By Foong Cheng Leong
- Challenges to Constitutionality of s. 233 Communications and Multimedia Act 1998
- Discovery of WhatsApp messages and marital privilege of the Evidence Act 1950
- A question of technical glitches & breaching of contractual obligations
- Singapore’s First Action against Unknown Persons on Cyberspace
2022 saw the final appeal and incarceration of our former Prime Minister, Najib Razak. The result of his case caused effects on various laws including cyberlaw. One of them is the reliance of Facebook postings by the Chief Justice’s husband announcing his personal views made four years ago to recluse the Chief Justice from hearing Najib’s final appeal at the Federal Court (Dato’ Sri Mohd Najib Hj Abd Razak v. PP & Other Appeals (No 3)  8 CLJ 387). The Chief Justice dismissed the application and held that there is “absolutely no nexus between the Facebook post and the present appeals”. As such, there is no real danger of bias..
Lawyers are now physically back in Court. Hearings at the High Court and subordinate courts are normally done through remote communication technology (i.e. Zoom) but for trials, it may be through a physical court hearing or remote communication technology. Meanwhile, hearings at the appellants courts are still conducted by way of remote communication technology.
However, our Courts are still reliant on the existing technology available to the general public. There is a need for a customised solution for the Court and lawyers in terms of remote communication technology. A customised solution for parties to view recordings and transcripts or see users’ activities (like a witness logging off while testifying in Court to avoid being questioned or consult third parties while giving evidence) would be one of the ideal features to be added.
In the digital assets front, we saw the rise of Non-Fungible Token (NFT) and this resulted in new legal cases being reported. Amongst these cases, the Singapore High Court in Janesh s/o Rajkumar v Unknown Person  SGHC 264 recognised that NFT is a form of property as it fulfils the four legal requirements of being a property, namely, definable, identifiable by third parties, capable in their nature of assumption by third parties and having some degree of permanence.
Whereas in Malaysia, it was reported that several investors were allegedly scammed in a Digital Currency Investment Scheme in (Chen Yook Bee & Ors v Neurogine Capital (L) Sdn Bhd & Ors ( 1 LNS 1832)) involving the sale and purchase of foreign currencies and cryptocurrencies. The 1st and 2nd defendants tried to strike out the action against them but they failed and the High Court ordered the matter to proceed to trial.
The interesting part is that the High Court recognised that digital currency and cryptocurrency are “currency held in digital form and/or there is no physical form and only exists online” and “exclusively digital currency that is based on the blockchain storage format” respectively.
Defamation through iMessage
In Pushparajan a/l R. Thachanamoorthy v Chin Wai Yee  1 CLJ 97, the High Court dealt with a case involving defamation through iMessage, the iPhone’s messaging application via an iCloud email address.
The plaintiff alleged that the defendant had sent a message to the former’s wife alleging that the former is having an extramarital affair. The defendant denied the allegation and she has never owned the iCloud email address.
Notwithstanding that the High Court found that the iMessage was defamatory and there had been publication, the High Court found that the plaintiff has failed to prove that the iMessage was sent by the defendant and the case was dismissed accordingly.
The plaintiff relied on s. 114A of the Evidence Act 1950 to impose a presumption that the iCloud email address was owned by the defendant at all material times. The defendant argued that the iCloud Email Address was not and has never been her email address and the screenshot iMessage had never displayed her profile picture nor her handphone number.
On top of that, it was also stated in the iMessage that ‘the sender is not in your contact list Report Junk’ which indicates that the sender is not in the contact list of the recipient’s mobile phone. The recipient had earlier testified that she had saved the defendant’s phone number in her phone. There was also no evidence to show that anyone had contacted the defendant through the iCloud email address. The Court found that there is a possibility that the iMessage may not even be sent by the iCloud Email Address user. In addition, the High Court denied the admissibility of the screenshot of the iMessage as the original message had been deleted by the recipient and could not recover the message.
Doctored video clip of a Court proceeding
[Ed Note: This judgment was written by the learned Judge on the grounds of public interest regarding the due administration of justice for members of the public, in particular practising advocate & solicitors, to be aware of the following adverse consequences in respect of the making and distribution of the doctored video clip. It does not, in any way, relate to the main dispute between the parties of this case.]
