Communications and Multimedia Act 1998

BFM Podcast: LANDMARK #3: INSULTS

I was interviewed by BFM Radio to talk about online insults and the Communications and Multimedia Act 1998 on 18 July 2016.


Last month, a 76-year-old man was arrested by the police for allegedly posting an insulting picture in a Whatsapp group chat. The man, identified as Pa Ya in media reports, was arrested in Petaling Jaya, where he lives, and taken into custody for investigation, under Section 233 of the Communications and Multimedia Act 1998, in Johor. On this month’s episode of Landmark, a series examining how the law shapes society as vice versa, lawyer Foong Cheng Leong explains what constitutes an insult and when it is considered an offense.

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Sarawak Report should sue MCMC for blocking site, say lawyers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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] 

 

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

GE13: Online campaigns get nasty

I was quoted by The Star in their article “GE13: Online campaigns get nasty” on 12 April 2013.



PETALING JAYA: Online campaigning has gone nasty in the run-up to the May 5 general election with cyber troopers from both sides of the political divide going beyond mudslinging at times.

The fight tends to get ugly with vulgar words used freely, sometimes crossing the boundary of racial and religious sensitivity as rival cyber troopers vie to influence public perception.

Both Barisan Nasional and Pakatan Rakyat have accused each other of paying cyber troopers to attack their opponents on social networks.

One example which a non-governmental organisation complained about was the case of pro-opposition cyber troopers uploading a photograph of a woman online last month accompanied by harsh and vulgar comments.

The woman, who is a committee member of the Malaysian Youth Rights Movement, was also threatened with gangrape and murder over her stand on some issues.

Deputy Higher Education Minister Datuk Saifuddin Abdullah condemned the strategies being employed by cyber troopers, saying “they put too much focus on attack”.

“In the long run, these strategies won’t work. The people will start reading these comments and say you are insulting my intelligence’,” said Saifuddin.

Outgoing Jelutong MP Jeff Ooi denies that there are cyber troopers on his party’s payroll, and called for politicians to make a stand against the current tactics employed by cyber activists.

“We (politicians) should not be seen to be condoning abusive commentaries. We have to call a spade a spade. If it were to come from my party, we would have to put them under restraint,” said Ooi.

Supt Ahmad Noordin Ismail from the cyber crime department of the police’s Commercial Crime Unit said nabbing cyber troopers and cyber bullies can be complicated due to a lack of evidence.

“People can make these comments and remove them easily,” he said.

Digital News Asia executive editor A. Asohan said he expected the mud-slinging, and warned that things would get worse as polling day nears.

“The real dirty play will come from the Internet. You will see a lot of accusations flying back and forth while paid bloggers will go on the warpath,” he added.

However, he believed people are smarter these days and would not be easily taken in by what was being posted on Websites.

MCA Youth new media bureau head Neil Foo agreed that it was not a healthy trend for both sides to have a go at each other in an unruly manner.

He said he always reminded the MCA cyber warriors and supporters to be polite, argue based on facts and not be too emotional.

He admitted that there are some who got carried away when egged on by other cyber troopers.

“I’ll ask them to watch the words they use. There should not be any vulgarity or personal attacks. They should stick to the facts,” he said.

Action can be taken against people who post offensive comments online, Kuala Lumpur Bar IT committee chairman Foong Cheng Leong said.

Under Section 233 of the Communications and Multimedia Act, those found guilty of harassing or being offensive online can be fined a maximum of RM50,000 or jailed up to a year or both, he noted.

The same clause also provides that a further fine of RM1,000 can be levied daily during which the offence is continued after conviction.

Foong strongly felt that “while people are free to express their opinions, they should not defame or attack others maliciously”.

Universiti Sains Malaysia psychologist Dr Geshina Ayu Mat Saat said cyber bullies, who preyed on their victims often perceived they had the right to bully.

“They have this sense of entitlement, whereby their way is the best and people should follow them. Their perception is also very lopsided based on their own personal experience and expectations,” she said yesterday.

Dr Geshina Ayu said these bullies were more daring online as they felt that they could get away with it.

“But they failed to realise they are bound by the law, even online,” she said.

