Lee Hishammuddin Allen & Gledhill

LexisNexis Malaysia – The Lawsome Profession

I was featured in LexisNexis Malaysia’s Lawsome Profession series. This series features interviews of Malaysian lawyers in their respective professions.




Interested to know more about #IntellectualProperty and #Cyberlaw ?

Foong Cheng Leong is the Partner at Foong Cheng Leong & Co. He focuses in the areas of Intellectual Property and Information Technology, Cyberlaw, Franchising, Data Privacy and Gaming Law. Cheng Leong is also a registered trademark, industrial design and patent agent. He is the Chairman of the Kuala Lumpur Bar Information Technology Committee and a member of the Malaysian Bar Intellectual Property Committee. He regularly assists the KL Bar and the Malaysian Bar on matters regarding Intellectual Property, Internet Law and Data Protection.



“When I first joined Lee Hishammuddin and Allen & Gledhill as a pupil, I was assigned to the Intellectual Property (IP) department and I got retained in the department after my pupillage. I didn’t have the opportunity to try other practice areas although I wanted to do litigation. However, IP was interesting to me because I got the opportunity to do corporate IP involving trademark, copyright, trade secrets, patents, and other intangible rights for many services and products, as well as IP litigation where it involves dispute matters. A senior partner once reviewed my CV and saw that I could build websites and suggested that I try out Information Technology and Cyber Law. I did and I’ve not looked back since. He also encouraged me to start writing articles on it and contribute them to the Bar website.

IP is my bread and butter. In my firm, we do a lot of IP and trademark registration, patent, industrial design and copyright matters. Our work includes protecting clients who get sued for infringement, registering and protecting their IP overseas, franchising and licensing. To practice IP, you need to understand the nature of a commercial transaction, intangible rights and basic contract law. IP has a lot of aspects to it: you can be a corporate IP lawyer, litigator, criminal where you represent people who are charged with counterfeiting, and even an administrator where you ensure the IP is registered. It is a very established area; we have IP cases dating to the 1800s. Even in China, there are trademark cases dating 300-400 years back. There are many materials that you can read.

IT and Cyber Law is a new area of law and it’s very interesting because it comes with all sort of issues. For example, we have been asked to file court action to discover identity of a person behind a social media account, advise client on how to take down private photos of themselves, how to block a website or close it, and even getting Facebook to share information of a deceased person.

For you to excel at IT and Cyber Law, it’s important to understand technology. You need to understand how computers and networks work, how the technology works, what is an IP address, what is a timestamp, you need to understand all the tech jargons, and these are the things that you don’t get to read in a law book. You also have to be tech-savvy. I had a case where the client was charged for deleting the database of his company. He said he didn’t do it, but evidence indicated that he did. I managed to figure out that his IP address at the time was dynamic, and that anyone could access his account from anywhere. From there, we cross-examined and the internet service provider and they confirmed that to be true. We also found that his computer was stored by a third party at that point of time, so he couldn’t have done it.

From young, I was interested in how electronics worked and how things connected to one another. I used to take my CPU apart and install it again. I even took apart my parents’ video cassette recorder and alarm clock, I also learnt how to build a computer network. It helped me to understand how electronics work, for example, why there is a chip, transistor, or power supply. From there I understand that if I want to connect to the internet, I need a modem. If I want to build a network, I need a hub, and if I want to store data outside the hub, I need a server. Back then, we didn’t even have Google to search for all these!

I think the law should catch up with technology. For example, how do you get information of people who defame you online? People are using all sort of avenue to hide themselves and they use servers and providers outside of Malaysia. How do we ensure we can make it easier to get information? One thing we can do for this is to get a Treaty signed by all countries. For example, if the legal system requires a citizen of a certain country to provide information, the government should be able to release it based on certain safeguards. So far, we don’t have such law and it’s very difficult and expensive to get data because everyone is very protective of their data. Only the rich could afford to get the information.

I think it’s important for young lawyers to write a lot of articles, participate in talks and be out there to show their skills. Personally, I like to share my knowledge and information through articles. As a lawyer, we should share information with our peers, we shouldn’t be stingy because the more you share the information, the more we will push for law reforms, then more people will know about it and it allows more people to seek compensation if they are the victims or aggrieved parties.”

More: Video Interview

ITPC STARTUPS AND BUSINESS LAW CONFERENCE on 26.11.2013

The KL Bar Information Technology and Publications Committee (ITPC) will be organising a one-day Conference on 26 November 2013. The Conference will cover practical legal issues for start-ups with a particular emphasis on the emerging issues such as intellectual property, personal data protection and social media. The purpose is to provide the participants with the basic knowledge on essential legal issues for startups. Startups are highly encouraged to attend this Conference.

