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Bread & Kaya: A look at Malaysian cyberlaw cases

Bread & Kaya: A look at Malaysian cyberlaw cases

Foong Cheng Leong
Feb 17, 2014

– A summary of the plethora of Malaysian cases involving the online world in 2013
– The Government still needs to look at legislation to address many other issues

Bread & Kaya by Foong Cheng Leong

I HAVE been summarising some interesting cases related to online disputes from around the world every year since 2011.

For a summary of 2010 cases, click here; for 2011 cases click here; and for 2012 cases, click here.

Compiling legal cases is a hobby of mine. I recently published a compilation of Malaysian trademark cases under the title Compendium of Intellectual Property Cases – Trade Marks. This book consists of 70 reported and unreported Malaysian trademark cases.

The year 2013 was one packed with an unprecedented number of legal cases concerning the Malaysian Internet sphere so much so that I have enough cases for one full article!

Facebook and Twitter

Facebook and Twitter related lawsuits have flooded the Malaysian Courts.

In National Union of Bank Employees v Noorzeela Binti Lamin (Kuala Lumpur High Court Suit No. S-23-NCVC-14-2011), the plaintiff initiated an action against the defendant for posting alleged defamatory comments on her Facebook page.

The defendant denied making such comments on Facebook, and claimed that his sister operated the Facebook account, also testifying that “maybe someone hack[ed] my Facebook [account].”

The defendant further contended that the plaintiff had failed to take any steps to check the details of the owner of the Facebook account or the Internet address with the Facebook administrator to confirm that the account belonged to the first defendant.

Notwithstanding this evidence, the defendant admitted in her Statement of Defence that she had published the comments. As a result, the court held that she was bound by her pleadings and therefore could not dispute that she did not post the comments.

In Dato Seri Mohammad Nizar Bin Jamaluddin v Sistem Televisyen Malaysia & Anor (Kuala Lumpur High Court Suit No: 23 NCvC-84-07/2012) , the plaintiff, a well-known politician, filed an action against the defendants for defaming him through the first defendant’s television news report of materials regarding the plaintiff’s tweets on his Twitter account.

The plaintiff alleged that the news report wrongly accused him of making the allegation that the Sultan of Johor had used public funds to bid for car plate number WWW1.

The High Court held that the plaintiff’s tweets, read and understood by any reasonable man, clearly insinuated that the Sultan of Johor had used public funds for the WWW1 bid. Thus, the court held that the defendants succeeded in their defence based on justification.

However, the court held that the defendants did not practise responsible journalism because they failed to verify the truth of his tweet messages with the plaintiff, or to obtain his comments on the matter.

It said the defendants’ publication was lop-sided, leaning towards giving a negative impression about the plaintiff, even before the police completed their investigations. The court also stated that there should be freedom on the part of the plaintiff to tweet his personal messages on his own Twitter account for as long as the laws on defamation and sedition, and other laws of the land, were not breached.

Mohammad Nizar also initiated legal action against Malay-language daily Utusan Malaysia for allegedly misreporting his tweets (see Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Berhad [2013] 1 LNS 592). He succeeded and was granted, among others, damages of RM250,000.

The learned High Court Judge also commented that Utusan Malaysia did not practice responsible journalism.

In Salleh Berindi Bin Hj Othman v Ruslili Nurzahara Hassan (Kota Kinabalu High Court Suit No. BKI-23-1/6-2012), Salleh, a schoolteacher, sued his colleague for damages of RM1 million for publishing three photographs of him on his colleague’s Facebook page. The photographs showed Salleh sleeping on a sofa in the teacher’s room.

Similarly, Salleh also sued his other colleagues for the sum of RM10 million for posting several entries and comments on their Facebook pages (Salleh Berindi Bin Hj Othman v Abdul Hamid Ahmad & 4 Others (Kota Kinabalu High Court Suit No. K-22-134-2011)).

Salleh failed in both suits.

In Nor Hayati Binti Ali v Wan Nuredayu Binti Wan Shaharuddin & Ors (Kuantan Sessions Court Civil Suit No. 53-218-2012), the Kuantan Sessions Court granted a modest sum of RM20,000 against the first defendant for defaming the plaintiff on Facebook.

The use of Facebook pages as evidence in court is becoming the norm these days. However, such evidence is not always acceptable.

In Tan Swee Ean v Adrian Tan Soon Beng & Anor (Penang High Court Divorce Petition No. 33-295-201), the High Court rejected a wife’s allegation that his husband had committed adultery based on pictures downloaded from a Facebook account belonging to the wife’s friend. The Court held that such pictures are hearsay.

Sex bloggers ‘Alvivi’ (Alvin Tan Jye Yee and Vivian Lee May Ling) were charged under Subsection 4 (1)(c) of the Sedition Act 1948, Penal Code, and Subsection 5(1) of the Film Censorship Act 2002 for displaying pornographic pictures on their blog and posting their controversial ‘Bah Kut Teh’ picture on their Facebook page, which allegedly insulted Muslims during the holy month of Ramadhan.

Blogs

In 2011, Sri Muda state assemblyman Mat Shuhaimi Shafiei was charged with sedition over a blog post which allegedly insulted the royal institution. He challenge the constitutionality of S. 4(1)(c) of the Sedition Act 1948 but failed in the Court of Appeal as reported in Mat Shuhaimi bin Shafiei v Pendakwa Raya.

His appeal to the Federal Court is now pending.

Pro-Umno blogger ‘Papa Gomo’ was also ordered to pay a businessman RM500,000 in damages over a defamation suit.

Forums

Notwithstanding the introduction of Section 114A (which makes website operators liable for their users’ posts), there were not many lawsuits taken against forum owners.

However, in Gloco Malaysia Sdn Bhd v Lam Ming Yuet (Shah Alam High Court Suit No. 22NCVC-1284-10/2012), the plaintiff sued its former employee for posting her experience working with the plaintiff on the popular forum LowYat.net.

The High Court dismissed the plaintiff’s action on, among others, the grounds that such postings were not defamatory.

