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The makers of Dallas Buyers Club, the award winning movie starring Matthew McConaughey and Jared Leto, have been aggressively going after online pirates in the United States, Australia and now, Singapore. What set their legal strategy apart from similar efforts in the past, what are the implications for privacy rights, and will internet service providers in Malaysia have to surrender subscribers’ information as well if they extend their litigation to our shores? Intellectual property and privacy rights lawyer Foong Cheng Leong explains.

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– Netizens are riled up over the blog that posted pictures of young Malaysian girls, many of them minors
– Determining which laws could be applied against the blogger in question is however a challenge
Bread & Kaya by Foong Cheng Leong

I AM sure many of you have read of the recent ruckus over the Sweet Young Malaysian Girls blog. It’s a blog which featured a compilation of pictures of young Malaysian girls that has now been deleted.

Fellow netizen Harinder Singh had exposed the person allegedly behind the blog (let’s call him the SYMG Blogger). You can read all about it at Harinder’s blog.

I must highlight that a person should not accuse someone of a crime or a wrongdoing without evidence, as it is defamatory. Such a person may claim that someone else has proven the crime or wrongdoing, but in the event that such person is sued in court, he will need to prove the crime or wrongdoing (i.e. to prove that it is true).

In the event that the person who exposed the crime or wrongdoing refuses or fails to attend court, the defendant may not be able to sustain his defence.

Furthermore, the law on electronic evidence in Malaysia is still developing. Many types of electronic evidence (such as emails or printouts) are ruled inadmissible by our courts. In this regard, to be on the safe side, if you can’t prove it, don’t repeat it.

Many people have asked me what the victims can do, in particular the girls who had had their pictures posted on the blog. Some are of the view that no crime had been committed and that the girls can only sue the person behind the blog for copyright infringement (i.e. a civil wrong).

Some proposed invasion of privacy. However, if the pictures were taken from blogs or social media accounts of the victims and were easily accessible, there may not be an action for invasion of privacy.

It also may not be an offence under Section 233 of the Communications and Multimedia Act 1998, which provides that a person commits an offence if he or she posts any content that is either indecent, obscene, false, menacing, or offensive in character with the intention to annoy, abuse, threaten or harass any person.

In this present case, the contents of the blog do not seem to indicate such an intention.

If the images were taken and posted on the blog without permission, the person would be infringing the right of a copyright owner. But note that copyright generally belongs to the photographer and not the person(s) featured in a picture unless the person(s) in the picture had commissioned the photographer.

Therefore, the victims may not have the right to sue the owner of the blog … unless it is a selfie!

Nevertheless, the Copyright Act 1987 provides for criminal sanctions against copyright infringers. Section 41(1)(c) of the Copyright Act 1987 makes it an offence to infringe a person’s copyright. This provision is normally used against people who sell pirated movie and music and recently, website owners who host pirated movies and songs.

However, this provision is wide enough to cover pictures. It is possible to prosecute a person for distributing pictures of others without permission, especially when it involves a massive number of pictures. Any person convicted under this provision is liable to fine of no less than RM2,000 and no more than RM20,000 for each infringing copy, or imprisonment not exceeding five years.

The SYMG Blogger may be possibly be charged under s. 41(1)(c) of the Copyright Act 1987 (and if so, he could have set a new legal precedent in Malaysia!)

Nevertheless, SYMG Blogger may claim a defence of fair dealing under the Copyright Act 1987. He may claim that the blog was created for the purpose of research. Thus, this probably explains the ‘social experiment’ explanation he has been trying to pull.

Whether he will succeed in this defence would depend on whether it is genuine research or merely an afterthought.

Notwithstanding the above, there were naked pictures of young girls in the blog. It is certainly an offence to post obscene pictures online (Section 292 of the Penal Code).

Then there is a question on whether reproducing an image which had already been reproduced in another page (e.g. by way of re-blogging) amounts to publication. If we follow Malaysian laws, reproducing an image through re-blogging is a publication of the image by the person who re-blogged it.

Unfortunately, I have been informed that none of the victims have made a police report. I am told that some girls do not want their parents to know. Unless a police report is made, the police will not start investigations.