The details of the conference are as follows:

Date : 26 November 2013
Time : 9 a.m. – 6 p.m.
Place : KL Bar Auditorium, 10th Floor, Wisma Kraftangan, No.9 Jalan Tun Perak, 50050, Kuala Lumpur, Malaysia

Topics :

Incorporating a company: Choosing the Right Legal Entity by Sharin Kaur Veriah and Goh May Woei (Shook Lin & Bok)
Recognising your Intellectual Property and Protecting your Rights by Janet Toh Yoong San and Tamara Lee Ciai (Shearn Delamore & Co.)
Introduction to Cyber laws in Malaysia by Adlin binti Abdul Majid (Lee Hishammuddin Allen & Gledhill)
Personal Data Protection Act 2010: How to Prepare Yourself by Professor Abu Bakar Munir (University Malaya)
Contract Law: What to address in eCommerce Terms of Use by Tai Foong Lam (Gan Partnership)
E-commerce Taxation Laws by Siti Fatimah binti Mohd Shahrom (Lee Hishammuddin Allen & Gledhill)

REGISTRATION FEE
RM100.00 per participant

Only 120 Seats Available. Click here for more information.

End to data abuse

I was quoted in The Sun Daily regarding the weaknesses of the Personal Data Protection Act 2010 (PDPA). Note that The Sun Daily also reported that the PDPA will be in force come 1 January 2013.

End to data abuse
Posted on 23 October 2012 – 05:24am
Pauline Wong
newsdesk@thesundaily.com

PETALING JAYA (Oct 23, 2012): Come Jan 1, you will be able to put an end to pesky telemarketers and report such harassment to the authorities.

This is because the Personal Data Protection (PDP) Act which criminalises unauthorised use of your personal data will finally be enforced after a two-year delay.

Information, Communications and Culture Minister Datuk Seri Rais Yatim told theSun recently that enforcement of the Act was held up due to a delay in the recruitment of personnel for the newly-formed Personal Data Department.

The department, which comes under his ministry, will oversee and be responsible for the enforcement of the Act.

“The department will be operational from Jan 1,” Rais said in an SMS reply to queries from theSun as to the enforcement of the Act which had been gazetted in June 2010.

The law stipulates how personal data – phone numbers, identity card numbers, addresses and even DNA – is used and stored by any organisation.

It defines “personal data” as any information processed in respect of commercial transactions that relates directly or indirectly to a “data subject” (the consumer), including any sensitive personal data.

Data users – including banks, telecommunications providers and even employers – must comply with seven principles.

Failure to do so will make the data user liable to a fine of up to RM300,000, up to two years’ jail, or both, upon conviction.

Once in force, the Act makes it a criminal offence for data users to reveal your phone number (for example) to third-party telemarketers, unless you had consented and were notified of their intention to do so.

The right to put an end to direct marketing is also provided for under the Act as a consumer may, by notice in writing, tell the data user to stop processing personal data for direct marketing.

He or she may also at any time withdraw any consent previously given to the data user.

However, legal experts point out that many aspects of the Act remain vague – which they say does not bode well for the wide-ranging impact of the Act.

Lawyer Adlin Abdul Majid, who heads the PDP compliance team at law firm Lee Hishammuddin Allen and Gledhill, said the Act is in need of more thorough guidelines before implementation.

“The Act was drafted in a very general manner. For example, even the definition of ‘commercial transaction’ is not specific.

“If someone goes to a small boutique and makes a purchase with a credit card, does this hold the boutique responsible for your data, and will it have to serve you a notice?” she said.

She added that in interpreting the law, employers are also considered data users.

“This could mean that even a small or medium enterprise (SME) with a few employees would have to adhere to the Act and conduct a privacy impact assessment to ensure full compliance, but that can be very costly for SMEs,” she said.

Adlin said the government needs to draft very detailed guidelines in enforcing the PDP, or it would lead to a lot of confusion.

KL Bar IT Committee co-chairman Foong Cheng Leong said the Act does not address several key problems, especially when it comes to storing a person’s personal data.

“With the digitalisation of records, the internet, and ‘cloud’ computing, the question is how does a data user deal with soft copies of personal information?” he asked.

He added that it is also not practical for data users to give written notice when data is collected over the phone, or captured via closed-circuit television (CCTV).

Foong urged the autorities to draw up specific guidelines to address these issues.

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