In Celcom (Malaysia) Bhd & Anor v. Tan Sri Dato’ Tajudin Ramli & Ors And Another Case (No 2)  4 CLJ 381, it was reported that a doctored video clip containing of an online Court trial was circulating online. The video purportedly shows four (4) “frames” of three (3) counsels with the High Court Judge. It was doctored to show that the learned Judge had admonished a counsel in a loud voice during the trial for asking a question on contractual interpretation, and the learned Judge had asked the court interpreter to record the time of the above matter so that he could complain to the Disciplinary Board against the counsel. However, the learned Judge was in fact speaking to another counsel whose video frame was deliberately omitted from the video clip.
The learned Judge was of the view that any reasonable person who has only watched the doctored video clip would form the view, opinion and/or belief that the court had unjustly dealt with the counsel by complaining to the Disciplinary Board about him merely because he had asked the witness regarding the interpretation of a contractual provision.
The learned High Court Judge said that any person making such video clip had breached the Court’s order not to make any recording of the online court trial. Any person who had abetted or assisted in the commission of the said act may be liable for contempt of court. It amounts to scandalizing the Court.
His Lordship also expressed the view that the making of the video clip is an offence under s. 233(1) of the Communications and Multimedia Act 1998 while the counsel who was seen to have been admonished by the learned Judge has a remedy for criminal defamation under section 499 of the Penal Code. The video clip has defamed the counsel by “visible representation” which was made and/or transmitted with the knowledge or reason to believe that the imputation concerning the counsel in the video clip would harm the counsel’s reputation.
Discovery of WhatsApp messages
In Court proceedings, a litigant may be entitled to request the Court to direct the other party to disclose documents for the purpose of the Court proceedings. In the past, such orders generally apply to documents and correspondences. However, such an order can include instant messages.
In Su Tiang Joo v Chai Ah Ming  1 LNS 2398, the High Court dealt with two (2) applications for discovery of WhatsApp messages under Order 24 rule 3 of the Rules of Court 2012 each filed by the plaintiff and defendant. The plaintiff sought for “All WhatsApp messages between the Defendant and participants in the WhatsApp Group Chat or WhatsApp Group Chat in relation to the tender exercises for the maintenance contracts with the Mines Residence Association (“MRA”) and / or mines MRA Services Sdn Bhd.”
As for the defendant, the defendant sought for, among others, the WhatsApp messages between the plaintiff and one Cornelius De Costa regarding a tender exercise and WhatsApp messages between the plaintiff and his wife.
In respect of the plaintiff’s application, the plaintiff’s counsel revealed the existence of a WhatsApp group that had discussed or apparently discussed the issues that are now pending before the Court. The plaintiff contends that the contents of what was discussed in this WhatsApp Group will assist him in his claim against the defendant or at the very least assist him in putting forward his potential measure of damages against the defendant if he is successful. The defendant on the other hand submitted that, among others, the application is merely a fishing expedition filed by the plaintiff and (ii) it is not necessary as he has given the documents in his possession that are relevant to the plaintiff’s solicitors. The defendant also contended that the statements contained in the WhatsApp discussions are not relevant for the purposes of this proceedings and the production of these documents is unnecessary and would be a waste of time and costs.
To determine whether the defendant’s contention is correct, the High Court directed that the defendant provide the document that is within his control that may fall within the purview of the discovery sought by the plaintiff pursuant to Order 24 rule 12 of the Rules of Court 2012. The High Court found that the WhatsApp communication does not contain any statements that are relevant for this proceeding. The High Court was of the view that the aforesaid WhatsApp messages are irrelevant for the determination of the suit.
As for the defendant’s application, the High Court held that the plaintiff’s WhatsApp messages between Cornelius De Costa does not exists and the WhatsApp messages between himself are subject to marital privilege pursuant to section 122 of the Evidence Act 1950.
Constitutionality of s. 233 of the Communications and Multimedia Act 1998
Since the introduction of s. 233 of the Communications and Multimedia Act 1998, various legal actions were made to challenge the constitutionality of this section. 2022 saw a number of attempts to challenge this section but the applicants were not successful.
