Bread & Kaya

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

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.

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.

Bread & Kaya: Tracing someone online

Bread & Kaya: Tracing someone online
Nov 17, 2014

– Getting the IP address is one way, but may not always be possible
– On issue of defamation, Section 114A has been applied retrospectively

ONE of the most difficult issues to deal with in cybercrime or cyber-bullying cases is finding the perpetrator online. My years of blogging have brought me some experience in dealing with this issue, especially when dealing with ‘trolls.’

I am glad to say that it is not impossible. Some guesswork is needed. Normally, such a perpetrator is someone you know, although he or she may or may not be close to you. Sometimes, however, it would be just a stranger.

There was one case where the perpetrator was found to be a friend’s spouse whom the victim had only met a few times. Strangely, there was no animosity between these parties.

In one case which I was personally involved, I made a guess on the possible perpetrator and worked from there. Eventually, the person confessed after being confronted.

Getting the Internet Protocol (IP) address of the perpetrator is one of the conventional ways to track someone down. Internet service providers (ISPs) assign unique IP address to each user account. However, IP addresses may not be retrievable if the person is on a proxy server.

Another problem is the jurisdictional issue. Many servers storing such IP addresses may be located overseas and owned by foreign entities. One may have to initiate legal action overseas to get such data, and many of these service providers do not release their user information easily due to data protection laws or their strict privacy practices.

In the recent case of 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 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.

S. 114A (2) provides that the burden of proof lies on the subscriber of an ISP to prove that a certain statement was not published by him or her. The 1st Defendant failed to convince the Court that s. 114A (2) does not apply because the defamatory statements were published before the enforcement date of s. 114A(2).

This retrospective stand however was not followed in the case of PP v Rutinin Bin Suhaimin [2013] 2 CLJ 427 as the High Court held that s. 114A does not apply retrospectively.

Perhaps the distinguishing factor between these cases is that the first case involved a civil dispute whereas the latter is a criminal prosecution.

Readers may recall that the #Stop114A campaign was initiated to get this law repealed. I am proud to say that Digital News Asia (DNA) was one of the organisers and participants in shutting down its website for one day. The campaign attracted the attention of Prime Minister Najib Razak but unfortunately, the law remained.

Going back to the case, 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 (US$180,000) as damages to the Plaintiffs.

Not all tracing of a perpetrator requires an IP address. In Datuk Seri Anwar Bin Ibrahim v Wan Muhammad Azri Bin Wan Deris [2014] 3 MLRH 21, Opposition leader Anwar Ibrahim (pic) sued Wan Muhammad Azri Bin Wan Deris, allegedly a well-known blogger called Papagomo, for defamation.

In proving the identity of Papagomo, instead of tracing the IP address of Papagomo, the Court relied on the statement of a person who had met Papagomo in person before. The former also took a picture with Papagomo and this picture was tendered in Court.

There are other unconventional methods to identify a person online. I have heard of a private investigator entering a person’s home without knowledge to gain access to the computer of that person.

Many people do not password-protect their home computers and leave their email and other online accounts still logged into. This allows the private investigator to easily access a person’s emails and other online accounts without any technical skills.

One method that I always use is to find something unique in the content posted by the perpetrator. For example, I recently concluded that a website was held by a cyber-squatter by doing a Google search on certain sentences that appeared on the website. The cyber-squatter’s website looked like a legitimate website, but the search revealed that the same facade had been employed by the cyber-squatter on several websites using well-known brand names.

If there are images involved, a Google Image search would be useful to find whether other websites are hosting the same image.

It is of utmost importance that one must have reliable evidence to prove the identity of a perpetrator before suing or charging them. The person doing such investigation should be knowledgeable enough to conduct the investigation, know the rules of producing evidence and testifying in Court, and to thwart all challenges by the perpetrator’s lawyers.

Failure to do so would result in the case being dismissed or in a worst scenario, an innocent person being charged or sued in Court.


First published on Digital News Asia on 17 November 2014.

Bread & Kaya: Liking a Facebook page and the law

Bread & Kaya: Liking a Facebook page and the law

Foong Cheng Leong
Aug 14, 2014

– ‘Liking’ a page doesn’t necessary mean you agree with it
– Using Sedition Act for what you ‘Like’ sets dangerous precedent

THE recent report that Malaysian police are investigating a Penang teenager under the Sedition Act 1948 for liking the ‘I love Israel’ Facebook page has raised more than a few eyebrows.

This leads to some interesting questions: What does liking a Facebook page mean? Does it mean liking the idea that is expressed by the Facebook page? In the above case, does this mean that the teenager actually loves Israel?

To answer this, we first refer to Facebook’s definition of ‘Like.

What’s the difference between liking a Page and liking a post from a friend?

Liking a Page means you’re connecting to that Page. Liking a post from a friend means you’re letting that friend know you like their post without leaving a comment.