The Enforcement Division of the Ministry of Domestic Trade, Cooperatives and Consumerism, with the help of other authorities, arrested the operator of JIWANG.org for hosting links to music, television shows and movie files via the website JIWANG.org.

Interestingly, one can be arrested for hosting links instead of hosting the content itself!

Wikipedia

In the past, the Malaysian courts have referred to Wikipedia articles as evidence or guidance.

However, in Ganga Gouri ap Raja Sundram Mohd Faizal Bin Mat Taib (Kuala Lumpur Civil Suit No. 21 NCvC-168-07/2012), the High Court rejected evidence from a Wikipedia page used to rebut an expert’s testimonial.

The Court highlighted that Wikipedia has a legal disclaimer stating that “Wikipedia does not give legal opinions. There is absolutely no assurance that any statement contained in an article touching on legal matters is true, correct or precise.”

In Mycron Steel Berhad v Multi Resources Holdings Sdn Bhd (High Court Suit No: KCH-22-80-2011), the High Court declined to take judicial notice of an economic downturn based on an extract from Wikipedia on a write-up titled Subprime Mortgage Crisis because it was not evidence adduced at the trial or an authored publication on the subject.

However, in Lee Lai Ching v Lim Hooi Teik [2013] 1 LNS 18, the learned High Court Judge downloaded a Wikipedia page relating legal issues on parental testing in other jurisdictions.

Closing

Although Malaysia had a plethora of cyberlaw cases flooding its courts in 2013, we can see that there are many issues that our laws have not specifically dealt with. Our Government has yet to come out with legislation or regulations to deal with issues such as:

1) Instigating netizens or setting an online mob against a person with intent to hurt that person through bodily harm or damage to reputation. We have seen many cases where Facebook pages or blogs were set up to set upon angry netizens against a person.

2) Cyberstalking and publication of images of young girls on a blog without their consent (although I would argue Copyright Act 1987 applies). See my previous Digital News Asia (DNA) article here.

3) Disseminating gruesome images of victims. See my previous DNA article here.

4) A law to absolve electronic platform providers (e.g. forums) from liability when a user makes an unlawful posting. The United Kingdom has introduced the Defamation Act 2014 to protect operators of websites.

5) Guidelines for Internet service providers (ISPs) to follow before a website can be blocked from access by the general public. Instead of allowing the Government or ISPs to arbitrary block websites without notifying the public, there should be a rule to make any decision to block a website published in the Government Gazette and any party may challenge such a decision unless there are good reasons to exempt such publication (e.g. for national security reasons). The arcane Printing Presses and Publications Act 1984 has similar provisions and I don’t see why we can’t have the same thing for blocked websites!


First published on Digital News Asia on 17 February 2014.

Commission denies blocking access to BBC’s ‘kangkung’ article

I was quoted by Digital News Asia in the article “Commission denies blocking access to BBC’s ‘kangkung’ article


Commission denies blocking access to BBC’s ‘kangkung’ article

JANUARY 16, 2014

The Malaysian Communications and Multimedia Commission (MCMC) has denied it had blocked access to a BBC report on Prime Minister Datuk Seri Najib Razak’s “kangkung” remark.

MCMC strategic communications chief Sheikh Raffie Abdul Rahman told The Malaysian Insider that the commission did not block the site.

Internet users in Malaysia had reported difficulty in accessing the BBC post beginning last night, with timeouts occurring after a long wait for the page to load.

Digital News Asia reported that the rest of the BBC website remained accessible. However, as of noon today, the block appears to have been lifted.

The BBC article, entitled “#BBCtrending: Be careful what you say about spinach”, chronicles the recent uproar from the Malaysian public about comments made by Najib.

In attempting to use an analogy to explain the government’s action, or lack thereof, in controlling the price of goods, Najib used kangkung or water spinach as an example.

Since then, Najib has been lampooned and ridiculed by Malaysians up and down the length of Malaysia.

Najib had lamented the fact that Putrajaya was never credited for keeping prices stable but instead, was widely criticised when prices of goods and services went up.

There were also complaints from netizens that YouTube videos mocking and ridiculing Najib and his wife Datin Seri Rosmah Mansor had also been blocked.

Digital News Asia reported that any attempts to filter the BBC report would be a violation of the Multimedia Super Corridor Malaysia Bill of Guarantees.

The bill specifically states that Putrajaya would ensure no Internet censorship.

Digital News Asia columnist and lawyer Foong Cheng Leong said there was no legal ground for the BBC report to be blocked. – January 16, 2014.

Net censorship: BBC story on kangkung fiasco blocked?

I was quoted in Digital News Asia’s article “Net censorship: BBC story on kangkung fiasco blocked?


Net censorship: BBC story on kangkung fiasco blocked?

Gabey Goh
Jan 16, 2014

– Netizens report difficulty accessing BBC article on PM Najib’s kangkung calamity
– Fears raised over violation of MSC Malaysia’s no-censorship of Internet guarantee

NETIZENS in Malaysia are having difficulty accessing a BBC story on Prime Minister Najib Razak (pic) being derided online for a comment on rising prices, raising fears that the Internet was being censored in the country.

This goes against the Multimedia Super Corridor (MSC Malaysia) charter, in which the Malaysian Government guarantees the Internet would not be censored, barring special circumstances.

The BBC article, entitled #BBCtrending: Be careful what you say about spinach, chronicles the recent uproar over a statement made by Najib that the price of kangkung (or Chinese water spinach) has gone down. In a video that has gone viral, he lamented the fact that the Government has not been praised for this, but is being criticised for the rising cost of living.

His statement has been attacked by Opposition leaders and civil advocates for being insensitive to the plight of average Malaysians, who this year face a slew of price hikes and subsidy reductions.

Internet users in Malaysia reported difficulty accessing the specific BBC post beginning late last night (Jan 15), with timeouts occurring after a long wait for the page to load, while the rest of the BBC site remained accessible. The block seemed to have been lifted at noon today (Jan 16).