In Teoh Kah Yong v Public Prosecutor  1 LNS 2982, the accused, popularly known as DJ Patrick Teoh, was charged under s. 233(1)(a) of the CMA for a posting he made on his Facebook page. Patrick Teoh sought to refer the following constitutional question to the High Court under s. 30 of the Courts of Judicature Act 1964-
“Whether ss. 233(1)(a) and 233(3) of the Communication and Multimedia Act 1998 are inconsistent with Article 5, Article 8 and Article 10 of the Federal Constitution and are therefore null, void and unconstitutional”
The Sessions Court dismissed the application and held, among others, the same issue had been determined and decided by the High Court in Norhisham Osman v PP (2010) 19 MLRH 662 and had passed the proportionality test and is reasonably clarified relying on the case of Syarul Ema Rena Binti Abu Samah v PP (2018) MLRHU 890. The Sessions Court Judge held that he is bound by the decision of the High Court cases. The High Court agreed with the decision of the Sessions Court.
The High Court further held that the purpose of s.233(1)(a) of the CMA is to criminalise the misuse of network facilities, network services and application services, particularly for the transmission of communications of an obscene, indecent, false, menacing or offensive in character with the intent to annoy, abuse, threaten or harass another person. This restriction was enacted to ensure public or moral order. The enumeration of the terms or objects which are offensive acts shows the clear intention of the legislature to limit it to such acts only. This cannot be construed as too broad or open for possible abuse by the authority as the individual act of the offender are still subject to evaluation and interpretation by the court as to whether the content or acts falls under the types of offensive content/acts in s.233.
The High Court also held that the accused’s argument that the vagueness of the section potentially criminalizes all comments on topics of public interest is not a valid argument. S. 233 applies only to a class of persons who use network facilities, network services and application services to make an obscene, indecent, false, menacing or offensive character with the intent to annoy, abuse, threaten or harass another person. It is not a total prohibition on all citizens and all acts but is subject to certain restrictions and limitations outlined in the provision of s. 233(1)(a) itself. The section is intended only to prevent abuse in order to preserve the importance of public order and to achieve reasonable morality.
Similarly, in Pendakwaraya v Sarajun Hoda Bin Abdul Hassan (Sessions Court Criminal Case No. AB-62CY-2-08/2021), the Sessions Court refused to refer the following constitutional question to the High Court for determination under s. 30 of the Courts of Judicature Act 1964
“Whether s. 233(1)(a) and 233(3) of the Communication and Multimedia Act 1998 are inconsistent with Article 8 and Article 10(2) of the Federal Constitution and are therefore null, void and unconstitutional.”
The accused argued that s. 233 is unclear, broad, vague and subjective. It does not provide adequate and fair criteria and/or standards with respect to prohibited restrictions. The Sessions Court dismissed this argument and held that s. 233 is a reasonable and fair classification to prevent the misuse of malicious communication networks in order to preserve public order and morals in Malaysia.
The accused also argued that the said s. 233 is too broad and may lead to abuse of power and allow arbitrary action by the authorities with respect to the power to arrest, investigate and prosecute. The Sessions Court dismissed this argument as it is not based on any facts or statistics or any form of evidence.
The Sessions Court also held that s. 233(1)(a) merely imposed a restriction on the freedom of speech and expression to prevent acts that prejudice public order, proportionate with the object that it intends to achieve and it is a specific restriction covering services, facilities and applications and the freedom of expression can still be practised so long it is within the parameters allowed by law.
The accused tried to rely on the Indian Supreme Court case of Shreya Singhal v Union of India [AIR] 2015 SC 1123 which held that s. 66A of the Information Technology Act of 2000 which is similar to s. 233 to be unconstitutional on the ground that it is vague and over-broad. However, the High Court in Syarul Ema Rena binti Abu Samah  MLJU 1128 had already rejected the application of this case. The Sessions Court further held that the accused failed to show how the decision of Shreya Singhal is suitable with the context of the state of this country.
Last year, I reported about the case of MISC Berhad v Cockett Marine Oil (Asia) Pte Ltd  MLJU 563 where the High Court held that clause to refer any disputes to arbitration is not applicable as the contract containing the clause was provided through a link in the footer of an email to the other side during negotiation (for more details, please refer here).