Bread & Kaya: Looks can be deceiving!

My 3rd issue of Bread and Kaya was published by Digital News Asia on 7 March 2013.

Bread & Kaya: Looks can be deceiving!

– Under Malaysian laws, what amounts to obscene, indecent, false, menacing or offensive in character is quite wide
– Sessions Court decisions perhaps the reasons why Section 114A of the Evidence Act 1950 was introduced

Bread & Kaya by Foong Cheng Leong

A COUPLE of weeks ago, I received a message with the title “Looks can be deceiving!” on my blog’s Facebook page, from an unknown user.

In the message, the user claimed that a certain celebrity was having an affair with another celebrity. Unknown to the user, I happen to know former and I alerted that celebrity.

A day after that, the user deleted her account! Fortunately, I saved a screenshot of the message.

Coincidentally, I found that someone had searched for the celebrity’s name on the day the message was sent and landed on my blog. My blog captured the transaction, together with the Internet Protocol (IP) address, time-stamp and other details. It was the only transaction searching for the celebrity’s name.

There was also a record to show that the user clicked on the link to my blog’s Facebook page. From this, there is a possibility that the author had found my blog using the celebrity’s name (and my blog appears on the first page of search results) and decided to send me that message.

A query on the IP address shows that the user resides in Malaysia and is thus subject to the laws of Malaysia. The celebrity may file an action in court to obtain the user account details of the IP address if she wishes to. Alternatively, she may make a police report against that person.

The lesson of the story is: If you want to do naughty things online, remember to mask your tracks (e.g. by using proxies); otherwise the law will come knocking on your door. Internet trolls have been living amongst us and many still roam the streets of cyberspace.

This brings me to the topic of this article: Section 233 of the Communications and Multimedia Act 1998.

Section 233 makes it an offence to post any content which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

Anyone who does so is liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one year, or both, and shall also be liable to a further fine of RM1,000 for every day during which the offence is continued after conviction. It’s a widely used tool by law enforcers to nab Internet trolls.

[RM1 = US$0.32]

What amounts to obscene, indecent, false, menacing or offensive in character is quite wide. Making prank emergency calls (PP v Sow Kuen Chun; Criminal Case No. 63- 01- 2008); and insulting the Sultan (PP v Muslim bin Ahmad; [2013] 1 AMR 436); offensive comments (Nor Hisham Bin Osman v PP; Criminal Case No: MTJ(2)44-14-2010)), and (PP v Rutinin Bin Suhaimin (Criminal Case No. K42-60-2010)) are examples where people were charged under Section 233.

[Click links above to download case files]

PP v Muslim bin Ahmad and PP v Rutinin Bin Suhaimin are both recently decided cases and they relate to the Perak constitutional crisis. Both men had allegedly posted offensive comments towards the Sultan of Perak after Barisan Nasional took over the state of Perak. Both men alleged that they did not post the comments, notwithstanding that the IP addresses point to them.

Muslim bin Ahmad was acquitted by the Sessions Court and Rutinin bin Suhaimin was discharged by the Sessions Court without his defense being called. The prosecution had apparently failed to show that the persons who posted the offensive comments were the accused.

I am told that the impact of the said Sessions Court decisions was one of the reasons why Section 114A of the Evidence Act 1950 was introduced – that is, to facilitate the prosecution in proving the identity of the maker.

To recap, under Section 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.

However, the High Court subsequently overturned said Sessions Court decisions. Rutinin Bin Suhaimin’s defense was called. Interestingly, the learned High Court judge was of the view that calling the Sultan of Perak names has the tendency to cause annoyance or abuse to any person, thus falling within the ambit of Section 233.

Muslim Bin Ahmad was handed a fine of RM10,000 for each charge and six months’ imprisonment. He pleaded for a “binding over order” (released on probation).

However, the learned High Court Judge warned that a binding over order “would send the wrong message to would be offenders and the public at large that offensively uncontrolled and virulent comments can be indiscriminately posted on the Internet without any or serious repercussions. And that is not a message that this court would like to send out.”

