Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor

Bread & Kaya: 2017 Cyberlaw Cases Pt2 – viral content, Uber and appearance of an emoji

By Foong Cheng Leong
Mar 29, 2018

A video clip that was viewed 3 million times deemed to be the truth of an incident
Groupon has its day in court, twice with users not happy with merchants

CARRYING off from where I left off in part one of my review of the interesting Cyberlaw related cases that came to the courts in 2017, I start off with viral content and a case where a video was shared almost 50,000 times. And while Uber Technologies is merging its operations with Grab, it still had its day in court last year with a case in Sabah.

Viral Content

The case of Public Prosecutor v Poovarasan Subramaniam & 2 Others [2017] 1 LNS 1619 determined whether a viral video can be admitted as evidence in a criminal trial.

The 3 accused were charged for murder for a man who had allegedly stolen a mobile phone. In the course of trial during the Prosecution’s case, the Prosecution sought to adduce in evidence a VCD containing a video clip that captured a portion of the incident wherein the victim was assaulted by several men. The video clip went viral on the internet and a prosecution witness had downloaded the same from the blog KITABANTAI into the VCD.

The second accused strenuously objected to the admissibility of the VCD principally because the authenticity of the contents of the VCD is questionable. A trial within a trial (TWT) was held to consider the admissibility of the VCD.

During the TWT, the Prosecution called two bloggers, namely the owners of the blogs KITABANTAI and SIAKAPKELI who had published the video clip, to testify as to the origin of the video clip. KITABANTAI stated that the video came from SIAKAPKELI. SIAKAPKELI later revealed that the video clip came from an online news website called MYNEWSHUB. However, the journalist at MYNEWSHUB does not the exact source of the video clip.

Notwithstanding that the person who originally recorded the video clip live and thereafter uploaded the same in the social media could not be traced and produced in Court as witness, the learned High Court Judge was satisfied that the police investigation team and the Prosecution have used their best endeavours to produce the evidence of the chain of movement of the video clip in cyberspace till it was extracted by the police. The said video clip was admitted as evidence following ss. 90A(1) and (2) and 90C of the Evidence Act 1950. The learned Judge stated that he has no reason to believe that the video clip wasn’t authentic in the circumstances.

This case is in stark contrast with the case of Tan Chow Cheang v Pendakwa Raya (Criminal Appeal No. J-05(LB)-54-01/2016). In this case, the accused was charged with drug trafficking under s. 39B of the Dangerous Drugs Act 1952. During the examination of one of the raiding officer, the defence suddenly produced a CCTV recording in a pen drive showing that the drug was planted. On completion of the raiding officer’s evidence, the High Court granted the accused a discharge not amounting to acquittal upon the prosecution’s application notwithstanding that the defence had submitted that the accused was entitled to be acquitted and discharged as upon the production of the CCTV recording, the sole or main prop in the prosecution case collapsed prematurely.

The Court of Appeal agreed with the High Court. The Court of Appeal was of the view that the production of a certificate under s. 90A(2) of the Evidence Act 1950 is not the conclusive way to prove the pen drive’s admissibility. The Court of Appeal held that “to allow it to be admitted in such circumstances in, our view, would be open to abuse. It is not impossible during this era of modern technology for images to be superimposed or tempered with. Therefore, it is only safe for witnesses to be called either to confirm or to rebut it“.

In another case involving viral video (Datuk Wira SM Faisal Sm Nasimuddin Kamal v. Emilia Hanafi & Ors [2017] 1 LNS 1373), the Plaintiff and his ex-wife (1st Defendant) were in Syariah Court of Kuala Lumpur to resolve their matrimonial dispute/issues. Together with them were the family members of the Plaintiff and the 1st Defendant, among others.

On 20.9.2016, the Syariah Court ordered the children of the Plaintiff and 1st Defendant to spend a night with the Plaintiff at his home. The Judge of the Syariah High Court further ordered that the children must not be forced if they do not want to follow the Plaintiff. After that, the proceedings between Plaintiff and 1st Defendant was adjourned for the day.

