Nor Hayati Binti Ali v Wan Nuredayu Binti Wan Shaharuddin & Ors

Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law

I am happy to announce that my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” is available for pre-order. This is my third book. It started off with a compendium of cases but subsequently evolved into a textbook. It took me about a year to restructure the contents into a textbook.

This book was inspired by the case of PP v Loh Guo Shi [2016] 1 SMC 190. My learned friend, Lim Chi Chau and I represented the accused when he was charged under s. 5 of the Computer Crimes Act 1997. He was accused of deleting his employers’ database. 

When the case came to us, there was no reported case under Computer Crimes Act 1997 nor any local textbooks that could help us in defending his case. All I had was the book Electronic Evidence by Stephen Mason. This book was recommended by Justice Tan Sri Dato’ Mohamad Ariff Yusof (as then he was) when I had a trial before him. 

Fortunately, when I read the documents provided by the prosecution, I saw flaws in the prosecution’s case. One of them was the issue of Internet Protocol (IP) address. I looked at the year of the alleged offence and I realised that the accused was using a Telekom streamyx account. In that year, a streamyx account can be accessed anywhere so long a person has the login and password. During the trial, we got the witness from Telekom Malaysia Berhad to agree with us. There was no evidence that the accused had log on to his account during the time of offence. Further, by reading the log files provided by the prosecution, we discovered that there was a break in the chain of evidence.

The learned Magistrate, Puan Aminahtul Mardiah, acquitted the accused without calling his defence. The High Court had also dismissed the prosecutor’s appeal. The details of this case are also reported in this book. 

I would like to believe that we freed an innocent man by using knowledge beyond the law. By writing this book, I hope to help those who face the same or similar predicament as us. 

Overview

As technology evolves at lightning speed and digitalisation spreads across businesses and people’s lives, a new perspective and a new approach is needed to tackle the issues that come along with emerging technologies. It is natural to expect more and more cases relating to cyberlaw and information technology to be filled in court and even more so to expect digital evidence to be tendered in court.

Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law is the only book on cyberlaw and electronic evidence in Malaysia. Carrying more than 200 local cases and some selected foreign cases with commentaries, this publication looks at areas that have evolved in the digital sense such as civil issues like defamation, privacy and copyright. Current and very much relevant issues such as instant messages, social media postings, admissibility of electronic evidence in industrial relation disputes and digital asset cases are also discussed. Chapters have been devoted to legal practice and technology, the digital economy, electronic signature and electronic commerce.

This illuminating text provides valuable guidance in emerging areas of law. Its structure is held together by a carefully crafted set of headings to ensure that the text is easily accessible. The inclusion of references to many previously unreported cases, including some decisions of the Sessions Court, certainly lends depth to the analysis and discussion in this book.

This practical title is useful for litigators who are involved in matters concerning electronic evidence, information technology and cyberlaw and will be a valuable guide through its carefully structured commentary and insightful analysis.

CONTENTS:

  1. Civil Matters
  2. Cybercrime
  3. Admissibility of Computer-Generated Documents
  4. Presumption of Fact in Publication
  5. Instant Messages, Social Media Postings & Other Electronic Evidence
  6. Electronic Evidence in Industrial Relation Disputes
  7. Electronic Evidence in Family Disputes
  8. Discovery
  9. “.MY” Domain Names
  10. Legal Practice and Technology
  11. Digital Economy
  12. Electronic Commercial Transactions
  13. Electronic and Digital Signatures
  14. Digital Assets
  15. E-Commerce

You may purchase the book at Sweet & Maxwell’s website or any selected book stores.

Bread & Kaya: A look at Malaysian cyberlaw cases

Bread & Kaya: A look at Malaysian cyberlaw cases

Foong Cheng Leong
Feb 17, 2014

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

Bread & Kaya by Foong Cheng Leong

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

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

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

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

Facebook and Twitter

Facebook and Twitter related lawsuits have flooded the Malaysian Courts.

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

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

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

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

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

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

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

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

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

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

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

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

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

Salleh failed in both suits.

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

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

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

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

Blogs

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

His appeal to the Federal Court is now pending.

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

Forums

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

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

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

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

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

Wikipedia

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

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

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

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

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

Closing

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

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

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

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

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

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


First published on Digital News Asia on 17 February 2014.

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