Surprisingly, Section 114A of the Evidence Act 1950 was never relied on by the Courts. In fact, the High Court in PP v Rutinin Bin Suhaimin said that 114A is not applicable because the postings were made before the enforcement date of 114A (July 31, 2012).

This ruling is interesting as it may be a defense for website owners who can argue that 114A does not apply to posting made by their users prior to July 31, 2012.

Nevertheless, these laws and cases serve as a reminder that the Internet is not a ‘wild, wild west.’ Netizens need to be accountable for what they say. Further abuse by netizens attracts further legislations by Government.

Unfortunately, website owners now face the brunt of 114A due to the actions of their users. Their pleas for the repeal or amendment of 114A are still unanswered.

Filing a Complaint with the MCMC

Posting offending messages on the internet is longer a trivial thing nowadays. Many internet users are now aware of their remedy when facing with offensive messages on the internet.

Bank Employee Charged With Posting Obscene Blog Title

KUALA LUMPUR, July 6 (Bernama) — A former EON Bank Berhad employee pleaded not guilty in the Sessions Court here Monday over the posting of an obscene blog title to embarrass his former boss.

Seah Boon Khim, 26, was accused of posting a vile and indecent material on a blog site http://www.xanga.com/hokongchan67 with intent to annoy Eon Bank Internal Audit Department head Ho Kong Chan at 1.33pm on Aug 13 2007 at 19 A-26-3 Level 6, UOA Centre 19, Jalan Pinang here.

He was charged under Section 233(1)(a) of the Communications and Multimedia Act 1998 which carries fine up to RM50,000 or jail up to one year or both.

In mitigation, Seah, who has since resigned from his job, said he had apologised to Ho and admitted that he did not realised the gravity of his action and he should not have done it.

Malaysian Communications and Multimedia Commission prosecuting officer Raja Iskandar Zulkharnian Raja Abdul Malek appeared for the prosecution.

Judge Zaki Abdul Wahab postponed sentencing until tomorrow.

— BERNAMA

Mr Seah was reportedly fined RM8,000.

S. 233 of the Communications and Multimedia Act 1998 provides the following:

233. Improper use of network facilities or network service, etc.

(1) A person who-

(a) by means of any network facilities or network service or applications service knowingly-

(ii) initiates the transmission of,

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,

commits an offence.

(2) A person who knowingly-

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a),

commits an offence.

(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.

This section would also apply to offensive comments posted by readers of a blog. Bloggers now have an avenue to complain without incurring substantial legal fees. Watch out internet trolls!

A complainant may filed their complaint with the Malaysian Communications and Multimedia Commission(MCMC).

I thought it would be beneficial to set out a sample complaint for the benefit of other bloggers. This may be in a form of a letter.

On [time on date e.g 12:30am GMT +8 on 31 February 2009], one [person e.g. bb_matik] made an [choose one or more: indecent/obscene/false/menacing/offensive] posting on my blog, [your blog address e.g. www.xes.cx], at the URL [URL which contains the said posting e.g. www.xes.cx/123.htm] using the IP address at [IP address e.g 192.168.1.1]. [Optional. Please note that there is 1000 characters limited] For ease of reference, I reproduce the offending posting:

[reproduce offending message here.

 

]

The above posting is [choose one or more: indecent/obscene/false/menacing/offensive] and I verily believe that the said posting was made with [choose one or more: intent to annoy/ abuse/threaten/harass] me. The said posting has caused [choose one: annoyance/fear/embarrassment] to me.

Thus, I hope that the MCMC will take action against the person who posted the said posting.

Blog postings can backfire

First published on The Star Newspaper on 20 January 2011.

PUTIK LADA
By FOONG CHENG LEONG

Social media influence has hit court proceedings, with lawyers trolling blogs and Wikipedia in search of material that can help them argue the case for their clients.

LAST year brought further interesting development to social media and laws all around the world. Cases making references to social media tools saw an increase.

Social media was a tool for lawyers and litigants to help parties to fight their cases. Social media was also the cause of some parties’ mortification and incarceration.

In one High Court judgment last year, the judge recognised the publication of defamatory blog postings by a husband as one of the grounds to present a divorce petition before the expiry of two years from the date of marriage.