The Court of Appeal however had overturned the decision on separate reasons. Instead determining whether the arbitration clause applies, the Court of Appeal held that the correct position in law is as follows –
“Where a party challenges the existence of the arbitration agreement, the jurisdiction of the Court is to consider whether prima facie there is an arbitration agreement to resolve disputes. In this respect the jurisdiction of the Court is to decide if the issue on the existence of the arbitration agreement is in dispute and not merely a dubious or frivolous allegation.”
In this regard, the Court of Appeal held that it is the role of the arbitral tribunal to determine its jurisdiction and not that of the High Court. A party who is dissatisfied with the preliminary ruling on its jurisdiction may appeal to the High Court under s. 18(8) of the Arbitration Act. The High Court’s jurisdiction is limited to identifying whether there is prima facie existence of an arbitration agreement and once a prima facie determination is made the matter is to be stayed and referred to arbitration for a full determination on whether there is in fact a binding arbitrations agreement. In the present case, the High Court had exceeded its jurisdiction by purporting to determine conclusively not only that there was a prima facie case existence of an arbitration agreement but to make a factual determination that the same was not enforceable did not bind the parties.
In UOB Kay Hian Securities (M) Sdn Bhd v Lim Woi Keat  1 LNS 304, the Court dealt with the issue of whether a trader can take advantage of a technical glitch of an online share trading platform, whether the operator of such trading platform was under a contractual obligation to provide a share trading platform that was free from error, flaw, fault and/or defect and if so, whether there was a breach of such a contractual obligation.
The plaintiff operates an online multimarket trading platform/system by the name of UTRADE platform. The defendant is a user of the UTRADE platform with a trading limit of RM250,000. However, due to a technical glitch, his trading limit was unintentionally increased to approximately RM23,700,000. Notwithstanding the glitch, the defendant traded beyond his trading limit by placing orders via the UTRADE Platform and the plaintiff purchased shares based on the defendant’s orders.
Due to the fact that, the defendant had traded above his trading limit and he did not increase the collateral held by the plaintiff for purposes of holding the new shares, the plaintiff had forced sold the new shares and as a result of the force sale, the plaintiff incurred contra-losses of USD579,107.00 (not inclusive interest payable by the defendant). The defendant did not settle the contra-losses, the late payment charge and interest thereon.
The plaintiff claimed that the defendant took advantage of the unintentional increase of the trading limit caused by the glitch and had placed the said orders on his trading account which had thereafter resulted in losses.
The defendant contended that he is not liable for the contra-losses as he had “unintentionally” placed the said orders, he tried to cancel and/or stop the said orders by pressing the “Cancellation Button/Page” of the UTRADE System but was unable to do so; and the plaintiff ought to provide a share trading platform that is free from error, flaw, fault and/or defect.
The defendant counterclaimed against the plaintiff for alleged loss of USD579,110.76 and expenses of RM500,000.00 on the basis that, the plaintiff was negligent or failed to provide a share trading platform that was free from error, flaw, fault and/ or defect.
The first pertinent issue the Court had to deal with is whether the plaintiff’s terms and conditions of the Account Opening Form and the UTRADE platform are applicable to the defendant. Pursuant to the terms and conditions of Account Opening Form and UTRADE platform, the defendant is obliged to indemnify the plaintiff against all losses and expenses (and interest accrued thereon). If it applies, this will mean that the defendant is liable to indemnify the plaintiff for the losses and expenses incurred due to the execution of the said orders that were placed by the defendant, notwithstanding they were above his trading limit.
The Account Opening Form stated that the full terms and conditions of can be found in the plaintiff’s website. The High Court held that the terms and conditions of the Account Opening Form are applicable to the defendant as reasonable notice of the full terms and conditions of the Account Opening Form had been given before or at the time that the defendant signed the Account Opening Form and entered into a contract with the plaintiff. He could access the same by clicking on the hyperlink set out in the Account Opening Form. As such, the full terms and conditions of the Account Opening Form found in the plaintiff’s website were incorporated into and formed part of the Account Opening Form and hence was binding upon the defendant.
The High Court did not accept the defendant’s evidence that he had unintentionally and/ or erroneously placed the said orders beyond his trading limit. Evidence had shown the placement of an order is not something that can be done within a split second and in one click, the defendant placed the order at 3 different times in 3 different orders and transactions, and he had placed the order price higher than the last traded prices which demonstrated his intent to purchase the shares. Further, the 3rd order was made after being notified by the plaintiff’s remisier about the glitch.
