Digital News Asia

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.

Bread & Kaya: Limited Liability Partnership: An alternative business structure

Limited Liability Partnership: An alternative business structure
Foong Cheng Leong
May 01, 2013

– With LLP, entrepreneurs have more options to choose the most preferred form of business vehicle
– This would benefit small businesses (including startups), professionals groups and others

Bread & Kaya by Foong Cheng Leong

THIS month’s topic brings us to the new Limited Liability Partnership Act 2012 which came into force on Dec 26, 2012.

Prior to the introduction of this Act, entrepreneurs who wished to do business had to either register themselves as a sole proprietor/ partner or a body corporate. The new Limited Liability Partnership Act 2012 introduces an alternative business vehicle namely, a Limited Liability Partnership (LLP), offering a hybrid of characteristics between a conventional partnership and a company.

According to the Companies Commission of Malaysia (CCM), LLP features the protection of limited liability to its partners similar to the limited liability enjoyed by shareholders of a company coupled, with the flexibility of internal business regulation through partnership arrangement similar to a conventional partnership.

Any debts and obligations of the LLP will be borne by the assets of the LLP and not that of its partners’. An LLP has the legal status of a body corporate which is capable of suing and being sued in its own name, holding assets and doing such other acts and things in its name as bodies corporate may lawfully do and suffer.

LLP also offers flexibility in terms of its formation, maintenance and termination, while simultaneously has the necessary dynamics and appeal to be able to compete domestically and internationally.

With the introduction of LLP, entrepreneurs will have more options to choose the most preferred form of business vehicle and this would benefit small businesses (startups), professionals groups (e.g. lawyers, accountants or company secretaries), joint ventures and venture capital funds.

The cost of incorporating an LLP is in the region of RM500 as compared to general partnership and corporation which are in the region of RM30 to RM60, and RM1,000 and above respectively.

[RM1 = US$0.32]

Difference between LLP and general partnership

IN a general partnership, partners are jointly and severely liable for all business debts and obligations.

For example, if the partnership had incurred a debt and the debtor sues the partnership for the debt, all the partners will be named as party to the suit, notwithstanding that some partners are not involved in the debt.

The same goes if one partner is negligent; the rest of the partners may be liable for such a negligent act.

The LLP offers limited liability to its partners whereby any debts and obligations of the LLP will be borne by the assets of the LLP. Thus, the named party in a suit involving a LLP would be the LLP itself.

Difference between LLP and a company

According to the CCM, there are many fundamental differences between an LLP and a company. Amongst others, the differences are:

– No issuance of shares;
– Flexibility in making decisions;
– No formal requirement for Annual General Meetings;
– No requirement to submit financial statements to CCM; and
– Accounts need not be audited
– Drawback

However, one drawback of an LLP regime as compared with a conventional partnership is the tax structure.

The Malaysian Bar Corporate and Commercial Committee reported that the Minister of Finance concluded that the tax treatment of LLPs ought to be similar to the tax treatment of companies. Thus, LLPs would be subject to income tax at the rate of 25%.

However, there is a provision that if the capital of a Malaysian tax resident LLP at the beginning of the year of the assessment is not more than RM2.5 million (and subject to some conditions and exceptions), then the applicable tax rate would be 20% for the LLP’s chargeable income of us to RM500,000, with chargeable income in excess of RM500,000 being subject to tax rate of 25%.

This is akin to the tax rate for small and medium enterprises or SMEs.

For more information on LLP, please visit http://www.ssm.com.my/en/LLP-AboutLLP.



First published on my column Bread and Kaya at Digital News Asia on 1 May 2013.

Bread & Kaya: Start-ups, get your house in order

My 4th Bread & Kaya’s column was published on Digital News Asia on 3 April 2013.

Bread & Kaya: Start-ups, get your house in order

– There are a number of things you need to get done before potential investors do due diligence on your start-up
– Seek advice from others, ensure any legal advice is professional, and do due diligence on your investor as well

Bread & Kaya by Foong Cheng Leong
3 April 2013

WHEN I was in high school, I invested a few thousand ringgit on a web-hosting company operated by a ‘friend.’ Unfortunately, the web-hosting company didn’t materialize and I never saw my money again, nor the ‘friend.’ In fact, there was no such web-hosting company!

That was my first failed investment. Looking back, I realized that the investment was purely done by trust. I did not do any background check on the company or even the ‘friend.’

