Anti Fake News Act 2018

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

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

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

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

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

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

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

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

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

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

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

Anti-Fake News Act 2018 – Taking down fake news

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

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

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

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

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

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

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

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

Family disputes

Private Information – Leaked nudes

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

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

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

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

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

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

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

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

Instant messaging – “WhatsApping” your children

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

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

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

First published on Digital New Asia on 19 April 2019.

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

By Foong Cheng Leong | Jun 22, 2018

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

Repeal of 114A of Evidence Act 1950

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

S. 114A provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely s. 114A(1), states that “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host , administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.

In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it.

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network. You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custody or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. If someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

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

Position of intermediaries (e.g. platform providers)

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

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

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

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

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

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

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

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

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

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

Specific channels to allow litigants to obtain information about wrongdoers

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

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

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

S. 233 of the Communications and Multimedia Act 1998 (which is similar to s. 211) has been used by the previous administration against dissent. The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution. I concur with the Bar Council on this.

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

Anti Fake News Act 2018

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

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

Revamp of the Admissibility of Electronic Evidence

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

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

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

Laws to protect netizens

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

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

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


First published on Digital News Asia on 22 June 2018

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