Mohd. Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd. Nor

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)

Bread & Kaya: Cyberbullying, stalking and sexual harassment

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

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

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

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

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

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

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

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

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

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

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

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

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

The Federal Court added:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is high time for Malaysia to legislate against harassment.


First published on Digital News Asia on 28 June 2016.

Bread & Kaya: Malaysian cyberlaw updates in 2015

By Foong Cheng Leong | Apr 04, 2016

– New, complex cases emerged, and Parliament enacted new laws
– With the advent of the TPPA, we can expect more changes

IN 2015, industry regulator the Malaysian Communications and Multimedia Commission (MCMC) reported that 10 people were convicted of offences under Section 233 of the Communications and Multimedia Act 2010 for, among others, disseminating pornographic material. MCMC also ordered 1,074 pornography websites to be blocked.

There were important developments in Malaysian and global cyberlaws in 2015. New, complex cases emerged in our courts, and Parliament enacted new laws to combat ‘negativities’ created by social media.

Facebook, Twitter and Google

As usual, our most popular online platforms caused rifts and problems. Fortunately, Deputy Communications and Multimedia Minister Jailani Johari stated that MCMC has no plans to require Facebook or any social media users to register with MCMC.

This is because the cost involved and there is a risk that such database may be hacked (see Hansard dated 15.12.2015).

In Mohd Desa bin Ahmad & 1 lagi v Hazudin bin Hashim & 2 lagi (Malacca Sessions Court Civil Suit No: A51-02-01-2015), the Malacca Sessions Court struck off a defamation suit initiated by a couple against the Yang Dipertua Majlis Perbandaran Jasin, Jasin Municipal Council and the Malacca State Government.

The couple alleged that the Jasin Municipal Council had uploaded pictures of their premises being seized for allegedly failing to pay assessment tax on the Yang Dipertua Majlis Perbandaran Jasin’s Facebook page. The Facebook posting allegedly went viral.

The Sessions Court however struck out the plaintiffs’ suit on the grounds that the plaintiffs had failed to identify who in the Jasin Municipal Council had uploaded the pictures. The Jasin Municipal Council and the Malacca State Government are not individuals, hence they cannot upload the pictures, and the plaintiffs ought to have named the individuals who had uploaded the pictures.

In PP v Yuneswaran a/l Ramaraj (Criminal Appeal No: J-09-229-09/2014), the accused was charged under Section 9(5) of the Peaceful Assembly Act 2012 (PAA) for failing to give at least 10 days’ notice before the Black 505 Rally was scheduled to have been held, to the Officer in Charge of the Police District (OCPD) of Johor Baru Selatan.

The notice had only been submitted to the OCPD on the day of the rally and was signed by the accused, Yuneswaran.

The accused had denied he was an organiser within the meaning of Section 3 of the PAA as the assembly was organised by the Majlis Pimpinan Negeri Parti Keadilan Rakyat, Negeri Johor (PKR Negeri Johor), chaired by Chua Jui Meng, and he had only signed the form on behalf of Chua.

However, the Sessions Court Judge held that he falls within such definition as he had filled up and signed the notification and announced the upcoming assembly using his Twitter feed and Facebook page, both of which would serve to invite the members or public and likely cause them to attend the assembly.

In addition, the Court of Appeal held that Section 9(5) of the PAA is not unconstitutional (thus departing from the earlier Court of Appeal case of Nik Nazmi Nik Ahmad v PP [2014] 4 CLJ 944), and the sentence against Yuneswaran was upheld.

In Network Pet Products (M) Sdn Bhd v Royal Canin SAS & Anor (Civil Appeal No. W-02(NCC)-1454-06/2013), there was a contractual dispute between the parties.

In this dispute however, the first defendant, being the brand owners of Royal Canin, filed a suit against the plaintiff for passing off and using the Royal Canin mark in a Facebook page opened by the plaintiff. The first defendant was successful and the High Court further directed the Facebook account to be deactivated.

The Court of Appeal overturned the High Court’s decision and held that there was no passing off. The Court of Appeal was of the view that the evidence disclosed showed that the first defendant was aware of the activation of the Facebook account from the start and had allowed it to continue.

In any event, the alleged confusion in the use of the Royal Canin mark simply did not exist. There was no confusion in the use of the mark in trade in the traditional sense of ‘passing off.’ The mark was used as denoting products belonging to RCSA. There was no attempt to pass off the first defendant’s products as the plaintiff’s products.

Interestingly, there was a dispute over the ownership of Facebook pages in the Singapore case of Lee Kien Meng v Cintamani Frank [2015] SGHC 109.