As for the defendant’s attempt to cancel the first 2 orders, the High Court found that it was not done expeditiously. Further, the terms and conditions of the UTRADE stated that any request to cancel an order is not guaranteed by the plaintiff. An order can only be cancelled if the cancellation requestion is received and effected before an order is matched/executed.
In respect of the defendant’s counterclaim, the High Court dismissed it with cost as, among others, the glitch did not cause the said orders to be made. The defendant took advantage of the glitch and caused such shares to be purchased. The High Court also found that the plaintiff did not breach the contractual terms of the Account Opening Form and the UTRADE platform, there was nothing in there to show that it imposed an obligation on the plaintiff to provide trading platform that is free from error, flaw, fault and/ or defect. There was also nothing to show that there any clauses that could be void for restraining legal proceedings under s. 29 of the Contracts Act 1950.
Anti Fake News Order by Singapore Government against a Malaysian Entity
In LFL Sdn Bhd v Kerajaan Malaysia & Another Case  3 CLJ 634, the plaintiff sought to challenge a correction direction issued against it by the Singapore Minister of Home Affairs under the Singapore Protection From Online Falsehoods and Manipulation Act 2019 (POFMA). POFMA was enacted to prevent the electronic communication in Singapore of false statements of fact, to suppress support for and counteract the effects of such communication, to safeguard against the use of online accounts for such communication and for information manipulation, to enable measures to be taken to enhance transparency of online political advertisements, and for related matters. It has extra-territorial effect whereby certain offences committed by a person outside of Singapore shall be dealt with as if it had been committed within Singapore..
The plaintiff had issued a press statement on their website regarding the method of execution of death penalty in Singapore. According to the plaintiff, the article was issued in the public interest because there are many Malaysian citizens facing the death penalty at Changi Prison in Singapore and their fair and just treatment is a matter of public concern in Malaysia. The POFMA office notified the plaintiff that, among others, the article contained false statement and the plaintiff shall comply with the correction direction failing which amount to an offence under s. 15 of POFMA. The plaintiff could nevertheless apply to the defendant to vary or cancel the correction direction.
Instead of challenging the correction direction in Singapore, the plaintiff sought to challenge the correction direction in Malaysia, and this resulted in Singapore Minister of Home Affairs and Malaysian Government filing applications to strike out the action.
The High Court allowed the applications and held that the Malaysian Court has no jurisdiction to adjudicate on the validity of the POFMA. The High Court noted that the courts in Malaysia have adopted the theory of ‘restricted’ sovereign immunity rather than absolute sovereign immunity.
Absolute immunity would mean that any proceedings against a foreign state are inadmissible unless that state expressly agrees to waive such immunity whereas, restrictive immunity would mean that the immunity is only available in respect of sovereign activities or governmental acts (acta jure imperil) and not acts of a commercial nature (acta jure gestionis).
The High Court held that Singapore is clothed with sovereign immunity from jurisdiction of the Malaysian Courts, and the act of the Defendant in issuing the correction direction pursuant to the provisions of the POFMA was an act undertaken by the authority of sovereign state of Singapore. This is clearly a governmental act (acta jure imperii) and therefore protected by sovereign immunity.
Singapore’s First Action against Unknown Persons on Cyberspace
In CLM v CLN and others  SGHC 46, the plaintiff had commenced an action to trace and recover 109.83 Bitcoin (“BTC”) and 1497.54 Ethereum (“ETH”) (collectively, the “Stolen Cryptocurrency Assets”) that were allegedly misappropriated from him by unidentified persons (ie, the first defendants), a portion of which has been traced to digital wallets that were controlled by cryptocurrency exchanges with operations in Singapore (ie, the second and third defendants).
The Court granted the plaintiff an ex parte proprietary injunction against the first defendant from, among others, dealing with the Stolen Cryptocurrency Assets, and a worldwide freezing injunction. The Singapore High Court dealt with two (2) interesting and novel points of law.
First, can stolen cryptocurrency assets be the subject of a proprietary injunction?
Second, does the court have jurisdiction to grant interim orders against persons whose identities are presently unknown?