He also recognised that a defamatory statement in a blog posting operated in a borderless realm, and would continue to exist until the maker of the blog removed it.

The challenge against the constitutionality of S. 233 of the Communications and Multimedia Act 1998, the provision commonly used against Internet users, was dismissed by the High Court.

In this case, the defendant was charged with making disparaging remarks against the Sultan of Perak during the struggle between Barisan Nasional and Pakatan Rakyat. The court held, among other things, that the section did not impede freedom of expression. S. 233 is to ensure that the freedom given by the Constitution is exercised responsibly.

The use of Wikipedia as a reference is increasingly recognised in Malaysia, notwithstanding that the reliability of Wikipedia is questionable, as anyone can add or edit an entry in Wikipedia.

Nevertheless, the reliance on Wikipedia by our courts can be traced in reported cases as early as 2007.

Last year Wikipedia was referred to in Etonic Garment Manufacturing Sdn Bhd v Kunn-G Freight System (M) Sdn Bhd [2010] 1 LNS 13 (for the meaning of freight forwarder), PP v Murugan a/l Arumugam [2009] 1 LNS 1759 (for the meaning of atherosclerosis) and Thai Long Distance Telecommunication Co Ltd & Anor v Malaysian Maritime Dredging Corpo­ration Sdn Bhd (Kuala Lumpur Suit No: D-22-352-2005, for the meaning of chart datum).

Social media influence had also hit court room proceedings. It is common in Malaysia for people, in particular reporters, to tweet live from the courts. In the United Kingdom, the Lord Chief Justice issued a guideline for the use of live text-based forms of communication from court.

In this guideline, the Lord Chief Justice approved the use of Twitter for court reporting. However, in the US, certain courts ban the use of social media by juries.

In the US case of Romano v. Steelcase Inc, 2006-2233 (N.Y. Super. Sept. 21, 2010), Kathleen Romano sued Steelcase Inc for injuries she suffered after she fell off an allegedly defective desk chair manufactured by Steelcase Inc.

As a result of the fall, she claimed, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life”.

In defence, Steelcase applied to access Romano’s current and historical Facebook and Myspace pages and accounts which are believed to be inconsistent with her claims in the action concerning the extent and nature of her injuries, especially for loss of enjoyment of life. The court granted Steelcase’s application.

Similarly, in McMillen v Hummingbird Speedway Inc, et al, Court of Common Pleas of Jefferson County, Pennsylvania, Civil Division, No. 113-2010 CD, Opinion on Defendants’ Motion to Compel Discovery (Sept. 9. 2010), the plaintiff sued the defendants for injuries suffered.

The defendants claimed that posts on the public portion of his Facebook page showed that he had exaggerated his injuries. The court granted the defendants access to the plaintiff’s private portion of his Facebook and Myspace account to determine whether or not the plaintiff had made any other comments which impeached and contradicted his disability and damages claims.

Closer to home, in a reported Industrial Court case, an employee claimed that she was forced by her employer to resign.

In response, her employer argued that the resignation was voluntary and they produced extracts of the claimant’s blog which showed the claimant had written about her feelings regarding her employment with the employer.

In it, she stated that she wanted to leave the company and admitted that she went for job interviews as she had already decided to go away.

The Industrial Court chairman relied on the blog entries to find that the employee had intended to leave and found that she had gladly tendered her resignation to take on new employment.

In Australia, a hairdresser won compensation for wrongful dismissal after losing her job for making unflattering remarks about her employer on her Facebook.

In Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358, Commissioner Michelle Bissett for Fair Work Australia said that posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity.

This year brings another exciting watershed to Malaysia’s social media legal sphere. The Personal Data Protection Act 2010, which governs the processing of personal data, is pending enforcement.

Proposed amendments to the Copyright Act 1987 have been drawn up in the form of a Bill to exempt Internet service providers from liability for copyright infringement under certain circumstances.

The Bill also empowers the court to order an Internet service provider to disable access to infringing material.

Furthermore, the so-called Internet Service Providers Liability Act may be passed to compel Internet service providers to take action against their users if they download songs or movies illegally.

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