A video recording was taken after the proceeding in the Syariah Court had ended. The video allegedly showed the aggressive behaviour and use of force by Plaintiff outside the courtroom towards both his 2nd child and wife. The 1st to 4th Defendants then shared the said video clip. The 3rd Defendant had uploaded the video clip on her Snapchat virtual page with the words “SMF shoved them to the ground when he gave up” whereas the 1st Defendant had also uploaded the video clip on her Instagram account with the caption “A mother’s heartache .” On a side note, this is probably the first written judgment in Malaysia featuring an emoji.

The Plaintiff alleged that the video clip went viral. The video clip spread so widely that:

(a) Up to 3 million people viewed the video clip;

(b) Nearly 50 thousand people shared and/or distributed the video clip;

(c) Nearly 15 thousand people made comments, conclusions and/or inferences against the Plaintiff as result of the video clip.”

The Plaintiff sued the Defendants for publishing the video clip. Notwithstanding that the video clip went viral, the High Court struck out the Plaintiff’s case. The learned High Court Judge held that:-

“The video recording that was published was undisputably a recording of an actual and real incident and therefore, cannot be denied as being the truth.”

“The objectionable words and statements complained of are not prima facie defamatory. In fact, the same do not substantially even make reference to Plaintiff nor do they directly or by implication refer to or implicate Plaintiff.”

In Synergistic Duo Sdn Bhd v. Lai Mei Juan [2017] 9 CLJ 244, the Plaintiff sued the Defendant for publishing two (2) Facebook postings in relation to the bad service by BGT Lakeview Restaurant operated by the Plaintiff. The second posting went viral and were shared more than 9,500 times and was reposted and published in newspapers, websites, blogs and other Facebook pages. The Plaintiff submitted that: (i) because of the postings, many of its customers cancelled their bookings and reservations; and (ii) if the Defendant was not restrained by way of an interim injunction, the Plaintiff would continue to suffer grave irreparable loss and damage to its reputation and goodwill.

In granting the Plaintiff’s application for interim injunction, the learned Judicial Commissioner held that the continued publication of postings on the Defendant’s Facebook would cause the Plaintiff’s to suffer further damage to their reputation and goodwill as the potential re-publication of the postings to potentially unlimited number of internet users would irreparably harm the plaintiff’s reputation: which harm cannot be adequately compensated with damages.

Digital Currencies

Due to the rising popularity of digital currencies in Malaysia, Bank Negara issued an exposure draft by the name of Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) – Digital Currencies (Sector 6). The document outlines the proposed requirements and standards that a digital currency exchanger as defined under the First Schedule of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) must carry out as reporting institutions. This is to ensure effective and robust Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) control measures are in place to safeguard the safety and integrity of the financial system as well as to promote greater transparency in the conduct of digital currencies transactions.

The draft exposure sets out the minimum requirements and standards that digital currency exchangers must observe as reporting institutions to increase the transparency of activities relating to digital currencies and ensure effective and robust AML/CFT control measures are in place to mitigate risks that digital currency exchangers may be used as conduits for illegal activities. Such requirement include conducting risk assessment, risk control and mitigation, risk profiling and customer due diligence, among others.

Digital currency exchangers must also comply with requirements in the document relating to: the identification and verification of customers and beneficial owners, on-going monitoring of customers’ transactions, sanction screening, suspicious transaction reporting and record keeping; transparency obligations; and requirements for the submission of data and statistics to the Bank for the purpose of managing ML/TF risks.

The document is applicable to reporting institutions, regardless that the person is not domiciled in Malaysia, carrying on the following activities listed in Paragraph 25 of the First Schedule to the AMLA:-

activities carried out by any person who provides any or any combination of the following services:

(i) exchanging digital currency for money;

(ii) exchanging money for digital currency; or

(iii) exchanging one digital currency for another digital currency, whether in the course of carrying on a digital currency exchange business or otherwise.