When you connect to a Page, you’ll start to see stories from that Page in your News Feed. The Page will also appear on your profile, and you’ll appear on the Page as a person who likes that Page.

Further, in the US case of Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013, click here for the PDF), the Court held that:

On the most basic level, clicking on the ‘Like’ button literally causes to be published the statement that the User ‘Likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he Likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

This is a US case thus it is not applicable to us, and Facebook’s definition may not be relevant here. So far, we have no reported case in Malaysia of the legal implications of Liking a Facebook page.

To me, when a person Likes a certain page, it doesn’t necessary mean he or she ‘likes’ what the page represents. I may ‘Like’ a page to ‘get the stories from that Page in my News Feed.’ I sometimes Like a page to support a friend who started such page, but that does not mean I like his postings or expressions there. I’m sure many of us here use the Facebook ‘Like’ button differently.

To charge the teenager for sedition for Liking the ‘I Love Israel’ Facebook page is a dangerous precedent. Each Facebook user would have to be very careful on the Facebook page they Like. Those who are oblivious to current affairs would be most vulnerable.

Furthermore, the name of a Facebook page can be changed. Imagine if someone changes a Facebook page in open support of child pornography, and those who had previously Liked the page seem to suddenly like child pornography!

(Note: No approval is required to change the name of a Facebook Page with fewer than 200 members).


First published on Digital News Asia on 14 August 2014

Bread & Kaya: Cyberstalking, harassment … and road rage

Bread & Kaya: Cyberstalking, harassment … and road rage
Foong Cheng Leong
Jul 17, 2014

– No specific Malaysian law that criminalises stalking or harassment
– Singapore has enacted such laws, and Malaysia should follow suit

THE recent case of a blogger complaining that she had been harassed and stalked by a fan got me thinking about the law in Malaysia with regards to stalking and harassment.

I think this would depend on the acts of the stalker. There is no specific Malaysian law that criminalises stalking and harassment, but there are provisions of law that prohibit certain actions that border on stalking and harassment.

For example:

– Hacking into someone’s computer or mobile device or online account, or installing any trojan or tracking device is a crime under the Computer Crimes Act 1997;
– Sending messages threatening to harm a person – depending on the content, this may amount to a criminal offence under the Communications and Multimedia Act 1998 or Section 503 of the Penal Code (criminal intimidation); and
– Breaking into someone’s home amounts to trespass (installing a closed-circuit TV as in the Nasha Aziz case).

There are many forms of stalking and harassment. I’ve heard of cases where a person would call someone numerous times a day – and in some such cases, keeping silent or even make heavy breathing sounds.

Other cases include following a person from time to time; loitering outside a person’s home (which is a public venue, for example a road); downloading someone’s picture off Facebook and publishing it on blogs or online forums with degrading messages; and even frequently posting annoying or insulting comments on a person’s Facebook page, blog or Instagram account.

A police report would be useful to ward off these people but not all reports will be acted on. Sometimes no threat is made, and there’s ‘only’ persistent annoyance.

One blogger showed me some persistent emails from an alleged stalker, who also contacted the blogger through phone calls and SMS.

However, the nature of the contact was not a threat but merely invitations to go out, despite the fact that the blogger had expressly asked him to stop contacting her. Such contact would stop for a short period, but return thereafter.

One email from the alleged stalker was just a reproduction of chat messages between the alleged stalker and his friend.

A police report was made but the police could not take any action as there was no threat involved.

In such cases, I think that the police should take proactive action by contacting the alleged stalker and warning him against pursuing the matter further. A lawyer’s letter of demand may be useful too.

If all else fails, a restraining order may be obtained from the courts.

The victims are not only women. Vancouver teacher Lee David Clayworth was ‘cyberstalked’ by his Malaysian ex-girlfriend. She posted nude pictures of him and labelled him all sorts of names, according to a CNET report.

A warrant of arrest was issued in Malaysia against his ex-girlfriend but she had reportedly left the country.

Many victims suffer in silence. They try to ignore their stalkers and hope that they go away. Sometimes this works, sometimes it does not.

It is noted that s. 233 of the Communications and Multimedia Act 1998 criminalises harasses but such harassment must be in a form of electronic harassment which is obscene, indecent, false, menacing or offensive in character.

Our Parliament should introduce a new law to criminalise stalking and harassment. Singapore recently introduced the Protection from Harassment Bill 2014. This new law will provide protection from harassment and anti-social behaviour, such as stalking, through a range of civil remedies and criminal sanctions.

It’s time for our Parliament to look into this before it’s too late.

Regarding the recent Kuantan road rage case, I was asked whether doxing or document tracing by netizens amounts to harassment.

From what I read, some netizens had posted her name, company name and pictures on the Internet, created Facebook pages about her, and also created all sorts of memes featuring her. Some even started bombarding her mobile phone with SMSes and left numerous comments on her company’s Facebook page.