But years later, I was approached by a stranger (at that time) to help his start-up by providing my services to him, in return for shares in his company. I did not invest a single ringgit. I am glad to report that the start-up is doing well, with offices around South-East Asia and other parts of the world.

Today’s column sets out some tips before opening your start-up for funding.

Before you think about attracting investors, you need to get your house in order. Prudent investors would usually do an in-depth due diligence of your company to see, among others, what assets and liabilities you have.

They will check your background, hence you need to make sure it’s squeaky clean. They will obtain a company search report from the Companies Commission of Malaysia to verify the details of your directors and shareholders, shareholding structure and financial reports – so make sure you file your reports on time.

They will also go through your memorandum of association and articles of association (documents that are required before incorporating a ‘Sdn Bhd’). Take some time to read them and amend if necessary. Board and shareholders minutes will also be part of due diligence exercise.

Investors usually come with high expectations. Thus, educate your investors of the nature of your business and industry, business plans, goal, competitors and obviously, monetizing strategy. Over-promising will create legal trouble for you.

When meeting your investors, appoint someone presentable who speaks well to deal with them. This raises investor confidence.

Other than your financial records and information, here are some common matters that should be addressed before the due diligence stage.

1) Intellectual property rights

Intellectual property rights generally refer to your trademarks, copyright, industrial designs, confidential information and patents.

Start-ups generally file their trademarks first as it is affordable. If you have a physical product and the design is new, do consider filing an industrial design to protect the design.

Patents are usually not filed due to budget constraints. A patent application (with the assistance of a patent attorney) costs at least RM5,000 and above. However, if the invention is novel and you think it’s worth protecting, do file it within one year otherwise it will not be afforded protection.

You can file for protection with the Intellectual Property Corporation of Malaysia (MyIPO), or if your business or operation extends to other countries (e.g. Singapore), you should register your rights there too.

A registered intellectual property right gives you the exclusivity over your product, thus you may stop others from using them. Also, the Income Tax (Deduction for Expenditure on Registration of Patent and Trade Mark) Rules 2009 provides tax deduction for the registration of trademarks and patents in Malaysia for certain start-ups.

2) Proper contracts

All terms and conditions between the founders, with merchants, customers, vendors and employers must be properly spelled out. For existing contracts, review them to see whether they are still applicable or have to be changed or terminated.

Here are a few tips:
– In your agreements with customers, investors will look on how revenue is generated and to find any unfavorable terms, etc. Do make sure your contracts (or invoice or receipt) with service providers (e.g. graphic designer, website, software) do not state that intellectual property rights (in particular, copyright) belong to them (by default, intellectual property rights belong to the person who commissioned the work, unless stated otherwise). Such contracts should describe the subject matter in detail and that the rights to the intellectual property are properly assigned to your company.
– If you are using a website or a software application to deal with your customers, put terms of use or services and a privacy policy in place as required by the Consumer Protection (Electronic Trade Transactions) Regulations 2012. Do not rip off terms of use or services and a privacy policy of others as those agreements are drafted specifically for their businesses.

3) Non-disclosure agreement

Before opening your door to investors, do get them to sign a non-disclosure agreement (commonly known as an NDA). This agreement is crucial in making sure that they do not misuse the information they gathered from the due diligence. Such information may include your finance information, source codes and customer data.

Your investors may also want to look into the source codes of your proprietary software. Although an NDA may be signed to protect it, you may want to take an extra step to request that the software due diligence is done by an independent third party.

Also, when dealing with your vendors or employees, get them to sign a NDA. Your information is your asset.

4) Employee matters

If you have employees, make sure that there are employment contracts. If you have promised the employees something (e.g. equity), make sure you state it in writing. Ensure that you have been contributing to statutory contributions such as the Employee Provident Fund (EPF) and Social Security Organization (Socso).

This guide is a non-exhaustive basic guide and merely an idea on what you need to do before attracting investors. Do seek out advisers or mentors for help and advice. Get an experienced lawyer when dealing with terms and conditions. Speak to other fellow entrepreneurs who have done it before for advice.

Most importantly, do due diligence on your investor as well!

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.

Bread & Kaya: Attention e-commerce businesses: Fraud, the law and you

My Bread & Kaya’s second column was published on Digital News Asia on 29 January 2013.