Singapore saw its first cryptocurrency dispute in its Court. The case of B2C2 Ltd v Quoine Pte Ltd [2017] SGHC(I) 11 concerns a cryptocurrency transaction dispute between the Plaintiff (a foreign electronic maker for virtual currency) and Defendant (an online virtual currency exchange platform provider in Singapore) which involves Bitcoin and Ethereum.

The Plaintiff alleged that the Defendant had acted in breach of the contract between them and breach of trust when the platform reversed transactions for the sale and purchase of the cryptocurrencies Bitcoin and Ethereum.

The transactions were unilaterally reversed after the Defendant identified that a technical glitch had occurred to the software used by the platform. Consequently, the Plaintiff had lost the benefit which it could have made if the transaction was not reversed.

The Defendant argued that there was unilateral mistake involved and they are entitled to reverse the transaction. The Plaintiff sought an order for summary judgment.

The Singapore International Court dismissed the summary judgment application by the Plaintiff as there were triable issues raised by Defendant and held that “a thorough investigation of the facts behind the setting of the abnormally high offer price is justified in order to place the court in a proper position fully to assess the state of the Plaintiff’s knowledge”as well as “the law on unilateral mistake where computers are involved in greater detail”.

E-Hailing Services

During the hype of prosecution of drivers of e-hailing vehicle, one Joe Vincent Singgoh sought an order from Court to protect drivers from such prosecution in Sabah. In the case of Joe Vincent Singgoh v Commercial Vehicles Licensing Board Sabah 1 & Ors (Sabah High Court Judicial Review No. BKI-13NCvC-10/10-2016), the Applicant, a person registered with e-hailing service provider Uber Technologies Inc. as a driver, had sought several orders amongst which an order of prohibition against the 1st and 2nd Respondents from relying on the provisions of Section 33 of the Commercial Licensing Vehicles Act 1987 to prosecute or prohibit the Applicant from using the services of Uber Technologies Inc. The Applicant also sought a mandatory injunction was also sought to restrain the prosecution, prohibition of the Applicant to drive or make drives for Uber.

The High Court held that the aggrieved person in this case is not the applicant. The proper person is Uber Technologies Inc. Uber Technologies Inc. has not made any application to the relevant authorities in Sabah for the relevant permits or licences. And in so far as Section 33 is concerned, Uber Technologies Inc. is the ‘person’ responsible to obtain such approvals and not the Applicant. It is not explained or disclosed why this is so.

The Court also held that whatever Uber is promoting is unlawful and illegal. Whether the Government will grant Uber Technologies Inc. the necessary approval or not is a matter for the former to decide as a matter of policy and the Applicants are not entitled to come to court to seek a prohibitive order to pre-empt any legal action that may be taken by the Police of JPJ to enforce the law.

However, the Government will soon be legalising operators of e-hailing service providers and their drivers. The Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 were introduced to amend the Commercial Vehicle Licensing Board Act 1987 (“CVLBA”) (applicable to Sabah, Sarawak and the Federal Territory of Labuan) and the Land Public Transport Act 2010 (“LPTA”) (applicable to Peninsular Malaysia) respectively to introduce the licensing of intermediation business. Intermediation business is defined as “business of facilitating arrangements, booking or transactions of e-hailing vehicle (pursuant to the new amendment to CVLBA) and for the provision of land public transport services (pursuant to the new amendment to LPTA). These amendments is clearly intended to regulate e-hailing services such as Uber and Grab.

The Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 also introduced a new class of commercial vehicle namely e-hailing vehicle. This would include the cars driving by Grab and Uber drivers.

Once these amendments are enforced, e-hailing providers like Grab and Uber and also their drivers would need to be registered.

E-Commerce

Groupon Malaysia had another challenging year. The Court had to decide in two (2) cases whether Groupon should be liable for the payment made to them for the purchase of products and services on the Groupon website.

In Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 555, the Groupon user in this case bought a tour travel package vide its platform from one of Groupon’s merchants and paid RM999 (tour travel package) and RM652 (compulsory airport tax, surcharges and tipping) to Groupon and the merchant respectively. However, the said merchant allegedly cancelled the tour and Groupon made a refund of only RM999 to the user. Dissatisfied, the user demanded the refund of RM652. Upon the rejection by Groupon, the user filed a complaint to the Consumer Tribunal and it held in favour of the user i.e. Groupon is liable for the said amount of RM652.

Groupon contended that there is an exclusion provision in the travel voucher which states that the RM652 charges is to be paid to the merchant, hence, Groupon should not be compelled to pay for monies it had not received in the first place. The Court conceded and held in favour of Groupon, that “it is unmistakable that the airport tax, surcharges and tipping were not included in the tour travel deal. In other words, they were not borne or absorbed by the Applicant”.

In Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 1009, similarly, the Groupon user in this case bought a tour travel package vide its platform from one of Groupon’s merchants and paid a RM999 (tour travel package) and RM450 (compulsory airport tax, surcharges and accommodation) respectively to Groupon and the merchant. Therein, the said merchant allegedly cancelled the tour and Groupon made a refund of only RM999 to the user. Dissatisfied, the user demanded the refund of RM450. Upon the rejection by Groupon, the user made a complaint to the Consumer Tribunal and it held in favour of the user i.e Groupon is liable for the third party payment to its merchant.

Groupon contended that there is no contractual relationship between Groupon and the user in the RM450 transaction and hence it shall not be liable to pay. The Court rejected the argument and held in favour of the user that Groupon had acted as an agent for the merchant and made a representation in the travel package voucher, instructing the user to make the RM450 payment to the merchant. Groupon shall be liable for the damages as the contractual relationship was established between Groupon and the user but not between merchant and user.

Defamation

The case of Dato’ Aishaf Falina Bt Ibrahim v Ismail Bin Othman & 2 Ors (Kuala Lumpur Civil Suit No. 22NCVC-352-07/2015) highlighted two interesting points.

The Plaintiff claimed that she was defamed by the retention of the erroneous information in the human resources information system of the 3rd Defendant (her former husband) and its “publication” via the said system. The alleged erroneous information was the information regarding the Plaintiff’s post-divorce marital status with the 1st Defendant, was kept in the 3rd Defendant’s human resources information system for a period of time after she and the 1st Defendant had been divorced. The first question is whether the publication of the erroneous information via the human resources information system amounts to defamation.

The second interesting point is whether the publication on the intranet amounts to publication.

The High Court held that the 2nd and 3rd Defendants are liable in defamation for the retention of erroneous information concerning the Plaintiff’s marital status in the 2nd Defendant’s human resources information system notwithstanding that the error was due to a glitch caused by its source code. The High Court also found that the publication of the erroneous information on the human resources information system via its intranet amounts to publication.

The High Court however dismissed the Plaintiff’s action for tort of misuse of private information as the erroneous information is not private information and there was no misuse of information.

Meanwhile, in Lye Eng Eng & Anor v Ho Kee Jin (Kuala Lumpur High Court Civil Appeal No: WA-12BNCVC-174-11/2016), the High Court, on an appeal from the Sessions Court by the Plaintiff, increased the damages awarded to RM35,000 for defaming the 1st Plaintiff by sending an email containing defamatory statements to 23 persons including those who mattered most to him, namely, his children, his friends and business associates. The Court also held that the Sessions Court Judge had failed to take into consideration of the “gravity of the libel”.

Part 3: In the final part we look at a few cases where individuals ran foul of the Communications and Multimedia Act 1998 and some cases under the Computer Crimes Act.


