Ogawa World Bhd & Anor v Ch’ng Wai Loong

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.

What lies ahead for social media

Published in Putik Lada column, The Star on Friday February 3, 2012

It is going to be a tempestuous year with more developments in the social media scene, and a digital war may erupt between Internet users, companies and governments.

MALAYSIA’S social media sphere hit a milestone last year. Facebook users reached 12 million in Malaysia as at Decem­ber and Twitter users reached about 470,000 as at October.

Defamation actions and criminal charges against people for alleged misuse of social media have also become normal. There have been interesting developments in the social media and Internet legal scene.

Last year saw an increase in the use of social media by the legal profession to market their services. Some lawyers, law firms and courts have their own Twitter accounts.

Former Bar Council president Datuk Ambiga Sreenevasan (@Ambiga_S) has over 6,000 followers, international law firm Allen & Overy (@AllenOvery) has more than 6,600 followers and the US Supreme Court (@USSupremeCourt) has 23,000 followers and counting.

With such extensive use by legal practitioners, the Law Society of England and Wales issued a practice note for the use of social media by lawyers.

Back home, Cybersecurity Ma­­laysia introduced a new Internet guideline called Best Practice on Social Networking Sites (SNS).

The guideline is used as acceptable practices in usage of SNS with heightened ethics as well as in protecting the security of users and privacy needs. It is very useful for companies as guidance when drafting their social media policies.

Interestingly, the High Court of Malaya recognised that misappropriation of a domain name by a former employee is actionable under conversion of and trespass to property and breach of fiduciary duty in the 2008 case of Ogawa World Bhd & Anor v Ch’ng Wai Loong.

Normally, misappropriated Top Level domain names are recoverable through the WIPO Arbitration and Mediation Centre.

In Canada, the Su­­preme Court of Canada in Crookes v Newton (2011) delivered an important decision on the status of hyperlinks.

The Court held that creating hyperlinks to allegedly defamatory articles does not amount to a publication of defamatory information.

In India, the owners of a hotel sued Google over the auto-complete function on its search engine for defamation. When users typed the hotel’s name into Google, the word “receivership” is a suggested search term. However, the suit was later withdrawn.

“Who owns your followers?” was an issue to be determined when mobile phone website PhoneDog sued a former employee, writer Noah Kravitz, over the 17,000 Twitter followers that he had built up on a Twitter account called @PhoneDog_Noah.

Noah filed a motion to dismiss PhoneDog’s case but the US District Court ruled that PhoneDog could proceed with the lawsuit.

Many commentators are of the opinion that PhoneDog should have established a social media policy to determine the issue of ownership of the Twitter account when the account was created.

In a similar case, Eagle v Edcomm, Inc, et al., the Plaintiff sued her former employer for allegedly misappropriating her LinkedIn account.

Facebook had a busy year in 2011. Friendster repositioned itself as a social gaming site and discontinued its user social network accounts, leaving Facebook with one less competitor. However, Google introduced a new social networking site, Google Plus.

Facebook was subjected to a thorough and detailed audit by the Office of Irish Data Protection Commissioner, which gave a dozen recommendations for how Facebook can improve privacy protection and data-handling practices. The audit report is available online in the interest of transparency.

Last year also saw the battle for Facebook page www.facebook.com/Merck. Merck KGaA, a German drug maker, suddenly lost its Facebook page to US rival Merck & Co.

Merck KGaA initiated an action against Facebook for details on how the page was lost. Facebook subsequently apologised to Merck KGaA for the mix-up.

We all know that it is very difficult to remove information published online. Some argue that confidential information posted online will lose its quality of confidence.

However, in AMP v Persons Unknown (2011), the UK High Court granted a superinjunction to restrain the further publication of stolen intimate pictures of a woman which were leaked online.

Arguably, this case implicitly determined the position of confidential information which has been leaked online.

On the criminal front, a US Federal Judge in USA v William Lawrence Cassidy dismissed a criminal case against Cassidy for “tweet stalking” a religious leader on Twitter.

Cassidy allegedly posted 8,000 tweets, almost all of them about the leader and her religious group, which caused the leader to claim that she had suffered “substantial emotional distress”.

The Judge held that although the tweets were uncomfortable, Cassidy’s right to tweet was protected under the US Constitution.

This year will see more developments in the social media legal scene. We may also see more Internet censorship and crackdowns on websites for sharing files – just like what happened to MegaUpload.

As a result, a digital war may erupt between Internet users and companies and governments. It is going to be a tempestuous year ahead.

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