Attention e-commerce businesses: Fraud, the law and you
Jan 29, 2013

– A new law to protect users of online trading portals goes into effect July 1
– While it may cost them a bit, operators of such businesses will have to comply

Bread & Kaya by Foong Cheng Leong

E-COMMERCE is booming in Malaysia. Euromonitor International estimated that Internet retailing in Malaysia reached RM842 million (US$268.3 million) in 2011; Goldman Sachs forecasts that e-commerce in Malaysia is projected to hit RM3.4 billion (US$1.1 billion) this year with a 30% year-on-year growth.

Notwithstanding such growth, online fraud is rampant in Malaysia. If you scour our online auction or listing websites, you’ll find many dodgy sellers and buyers selling or offering to buy products and services.

But the long arm of the law recently caught Mohd Yunus Jan Muhammad for approaching six victims who had advertised to sell their gadgets through an Internet trading portal, by posing as a customer and setting up appointments. At these meetings, he would grab the merchandise and flee. He was sentenced to one year’s jail. The Court also fined and imposed a whipping on Mohd Yunud.

Sometime in 2011, the Ministry of Domestic Trade, Co-operatives and Consumerism proposed that the Electronic Commerce Act 2006, an act that regulates online commercial transactions, be amended to regulate the online market place industry. I am told that consultation was held with the industry and I understand that some industry players had taken steps to lobby against the amendment.

In April 2012, its minister Datuk Seri Ismail Sabri Yaakob announced that the amendment would ensure that electronic transactions could be done in a safer and secured environment.

The law came about in the form of the Consumer Protection (Electronic Trade Transactions) Regulations 2012 (“Regulation“), a regulation under the Consumer Protection Act 1999.

The Regulation will be in force on July 1, 2013. Under this Regulation, an online marketplace operator is required to, among others, provide their full details, terms of conditions of sale, rectification of errors and maintenance of records.

The new law applies to two (2) types of persons namely:

– A person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace (“Online Business Owner“). “Online marketplace” means a website where goods or services are marketed by third parties for the purpose of trade. This may include your typical blog shops and sellers with accounts with eBay, Lelong and Mudah online stores.

– A person who provides an online marketplace (“>Online Marketplace Operator“). This may include group buying websites operators such as GroupOn, auction and listing websites such as eBay, Lelong and Mudah, and online shopping websites where third party products as sold such as Zalora.

Online business owners

Under the Regulation, Online Business Owners shall disclose on the website where the business is conducted and the following information, failing which the operator commits an offence.

  • The name of the person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace, or the name of the business, or the name of the company.
  1. The registration number of the business or company, if applicable.
  2. The e-mail address and telephone number, or address of the person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace.
  3. A description of the main characteristics of the goods or services.
  4. The full price of the goods or services including transportation costs, taxes and any other costs.
  5. The method of payment.
  6. The terms and conditions.
  7. The estimated time of delivery of the goods or services to the buyer.

Any person who discloses or provides the above information that he knows or has reason to believe is false or misleading, commits an offence.

Online Business Owners shall also:

  • – provide the appropriate means to enable the buyer to rectify any errors prior to the confirmation of the order made by the buyer; and
  • – shall acknowledge receipt of the order to the buyer without undue delay.

The order and the acknowledgement of receipt shall be deemed to have been received by the person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace and the buyer, respectively, when the person and the buyer are able to access to such order and the acknowledgement of receipt.

The Online Marketplace Operator shall take reasonable steps to keep and maintain a record of the names, telephone numbers and the address of the person who supplies goods or services in the online marketplace, for a period of two years, failing which an offence is committed.

In addition to the terms and conditions, Online Business Owners and Online Marketplace Operators must comply with the Notice and Choice Principal provided by Personal Data Protection Act 2010 by inserting a privacy notice, in the National and English languages, on their website before the collection of any personal data.

Extra costs for businesses

Although this law seeks to protect consumers from unscrupulous traders, the introduction of this new law increases the startup costs and cost of operation of an e-commerce business.

Engaging lawyers to draft terms and conditions for e-commerce businesses can be expensive. But it is something any e-commerce business should invest in to protect themselves and their users.

The new law doesn’t specify in detail how the terms and conditions should be. Therefore, one can have a very simple set of terms and conditions.

Alternatively, one may opt to adopt the terms and conditions of other e-commerce businesses provided that one is well versed in drafting and amending agreements. But one should take note that every set of terms and conditions is customized for specific businesses.