First published on Digital News Asia on 29 March 2018

Bread & Kaya: 2016 Cyberlaw cases – Cyber Court, Facebook fights and hacking

SEPT 1, 2016 marks the commencement of Malaysia’s first Cyber Court. Consequently, pending cases relating to cybercrime such as PP v Mohd Zaid bin Ibrahim (for a charge under s. 233 of the Communications and Multimedia Act 1998 for allegedly making an offensive statement while calling for the resignation of Prime Minister Najib Razak) was transferred to the newly established Cyber Court before Kuala Lumpur Sessions Court Judge Tuan Zaman Mohd Noor. Practice Direction No. 5 Year 2016 was subsequently introduced to give a special category for cyber cases for both civil and criminal cases.

2016 saw a drop in civil litigation relating to publications on blogs, Twitter and online forums but civil litigation on Facebook thrived. Facebook became the top platform causing disputes between parties in Malaysia. However, Twitter is still a popular platform for criminal investigations as our Inspector General of Police a.k.a @KBAB51 frequently orders investigations against netizens on Twitter.

There is still no shortage of cases relating to disputes on blogs. In Khairulazwan Bin Harun v Mohd Rafizi Bin Ramli (Kuala Lumpur High Court Civil Suit No: 23NCVC-55-07 /2015), the Plaintiff, Deputy Leader of UMNO Youth Wing, filed an application for leave to initiate a contempt proceeding against the Defendant, Vice-President and Secretary-General of the People’s Justice Party (PKR), for sub judice.

The Defendant had apparently published an article in his blog issues which are pending in the Court. According to the Plaintiff, the contents of the article are such that they interfere with the due administration of justice and attacked the merits of the ongoing suit and cast aspersions on the independence and integrity of the judiciary and judicial process and therefore be an act of contempt.

The learned High Court Judge dismissed the application holding that there is no sub judice. The learned High Court Judge held that the general rule is that the law of contempt cannot be used to curtail public discussion of matters of public importance and public interest albeit that these matters may already be the subject of a court action.

In a case relating to a defamation action by a lawyer against the Defendant who is allegedly the infamous blogger, Papagomo, the High Court had rejected the Plaintiff’s action because he had failed to prove that the Defendant is Papagomo notwithstanding that the Plaintiff had called numerous witnesses to prove the same.

The Plaintiff even called a blogger who had allegedly met Papagomo in an event and had positively identified the Defendant as Papagomo, and also another blogger who had testified that Papagomo is the Defendant. The Court of Appeal ((Dato’ Sukri Bin Haji Mohamed v Wan Muhammad Azri bin Wan Deris (Court of Appeal Civil Appeal No. D-02(NCVC)(W)-783-05/2014)) overruled the High Court on this point and held:-

In our view it is reasonable to infer that in the world of bloggers it is highly probable that a blogger knows the other blogger next to him or her. This probability is real because blogs are circulated in virtual space and they are widely read. It is not something that is unusual or unthinkable that sometimes bloggers do engage in virtual debate or argument and respond to each other over issues which attract public interest such as corruption and misuse of power or position by public officials or public figures

In the same case, it is interesting to note that a witness from the Forensic Legal Department of the Multimedia Commission testified that the Commission monitors blogs and articles published through them; and would investigate any offence under the Communication and Multimedia Act 1998 relating to ‘blog-blog lucah, jelek, mengancam dan sebagainya’ when it received complaint from internet users. He also testified that the Commission has data and information for each blog.

Facebook

In Maricel Cabangon Peralta Perimaloo v Riccardo Rovati & 3 Ors (Kuala Lumpur High Court Suit No. 23VCVC-18-03/2015), the Plaintiff, a former maid of the 1st and 2nd Defendants, sued the Defendants for defamation. The Plaintiff left the employment of the 1st and 2nd Defendants and filed a complaint with the Labour Office at Kuala Lumpur.

The Plaintiff alleged that, among others, the 2nd and 4th Defendant had published defamatory statements on Facebook. However, on the application of the Defendants, the High Court struck out the Plaintiff’s claim against the Defendants on the ground that the statements made were honest, based on facts and raised during a proceeding at the Labour Office at Kuala Lumpur and thus it is protected by absolute privilege and immune from an action for defamation.