Without a complainant, it will be very difficult for the Attorney-General’s Chambers to prosecute the case.

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The Plaintiffs initiated an action against Defendants for allegedly misappropriating their copyright by way of fraud and deception. The subject matters in dispute are proposals entitled “Malaysia’s 50 years an illuminating Journey”. The Plaintiffs alleged that the Defendants had secretly sent the subject matter to the Ministry of Culture, Arts and Heritage.

The Plaintiff claimed that their concept of “large format lightings, projections and special effects” for the purpose of outdoor audio visual performance is artistic works pursuant to the Malaysian Copyright Act 1987.

The High Court held that Plaintiffs failed to show evidence that such concept is their creation and it is original.

Case dismissed with costs to be taxed.

Download: [Judgement]

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For the past few months, an email has been circulating alleging that police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism) have started operations to search and fine anyone who keeps pirated discs inside their cars. The email alleges that these operations were carried out through roadblocks at main roads and expressways, and that persons caught in possession of pirated discs were fined RM400 per disc.

In fact, these stories have been circulating for some time now. A report in the Sun newspaper in April 2009 stated that the police set out roadblocks to nab anyone with pirated discs. However, the same report stated that the Ministry denied having such roadblocks being set up.

Whether or not such roadblocks have been set up, it leaves us with the question: Do the police or the Ministry have the power to search our vehicles for pirated discs?

Section 24 of the Police Act 1967 allows any police officer to stop and search without warrant any vehicle which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force. The Ministry has also authority to enter and search a vehicle without warrant provided that he has reasonable grounds for believing that delay in obtaining a search warrant would lead to the destruction of evidence.

Under section 41 of the Copyright Act 1987, it is an offence to possess, other than for private and domestic use, any infringing goods. Any person who has in his possession, custody or control three or more infringing copies of a work or recording in the same form is presumed to be in possession of such copies otherwise than for private or domestic use. This basically means that possession of a pirated disc for private and domestic use is allowed provided that the pirated disc do not exceed three or more copies of the same form.

The offence would attract a fine not less than RM2,000 and not more than RM20,000 for each infringing copy or imprisonment for a term not exceeding five years or to both.

Can the police or the Ministry stop and search your vehicle?

In short, for now, if the police or Ministry have reasonable grounds to think that you are distributing pirated goods, (e.g. if you’re suspected to be a pirated VCD/DVD seller), they can stop and search your vehicle. Otherwise, they have no authority to stop and search your vehicle for pirated discs.

This situation may soon change.

The Government recently announced plans to amend the Copyright Act 1987 to make it an offence to keep pirated goods, similar to the offence of possessing stolen goods. Although the Government has not announced the details of the amendment, such news is worrying. This basically means that anyone in possession of pirated goods is committing an offence. Hence, any police, with reasonable grounds that there are pirated goods in a vehicle, may stop and search the vehicle.

What if the driver had purchased genuine songs from the internet and had it copied into a CD? The driver would have to prove and explain that he had genuinely purchased the song.

If I had downloaded software, music or movies into my computer from the Internet, does the police or Ministry has the authority to enter my house and search my computer? Based on the proposed amendment, the police or Ministry has the authority to do so.

Guidelines to allow the authorities to stop and search a vehicle for pirated goods should be clearly spelled out and made available to the public. The public should be given the right to use or copy copyrighted materials for their private use. Certain levies or exemptions should be given to the public if they are in possession of pirated goods unintentionally.

An outright ban of unauthorised possession copyrighted materials will create fear and chaos to the country and society.

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]]> http://foongchengleong.com/wp/quick-throw-your-cds-away-there%e2%80%99s-a-roadblock/feed/ 0 37 http://foongchengleong.com/wp/hello-world/ http://foongchengleong.com/wp/hello-world/#respond Wed, 20 Apr 2011 11:01:55 +0000 http://foongchengleong.com/wordpress/?p=1 Published in The Star Newspaper on 8 January 2009. BLOGGING has become the new way of life of Malaysians. It is without doubt a new form of media where a large number of the public refer to these days in addition to the mainstream media. With this comes responsibility. It is settled that bloggers are […]

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]]> Published in The Star Newspaper on 8 January 2009.