It would be ideal if we have affordable online services to draft terms and conditions and privacy policies for SMEs (small and medium enterprises) like SnapTerms, which allows start-up companies the opportunity to customize their website’s terms and conditions without having to pay the fees typically associated with having the documents drafted by a lawyer.

But one must bear in mind that SnapTerms is a service provided by people who are well versed in the laws of their country and perhaps not Malaysia.

To digress a little, e-commerce businesses should also protect their intellectual property such as their trademarks, copyright and patents. These rights are registerable and one can protect these rights in Malaysia by filing them with the Intellectual Property Corporation of Malaysia or MyIPO.

Other than that, it is pertinent to protect your brand from being taken in well-known social media websites like Facebook and Twitter. You can use Knowem to check for the use of your brand, product, personal name or username instantly on over 550 popular and emerging social media websites.

Closing

The introduction of laws to track and record Internet transactions is nothing new. Last year, Section 114A of the Evidence Act 1950 and Cyber Centre and Cyber Cafe (Federal Territory of Kuala Lumpur) Rules 2012 were introduced to track and record such transactions.

These laws will not be the last. I foresee that many more such laws will be introduced in the near future.

Download:
Consumer Protection (Electronic Trade Transactions) Regulations 2012

Anonymity, is your time up?

A. Asohan, my fellow comrade from the Stop 114A Committee, quoted me in his article in Digital News Asia regarding internet anonymity. I am an advocate of privacy rights and to me certainly would extend to online privacy. We now live in a world where enterprises are hungry for personal data to be exploited commercially. It can trace, among others, your habits, preferences and history.

Anonymity, is your time up?

 A. Asohan
Oct 26, 2012

 

Anonymity has a rich tradition and can be essential for some forms of online discourse

  • Yet it can be easily abused – should sites like DNA require identification for posting comments?

WE start, with a nod to Dickens, with a tale of two lawyers, both speaking about the contentious amendment to the Evidence Act 1950 that the Malaysian Government has bulldozed through.

The Government first said the law was formulated to bolster prosecution against online defamation and sedition – it later changed its tune to say it was to tackle terrorism and cybercrimes – by making it tougher for online commentators to hide behind anonymity.

[Further analysis of the wording in the legislation however suggests that it would actually encourage anonymity by making all parties up and down the online access supply chain legally liable and presumed guilty.]

In one forum discussion on the Evidence (Amendment) (No2) Act 2012, or Section 114A, Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee, while acknowledging the mischief that anonymous commentators can cause, said that most Malaysians prefer to comment and engage anonymously.

“Clearly we all want to be anonymous online, in order to protect ourselves,” he said.

I was one of the panelists in that discussion, which was moderated by Jacqueline Ann Surin, co-founder and the editor of The Nut Graph. We had worked in The Star together, and I just muttered to her, “Not me,” and she nodded, “Not me either.”

Sure, we old-school journalists may not have understood the concept of personal branding in today’s online world, but we’ve always known about the value of our bylines. A journalist’s byline is our mark – it tells you who we are and what we stand for. Why would we want to hide it behind a shield?

We trust ourselves to be able to be critical without being defamatory, to be able to call a spade a spade without resorting to name-calling, to get to the heart of the matter without the need to insult.

In all my online interactions – whether it is on tech or political sites, whether it is on forums dedicated to role-playing games or my beloved and oh-so-depressing Liverpool Football Club, on my Facebook and Twitter accounts – I use my real name. My thoughts and what I believe in are part of my identity; they make up who I am.

So I never needed to shield myself behind anonymity. Not that I can’t see its value either. Another lawyer at yet-another forum discussion on Section 114A, K. Shanmuga, Member of the Malaysian Bar, pointed out that there is a rich and respected tradition of anonymity in political discourse, dating back a few centuries.

Without going into details, much of British political satire depended on anonymity – or more accurately, pseudonymity, where an assumed name or pseudonym was used instead of the author’s real name. In literature, women had to use male pseudonyms to be taken seriously, let alone get published.

The Federalist Papers, a collection of essays promoting the ratification of the US Constitution, was published anonymously, but was actually written by Alexander Hamilton, James Madison, and John Jay.