In Chan Fei Yu & Yang Lain lwn. Siow Rong Jeing & Yang Lain (Kuala Lumpur High Court Suit No. 23NCVC-12-03/2015), the Plaintiffs sued the Defendants for publishing certain statements on Facebook that allegedly had defamed the Plaintiffs.

The 1st and 3rd Defendant had apparently published the 3rd Defendant’s allegation that the Plaintiffs had been negligent in grooming the former’s dog until it suffered injury. Further in this case, the Plaintiffs initiated contempt proceeding against the 3rd Defendant for allegedly providing fake residential addresses in his affidavits filed in Court.

The 3rd Defendant explained that one of the addresses was his former addresses whereas the other address is his mother’s residence. Fortunately for the 3rd Defendant, the Court accepted his explanation and held that the 3rd Defendant did not provide fake residential addresses to avoid service of the legal papers and interfere with or impede the administration of justice.

In Wedding Galore Sdn Bhd v. Rasidah Ahmad [2016] 6 CLJ 621, the High Court affirmed the Sessions Court’s decision in granting a public apology on Facebook and general damages of RM10,000 after the Defendant had taken the Plaintiff’s photographs from her Facebook account and published them in sales brochures for use at a wedding carnival without permission.

In Lim Yun Min & 7 Ors v Ng Han Seng & Anor (Shah Alam Sessions Court Suit No. B53F-7-03/2016), the Plaintiffs sued the Defendants for allegedly defaming them on Facebook. The Defendants applied to strike out the Plaintiffs’ claim for failing to:-

(1) state the Facebook URL address where the statements were published;

(2) state the exact time of publication of the statements; and

(3) identify or name the parties whom the Defendants are alleged to have published the statements and the Plaintiffs did not give the particulars of those parties who have read the alleged Impugned Statement.

The Plaintiffs have also failed to plead the statements in original language i.e Chinese.

The Sessions Court held that the Plaintiffs have failed to provide complete the Facebook web addresses and the identity of the parties that have read the statements. Instead of striking out the case, the Court used its discretion to order the Plaintiffs to amend their pleadings with cost payable to the Defendants.

In GGC v CCC & Anor (Kuala Lumpur High Court Divorce Petition No: 33-1415-08/2013), the Petitioner Wife (PW) sought damages from a lady (CoR) for allegedly committed adultery with her husband (RH). To prove adultery, PW relied on CoR’s Facebook postings to prove that RH and CoR had gone for a trip to various places. The Court stated:-

[84] The PW alluded to the CoR’s Facebook comments, status and photos uploaded by Co-R Pangkor Laut Resort, Maxim Hotel stay. However, there is no name or image of RH that appeared in any of these photos referred by PW. It was only by inference from some of the comments made by CoR’s friend that PW alleged RH was in those photos with the CoR. Nevertheless, none of these people who commented on the Facebook had been called by PW as witness. These comments or observation by public are therefore merely hearsay and cannot constitute evidence that this Court may rely on with respect to its truth.

[100] It is also in keeping with the times. In this day and age where with increased mobility, both physical and electronic and the easy access to new-fangled means of communication via the Internet, Wechat, WhatsApp, Skype, Blogs, Twitter and the like, there has been ushered in a whole new world of unlimited opportunities to communicate with anyone anywhere at anytime. With certain communication between the sexes, chemistry develops and opportunities to meet abound. While private investigators may be hired to track and collect evidence of a spouse’s infidelity, logistical costs have become prohibitive for many who have every reason to suspect a spouse is cheating on him or her but always a challenge to prove adultery. The time is both right and ripe for a realignment of the standard of proof even in adultery in a divorce petition to that of on a balance of probabilities.

Last year, I reported in Rina Simanjuntak v PP (Criminal Appeal No: P-05-256-09/2014), a Yahoo Messenger Chat log saved the life of Rina Simanjuntak who had been sentenced to death by the High Court for drug trafficking. In 2016, Facebook chat messages saved the life of a German by the name of Rudolf Tschernezow who was charged with drug trafficking. The High Court in PP v. Rudolf Tschernezow [2016] 1 LNS 654 held the Accused managed to prove that he is an innocent carrier using those messages [Update: Court of Appeal in PP v Rudolf Tschernezow (Criminal Appeal No J-05(LB)-345-12/2015) overturned the High Court’s decision).