As mentioned, we have no specific law to govern harassment, thus it is difficult to determine whether such acts amount to harassment without a legal definition here.

In my personal opinion, I think there is nothing wrong in exposing the identity of the driver to the public. The lady had posted her own personal information online, thus there is no expectation of privacy with respect to that posted information.

The Personal Data Protection Act 2010 only applies to commercial transactions. But the extraction of her personal information through her licence plate number may be an issue if someone had unlawfully extracted it from a company’s database.

Some messages that were posted may also be subject to the Communications and Multimedia Act 1998 provisions on criminal defamation. Tracking her home address and taking photographs of it may be considered a form of harassment.

She also has rights (that is, copyright) to the pictures that she has taken (selfies especially), but she will not have rights to her modelling pictures if those were taken by a photographer – in that case, the photographer usually has rights to the photographs.



First published on Digital News Asia on 17 July 2014.

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.

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

Bread & Kaya: Choosing a good trademark for your startup

Choosing a good trademark for your startup
Foong Cheng Leong
Aug 16, 2013

– A descriptive name has its advantages, but can be very hard to protect legally
– Register your mark, or you might find yourself in court when you go to market

Bread & Kaya by Foong Cheng Leong

WHEN George Eastman, founder of Eastman Kodak Company, chose the name Kodak for his camera, he explained why:

… because I knew a trade name must be short, vigorous, incapable of being mis-spelled to an extent that it will destroy its identity, and, in order to satisfy trademark laws, it must mean nothing. The letter K had been a favourite with me – it seemed a strong, incisive sort of letter. Therefore the word I wanted had to start with K. Then it became a question of trying out a great number of combinations of letters that make words and ending with K. The word Kodak is the result.

Although great advice from a man 100 years ago, it is difficult to come out with such special name for a product. It is enticing for traders to choose a name that best describes their products. It saves them the trouble of promoting extensively or even explaining to customers what the name is all about.

But the use of a name which directly describes one’s goods or services generally attracts problems.

A few years ago, the National ICT Association of Malaysia (known by its Malay-language acronym Pikom) initiated action against EM Exhibitions (M) Sdn Bhd and one of its directors for using the trademark ‘PC EXPO’ for its computer exhibitions.

Pikom alleged that the mark PC EXPO infringes and passes off its trademark ‘PC FAIR.’ The High Court held that the ‘PC FAIR’ is a common descriptive term and is used by numerous traders in the computer industry.

Thus, in short, the mark PC FAIR is not protectable and EM Exhibitions (M) Sdn Bhd is free to use the mark PC EXPO. [For the full judgement, click here].

The moral of the story is, always choose a distinctive mark. A distinctive mark is a mark which distinguishes your products from other traders. A distinctive mark can be registered and protected.

Although an unregistered mark can also be protected, you will need to produce voluminous evidence in court to show that your mark is protectable.

A distinctive mark should be a mark that does not have direct reference to the character or quality of your products. For example, the ‘e-Commerce Shop’ trademark for websites is not a distinctive mark as it describes the character of your product.

However, if you name your fruit stall ‘e-Commerce Shop,’ then you may be able to register it as it does not describe the goods and services provided by your stall.

If you are selling clothes on your e-commerce store, you should avoid using words like ‘clothing,’ ‘fashion,’ ‘haute’ or ‘couture’ as your trademark unless it is combined with a distinctive word or words such as ‘Digital News Asia Fashion.’ [A hint we should diversify? – ED]

Words that extol your products also should be avoided. For example, ‘cheap,’ ‘good,’ ‘great,’ ‘pretty,’ ‘fabulous,’ ‘sexy,’ ‘awesome,’ ‘cool,’ ‘cute’ and ‘best.’

The mark also should not be a name of a place – for example, ‘Silicon Valley’ for software.

Lastly, using a mark which is similar to your competitor’s trademark is a big no-no! If you do so, you’ll be beaten down with a lawsuit before you can start doing business.

You should do an online search at the Intellectual Property Corporation of Malaysia’s database.

Notwithstanding the above, there is nothing wrong with using generic words as your trademark. However, you may not be able to obtain protection.

If you wish to use a generic word, it should be accompanied with a distinctive word or set of words – for example, ‘FCL&Co Legal Services.’

Why register?

Your intellectual property is an asset. Registration gives you exclusive rights over the mark. You may sell it or license it.

There are many horror stories where marks were misappropriated by third parties when the owners did not register them. This usually results in a long and expensive legal suit. Some even had to change the marks that they had been using for years.

You may register the mark yourself by heading to the Intellectual Property Corporation of Malaysia or alternatively, engage a Trade Mark Agent to assist you. The latter would be recommended as they can provide you with proper advice and services.

To conclude, choose a distinctive mark before rolling out your products!


First published in Digital News Asia on 16 August 2013

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