“Satirists such as Jonathan Swift and Alexander Pope published anonymously, often for legal and political reasons,” Robert Folkenflik, emeritus professor of English at UC Irvine, writes in theLos Angeles Times.

“Anonymity protected Swift from arrest when a reward was offered for the author of his Drapier’s Letters, pamphlets advising the Irish not to take copper half-pence from England. The novels of Daniel Defoe, Samuel Richardson, Laurence Sterne, Tobias Smollett and Fanny Burney were all anonymous,” he adds.

Whistleblowers and inside sources require anonymity to protect themselves when they reveal information of public interest, especially in Malaysia, where the authorities prefer to shoot the messenger rather than prosecute the perpetrator.

So, granted, anonymity has its place in discourse. But it should never be taken as an excuse to be a jerk. In many cases, anonymous online commentators take it as their due, and end up only proving John Gabriel’s “Greater Internet F***wad Theory,” pardon the language [or the asterisks, rather].

Not just in Malaysia, but throughout the greater online world, there has been a growing movement against anonymity – especially when there is no need for it. And yes, you can criticize the Malaysian Government and some of its decisions without being seditious or defamatory, as Digital News Asia founder Karamjit Singh did when he described the proposed Budget 2013’s RM200 smartphone rebate as stupid.

Social media networks like Facebook and LinkedIn have helped prepare us for this. When you think about it, social media loses at least half its value you don’t use your real identity.

Indeed, Facebook marketing director Randi Zuckerberg believes that putting an end to anonymity online could help curb cyber bullying and harassment.

“I think anonymity on the Internet has to go away,” she said during a panel discussion on social media hosted byMarie Claire magazine, The Huffington Post reports. “People behave a lot better when they have their real names down. … I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.”

Google began cleaning up YouTube’s comments section by encouraging users to post their real names, taken from their Google+ account — since Google requires the real name of someone signing up for a Google+ account,PCWorld reported.

Google’s former chief executive officer and current executive chairman Eric Schmidt has gone on record to describe online anonymity as “dangerous.”

“Privacy is incredibly important,” he said, adding, “Privacy is not the same thing as anonymity.” He went on to saythat “if you are trying to commit a terrible, evil crime, it’s not obvious that you should be able to do so with complete anonymity.”

We have had discussions about anonymity in our comments sections at DNA recently. When we launched the site in May, it was important to us that DNA provided a platform for insightful, interesting, honest and critical conversation about the tech ecosystem.

I am happy to say that has been the case, at least most of the time. When we noticed some “this sux” and “that sucks” comments coming in, we implemented “ground rules,” advising readers that we will delete comments that do not abide by them.

There have been some that have breached this, but we haven’t yet taken the prerogative to remove them, since such strident calls for attention have largely been drowned by the more intelligent conversations going on around them.

But lately, we’ve noticed what can only be described as “questionable comments” being posted in stories about entrepreneurs and startups in our Sizzle/ Fizzle/ Slow Burn section. “Questionable” because they were posted by “silhouettes” and/ or had content which made sense only if they came from the competitors of the companies in question.

That’s just not cricket. It’s sock puppetry of a different nature or name, but smelling just as foul. And we also realized that as we cover more companies, and as the start-up space here becomes more mature and crowded, as companies vie not so much on different ideas, but on different implementations of essentially the same idea, the competition is only going to get stiffer, and perhaps uglier.

And such foul play may find expression in our comments section.

We don’t want that to happen. One way of preventing this is to make identification a prerequisite for posting comments. We are loath to do so, but will take what action is needed to preserve the integrity of the site, and the generally high level of discourse that takes place here.

But we would like to hear from you, dear readers. Tell us if you would support such a move if it came to the crunch, and why; or if not, why not. Give us the pros and cons. Let’s hear from you.

And yes, you can do so anonymously, if you prefer. 🙂

When I said, “Clearly we all want to be anonymous online, in order to protect ourselves”, it wasn’t referring to the right of anonymity to posting comments and opinions online. I wasn’t referring to the right of anonymity in the narrow sense.

To me, the right of anonymity is the right to control your information online. I don’t want to be posting my full name online. I don’t want my potential clients to be googling my name to find pictures of me partying in my heydays. I would like to use an online pseudonym on Twitter and blog so that, among others, potential clients/employers/competitors don’t know what I do daily, who my family members are etc.

I think the video below summarises the problem without the right of anonymity.