Consumer technology website Lowyat.NET also reported difficulty accessing the page, “even after changing the DNS setup from TM’s to Google DNS,” with ‘TM’ referring to Telekom Malaysia, which owns TMnet, the country’s largest Internet service provider (ISP).

As reported by The Malaysian Insider, the kangkung statement sparked much derision by the Malaysian public, with many netizens airing their frustrations and displeasure on social networking sites such as Facebook and Twitter.

[Update 1]

Meanwhile, in a statement to The Malay Mail Online, industry regulator the Malaysian Communications and Multimedia Commission (MCMC) denied it was responsible for the block.

In a text message, its corporate communications chief Sheikh Raffie Abdul Rahman told the online newspaper, “To my knowledge no blocking.”

When referred to this article, he added, “As I said, to my knowledge no. MCMC nak block macam mana? (How can the MCMC block it?)”

As the time of this update, the MCMC had yet to respond to queries from Digital News Asia (DNA) on whether it was investigating the issue to determine who was responsible for the action that contravened the Government’s MSC Malaysia pledge.

Access to the BBC article had eased up a bit by noon today (Jan 16), although more reports started coming in that YouTube videos lampooning the Prime Minister and his wife Rosmah were also being blocked.

[End Update 1]

Responding to queries by DNA, security expert and freelance IT solutions provider @sniiffit said that in a nutshell, what was being done is that all packets requesting the specific page were being dropped at the ISP level.

“This effectively doesn’t allow the page to load at all,” he said.

Asked whether it could be a case of Malaysian ISPs being hacked or compromised, or whether it was a case of traffic overload on BBC’s servers, @sniiffit said it was neither.

“BBC or any large portal uses a CDN (content delivery network) which handles page requests to its servers – if the servers are being overloaded, the main site bbc.co.uk would have been inaccessible.

“If it was hacked, the whole domain would have been inaccessible. This blocking of a specific URL would have only been possible by filtering the packets and manipulating the network traffic,” he said.

This block will mostly affect those who are tied to the TMnet service or Telekom Malaysia’s network, and users accessing the page via their mobile may or may not be affected, @sniiffit added.

According to Khairil Yusof, cofounder of Sinar Project, a non-profit organisation which uses open source technology and ideas to track and measure corruption, this is a similar filtering technique with the one deployed during Malaysia’s 13th General Election (GE13) in May last year.

“According to our tests, it’s the same type of filtering as done during GE13. It is not new and this confirms the Government still has these filters in place and is willing to use it,” he said in response to queries made by DNA via Twitter.

The censorship test conducted by Sinar Project yielded the following:

## Test 1: Check DNS, and IP block: Testing Same IP, different Virtual Host
HTTP/1.1 404 Not Found
## Test 2: Emulating a real web browser: Testing Same IP, actual Virtual Host, single packet
Timeout — waited 5 seconds
## Test 3: Attempting to fragment: Testing Same IP, actual Virtual Host, fragmented packet
HTTP/1.1 200 OK

[Update 2]

The tests check for three conditions, Khairil told DNA. The first is to test if the page is being blocked by its IP (Internet Protocol) address or DNS (Domain Name Server) lookup. “This is where your browser asks, ‘Where is bbc.co.uk?’ A block at this level would mean all of BBC is not accessible and users [would need to use] another DNS service such as Google,” he explained.

“Test 2: Does a normal request go through? This simply mimics a normal request as if it were made by a user using a browser, to confirm that it is blocked.

“Test 3 checks to see if there is a specific filter in place that checks for some specific text in the browser request, such as the URL, and purposely breaks apart the request so that the filter doesn’t match and block the request,” he explained.

[End Update 2]

This filtering would be a violation of the Multimedia Super Corridor Malaysia Bill of Guarantees, which specifically states that the Government would “ensure no Internet censorship.”

In the case of the BBC article, lawyer and DNA columnist Foong Cheng Leong raised a question regarding the legal grounds for blocking the BBC article.

“Section 263(2) of The Communications and Multimedia Act CMA 1998 only allows blocking of a site if it is reasonably necessary in preventing the commission or attempted commission of an offence,” he noted on Twitter.

The BBC article, while written in a slightly cheeky vein, only recounted facts however, and could not be construed as having committed any offence under Malaysian laws.

This is not the first time that attempts to restrict access to certain content online has been recorded and reported.

During the GE13, DNA reported that there was mounting evidence that certain ISPs may be throttling access to both alternative news portals and Opposition content on the Internet.

In a post published on Google Plus in May 2013, Sinar Project reported strong suspicions that some sort of basic content filtering to censor online media in Malaysia was taking place.

“Many people have reported difficulties with viewing the following video interviews linked from (independent news portal) Malaysiakini’s interview article” conducted with the widow of private investigator Balasubramaniam, popularly known as ‘PI Bala.’

PI Bala was a crown witness in a trial over the controversial 2006 murder of Mongolian national Altantuya Shaariibuu. He himself died of a heart attack in March 2013, at the age of 53.

The Altantuya trial saw two special forces police officers being found guilty of murder and sentenced to death, although they were both acquitted by the Court of Appeal in August, 2013.

In the original trial, a third accused, Abdul Razak Baginda, a close family friend of Najib, then Deputy Prime Minister, was acquitted without his defence being called.

Sinar Project had conducted its investigation into possible Internet filtering on multiple networks based on the ID/URL of these videos served from Google’s +YouTube cached servers located in on TMnet’s network.

“We strongly condemn the actions of TMnet and parties involved in censoring access to free media in Malaysia,” its report said.

[Update 3]

When asked what kind of person(s) or organisations would be able to block a webpage this way, Sinar Project’s Khairil said it has to be someone who has access to TMnet’s network infrastructure.

“Tests for similar filtering during GE13 showed that it stopped at the first gateway server. I cannot confirm it for this one filtering, but to do this, somebody would have to have access to enable a processing-intensive filter that is applied to almost all servers accessed by users on TMnet’s network.

“This also implies that the software or hardware to apply the filtering has been installed,” he added. “Think of the firewall on your WiFi router at home, which you can configure. You would need to have access to do the same on TMnet’s equipment at its network centres.”

