 June 2016.

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Malaysia must adopt new laws that are more focused on social media abuse

I was quoted by The Rakyat Post on laws and regulations relating to social media in Malaysia.


The sharing of information taken from another individual, without their awareness or knowledge, containing elements of incitement and slander are offences punishable by law, said legal expert Foong Cheng Leong.

He said Malaysia currently had laws on communication offences involving social media, but the government faced difficulties in detecting all the cases that occurred.

“The sharing or dissemination of any information that is libelous or slanderous are clear offences under the law. Doing these things intentionally or unintentionally is completely irrelevant in cases that involved social media.

“Malaysia has the legislation (needed), but it is difficult for the government to control the activities in social media as there is no party monitoring all the data that goes in and out,” he told The Rakyat Post when contacted recently.

He added that all social media users should take their own precautions to avoid becoming victims, apart from depending on the law, because it was impossible for authorities to track every movement in the social media.

“Users must be very careful in using these social media platforms as it is becoming more and more difficult for authorities to track down misconduct by offenders.

“However, the function of social media cannot be reduced as it should be viewed as a healthy approach. If we withdraw the ‘comment’ box on Facebook, then there will not be any healthy discussion,” he said.

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

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

By Foong Cheng Leong
Aug 12, 2015

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

ON Aug 7, Malaysia’s Land Public Transport Commission (SPAD) announced on its Facebook page that it had seized 12 cars alleged to have been providing public vehicle services without a licence, under Uber and GrabCar.

SPAD said it would bring the matter to court.

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

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

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

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

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

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

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

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

In GrabCar’s Terms of Use, it states:

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

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

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

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

to operate or provide a public service vehicle service, and

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

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

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

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

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

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

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

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

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

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

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

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


First published on Digital News Asia on 12 August 2015

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Sarawak Report should sue MCMC for blocking site, say lawyers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Malaysia amends law to hold publishers responsible for user comments

I was recently interviewed by PRWeek Asia regarding my views of the amendments of the Sedition Act 1948. My email interview is as follows:-

What power do these amendments give the Malaysian government against the tech giants?

Foong: Our laws may not reach foreign tech giants. However, with the new amendments to the Sedition Act and even under the Communications and Multimedia Act 1998, it is possible to block the websites of these foreign tech giants.

What could it cost them potentially to keep operating in Malaysia?

Foong: Possible problems: being criminally liable, servers and other electronic devices being seized as evidence, and so on, during investigation.

What are their options? Self-monitor like Tencent?

A self monitoring practice is possible but it will be costly and time consuming. Unfortunately, we do not have takedown notice provision (other than under our Copyright Act) or laws to protect intermediaries, hence monitoring is required in Malaysia.

One possible option is to have their operations moved out from Malaysia which is detrimental to our economy.

Do you think lobbying will change these amendments?

Foong: Lobbying for laws to protect intermediaries would be recommended. Other than affecting the freedom of expression, it also affects our digital economy. Foreign investors will have to think twice before setting up their operation and putting their servers here in Malaysia.

For the full article, please visit here.

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Bread & Kaya: How the ‘new’ Sedition Act affects netizens

Bread & Kaya: How the ‘new’ Sedition Act affects netizens
By Foong Cheng Leong
Apr 08, 2015

– As with Section 114A, website hosts and FB page owners can be held liable
– Particularly thorny are comments left by others on your portal

BY the time you read this article, the Sedition (Amendment) Bill 2015 – which seeks to amend the Sedition Act 1948 – will be debated in Parliament. The Bill is now published on the Parliament of Malaysia’s website. Click here to download a copy.

The Najib Administration is seeking to update the 1948 Act to now cover electronic publications, and this article will focus on how these amendments may affect the netizens of Malaysia, and website operators in particular.

The purpose of introducing the amendments is stated in the Explanatory Statement of the Bill.

On the eve of Malaysia Day 2011, Malaysian Prime Minister Najib Razak pledged watershed changes to enhance the parliamentary democracy system in Malaysia. This pledge was reiterated in July 2012 and a decision was made to repeal the Sedition Act 1948.

“However, events since that date have demonstrated the continued relevance of the Sedition Act 1948 in tandem with recognition for the need for enhanced safeguards against its misuse to stem legitimate criticism of Government and discussion of issues of concern to Malaysians,” the explanatory statement reads.

“Among the issues of concern are the increasingly harmful and malicious comments, postings and publications that jeopardise that most valued ideals of Malaysia – tolerance and racial and religious harmony in a multiracial, multireligious and multicultural nation.

“Even more alarming are calls for the secession of States in the Federation of Malaysia established by the consensus of the peoples of Malaysia and unwarranted attacks against the sovereign institutions of Malaysia, the Yang di-Pertuan Agong and the Rulers of the States.