The video above basically shows a gifted clairvoyant who finds out about numerous information above a few people he met. The gifted clairvoyant can be seen “reading” those people’s lives accurately.

[Read below for spoiler]

It was later shown that the gifted clairvoyant had a team of people scouring the Internet for information of those people.

Govt stealthily gazettes Evidence Act amendment, law is now in operation

I was quoted by Digital News Asia on what internet users and website owners should do in view that the Evidence (Amendment) (No. 2) Act 2012 is in force.

A. Asohan
Aug 08, 2012
  • Controversial law has been in effect since July 31 after ‘stealth’ move by Govt
  • Civil society continues its struggle to see the law revoked

THE Malaysian Government has gone ahead to gazette a controversial amendment to the Evidence Act 1950 despite the objections and concerns of the online community and civil advocates, who have said it would have a chilling effect on freedom of expression.

Section 114A to the Evidence Act was gazetted by de facto Law Minister Mohamed Nazri Abdul Aziz and has been in operation since July 31, according to a notification on the Attorney-General’s Chambers website(Click here for the PDF documentation).

“The law can be enforced now,” said Masjaliza Hamzah, executive director of Center of Independent Journalism (CIJ) in Malaysia, which has been spearheading efforts to see the legislation revoked.

However, she noted that even if a law has been gazetted, it may be impossible to enforce it if those who are responsible for it are not trained and are not ready to implement it. “This was the case with the Domestic Violence Act which was passed and gazetted in 1994, but was not implemented until 1996 after women’s groups campaigned to put pressure for that to happen,” she added.

Law Minister Nazri gazetted the law despite his own deputy Datuk V.K. Liew conceding in June that more discussions were needed after the CIJ had handed him a petition with more than 3,000 signatures.

“Sometimes, laws can be gazetted quietly — unnoticed, you could argue it’s almost by stealth — and we only know they exist when they are implemented,” Masjaliza told Digital News Asia by email.

“Many people in Selangor and Federal Territory did not know that Muslim women cannot contest in beauty pageants under the Syariah Criminal Offences (SCO) laws until five young women were arrested for taking part in a Miss Petite contest.

“The fatwa banning this was gazetted and therefore can be enforced under the law and these women were arrested for breaching a fatwa. It was only at that point that people heard that there was the SCO Enactment in Selangor and the SCO Act in the Federal Territory, and that they apply to Muslims in those states,” she added.

Section 114A, otherwise known as Evidence (Amendment) (No. 2) Act 2012, was passed by the Dewan Rakyat and Dewan Negara in April.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. It also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

“This presumption of guilt goes against a fundamental principle of justice – innocent until proven guilty — and disproportionately burdens the average person who may not have the resources to defend himself in court,” the CIJ has said.

“The amendment’s wide reach will affect all Internet users, websites which provide space for online comments, and any business premises which give free Wi-Fi access to their customers.

“In addition, the new amendment was passed despite the fact that existing laws — including the Computer Crimes Act 1997, Sedition Act 1948, Defamation Act 1957, and Section 233 of the Communications and Multimedia Act 1998 — have been used to arrest and charge in court those who commit defamation, criminal defamation, fraud and sedition online,” it said.

Govt knows best?

Malaysia’s law-making process can be very opaque and undemocratic, Masjaliza lamented.

“People who are affected by these laws — and we are many — are not consulted at all during the drafting process. We have no idea there’s a draft bill coming, and some of us may hear about it only when it’s discussed in Parliament, and only if the media covers it,” she said.

“Then there’s a period of silence. Are Malaysians expected to go to the Attorney-General Chambers’ website every day to check if any laws have been gazetted recently and see how they apply to them?

“This is what happens when the ruling government doesn’t believe in meaningful consultation with the public before they enact any law,” she added.

After a furore earlier this year over amendments to Elections Offences Act, later revoked, the Malaysian Government promised that public consultations would be the order of the day for future laws.

“It sounds a bit hollow … now,” said Masjaliza. “Who will be consulted? Will it be a select few? How comprehensive is that process going to be?”

Lawyer advises caution

Meanwhile, a lawyer who has been monitoring the issue has advised caution on the part of Internet users and website owners.

Users must ensure that their Internet connection or devices are properly secured, said Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee.

“They should also frequently update their anti-virus software, use strong passwords and refrain from retweeting or republishing anything dubious or unverified,” he said.