In Norfariza Binti Harun v Dr Yusaidah Binti Yusof & Anor (Negeri Sembilan Sessions Court Civil Suit No. A53KP-04-11/2014), the Plaintiff sued the 1st Defendant for medical negligence while treating the Plaintiff. In support of the Plaintiff’s case, the Plaintiff had relied on various medical articles obtained from websites such as Healthline.com, webMD, Medicine Net.Com. However, the Court held that Plaintiff’s reliance on various websites to establish the effects of medications, misdiagnosis of Plaintiff’s symptoms and the prescriptions given is insufficient to establish the Plaintiff’s case without calling any medical expert. The Plaintiff’s case was therefore dismissed.

In Reka Setia Playground Sdn. Bhd. v Siow Wee Hong (Berniaga sebagai AZ Playground Builder) (Shah Alam High Court Suit No. 22NCVC-553-10/2015), the Plaintiff sued for copyright infringement over certain designs and works. In attempting to prove that the Plaintiff has no valid copyright claim over the design and works, the Defendant referred to a Prior Art Search Report.

The said Report utilised, among others, Google Search Results as a gauge or yard stick to determine whether or not there are contradicting copyright claims. The Court held that Google cannot be a credible copyright database. Google is merely an internet search engine and cannot be a determinant of any copyright claims or contradictions. Therefore, this Court held that it will not take into account any portions of the Search Report pertaining to Google Search Results.

On a slightly technical side, in the case of Wing Fah Enterprise Sdn Bhd v Matsushita Electronic Components (M) Sdn Bhd (Shah Alam High Court Suit No. 22-753-2005), the High Court held that s. 90A of the Evidence Act 1950 was not enacted to allow admissibility of documents downloaded from the internet. The High Court said that the meaning of computer producing the document must be a computer in the course of its ordinary use.

This refers to dedicated computers kept in organisations to do a certain function of general purport. This provision would cover for instance computers producing receipts on payments. In the present case the Plaintiff’s computers keeping details of accounts for instance would be covered by this provision. The production of the account sheets of the company from this computer would therefore be admissible under this provision. However information downloaded from the internet in no way form the ordinary use for the Plaintiff’s computers.

Computer Crimes Act 1997

Before 2016, it’s a rarity to find reported judgments relating to the Computer Crimes Act 1997. However, three (3) judgments relating to the same were published by the High Court in 2016.

In Basheer Ahmad Maula Sahul Hameed & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-44-06/2015), the High Court dismissed the appeal by the accused over their sentencing for, among others, stealing from the accounts of a few victims from the MH370 air flight tragedy using their ATM cards and online banking.

In Roslan bin Mohamad Som & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-69- 05/2014 and 42(S)–131–11/2014), the 2nd accused’s appeal over his conviction for making unauthorised modification to Tabung Haji’s database by inserting certain information therein was dismissed by the High Court.

However, in Pendakwa Raya v Vishnu Devarajan (Kuala Lumpur High Court Criminal Appeal No. 42(ORS)-60-07/2015), it was reported that the accused’s 36 charges under the Computer Crimes Act 1997 were struck out by the Sessions Court and subsequently upheld by the High Court as the charges failed to state the physical location where the alleged crime had happened. The High Court also held that an internet protocol (IP) address is not an address where a crime had happened in a charge sheet.

Communications and Multimedia Act 1998 (CMA)

Numerous netizens were subject to an investigation under s. 233 of the CMA (“s. 233”). Notable, a 19 year old boy, Muhammad Amirul Azwan Mohd Shakri, was given the maximum sentence of 1 year for a charge under s. 233 for insulting the Crown Prince of Johor on Facebook notwithstanding that he had pleaded guilty and was unrepresented.