[End Update 3]

When asked for his opinion on the incident, @sniiffit said “trying to censor the Internet is a really bad idea,” in addition to the fact that the United Nations also condemns the filtering of content as “it is a human rights violation and against international law.”

[Update 4]

Readers who want to read the BBC article in question can do so at the blog of Opposition politician Lim Kit Siang, who has reposted it in its entirety here. Alternatively, they can find the article on Google Cache page here. Users who want to bypass such blocks can try surfing from  multiple locations using such services as LocaBrowser.

[End Update 4] 

 

NEP Holdings fails in its patent infringement action

The Plaintiff, NEP Holdings (Malaysia) Berhad sued the Defendant, C.K. Filtration Technology Sdn. Bhd for infringement of Malaysian Patent No. MY 142566-A (“MY 566 Patent”) entitled “Improvement in the Mechanism of Water Treatment System” by manufacturing, assembling, stocking, marketing, distributing, selling and offering for sale an infringing product known as CK KING FILTER which consists of features of the MY 566 Patent by using a variant to the essentials features of the MY 566 Patent. The Plaintiff’s product that has been marketed since the establishment of the Plaintiff named Diamond Master Filter was initially based on the MY 566 Patent but no longer so since the establishment of the Defendant.

The Defendant refuted the Plaintiff’s claim and filed a counterclaim that the MY 566 Patent is invalid on the grounds of lack of novelty, lack of inventive steps and lack of description pursuant to section 56(2)(a) and (b) of the Patents Act 1983.

The Plaintiff alleged that the CK KING FILTER has all the essential features of the MY 566 Patent. The Defendant claims that the CK KING FILTER does not have, among others, the inner drum and magnetization assembly.

Held:

1. The MY 566 Patent is valid on the ground that it is not disclosed by prior arts, and it is not
obvious and the claims and the description of the Patent is sufficiently disclosed. Therefore, the MY 566 Patent is valid. Hence, the Defendant’s counter claim is dismissed with costs to the Plaintiff.

2. The inner drum is an essential integer of the MY 566 Patent. The importance of the inner drum is clear because the design of the MY 566 Patent requires two (2) connectors that has to be connected with the inner drum to direct the water flow from the input. The CK KING FILTER does not have the inner drum.

3. There was no evidence to show that the CK KING FILTER has the magnetized assembly. The CK KING FILTER has not infringed the MY 566 Patent. Accordingly, the Plaintiff’s claim for infringement is dismissed with costs to the Defendant.

[Editor’s Note: Plaintiff’s appeal dismissed with costs; costs RM20,000.00 awarded to the Defendant; deposit to Respondent towards costs.]

[Download: High Court Judgement]

Bread & Kaya: The law and the Sweet Young Malaysian Girls blog

The law and the Sweet Young Malaysian Girls blog
Nov 29, 2013

– Netizens are riled up over the blog that posted pictures of young Malaysian girls, many of them minors
– Determining which laws could be applied against the blogger in question is however a challenge

Bread & Kaya by Foong Cheng Leong

I AM sure many of you have read of the recent ruckus over the Sweet Young Malaysian Girls blog. It’s a blog which featured a compilation of pictures of young Malaysian girls that has now been deleted.

Fellow netizen Harinder Singh had exposed the person allegedly behind the blog (let’s call him the SYMG Blogger). You can read all about it at Harinder’s blog.

I must highlight that a person should not accuse someone of a crime or a wrongdoing without evidence, as it is defamatory. Such a person may claim that someone else has proven the crime or wrongdoing, but in the event that such person is sued in court, he will need to prove the crime or wrongdoing (i.e. to prove that it is true).

In the event that the person who exposed the crime or wrongdoing refuses or fails to attend court, the defendant may not be able to sustain his defence.

Furthermore, the law on electronic evidence in Malaysia is still developing. Many types of electronic evidence (such as emails or printouts) are ruled inadmissible by our courts. In this regard, to be on the safe side, if you can’t prove it, don’t repeat it.

Many people have asked me what the victims can do, in particular the girls who had had their pictures posted on the blog. Some are of the view that no crime had been committed and that the girls can only sue the person behind the blog for copyright infringement (i.e. a civil wrong).

Some proposed invasion of privacy. However, if the pictures were taken from blogs or social media accounts of the victims and were easily accessible, there may not be an action for invasion of privacy.

It also may not be an offence under Section 233 of the Communications and Multimedia Act 1998, which provides that a person commits an offence if he or she posts any content that is either indecent, obscene, false, menacing, or offensive in character with the intention to annoy, abuse, threaten or harass any person.

In this present case, the contents of the blog do not seem to indicate such an intention.

If the images were taken and posted on the blog without permission, the person would be infringing the right of a copyright owner. But note that copyright generally belongs to the photographer and not the person(s) featured in a picture unless the person(s) in the picture had commissioned the photographer.

Therefore, the victims may not have the right to sue the owner of the blog … unless it is a selfie!

Nevertheless, the Copyright Act 1987 provides for criminal sanctions against copyright infringers. Section 41(1)(c) of the Copyright Act 1987 makes it an offence to infringe a person’s copyright. This provision is normally used against people who sell pirated movie and music and recently, website owners who host pirated movies and songs.

However, this provision is wide enough to cover pictures. It is possible to prosecute a person for distributing pictures of others without permission, especially when it involves a massive number of pictures. Any person convicted under this provision is liable to fine of no less than RM2,000 and no more than RM20,000 for each infringing copy, or imprisonment not exceeding five years.

The SYMG Blogger may be possibly be charged under s. 41(1)(c) of the Copyright Act 1987 (and if so, he could have set a new legal precedent in Malaysia!)

Nevertheless, SYMG Blogger may claim a defence of fair dealing under the Copyright Act 1987. He may claim that the blog was created for the purpose of research. Thus, this probably explains the ‘social experiment’ explanation he has been trying to pull.

Whether he will succeed in this defence would depend on whether it is genuine research or merely an afterthought.