“As for website owners, they may want to consider monitoring their comments,” he said.

Foong said that website owners may want to:

1) Disable anonymous users from posting any comments.

2) Revise the terms and conditions for use of their websites, to perhaps include an indemnity clause to compel the user to indemnify the website owner in the event of any damages. They may also choose to include a clause prohibiting users from posting comments relating to religion, politics, etc. and that anyone who does that will be banned or have his or her posting removed.

3) Remove Facebook’s comments function as website owners do not have control over the contents posted.

4) Only allow registered users who have provided all their personal details to post comments.

5) Owners of low-traffic websites may consider reviewing comments before allowing them to be posted.

6) High-traffic websites (e.g. forums) may consider appointing someone to monitor or track all postings. Alternatively, they can have a user rating system where users can rate whether a posting is offensive and if so, it gets suppressed/ removed. YouTube has this function.

“The registered account holders of Internet services [such as UniFi] may want to reconsider sharing their Internet connection with others,” Foong added.

Internet Blackout Day still on

Despite the gazetting of the law, civil society is going to go ahead with the “Internet Blackout Day” for Aug 14 which aims to create awareness among Internet users about the negative impact of the amendment on online expression.

Taking its cue from similar efforts in the United States and New Zealand in support of Internet freedom, on that day, Internet users who visit participating websites will see a pop-up window which contains the message of the campaign. In addition, Netizens can change their profile pictures/ avatars on Twitter and Facebook to black, or use downloadable images provided by the CIJ.

“We [still] hope to get a buzz around Section 114a and how it’s going to affect the average Internet user, and urge people to do something. We must do something, even if the law’s been gazetted,” said Masjaliza.

“Once a critical mass is aware of the law and its implications on them, then it’s easier to get people to support actions under the ‘Stop 114A’ campaign,” she said.

“If more people are talking about this and are outraged that this was done without their knowledge, then we will have a good base of support for the next course of action,” she added.

Foong concurred. “It is not too late; we can always lobby for the repeal of the amendment. Please take part in the Internet Blackout Day initiated by the CIJ.”

The Internet Blackout Day has received positive response from the Internet community. Businesses which rely on the Internet such as the auction store lelong.com.my, online forum cari.com.my, and entertainment portal gua.com.my have signed up to show support, the CIJ said.

Other key supporters include online news sites such as Malaysiakini and Digital News Asia, bloggers such as Niki Cheong and Nat Tan. This initiative is also supported by civil society organisations such as SUARAM and the Women’s Aid Organisation.

For more information about the Internet Blackout Day and to take part in the campaign please visit:
1. The official blog at stop114a.wordpress.com
2. The Facebook page https://www.facebook.com/evidenceamendmentact.
3. Stop 114A’s Twibbon page for Twitter: http://twibbon.com/join/Stop-114A
4. Stop 114A’s Twibbon page for Facebook: http://twibbon.com/cause/Stop-114A/facebook

For additional information, please contact CIJ via e-mail at cijmalaysia@gmail.com or call +603-4023 0772.

Evidence Act: An issue to be solved technically, not legally: MOL

I was briefly quoted in this article by Digital News Asia.

Evidence Act: An issue to be solved technically, not legally: MOL

Edwin YappJul 06, 2012
  • MOL Friendster Hotspots says tech should be used to address anonymity on the Net, not the law
  • Changes to the controversial Malaysian Evidence Act do not affect network facilities providers

THE owner and operator of one of the largest Wi-Fi networks in Malaysia believes that making amendments to the law isn’t the right response to address certain cyber security concerns expressed by the government.

Ganesh Bangah, group CEO of MOL Global, stressed that issues such as tracking who is responsible for putting up malicious, defamatory and seditious comments in cyberspace is essentially a technological issue, and as such, must be addressed in a technical way.

“Firstly, I do not think you can find the solution using the law. [I believe] you should use technology [instead],” the outspoken entrepreneur told Digital News Asia in an interview.

Bangah (pic) was responding to the recent news about the changes made to the Evidence (Amendment) (No 2) Act 2012, which was amended in April. The changes allow authorities to go after Internet users for any content posted through their registered networks or data processing devices.

In May, local daily theSun reported that the amended law has serious implications on Internet use as the owner of a site or device is presumed guilty and has to fight to prove his innocence.

“What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your Wi-Fi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act,” theSun noted in its May 21 report.