The plaintiff sought a declaration that he is the owner/sole administrator of the Men’s Fashion Week and Women’s Fashion Week Facebook pages. The Singapore High Court had reservations on declaring whether a Facebook page could be considered ‘property.’

Facebook Inc has control over the pages and has an unfettered right to remove Facebook pages. This control was strongly suggestive that the plaintiff did not own the Facebook pages above. If it did, it would not require the consent of Facebook Inc before it transferred the Facebook pages and Facebook Inc would not be able to remove the Facebook pages at its own discretion.

The case however did not discuss whether a Facebook page can be considered a transferable software licence.

Last year, I wrote that in Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384, the management corporation of Amber Court Condominium and its council members sued two unit owners of the condominium for allegedly defaming them on Facebook.

The High Court struck out the case after finding that a management corporation has no powers to do so under the Strata Titles Act 1985 and common law. The case went up to Court of Appeal and the Court agreed with the High Court’s views and dismissed the appeal (see Amber Court Management Corporation & Ors v Hong Gan Gui & Anor W-02 [IM] [NCVC] 1840-10/2014).

Last year, I also reported that the Federal Court in Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541 did not endorse Internet research by Judges on their own motion.

Notwithstanding that, in Siti Nur Syahira Binti Abdullah & Ors v Kamri Bin Jini & Ors (Civil Appeal No. KCH-12B-13/11-2014), the learned High Court Judge stated that he “googled” for certain information (at page para 10 – “Based on what I have googled, the width of a Kancil is 1395 mm [1.4 metres]).

WhatsApp and Yahoo Chat

Instant messaging has taken on new importance in legal practice and the courts.

In Mok Yii Chek v. Sovo Sdn Bhd & Ors [2015] 1 LNS 448, the High Court finally addressed the admissibility of WhatsApp messages. The learned High Court Judge found that such messages are a document under Section 3 of the Evidence Act 1950 and admissible if agreed to by both parties.

Even if one party doesn’t agree, such a document can be admitted in Court if it meet certain criteria. Such criteria includes whether there is oral evidence that the messages were produced by the computer in the course of the ordinary use of the computer (see Para 24). In this case, a screenshot of the messages would be admissible.

In Ram Kumar a/l Gopal Ram and Anor v Ram Kailash a/l Gopal Ram (Civil Suit No: 22NCVC-317-06/2014), the Court dealt with WhatsApp conversations.

In this dispute between two brothers over a piece of property, the elder brother and his wife (plaintiffs) alleged that they had an arrangement where they would buy the property in the younger brother’s name (defendant). They sought a court order to declare that fact.

However, the defendant claims that the property was bought as a wedding gift for him. In a bid to strike out the case, the defendant tried to use the WhatsApp conversation between the defendant and his sister-in-law against the plaintiff to strike out the case.

However, the Court held that the WhatsApp conversation was insufficient to show that the plaintiffs’ case was plain and obvious unsustainable.

In Alliance Bank Malaysia Berhad v. Amrou Bakour [2015] 1 LNS 666, the High Court Judge refused to grant a further adjournment on the ground that the defendant is uncontactable.

The Judge stated it is highly improbable that the defendant’s lawyer could not contact the defendant in this electronic age when communication can be effected instantaneously by telephone, facsimile, email, short message system (SMS), WhatsApp and other modes of electronic communications.

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.

The Court of Appeal held that the High Court ought to have considered the Yahoo Messenger Chat between her and one Dr Jossy, who was her boyfriend and had sent her to India to collect samples of children’s clothes.

The Yahoo Messenger Chat was sufficient to prove that Rina was an innocent carrier and she had no knowledge that she had been carrying drugs.

Our local court cases also revealed that Malaysian youth had been influenced through social media to join the Islamic State (ISIS) as fighters.

In Pendakwa Raya v Mohd Syafrein Rasid [2015] 1 LNS 943, the accused was charged under Section 130J of the Penal Code for attempting to support the Islamic State and attempted to be a member of the same.

It was revealed in this case that the accused was influenced by what he saw about the war in Syria on Facebook. He even joined a few WhatsApp groups which had members sharing information about the Islamic State and their movement in Syria.

He then decided to travel out from Malaysia to join the Islamic State but was caught at the Immigration counter at the Kuala Lumpur International Airport. He pleaded guilty and was sentenced to two years’ imprisonment.

New cyberlaws and amendments

The Malaysian Government has introduced the Sedition (Amendment) Bill 2015 which, among others, creates liability on website operators such as online forums, online news portals, and even Facebook page/ group owners.

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

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

Any person making or circulating the prohibited publication shall remove or caused to be removed that publication, or be prohibited from accessing any electronic device. Any person who fails to do so shall be guilty to a fine not exceeding RM500,000 or to imprisonment not exceeding three years, or both.

