Digital News Asia

Bread & Kaya: Cyberbullying, stalking and sexual harassment

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

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

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

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

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

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

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

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

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

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

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

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

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

The Federal Court added:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is high time for Malaysia to legislate against harassment.


First published on Digital News Asia on 28 June 2016.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



First published on Digital News Asia on 8 April 2015.

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Bread & Kaya: 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.

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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

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Unknown Caribbean company files for MH17 trademark

I was quoted by Digital News Asia in their article “Unknown Caribbean company files for MH17 trademark” published on 22 July 2014.



Unknown Caribbean company files for MH17 trademark
Gabey Goh
Jul 22, 2014

– Trademark applications filed for ‘MH17’ & ‘MH370’ for use in EU
– Case of companies or individuals using trademark register to take advantage of a tragedy

IN THE wake of the MH17 tragedy, reports have already surfaced about cybercriminals taking advantage with fake Facebook pages being created in the name of victims, for money.

Now it appears opportunism has reared its ugly head in another way – Digital News Asia (DNA) has learnt that claims have been filed to trademark the terms ‘MH17’ and ‘MH370.’

MH370 was the number of the Malaysian Airlines flight that inexplicably disappeared on March 8, remaining one of the aviation industry’s greatest mysteries. The Beijing-bound flight from Kuala Lumpur was carrying 12 crew members and 227 passengers, the majority of whom were China nationals. The search and rescue operation has yet to find remains of the craft.

Malaysia’s national carrier, already reeling from that disaster and a disappointing financial year, then experienced another disaster when Flight MH17 from Amsterdam to Kuala Lumpur was shot down over Ukrainian airspace on July 17, killing all 283 passengers and 15 crew on board.

Details of the ‘MH17’ filing, submitted on July 17 itself, were found on the European Trade Mark and Design Network website and the application under examination. The ‘MH370’ filing submitted on May 2 was found on the Justia Trademarks site, and according to the site, has yet to be assigned a case examiner.

According to available details, the same company, Seyefull Investments Limited which is incorporated in Belize City, filed both applications.

Belize City is the largest city in the Central American country of Belize and was once the capital of the former British Honduras. It is located at the mouth of the Belize River on the coast of the Caribbean.

The scope of usages listed within both applications is wide ranging: From conferences, exhibitions and competitions; to education and instruction, and entertainment services (namely, the provision of continuing programmes, segments, movies, and shows delivered by television, radio, satellite and the Internet).

DNA columnist and intellectual property lawyer Foong Cheng Leong (pic) noted that trademark rights are limited to the goods and services chosen by the proprietor.

“Here, the applicant is registering the mark MH17 for all sorts of products in the European Union. By being the registered proprietor, they have the rights over the mark [when it comes to] the registered goods and services in the European Union.

“They may stop people from using the mark or ask for payment in the European Union,” he added.

Asked whether these trademark claims were the groundwork for potential ‘trademark trolling’ efforts, Foong said that he would not be able to determine whether they are trademark trolls without a deep investigation into the entity in question.

‘Trademark troll’ is a pejorative term for any entity that attempts to register a trademark without intending to use it, and who then threatens to sue others who use that mark.

It is a different beast from a ‘patent troll,’ also called a patent assertion entity (PAE), a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in ‘economic rent-seeking.’

Claiming a stake in crisis

This is not the first time an attempt has been made to claim the intellectual property associated with a global event. Among the most notable was when a businessman named Moti Shniberg tried to trademark the term ‘September 11, 2001’ … on the day itself.

Shniberg said he had filed for the trademark for “charitable purposes,” but the US Patent and Trademark Office ultimately rejected the application. It was one of about two dozen reportedly filed trademarks related to the Sept 11, 2001 terrorist attacks in the United States.

Lawyers and trademark industry watchers DNA spoke to for this article noted that it is quite common for people to file trademarks based on words related to current affairs.

A trademark industry observer, who asked not to be named, said that such filings are “fairly common, but also fairly pointless” because they usually get rejected and lead to bad public relations for the people or company which filed the trademark, as well as for the trademark industry as a whole.