The sentence was subsequently substituted the jail term and sent Amirul to the correction school. In another case, A 76 year old man who goes by the name of “Pa Ya” was arrested and remanded for 3 days for uploading an allegedly insulting photo of Prime Minister Najib Razak. Activist Fahmi Reza was also charged under s. 233 for posting an edited image of Prime Minister Najib Razak on his Instagram account.

On the independent media side, the access to The Malaysian Insider had been blocked pursuant to the direction of the Malaysia Communications and Multimedia Commission (MCMC) vide its powers under s. 263 (2) of the CMA. The MCMC frequently uses the said s. 263 to direct its licensees (i.e. Internet Service Providers) to deny access of netizens to websites to prevent the commission or attempted commission of an offence in Malaysia.

Further, Malaysiakini’s editor-in-chief Steven Gan and KiniTV Sdn Bhd were also charged under s. 233 for airing an allegedly offensive video on KiniTV’s website. The alleged offensive video was of a press conference held by Khairuddin Abu Hassan titled “Khairuddin: Apandi Ali is not fit to be AG and he should quit immediately. Steven Gan was also charged on his capacity as a director of KiniTV Sdn Bhd pursuant to s. 244 of the CMA.

Others

In an interesting case regarding Groupon (an e-commerce marketplace), a user of Groupon Malaysia purchased a tour package vide its platform from one of Groupon’s merchant. However, the said merchant allegedly cancelled the tour and no refund was made by the said merchant to the user. Groupon, however, made a refund to the user. Dissatisfied, the user demanded that Groupon bear the payment he made to Groupon’s merchant.

Groupon rejected the demand and the user made a complaint to the Consumer Tribunal. The Consumer Tribunal held in favour of the user and held Groupon liable for the payment to its merchant. Groupon thereafter filed an application for judicial review against the Consumer Tribunal’s decision in Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor (Kuala Lumpur High Court Judicial Review Application No. 25-332-12/2015)

In the said application, Groupon stated that, among others, that it is merely an online marketing platform and never an agent of the travel company and pointed out that this was highlighted in its terms and conditions – as agreed by the user.

According to the Court’s records, the High Court overturned the Consumer Tribunal’s decision. Unfortunately, no grounds of judgment had been published. But one can assume that an online marketing platform is not necessarily liable for its merchants’ actions.

There are some interesting developments in the realm of cyber and electronic world not seen in Malaysia.

In Lancashire County Council v M & Ors (Rev 1) [2016] EWFC 9, Mr Justice Peter Jackson and published online is thought to be the first in English legal history to incorporate an emoji, or web symbol, to explain a point of evidence. In paragraph 27(13), the Court said:-

In the United States case of In the Matter of the Search of an Apple iPhone Seized during the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203 (popularly known as the Apple v. FBI case), the FBI requested the Court to compel Apple, Inc to assist the FBI to access an Apple phone found in a car of one of the San Bernardino shooters.

The FBI had requested Apple, Inc to remove some features from its phone such as the auto erase function, the requirement for passwords to be entered manually and any software-invoked delay-upon-failure functions. Apple, Inc contested the request heavily. However, the FBI dropped its case after it found other ways to access the phone.

Closing

We can expect that amendments to the Communications and Multimedia Act 1998 to be introduced this year. The amendments of the CMA were supposed to be tabled in the 2016 Dewan Rakyat sitting but it never came to light. It is still unclear what are the exact proposed changes. However, we do know that the punishment for contravention of s. 233 will be increased.

There should also be an increase of harassment case be brought to Court with the advent of tort of harassment (Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)). One may bring a person to Court with a help of a lawyer without relying on the authorities.

The cost of hiring a lawyer should now decrease with the advent of many new start-up law firms in Malaysia. Furthermore, there are now online platforms that can match lawyers and members of public such as BurgieLaw and CanLaw.

First published on Digital News Asia on 2 March 2017 (Part 1) and 3 March 2017 (Part 2)

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