In respect of the first question, the Singapore High Court held that there is nothing in their Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”) that requires a defendant to be specifically named. O 2 r 1 of the ROC expressly provides that even if the commencement of proceedings against persons unknown contravenes the ROC, such a contravention is treated as a mere irregularity, and will not result in the nullification of proceedings unless the court exercises its discretion to order the same.
Like how our Court had relied on O. 89 of the Malaysian Rules of Court 2012, the Singapore High Court held that O. 81 of the ROC allows for a reference to persons unknown in summary proceedings for possession of land.
Hence, the Court held that it has the jurisdiction to grant interim orders against the first defendants, who are persons unknown.
Interestingly, the Singapore High Court referred to our High Court case of Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor  7 MLJ 178 which had quoted my commentary in para [8.098] to [8.100] of my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” regarding actions against persons unknown.
Further, the Singapore High Court held that the description of the first defendant must be sufficiently certain as to identify both those who are included and those who are not. In the present case, the plaintiff has sufficiently defined the first defendant as “any person or entity who carried out, participated in or assisted in the theft of the Plaintiff’s Cryptocurrency Assets on or around 8 January 2021, save for the provision of cryptocurrency hosting or trading facilities”.
In respect of the second question, the Singapore High Court held that there is a serious arguable case that the plaintiff has a proprietary interest. Cryptocurrencies are a form of property. The Singapore High Court held that the balance of convenience lay in favour of granting the proprietary injunction.
If it were not granted, there would be a real risk that the first defendants would dissipate the Stolen Cryptocurrency Assets, which would prevent the plaintiff from recovering those assets even if he successfully obtained a judgment in his favour. Conversely, even if the plaintiff’s case were later refuted, the first defendants would only suffer losses arising from their inability to deal with the Stolen Cryptocurrency Assets, which could be compensated by way of damages. For more details about the case, please click here.
In 2023, we can expect more interesting developments in the cyberlaw and IT sphere.
- The use of AI based software such as ChatGPT is steadily increasing and even made it mark in an Indian Court’s grounds of judgment. In Jaswinder Singh @ Jassi v State of Punjab and another (2023:PHHC:044541), the Court reproduced a result from a question regarding jurisprudence on bail for assault with cruelty. The Court said that the reference to ChatGPT is only intended to present a broader picture on bail jurisprudence, where cruelty is a factor.
However, the use of ChatGPT by a lawyer in the United States caused trouble to himself and his law firm. In Mata v. Avianca, Inc. (1:22-cv-01461), a lawyer presented cases provided by ChatGPT which are not in existence to the District Court of New York. This resulted in a show cause notice being issued to him. He and his firm were later fined US$5,000 (RM22,935).
- Stalking is finally criminalised in Malaysia. Beginning 31 May 2023, under s. 507A of the Penal Code, whoever repeatedly by any act of harassment, intending to cause, or knowing or ought to know that the act is likely to cause, distress, fear or alarm to any person of the person’s safety, commits an offence of stalking, and is liable to imprisonment for a term which may extend to three years or with fine or with both. Such act of harassment includes communicating or attempting to communicate with a person in any manner or by any means. Electronic communications such as instant messages and emails would fall under this category.
- Messaging service provider, Telegram’s alleged refusal to engage with the Ministry of Communications and Digital over several complaints of pornography and sale of drugs on the platform raised the issue of what the Ministry can do against Telegram. I commented that the Government has the power to block access to a platform through s. 263 of the Communications and Multimedia Act 1998. However, our laws are not adequate enough to deal with online harm. Singapore has already introduced numerous provisions to deal with online harm and this includes, the POFMA, Protection From Harassment Act (POHA) and the upcoming Online Criminal Harms Bill.
Our statutory provisions governing cyberlaws are outdated. We cannot rely on ss. 211, 233 and 263 of the Communications and Multimedia Act 1998 and the Penal Code to deal with cyber offences. The punishments provided by these statutes are usually fine and/or imprisonment.
The use of these provisions is sometimes akin to killing a fly with a sledgehammer. Cyber offences or those involved in the same may be dealt with through other means, such as, issuance of enforcement notice, imposing financial additional obligations or sanctions, and throttling of access to platforms.