Notwithstanding the above, there were naked pictures of young girls in the blog. It is certainly an offence to post obscene pictures online (Section 292 of the Penal Code).

Then there is a question on whether reproducing an image which had already been reproduced in another page (e.g. by way of re-blogging) amounts to publication. If we follow Malaysian laws, reproducing an image through re-blogging is a publication of the image by the person who re-blogged it.

Unfortunately, I have been informed that none of the victims have made a police report. I am told that some girls do not want their parents to know. Unless a police report is made, the police will not start investigations.

Without a complainant, it will be very difficult for the Attorney-General’s Chambers to prosecute the case.



First published on Digital News Asia on 29 November 2013.

Bread & Kaya: Sharing images of crime victims

Bread & Kaya: Sharing images of crime victims

Nov 01, 2013

– No doubt the dissemination of gruesome images is distasteful and disrespectful of victims and their families
– However, when the MCMC cited legislation against it, the industry regulator may have been stretching it

Bread & Kaya by Foong Cheng Leong

IT was with great interest that I read the following Facebook posting by industry regulator the Malaysian Communications and Multimedia Commission (MCMC):

Assalamu’alaikum dan Selamat Sejahtera,

Orang ramai dinasihatkan untuk tidak menyebarkan gambar dan rakaman CCTV pembunuhan kejam seorang pegawai bank atau gambar-gambar mangsa di mana-mana media sosial seperti Facebook dan Whatsapp .

Jika anda telah berbuat demikian sila padamkan post tersebut. Ini adalah untuk menghormati mangsa dan keluarga beliau. Ia mungkin juga mengakibatkan gangguan emosi kepada orang ramai terutamanya kanak-kanak.

Kami telah pun meminta kerjasama YouTube untuk mengeluarkan video berkenaan dengan seberapa segera.

Untuk makluman, penyebaran gambar dan video sebegini adalah suatu kesalahan di bawah Seksyen 211 dan 233 Akta Komunikasi dan Multimedia 1998. Jika didapati bersalah, denda yang dikenakan tidak melebihi RM50,000 dan satu tahun penjara atau kedua-duanya sekali.

Sekian, terima kasih

In brief, the MCMC stated that the dissemination of gruesome images or video recordings of crime victims is an offence under the ss. 211 and 233 of the Communications and Multimedia Act 1998 (CMA). Reference was made to the CCTV recording of the deadly shooting of Ambank officer Norazita Abu Talib.

There is no doubt that the dissemination of such gruesome recordings and images is distasteful and disrespectful of the victim and her family. But for the MCMC to state that it is an offence under ss.211 and 233 of the CMA is stretching the applicability of these laws too far.

For there to be an offence under s. 233 of the CMA, the case of PP v Rutinin Bin Suhaimin has clearly set out that the following ingredients must be proven:

– The accused person initiated the communication in question.
– The communication in question is either indecent, obscene, false, menacing, or offensive in character; and
– The accused had intention to annoy, abuse, threaten or harass any person.

Section 211 of the CMA is similar to s. 233 of the CMA.

A person who posted the offensive materials must have the intention to annoy, abuse, threaten or harass any person. I doubt the people who have shared such images or recording had such intentions. Perhaps bloggers or portals that had done so had the intention to gain more visitors. Or perhaps some netizens share them to satisfy the morbid curiosities of other netizens.

But certainly this is not an intention to annoy, abuse, threaten or harass any person.

In short, the dissemination of gruesome recording and images is not an offence under ss.211 and 233 of the CMA unless it was disseminated with an intention to annoy, abuse, threaten or harass any person.

No doubt it is a calamity to have images of your late loved ones being disseminated online; but there are other laws to govern the dissemination of such information. Section 292 of the Penal Code makes it an offence to disseminate obscene material. The person who caused the leak of gruesome image (e.g. autopsy pictures) could be subject to a civil suit for negligence.

Even the soon-to-be introduced law s. 203A of the Penal Code, which punishes, among others, a civil servant for disclosing information obtained by him in his performance of his functions with a fine of not more than RM1 million (US$317,000), or imprisonment for a term which may extend to one year, or both.

However, I do not think that Parliament should introduce a law to curb the dissemination of gruesome recording of victims, especially if there are benefits of doing so. For example, for education purposes (e.g. study of forensic science) or even to highlight the extent of injuries suffered by inmates due to alleged police brutality.

The purpose of this article is not to justify the dissemination of gruesome images or videos but to highlight the extent of our laws. The MCMC should ensure that its statement, in particular, the last paragraph, is accurate and not leave room for misinterpretation.


First published on Digital News Asia on 16 August 2013

网络与用户隱私权 安全使用网络 保护自己隱私权

I was quoted by Daily Oriental regarding user privacy on the Internet on 20 October 2013.


网络与用户隱私权 安全使用网络 保护自己隱私权
2013年10月19日

人们在网络上的所作所为,无论是在面子书上分享自己的心情记事或享受过的美食、还是透过谷歌搜索引擎搜集资讯、抑或最常瀏览的各种网站纪录,在旁人的眼里可能毫无用处,惟在商家的眼中,这是瞭解潜在顾客「消费习惯」的最佳方式!

试回想,你是否试过某时期在网上不断搜索「韩国旅游资讯」时,你瀏览的网站甚至电脑刚上线时,就会不断弹出各种陌生网站的「韩国旅游不得不知的10件事」、「幸运大抽奖,你就是下一个直飞韩国的幸运儿!」等广告,甚至在影音网站的「推介影片」一档中,还能看到斗大的「韩国欢迎你」宣传標语!

对使用者而言,这省去了继续搜索所需资讯的功夫,无疑是一个贴心的设计,惟若继续往下思考,网站业者从何得知你的「想法」,这些资讯是否经过你的同意转发给商家?

更重要的是,当你自以为可以在网络上搜索所有你想瞭解的资讯时,却忘记了搜索引擎是否有能力排除它不想让你看到的资讯!