The amendment, which was passed in Parliament without debate, created an uproar particularly in cyberspace. Netizens have been blogging and posting their opposition to the amendments on Facebook and Twitter.

To date, a Facebook page opposing the change has been created and an online petition, signed by over 3,330 people, has been handed to a Deputy Minister in the Prime Minster’s department.

Some have noted that changes to the law, which were confirmed by lawyers Digital News Asia spoke to, would instead harm innocent victims of identity theft and hacking, while getting no closer to shoring up enforcement or prosecution powers against the actual perpetrators.

Bangah said he was against the burden of responsibility put by Internet users on service providers and mobile operators. But despite this, he said MOL Friendster Hotspots would comply with the law.

MOL Global operates Friendster Hotspots, which provide free Wi-Fi services to various restaurants in Malaysia including Starbucks Café, Kenny Rogers Roasters, Wendy’s, Papa John’s Pizza, Krispy Kreme Doughnuts and Old Town White Coffee.

Revealing that MOL is now trying to figure out a way to register users so that it would know what its patrons are doing while surfing on its Wi-Fi infrastructure, Bangah said, “With this registration and authentication, we will know what they are doing and this will defer our liability,” he said.

In tandem with this, Bangah also said cybercafes need to be authenticated and MOL will likely add a new set of terms and conditions to which patrons must agree.

Acknowledging that this would hinder the user experience, Bangah said MOL is toying with the idea of using the MyKad, the Malaysian Identity Card, to authenticate Malaysians.

Foreigners would be asked to possibly use their passports as an instrument for verification, while foreign students would be asked to use their International Student Card, he added.

“The new terms and conditions will basically release us from any liability. We have to make this the new conditions to use free Wi-Fi moving forward,” Bangah said.

Operators not liable

Meanwhile, two telecommunication network facilities providers (NFPs) say the recent amendments to the Evidence Act 1950 will not impact them as they are not considered to be publishers or re-publishers of content.

Telekom Malaysia (TM) noted that the amendments should not affect itself as it should not be held liable since the company only provides Internet connectivity. The incumbent telco added that it also does not impose any control on the manner of usage of the connectivity.

In an email reply to questions from Digital News Asia, the state-backed operator said, “As an Internet Service Provider (ISP), TM provides connectivity in support of an enhanced digital lifestyle and in providing convenience to its subscribers when they are outside their homes or on-the-go.

“TM has established more than 22,800 TM Wi-Fi locations nationwide as a value-added service to fixed broadband services that TM provides to its subscribers. Our existing terms and conditions of services already make provision for the customers to take all measures necessary to protect their own data, systems and networks.

“It also warns our users not to use the service for any unlawful and unsolicited electronic messages that are obscene, threatening or offensive.”

Similarly, another NFP Digital News Asia contacted noted that its initial understanding is that it should not be affected by Section 114A of the Evidence Act because a subscriber is deemed to have published the contents, which may be the basis of criminal or civil offence, as service providers themselves are not the actual publishers or re-publishers.

The NFP, who declined to be named, however said, “We believe that efforts to promote general awareness among the public on the implications of publishing certain material may be a better approach in deterring inadvertent publication of seditious or defamatory material, instead of the present amendments which may deter Internet usage.

“We already maintain a high degree of compliance to local regulations when rolling out networks. Naturally, the establishment of any additional security and authentication requirements will of course increase the cost of deployment, but we will always continue exploring complementary technologies and evaluate future plans based on business needs.”

Asked if TM planned to change any of its existing terms and conditions to its broadband services, a TM spokesperson said that it has the right to terminate the service if the customers are in breach of the agreement, including where a customer has performed any unlawful acts.

“We may consider amending certain terms and conditions to further protect our interests and if there is such an amendment, the same will be communicated to all existing customers.”

A legal expert Digital News Asia spoke to noted said the changes in the Evidence Act did not affect NFP because the amendments did not [specifically] say so.

Foong Cheng Leong, Kuala Lumpur Bar information technology committee co-chairman, noted that under S114A(2), only those who are registered with a network service provider as a subscriber of a network service will be affected.

Asked if this was fair, Foong said, “Certainly not. Unless the government puts a specific provision to say all outlets providing Wi-Fi services are not deemed to be publishers and/or liable, but currently, there is no such exception in place.”

[Additional reporting by Karamjit Singh]

 

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