“It is against this background that the Government has decided to retain the Sedition Act 1948 (‘Act 15’) at this time with the addition of enhanced measures and penalties to deal with the threats against peace, public order and the security of Malaysia, in particular through the irresponsible misuse of social media platforms and other communication devices to spread divisiveness and to insult the race, religion, culture, etc. of particular groups of Malaysians without regard for the consequences,” it says.

The definition of seditious tendency will be amended. It will no longer be seditious to “bring into hatred or contempt or to excite disaffection against any Government, administration of Justice (our Courts).

It will be seditious to excite the secession of a State from Malaysia. It is seditious to insult our Rulers, and to promote feelings of ill will and hostility between different races or classes of the population of Malaysia and, with the new amendments, between persons or groups of persons on the grounds of religion.

The Sedition (Amendment) Bill 2015 creates liability to website operators (I use this term loosely as the Bill uses the words ‘any person’ and thus may include owner, host, editor and subeditor) such as online forums, online news portals, and even Facebook Page/ Group owners.

Sections 3 and 4 of the Bill introduce the words “caused to be published.” Under the newly amended Section 4(1)(c) of the Sedition Act 1948, a person who, among others, publishes or caused to be published any seditious publication is guilty of an offence.

The punishment is now “a term not less than three years but not exceeding seven years.” Previously, it was not exceeding three years and a fine.

So what does “caused to be published” here mean? It seems to cover a website operator who allows a comment to be published on his website (especially in the case where comments are moderated). This also covers a comment or a posting published on a Facebook page.

Further, pursuant to Section 114A of the Evidence Act 1950, the owner, host, administrator, editor or a subeditor of the website is the publisher of that comment – notwithstanding that such person is not the author of such a comment (unless the contrary is proven).

If the offence involves a publication of a seditious comment under the new Section 4(1A) – that is, published or ‘caused to be published’ any seditious comments which caused bodily injury or damage to property – the Public Prosecutor has a right not to allow bail. Such a person will languish in jail until his trial is over.

Further, the new Section 10(5) of the Sedition Act 1948 compels a person who knowingly has in his possession, power or control a prohibited publication by electronic means, shall remove or cause to be removed, such publication – failing which he shall be liable to a fine not exceeding RM500,000 (US$137,000) or imprisonment not exceeding three years, or both.

However, there are exceptions for a website operator if he can prove that the seditious publication was done:

– Without his authority, consent and knowledge and without any want of due care or caution on his part, or
– That he did not know and had no reasonable grounds to believe that the publication had a seditious tendency.

The first exception will not be applicable to a website operator who moderates comments because publication of a comment was done by his authority, consent and knowledge when he approved the comment.

It would however be applicable to an unmoderated website but such an operator must show that due care and caution had been taken.

Nevertheless, the second exception above will be of assistance to a website operator who moderates comments. However, it is difficult to determine what amounts to seditious nowadays (we need a compendium of sedition statements!).

A Sessions Court Judge, on the application by the Public Prosecutor, can make an order to prohibit the making or circulation of certain sedition publications (that are likely to lead to bodily injury, damage to property, promote feelings of ill will, etc., as per the new Section 10(1)).

Any person making or circulating the prohibited publication shall remove or caused to be removed that publication, or be prohibited from accessing any electronic device.

Any person who fails to do so shall be guilty to a fine not exceeding RM500,000 or to imprisonment not exceeding three years, or both.

If the person making or circulating the seditious publication by electronic means cannot be identified, a Sessions Court Judge can direct that such publication be blocked (under the new Section 10A).

[Note: This article is subject to amendments in the event that there are new facts or clarifications from the First Meeting of the Third Session of the 13th Parliament (2015)].



First published on Digital News Asia on 8 April 2015.

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Bread & Kaya: Malaysian cyberlaw cases in 2014

2014 was another interesting year in cyberspace for Malaysia’s legal fraternity. Numerous sedition investigations and charges were made against statements made online and offline.

Notably, Twitter user @wonghoicheng was charged under Section 504 of the Penal Code and Section 233 of the Communications and Multimedia Act 1998 for “deliberately humiliating and provoking” Inspector-General of Police (IGP) Khalid Abu Bakar on Twitter by likening him to Nazi military commander Heinrich Himmler.

Our courts were also flooded with interesting cyberlaw cases dealing with various issues.

Tracing a person online and 114A

In Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904, the Plaintiffs initiated an action for cyberspace defamation against the 1st Defendant.

In tracing the perpetrator, who had posted defamatory statements on two Google Blogspot websites, the Plaintiffs filed an action called a John Doe action in the Superior Court of California.

In compliance with the court order, Google traced the blogs to two IP (Internet Protocol) addresses which were revealed by Telekom Malaysia Bhd to be IP addresses belonging to the 1st Defendant’s account.