因此儘量降低个人资料的曝光率、定时刪除自己在网络上的「搜索关键字」、减少展示个人慾望的念头,才是安全使用网络,保护自己隱私权被滥用的最佳方法!

吸引主要收入条件

贵为当今网络世界最强的搜索引擎-谷歌、社交网站-面子书与影音网站-优管,几乎存有所有网络使用者的使用记录,从展示个人兴趣的最常瀏览网站、到露出商业潜能的最常瀏览產品、甚至是展露政治倾向的留言等,无一不是商家甚至政府虎视眈眈的肥肉,面对商业与政府之间的巨大要求,网站业者又该如何取捨呢?

我国著名三语论坛,佳礼网站创办人柳树吉表示,虽然收集使用者的上网记录看似侵犯用户的隱私权,惟网站业者的確必须保存所有用户的使用记录,除了作为公司的行政纪录、將来面对控告时自保的证据,更是能否吸引主要收入(广告)的重要条件!

「我们的確会保留所有用户在网站上的活动记录,以作为公司的行政纪录,往后可能面对的指控自保证据等,就好像售卖衣物的业者必须记录买者的购买记录,以供日后查证,而是否牵涉用户隱私权问题,则端看业者如何处理这些资料。」

擬出用户消费习惯

他不违言,网站业者透过研究用户释放出的网络行为,就能瞭解他们的兴趣范围,与当下或未来可能需要的產品,如最常瀏览论坛的板块、逗留的时间、回覆帖子的速度与程度、並把用户们列入个別不同的消费族群。

「网站投放的广告必须有一定的针对性,因此旗下拥有近70多个產品的谷歌经过整合后,就能擬出所有用户的个人消费习惯,并为个別用户设计出专门的广告,目標准確,效率也高。」

他坦言,以商业角度来看,谷歌並没有做错,惟若网站在没有经过用户的同意下,就公开该用户的消费习惯给所有付钱的广告商,就有一定的道德立场问题。

「好比俗称Cookies的小型文字档案,原本存在于所有用户的网上记录里,作为与伺服器沟通的档案。如用户登录论坛页面后,前往不同板块时不必一再登录、或网上购物时,记录下用户在不同板块的购买清单,不必一再点选,就是Cookies的作用。」

不应公开用户隱私

「功能强大的Cookies甚至可以记录下用户的所有网络习惯再转发回网站,此举虽然没有公开使用者的个人资料,惟也可以从此推断出不少资料。」

他再举例,谷歌搜索引擎记录下用户的搜索关键字,久而久之就能推断出使用者的网络习惯。因此他认为,任何社交媒体网站或网站业者,可善用使用者的纪录作为內部研究或招收广告之用,却绝不应该主动公开或兜售,以免侵犯用户的隱私权。

「我们研究了用户的网上行为后,推断出他们喜欢怎样的產品或网站,并在他们瀏览论坛时弹出相应的广告,属于『被动式广告』,若强制把所有用户习惯都卖给广告商,则有贩卖用户隱私权的问题。」

网络誹谤霸凌案 「举证」有难度

网络高度的言论自由容易擦枪走火,形成严重的不实言论或誹谤,由此衍生出来的「恶性报復」,透过窃取人们在网络上的资料,以二度造谣或詆毁对方,已成为网络上越来越常见的手法,受害者们又有何种方式自保甚至反击呢?

冯正良律师指出,网络誹谤或霸凌案最困难的部分是「举证」,除非你能够很肯定该网络使用者在现实生活中的真实身份,否则基本上很难带上法庭审判。

「如果对方使用Blogspot部落格,你必须前往美国拿到该部落格的登记资料,有意造谣者大多以假身份或电邮地址申请,因此很可能失败收场,若要向我国电讯公司拿到发佈消息的网络IP地址,程序也不简单,种种原因造成许多人都忍气吞声,或乾脆在网络上开炮反击。」

他举例,某个案缘起于客户不满意网络店主的服务,因此疯狂收集店主的个人资料甚至孩子资料,再以新的面子书帐號不断对店主展开人身攻击,导致店主不厌其烦,最后报警并私下解决了事。

最好报警私下解决

「报警与私下解决是最好的方式,因为警方接获投报后,可以直接约访嫌犯,瞭解是否具有干案动机,甚至搜查其个人手机甚至电脑,惟能否真正抓到网上造谣者的真实身份与警方的办案效率,才是决定报案是否有效的关键。」

面对如此棘手的网络誹谤问题,网站业者,特別是最多人发表意见的论坛又有何对策解决呢?

柳树吉指出,所有论坛各有其一定的条例与规则,佳礼论坛的一贯方针为,「若有人投诉,一般不问对错,就立刻撤下被投诉的帖子」,才能立即阻止风波继续延烧下去!

「论坛上当然也会有居心不良的使用者,过去论坛上也发生过各种桃色纠纷,双方抹黑或自清的版本也在论坛上疯狂转载,而我们都会一视同仁,『若有人投诉,就立即撤下』;惟后来某方在自己的部落格解释这件事情的来龙去脉,我们也不会去阻止。」

他补充,当时某方甚至要求佳礼网站刪除该部落格的贴文,惟论坛本身並没有这个权限与能力,没想到拒绝后也惹祸上身,几乎每星期3次打电话到总部投诉,甚至也开始造论坛的谣言,让人烦不胜烦。

「遇到这样的问题,我们通常也不想再追究,毕竟有些人纯粹是一时脑充血,凭著一股衝动胡乱贴文,我们都儘量容忍,也劝阻各造冷静处理。」

「这时也显示出网络隱私权的重要性,如果你本身不在网络上公佈自己的真实资料,就不会被別有居心人士恶意利用甚至中伤,因此我们必须在三呼吁网民,做好网络隱私权的保护措施。」

是否侵犯隱私权存灰色地带

询及最近谷歌把用户曾经针对某些网站或產品的留言或「按赞」,展示在其他使用者的面前,以加强网络流量或產品买气时,柳树吉认为,若此举没有徵询过用户的同意,的確有侵犯隱私权之嫌,惟用户之前公开按赞或留言,基本上也属于公开「表態」,因此是否尚属隱私权也难以定义。