BLOGGING has become the new way of life of Malaysians. It is without doubt a new form of media where a large number of the public refer to these days in addition to the mainstream media.

With this comes responsibility. It is settled that bloggers are liable for what they say and for what other people post on their blogs. The following laws are applicable to bloggers:

> Civil and criminal defamation;
> Sedition;
> Communication and Multimedia Act 1998; and,
> Copyright infringement.

The above list is not exhaustive and it is hoped that the following will serve as a short guide to minimise the risks of blogging.

One of the most common actions brought against website owners (which include a blogger) is a defamation suit. The definition of defamation is not a static concept.

It has been defined that a statement may be defamatory when it tends “to lower a person in the estimation of right-thinking members of society generally” or “to cut him off from society” or “to expose him to hatred, contempt or ridicule”.

Defamatory statements may not only arise from written postings but also from videos (embedded in the blog), pictures/drawings/graphics, sound and even hyperlinks. Recently, a Malaysian High Court held that a website owner is liable for a hyperlink posted by a commentor that links to a website containing a defamatory statement.

The consequence of being liable for defamation is grave. It can drain you financially and make you a bankrupt. It can even put you in jail if it falls under criminal defamation. Even a food review blogger can be subject to a defamation suit. Thus to avoid such problems, the following steps are recommended:

> Avoid potentially defamatory statements;
> Moderate comments;
> Identification of commentor’s details;
> Warning to commentors;
> Disclaimer;
> Disable Cache; and,
> Anonymity.

The most obvious, and the most important, step to take from being slapped with defamation action is to avoid defamatory statements.
Always ensure that what you write is true. If you are unable to verify the truth of a statement on your blog, junk it. Avoid criticising other people on your blog, as sometimes the criticism can be taken as defamatory.

Another type of entry you should avoid is rumour-based entries. It is advisable not to repeat a rumour made by others, unless you can prove it.

As mentioned earlier, what got many website owners into trouble is what their readers posted. And website owners are liable for comments made by other parties published on their website.
In this regard, website owners can be subject to an application to the court compelling them to reveal the identity of the commentor. It should not be much of a problem to website owners to reveal the identity, but sometimes the order goes a bit further than that.
For example, there were cases where website owners were compelled to reveal Malaysian identity card numbers of their commentors, and also slapped with costs payable to the complainant.

Thus, it is useful to set up a system to filter comments and require commentors to register themselves before they can submit comments. Alternatively, the website owner may have in place a stringent approval system where comments will only be posted upon approval.
Further, you may also reveal the details of the commentors such as their Internet Protocol (IP) address, time of posting and e-mail address on the website upon the posting of the comment.
By revealing such details, the commentors can be traced through their Internet service provider, etc. This may restrain commentors from posting malicious comments.

It would also be useful to place a warning stating that commentors are liable for what they say or that you will reveal their details to the authorities upon request. The warning can be fortified with a disclaimer, which could be useful to discourage defamatory statements.

The disclaimer can go along these lines: “The comments contained on this blog reflect the views of the author and do not in any way represent that of the owner of this blog.” This serves as notice that the views of the commentors are not shared by the blogger.
Many consider websites such as WayBack Machine and Google Cache as God‘s gifts to computer geeks. These websites keep a record of your website and are quite useful when you lose the contents of your website. You can retrieve some of your lost documents from there.

But this also means that anyone can retrieve anything deleted from your website, including defamatory statements that had been removed. But not to fear, for there is also a special option where you can stop these websites from keeping a record of your website.
If all the above fail to avoid a letter of demand or you just wish to have a carefree blog, then try blogging anonymously. This would include setting up a blog using a pseudonym with no trace of the person’s identity on the blog. Some do it for their own protection, and some do it so that they cannot be found.

Although distasteful, this allows bloggers to avoid being discovered and to post entries without any restriction. But if caught, they will suffer grave repercussion. In a recent Canadian court decision, anonymous electronic postings of defamatory material were not only actionable but would also warrant a high damages award.
With the upcoming High Speed Broadband (HSBB) rollout, we can expect more content-rich blogs. With this, the dissemination of information may expand to methods which are unknown to us now. There will therefore be new laws and challenges ahead.

Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.

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