There is also news that the Communications and Multimedia Act 1998 will be amended but the details of the amendments are still vague.

However, the new amendments have also been rumoured to include harsher sentences and restrictions on social media users in posting comments or opinions online.

The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution.

Before the dispute on the legality of the sale of vaping products started, the Malaysian Government introduced a new law to prohibit the sale of tobacco products (Reg 10 Control of Tobacco Product (Amendment) Regulations 2015).

Any person who does so shall be liable to a fine not exceeding RM10,000 or imprisonment for a term not exceeding two years, or both. Any person who is thinking of launching a startup to sell and deliver cigarettes online can now bin that idea.

Online harassment

Last year I wrote about the passing of the Singapore Protection from Harassment Act 2014. Prominent blogger Xiaxue was the first or one of the first persons who took advantage of this new law by putting in an order against the operators of the satirical Facebook page SMRT (Feedback).

The Singapore Government tried to invoke the new law to protect itself from harassment but the Court held that the protection is not available to the Government (Ting Choon Meng v Attorney-General and another appeal [2015] SGHC 315).

Sadly, the Malaysian Government has not introduced such laws to protect individuals from harassment. It is noted that Section 233 of the CMA does provide some form of protection from harassment, but it is limited to electronic harassment which is obscene, indecent, false, menacing or offensive in character.

I later found out the Singapore anti-harassment law was ‘inspired’ by the online harassment against the son of prominent Malaysian bloggers Timothy Tiah and Audrey Ooi (Fourfeetnine).

In Ooi’s blog, she quoted the Singapore Minister of Law as stating: “In another case, cyberbullies targeted the baby of a blogger. The blogger had given birth prematurely because there was a life-threatening condition during the pregnancy. Cyberbullies called her baby an ‘alien’. They said the baby should be euthanised. This was really quite sickening behaviour. It comes from basic bullying instincts of some, unchecked by any notion of civil conduct, and aided by anonymity.”

It is unfortunate that our Government had not introduced any new law to address this problem, notwithstanding that such harassment is happening to fellow Malaysians.

Nevertheless, the Court of Appeal did recognise sexual harassment as an actionable tort – that means one can file a civil suit against the harasser instead of filing a report with the authorities such as the police or MCMC.

In Mohd. Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd. Nor [2015] 4 CLJ 295, the Court of Appeal held that sexual harassment falls within the category of tort of intentionally causing/ inflicting nervous shock.

With this case, it is arguable that harassment may be actionable in Court if it fulfils the element of tort of intentionally causing/ inflicting nervous shock.

Ride-sharing, other developments

The year 2015 finally saw the battle between app-based transportation network companies such as Uber and local taxis arriving in Malaysia.

On Aug 7 2015, Malaysia’s Land Public Transport Commission (SPAD) announced on its Facebook page that it had seized 12 cars alleged to have been providing public vehicle services without a licence, under Uber and GrabCar.

Local taxi drivers had also taken matters on their own hands by ‘arresting’ Uber and GrabCar drivers in the Kuala Lumpur City Centre (KLCC) area.

While the battle is still on going in Malaysia, the Singaporean Government introduced a new law called the Third-Party Taxi Booking Service Providers Act 2015.

The Act is designed for a ‘light-touch approach’ and imposes only the basic requirements necessary to protect commuter interests and safety, but at the same time it aims to preserve the fundamental tenets of Singapore’s taxi regulatory policies (see Third-Party Taxi Booking Service Providers Act 2015 Comes Into Force On 1 September 2015 by Drew & Napier, PDF).

In the lead-up to the Bersih 4 demonstration [which called for the resignation of Prime Minister Najib Razak as well as institutional reforms – ED], the websites bersih.org and sarawakreport.org were ordered to be blocked by MCMC on the grounds that they “violate national laws.”

Although the blocking order, purportedly under Section 263(2) of the Communications and Multimedia Act 1998, had been made for some time, activists and the media started to question MCMC’s moves. No actual offence needs to be committed but an attempt is sufficient to enable MCMC to act against a website.

Nevertheless, the block against bersih.org was subsequently lifted after its operator issued a letter of demand to MCMC to lift the block.

Nevertheless, I am made to understand that the amendment to CMA will include express powers to block certain websites.

In closing …

With the advent of the Trans-Pacific Partnership, we can expect more changes to our laws. The Trans-Pacific Partnership Agreement (TPPA), of which Malaysia is a signatory, will require signatories to amend their laws to comply with the provisions of the TPPA.

The TPPA includes a specific section on electronic commerce (e-commerce). For example, a signatory to the TPPA shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.

There are also provisions to deal with personal information, online consumer protection and electronic spam.


First published on Digital News Asia on 4 April 2016.

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