In the same case, the High Court had held that the controversial Section 114A (2) of the Evidence Act 1950 applied retrospectively. (However, the criminal case of PP v Rutinin Bin Suhaimin [Criminal Case No K42-60-2010] states it doesn’t apply retrospectively).

Section 114A (2) provides that the burden of proof lies on the subscriber of an ISP (Internet service provider) to prove that a certain statement was not published by him or her.

The 1st Defendant failed to convince the Court that Section 114A (2) does not apply because the defamatory statements were published before the enforcement date of Section 114A(2).

The Court held that the 1st Defendant had failed to prove that he was not the publisher of the content. The 1st Defendant is now liable for a payment of RM600,000 as damages to the Plaintiffs.

Speaking about 114A, the said section was applied in a few other cases in 2014.

In YB Dato Haji Husam bin HJ Musa v Mohd Faisal bin Rohban Ahmad (Court of Appeal Civil Appeal No D-02-1859-08/2012), the Defendant denied that he was the writer of a defamatory article and the High Court held that there was insufficient evidence to prove so.

The Court of Appeal held that the learned High Court Judge ought to have applied Section 114A and in the present case, the Defendant failed to rebut the presumption in Section 114A.

The Court of Appeal held that as a general rule, once the elements of defamation are satisfied, liability is attached and the defendant’s defence cannot survive on mere denial, and when it relates to cybercrime, Section 114A will assist the plaintiff to force the defendant to exonerate himself from liability.

In Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd [2013] 1 LNS 1446, the High Court held that Mead Johnson was liable for the defamatory postings made by users of Mead Johnson’s Internet forum and website.

The Court, in applying Section 114A, stated that the introduction of Section 114A is the Malaysian legislature’s response to address, amongst others, the issue of anonymity on the Internet to ensure users do not exploit the anonymity that the Internet can provide to escape the consequences of their actions.

In the present case, the Court held that the Defendants failed to rebut the presumptions cast by Section 114A.

Facebook defamation

There were numerous Facebook defamation cases. In Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384, the management corporation of Amber Court Condominium and its council members sued two unit owners of the condominium for allegedly defaming them on Facebook.

The High Court struck out the case after finding that a management corporation has no powers to do so under the Strata Titles Act 1985 and common law.

Salleh Berindi Bin Hj Othman, who had earlier sued his colleagues for Facebook defamation, lost another Facebook defamation case (Salleh Berindi Bin Hj Othman v Professors Madya Dr Abdul Hamid Ahmad & Ors [2014] 1 LNS 1611) in the High Court.

He alleged that the postings made by the Defendants on the 2nd Defendant’s Facebook wall were defamatory of him. The High Court did not agree with him.

In Foo Hiap Siong v Chong Chin Hsiang [2014] 1 LNS 1196, the Plaintiff sued the Defendant, complaining about the following defamatory statement posted by the Defendant, in the said two Facebook forums named ‘Rakyat Ingin Jadi Bos’ and ‘Ubahkan Politik,’ showing an doctored coloured photograph of the Plaintiff’s face, depicting him with long hair with the top half of a naked body dressed in a bra with certain defamatory comments in Mandarin.

The High Court held in favour of the Plaintiff and with cost of RM20,000 and further awarded general damages, aggravated damages and exemplary damages to the total sum of RM50,000.

In an action against the Defendant for publishing defamatory statements through emails (Mox-Linde Gases Sdn Bhd & Anor v Wong Siew Yap (Shah Alam High Court Civil Suit No 22-1514-2010), the High Court applied the principle of presumed publication on emails.

The court held that there is a legal presumption that emails are published on being sent without actual proof that anyone did in fact read them.

Under defamation law, a defamatory statement must be published in order to have an actionable cause of action. Using this presumed publication, it is not necessary to prove someone has read the defamatory statement.

Such a legal principle was applied to materials sent in post such as telegram and postcards. It seems that the court had expended this presumption to email, notwithstanding that emails do sometimes get diverted into the Spam folder or get rejected by the recipient server.

Others

In Dato’ Ibrahim Ali v. Datuk Seri Anwar Ibrahim [2015] 1 CLJ 176, the Court dealt with the liability of an office bearer of an association with respect to contempt of court.

In 2013, president of Malay right-wing group Perkasa, Ibrahim Ali, was jailed for a day and fined by the High Court for contempt of court over a posting on the website http:www.pribumiperkasa.com/ made by one Zainuddin bin Salleh, a member of Perkasa.

The posting is said to be outright contemptuous of the court. The High Court held that Ibrahim Ali was liable for the posting made by Zainuddin on that website by virtue of his position as president of Perkasa.