He said that the case in question was “another sign of companies or individuals taking advantage of tragedies using the trademark register.”

“I don’t know the reason for these, it’s probably opportunistic from what I can tell – the fact the MH17 one was filed on Thursday definitely suggests that.

“My guess would be it’s a shell company of some kind. The company’s other trademark is for ‘Mata Hara 308‘, which appears to be linked to this website which mentions MH370, and has the same image for its browser tab as the Seyefull website, so I think they’re linked.” he added.

Asked whether Malaysia Airlines (MAS) should be concerned about such moves, he pointed to another filing made by Aoan International Pty Ltd to register an Australian trademark for ‘MH370’ in March that is due to be accepted on July 30.

“However, it seems that Malaysia Airlines is concerned about this kind of thing because 10 days ago, [Malaysia Airlines] itself registered a trademark in Australia for ‘MH370′,” he said.

Additional checks also found that MAS had filed its own Community Trade Mark application for ‘MH17.’ However, this was made on July 21, a few days after the application made by Seyefull.

“I do not know why [Malaysia Airlines] filed, but it may have been alerted by the company’s application or is trying to block others from registering the mark,” said Foong.

A corporate lawyer who also declined to be named for this article said that to her knowledge, there are corporates and individuals “who more often than not, seize the opportunity to register certain names when they sense the potential in future commercial exploitation.”

“Apart from applications for registration of a trademark, another area is the registration of domain names. The name ‘everyone can fly’ and ‘airasia’ have been rampantly applied by different individuals from all over the world,” she said.

She noted that at first glance, the most obvious reason why one would want to register ‘MH370’ and ‘MH17’ now is probably due to the potential of these events being made into movies or books.

“However, one should also question whether they infringe the rights owned by MAS in applying to register such a mark in the first place.

“Usually, the Registrar would not allow registration should it feel that this infringes the existing rights of another party. MAS still retains the common law proprietary rights in the mark,” she added.

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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.

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Bread & Kaya: A look at Malaysian cyberlaw cases

Bread & Kaya: A look at Malaysian cyberlaw cases

Foong Cheng Leong
Feb 17, 2014

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

Bread & Kaya by Foong Cheng Leong

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

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

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

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

Facebook and Twitter

Facebook and Twitter related lawsuits have flooded the Malaysian Courts.

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

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

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

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

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

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

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

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

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

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

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

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

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

Salleh failed in both suits.

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

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

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

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

Blogs

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

His appeal to the Federal Court is now pending.

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

Forums

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

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

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

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

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

Wikipedia

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

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

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

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

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

Closing

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

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

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

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

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

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


First published on Digital News Asia on 17 February 2014.

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

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


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

JANUARY 16, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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Apple moves to trademark the term ‘startup’ in Malaysia

I was quoted by Digital News Asia in their article, “Apple moves to trademark the term ‘startup’ in Malaysia“on 30 August 2013.

I understand that the Technopreneurs Association of Malaysia (TeAM) will be taking on Apple’s STARTUP trade mark applications by filing an opposition before the deadline. More details at Digital News Asia.


Apple moves to trademark the term ‘startup’ in Malaysia
Gabey Goh
Aug 30, 2013

– Applications filed with MyIPO for mark under various classes
– Members of public or companies have until Oct 8 to oppose

IN a move that will certainly raise many eyebrows, Apple Inc has filed applications with the Intellectual Property Corporation of Malaysia (MyIPO) to trademark the term ‘startup’ in the country.

Yes, you read that right.

The Cupertino, California headquarters of Apple and a Kuala Lumpur-based legal representative, Wong & Partners, lodged the ‘startup’ applications on July 23.

The technology giant has applied to hold the trademark of the word ‘startup’ under various computing, mobile and educational classes.