「你针对一个產品发表感言,基本上就是公开给所有人看到,如今谷歌只是让更多人看到罢了。因此这中间可说是存在著模糊的灰色地带,也是世界各国都没有认真討论过的问题。」

他以之前下载的Line聊天软体为例,当初的版本只要储存某电话號码,在24小时內就会收到该电话號码所属人士的资料,此举又是否取得电话號码主人的同意,也是值得深思的问题。

吉隆坡律师公会资讯工艺委员会主席冯正良律师指出,这中间的灰色地带的確难以厘清,惟从法律观点来看,若用户下载软体时,已经同意安装软体时所附有的「同意安装条例」,基本上也没有反驳的立足点。

他强调,许多用户在任何网站註册、下载任何电脑或手机软件时,都直接在「同意使用条例」下打勾,却从来没有认真研究过,自己到底给予网站什么权限,利用你的个人资料。

「就像面子书的『同意使用条例』已经写得很明白,所有用户贴出的照片,都等同于给予面子书使用的权限,许多网站也已经列明,对于用户个人资料的使用权限,只是大家都没有真正去研究罢了。」

网上言论或照片 易成攻击武器

柳树吉认为,我国大部分网络使用者根本不瞭解何谓「网络隱私权」,这可以从面子书上铺天盖地的「分享」中看出,无论是各种私人的详细资料,甚至任何最新动態都喜欢放到网上,已成为不少人上网的不良习惯。

「我国网络使用者很喜欢在面子书上分享去哪里玩,有的父母甚至会直接公开孩子的就读学校,各种各样的情报在网上流窜,很容易被別有居心者用以犯罪。」

他补充,许多年轻人也会有天不怕地不怕的错误观念,认为自己並不出名,就「勇敢」的在网上到处留言、发表情绪性言论,却忘了任何存在网络上的言论或照片,都会永远留在网络世界里,静待爆发的那一刻。

「曾在网络上发表不雅言论甚至照片,有朝一日若被人翻出来并加油添醋,就容易成为別有居心者攻击的最佳武器。可是现在的年轻人只想到当下,可以拿到多少个朋友的『赞』与留言,对这份威胁浑然不知。」

他以佳礼论坛为例,几乎每天达到200万张新帖子,太多情绪化的言论也造成版主疲于奔命,惟该论坛也规定,若接到投诉都会立即抽起帖子,被抽起的帖子每天几乎高达500至1000张。

用户须负责

「有的人可能在餐厅吃东西时遭遇不好的服务,心情不爽就把前因后果甚至餐厅的名字或照片都放上网,我们也只能向用户坦白,若餐厅负责人上门要求解释,是否已做好一切准备应对,因为我们绝对强调言论自由,惟用户也必须负上应有的责任。」

聪明使用面书隱私权设定

面子书为了减少人们对其隱私权保护上所做的批评,也设置了连串的隱私权设定,让用户决定本身的资料只可以让谁看到、本身的照片只能让谁看到,惟这些设定却必须由用户自己去设置,加上最近面子书取消了用户的「隱身」功能,让所有人都可以在面子书上被搜索,这背后又有何意义呢?

柳树吉坦言,以商业决定的角度来看,若所有用户都不上载自己的个人资料或最新动態,面子书基本上也丧失了其本身的特色,因此鼓励用户踊跃展示自己,对面子书来说並没有错。

公开资讯须有底线

「因此隱私权设置必须由用户自己去关闭,也是一种被迫的取巧方式。因此我只能奉劝所有网络用户,如果要用免费的產品,就请聪明的使用,若要用以推销自己,也请小心处理,以免引来严重的后果。」

他以自己的面子书帐號为例,面子书上的朋友都是中学与大学的同学,用以联繫与朋友之间的感情,他本身并不会上载自己的个人或家人资料、也不会更新状態或照片、曾接受的採访或报导也不会转载,属于很「无聊」的用户。

他不违言,若所有人都是在面子书上「不发一语」的用户,相信也不会有人再逛面子书,因此適当的资讯公开其实並无太大问题,惟必须有自己的底线,以免成为下一宗网络骗案甚至霸凌的受害者。

Netizens v the Government

2012 saw the intensified battle between netizens and the authorities. The former desires protection of their right to freedom of expression and anonymity whereas the latter desires control and governance. Through this battle, the authorities introduced many new legislations to govern the use of internet.

In July 2012, the Malaysian Government enforced s. 114A of the Evidence Act 1950 (114A). Under 114A, a person is deemed to be a publisher of a content if it originates from his or her website, registered networks or data processing device of an internet user unless he or she proves the contrary. This new law sparked a massive online protest dubbed the Malaysia Internet Black Out Day or also the Stop114A. Protesters replaced their Facebook and Twitter profile picture with the Stop114A banner whereas website operators displayed the Stop114A banner on their websites. Within two days, the Stop114A Facebook gained 43,000 likes from 400 likes (currently 49,000). It is probably one of Malaysia’s most successful online campaigns.

On the business side, the Association of the Computer and Multimedia Industry of Malaysia (Pikom), who represents the information and communications technology (ICT) industry in Malaysia, backed calls for a review of 114A whereas the Federation of Malaysian Manufacturers (FMM) has expressed concerns over the recent inclusion of 114A and its impact on businesses.

Interestingly, the Malaysian Government passed the Cyber Centre and Cyber Cafe (Federal Territory of Kuala Lumpur) Rules 2012 and Consumer Protection (Electronic Trade Transactions) Regulations 2012. The former requires any person operating a cybercafé and cyber centre to maintain a customer entry record and a record of computer usage for each computer whereas the latter requires online business owners and operators to provide their full details, terms of conditions of sale, rectification of errors and maintenance of records.