In the appeal before the Court of Appeal, Ibrahim claimed that the posting was made on a website which is not the official website of Perkasa. He also claimed that he is not liable for the posting because he had no actual knowledge and had no control as to the so-called offence.

The Court of Appeal dismissed the first ground but agreed with Ibrahim on the second ground and overturned the conviction.

Sex bloggers ‘Alvivi’ (Alvin Tan Jye Yee and Vivian Lee May Ling) were freed from the charge under Section 298A of the Penal Code (Tan Jye Lee & Anor v PP [2014] 1 LNS 860) for posting their controversial ‘Hari Raya Greeting’ which contained the couple’s photograph enjoying the Chinese pork dish Bah Kut Teh with the ‘Halal’ logo with, among others, the words ‘Selamat Berbuka Puasa (dengan Bah Kut Teh … wangi, enak, menyelerakan!!!…’

The post had allegedly created enmity between persons of different religions under Section 298A of the Penal Code. The Court of Appeal, in striking out the charge under Section 298A of the Penal Code, held that the said section had already been declared invalid by the Federal Court in another case.

The dispute over the use of the word ‘Allah’ in the Herald – The Catholic Weekly had an interesting point over the use of Internet research by judges.

In 2013, the Court of Appeal, in deciding to overturn the High Court’s decision allowing the of the word ‘Allah,’ conducted its own research via the Internet and relied on the information and points obtained therefrom to substantiate its judgments (see Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur [2013] 8 CLJ 890 on Pages 959-960).

Upon the overturn of the appeal, the Titular Roman Catholic Archbishop of Kuala Lumpur (see Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541) filed an application for leave to appeal to the Federal Court (permission is required before one can appeal to the Federal Court and it must satisfy certain thresholds). The Federal Court however refused to grant leave.

The majority judgement by the Chief Justice of Malaya (Arifin Zakaria, on Page 584) held that those views obtained from the Internet were merely obiter (said in passing – not binding but persuasive) whereas Chief Justice of Sabah and Sarawak Richard Malanjum held that leave ought to be granted as the suo moto (on its own motion) research sets a precedent binding on the lower courts yet untested before the Federal Court, and also that the Court of Appeal relied upon the materials gathered suo moto from the Internet in upholding the impugned decision (on Page 617).

It seems that the Federal Court did not endorse such suo moto research by the Court of Appeal Judges.

Closing

Last year, I wrote a ‘wishlist’ of laws to be introduced to govern or deal with cyberspace issues. Out of the five proposed laws, two of them may be potentially addressed with the proposed anti-harassment law.

I understand that the drafting of this anti-harassment law is at its infancy stage and may not be introduced so soon.

Singapore’s Protection from Harassment Act 2014 came into effect on Nov 15 2014. It was reported that Singapore blogger Xiaxue is the first person or one of the first persons who had obtained a protection order under this law against online satire site SMRT Ltd (Feedback) for trolling her online.


First published on Digital News Asia on 17 March 2015.

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Exploring the Digital Landscape in Malaysia

I’ve been provided with a report by UNICEF Malaysia entitled “Exploring the Digital Landscape in Malaysia”. It has quiet a bit of interesting facts and figures. Some of them are:-

1. One study based on data collected in 2010 and entitled Young people and New Media—Social uses, Social shapings and Social consequences, 50.5 per cent of the respondents aged 14–16 spent four or more hours a week phoning and texting, social networking and playing new media games using a variety of tools. About 17 per cent of them spent more than 12 hours a week on such activities. Respondents who reported sending and receiving over 80 text messages a week were significant: 29.8 per cent received in excess of 80 text messages a week, while 27.8 per cent sent in excess of 80 messages a week. More than a third (35.6 per cent) of respondents spent between one and 12 hours a week in cyber cafes; of these, 2.9 per cent spent 12 hours a week in cyber cafes

2. 68 per cent of participants in the CyberSAFE in Schools National Survey 2013 reported using the Internet for social media and 44 per cent use the Internet to do research for school. Social media use was higher among the older age groups (16–18 and 18+), with more than three-quarters in these age cohorts reporting that they use social media.

3. Young Malaysians are active users of social media, and children and young people (aged 13–24) make up nearly half of the Facebook users in the country

4. In the CyberSAFE in Schools National Survey 2013, one-quarter of the students said that they had been bullied online at some point. Half of them said they had never been bullied and others were unsure. Half of the participants knew at least one person being bullied online. Common forms of cyberbullying included someone being rude or sending nasty messages, being left out or ignored. Cyberbullying using Facebook and blogs is the most common, followed by SMS.

5. To date, Malaysia has not introduced specific legislation targeting crimes against children or adolescents as they interact with others through the Internet.

Read more about it at http://www.unicef.org/malaysia/UNICEF_Digital_Landscape_in_Malaysia-FINAL-lowres.pdf.

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