According to the documents submitted, the mark ‘startup’ is being applied for in classes 35, 37, 41 and 43 for the following services:

Class 35: Retail store services, including retail store services featuring computers, computer software, computer peripherals, mobile phones, and consumer electronic devices, and demonstration of products relating thereto.
Click here to view/download the application [PDF]

Class 37: Maintenance, installation and repair of computer hardware, computer peripherals and consumer electronic devices; consulting services in the field of maintenance of computer hardware, computer peripherals, and consumer electronic devices.
Click here to view/download the application [PDF]

Class 41: Educational services, including conducting classes, workshops, conferences and seminars in the field of computers, computer software, computer peripherals, mobile phones, and consumer electronic devices and computer-related services; providing information in the field of education.
Click here to view/download the application [PDF]

Class 42: Design and development of computer hardware and software; technical support services, namely, troubleshooting of computer hardware and software problems; installation, maintenance and updating of computer software; technological consultancy services in the field of computers, computer software and consumer electronics; computer diagnostic services; computer data recovery.
Click here to view/download the application [PDF]

According to a report by Australia-based website TM Watch, which specialises in trademark developments, the same set of applications has also been filed in the country.

Calling it an “audacious” application, TM Watch journalist Tim Lince also noted that “the official Apple website references its operating system booting-up as ‘Startup’ (with a capital letter).”

[UPDATED] Terrence Lee of SGE.io has also reported that Apple has tried the file the same set of applications in Singapore since 2011.

The company’s trademark application was filed through the Madrid Protocol, an international registration system for marks of which Singapore is a member country. The US and China registrations may have also been filed through this system.

In Singapore, the mark is still pending approval despite being registered more than two years ago, which suggests that the registration has faced complications.

According to Lee, it is unclear if the Intellectual Property Office of Singapore received any objections, since any party can oppose the trademark two months after it was filed.

Responding to queries by Digital News Asia (DNA), intellectual property lawyer Foong Cheng Leong (pic) said that it is possible to trade mark English words so long that the mark is distinctive i.e. capable of distinguishing its goods or services from other traders.

“The marks, once registered, would give exclusive rights to Apple Inc to the word ‘startup’ in respect of the above listed services. Apple may stop anyone from using the said marks for the above listed services,” he said.

Foong added that the mark would cover the term ‘startup’ in any other variation, be it upper case or lower case letters such as ‘STARTUP’, ‘Startup’ or ‘StartUp’.

“Note that the registration does not mean that nobody can use the word ‘startup’ for any goods or services. It is only limited to the registered goods or services,” he added.

When asked how this move would affect existing boot camps, accelerator programmes and government-initiated programmes that have the term in their names, Foong said that assuming the marks are registered, if any of these bootcamps or accelerator uses the mark ‘startup’ for any of the abovementioned services (e.g. education services), they may be open to trade mark infringement and legal action.

“You can’t even provide retail services using the mark ‘startup’!” he added.

Moreover, Foong noted that if no one opposes the application with MyIPO, the application would proceed to the next stage of the process, which is registration.

“Three of the marks are advertised in the Government Gazette for opposition purposes. That means, any person can file a Notice of Opposition with MyIPO against the applications on or before Oct 8 2013.

“If no oppositions are filed after Oct 8 2013 — except the mark in Class 35 which is still pending advertisement — the marks will proceed to registration,” he said.

In addition the application cites a priority claim on the trademark from Jamaica dated Oct 21, 2010.

According to Foong, the law allows trademark applicants to get an earlier priority date by relating to a foreign mark.

“So for example, I filed a trademark in Singapore on May 25, 2013 and I also intend to file the mark in Malaysia on Aug 25, 2013. Instead of getting a priority date of Aug 25, 2013 (which is the filing date), I will get a priority date of May 25, 2013 (if I rely on the Singapore application).

“This is useful because if someone filed the mark after you filed your mark (let’s say on Aug 1, 2013) in Malaysia, your Malaysia trade mark will prevail because you got an earlier priority date. That person’s trademark will get objected,” he said.

DNA has reached out to Apple in Cupertino, California, and is currently awaiting official comment.

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