Philippines netizens also protested against their newly introduced cyberlaw. In October 2012, Philippines passed the Cybercrime Prevention Act of 2012 with the aim to prevent cybersex, online child pornography, identity theft and spamming. However, under the new act, a person found guilty of libellous comments online, including comments made on social networks such as Facebook and Twitter or blogs, could be fined or jailed. In protest against the new law, anonymous activists hacked into government websites, journalists have held rallies and many Facebook users have replaced their profile picture with a black screen. Protesters say the new law could be used to target government critics and crack down on freedom of speech.

Japan netizens on the other hand had milder protest against a new law that makes Japan-based internet users who download copyright infringing files. Violators will face up to two years in prison or fines of up to two million yen. In July 2012, about 80 masked people, calling themselves allies of the global hacker group Anonymous, picked up litter in Tokyo Saturday as a sign of protest.

In early 2012, China required users of the popular microblogging platform, Weibo, to register their real names. Subsequently, later in the year, China legalized the deletion of posts or pages which are deemed to contain “illegal” information and required service providers to hand over such information to the authorities for punishment.

On a brighter note, the South Korean Constitutional Court ruled that a law requiring South Koreans to use their real names on Internet forums was unconstitutional. The Court said that the requirement amounts to prior censorship and violated citizens’ privacy.

In the United States, a handful of US states, including Illinois, California and Maryland, passed laws making it illegal for employers to ask for potential employees’ Facebook or other social media passwords.

A person who retweets a defamatory tweet is potentially liable for defamation. In the UK, Lord McAlpine (Robert Alistair McAlpine) a former politician who worked for Margaret Thatcher, announced his intention to pursue action against 10,000 Twitter users for defamation including those who had retweeted the defamatory tweets. In this case, Lord Alphine was linked by some social media users after BBC News reported that a senior politician was involved child sex abuse. Interestingly, these users may apologize to Lord McAlphine by completing a form downloadable from his solicitors’ website!

In the UK, it is an offence to publish the identity of victims of certain offences which include rape. Footballer Ched Evans was convicted by the Court for rape of a 19 years old woman. The woman’s name was circulated on social networking sites, including Twitter and Facebook, after Evans’ conviction. 9 people were fined after admitting to revealing online the identity of the woman.

Meanwhile back home, the Kota Kinabalu High Court overturned Rutinin Bin Suhaimin’s acquittal for posting an “annoying” comment on the Sultan of Perak’s website. Rutinin was charged under s. 233 of the Communications and Multimedia Act 1998. The Sessions Court had earlier acquitted him without calling for his defence because, among others, the prosecution failed to prove that Rutinin was the person who posted the insulting comment. The Court held that, although 114A of the Evidence Act 1950 is not applicable because the alleged offending act was committed before the enforcement date of 114A, the circumstantial evidence is sufficiently strong to conclude that the accused had used the internet account that was registered in his name at the material time.

The developments in 2012 show the involvement of the authorities in clamping down the notion of the Internet being the Wild, Wild West. However, such clap down must be monitored by netizens.

In December 2012, the International Telecommunication Union (ITU) brought together regulators from around the world to re-negotiate a decades-old communications treaty. Google and 1000 over organizations around the world claimed that some governments want to use the closed-door meeting to increase censorship and regulate the Internet and had started an online campaign.

At the end of the closed-door meeting, 89 countries including Malaysia signed the treaty, while 55 countries said they would not sign or that additional review was needed.

With the new technology, websites and novel functions, all Governments will have to step out their game to protect the rights of netizens and businesses. New laws must not be onerous but in the same time protect victims of cybercrimes and preserve the right of freedom of expression.



This article was supposed to be published in the Putik Lada of The Star Newspaper. It was also supposed to be the 2013 installation of my yearly social media update articles. Unfortunately, The Star Newspaper discontinued the Putik Lada column before my article could be published.

Big NO to more social media control

I was quoted by The Star in their article “Big NO to more social media control” on 14 June 2013.

My opinion on the privacy is based on a South Korean case which held that a law requiring South Koreans to use their real names on Internet forums was unconstitutional.


Big NO to more social media control
By REGINA LEE
regina@thestar.com.my

PETALING JAYA: Internet users and even government regulators have responded with a resounding “No” to additional restrictions on social media, saying current laws are sufficient.

The Malaysian Communications and Multi­media Commission chairman Datuk Mohamed Sharil Tarmizi said the bigger issue is about educating Internet users to self-regulate.

“I’m not for putting in more laws. I’m for putting control in their own hands and exercising self-control,” he said when contacted.

If people are responsible enough not to post irresponsible messages on the Internet, there should not be anything to worry about, he added.

“This is what MCMC has been advocating for a long time.

“Parents have to take care of what their children are reading on the Internet and people also have to know for themselves what is right and wrong,” he said.

On Wednesday, Prime Minister Datuk Seri Najib Tun Razak asked the public to suggest the type of “positive regulation”.

“I want to open this to the public and social media users to suggest the type of positive control that we need to implement to ensure responsible usage and that the information presented is not against any law,” he said at the Malaysian MPI-Petronas Media Awards 2012.

He also said that the Government will not be implementing restrictions on online news portals similar to those in Singapore, where popular ones have to be licensed.

Technology and IT patent lawyer Foong Cheng Leong said that the current laws were enough.

“Any further attempt to make anonymous bloggers or social media users reveal their true identities will be unconstitutional,” he said.

Citing a Federal Court ruling, he said the Constitution which provides for the right to personal liberty also includes the right to privacy.

He added that bloggers and Internet users found to be committing illegal acts can always be charged under existing laws.

At present, conduct on the Internet is governed by the Penal Code, the Multimedia and Communications Act, Sedition Act and Defamation Act among others.

Foong added that technology alone enables the Government and the authorities to trace anonymous website owners and users.

“If the Malaysian Government has a good relationship with countries where social media sites operate from, the users are easily traceable,” he said.

Popular blogger Datuk Ahirudin Attan who owns the blog rockybru.com.my also echoed the view that it would be impractical for more regulations.

“We should tell people that it’s fine that they have the freedom of expression, but there are limits to what we can do and say,” he said.

At the same time, he said that he had always expressed the view that bloggers should not be anonymous and that they should be accountable for what they write.

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