Bread & Kaya: A look at Malaysian cyberlaw cases<\/strong><\/p>\n Foong Cheng Leong – A summary of the plethora of Malaysian cases involving the online world in 2013<\/strong> Bread & Kaya by Foong Cheng Leong<\/em><\/strong><\/p>\n I HAVE been summarising some interesting cases related to online disputes from around the world every year since 2011.<\/p>\n For a summary of 2010 cases, click\u00a0here<\/a><\/strong>; for 2011 cases click\u00a0here<\/a><\/strong>; and for 2012 cases, click\u00a0here<\/a><\/strong>.<\/p>\n Compiling legal cases is a hobby of mine. I recently published a compilation of Malaysian trademark cases under the title\u00a0Compendium of Intellectual Property Cases \u2013 Trade Marks<\/a><\/em>. This book consists of 70 reported and unreported Malaysian trademark cases.<\/p>\n 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!<\/p>\n Facebook and Twitter<\/strong><\/p>\n Facebook and Twitter related lawsuits have flooded the Malaysian Courts.<\/p>\n In\u00a0National Union of Bank Employees v Noorzeela Binti Lamin<\/a><\/em>\u00a0(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.<\/p>\n The defendant denied making such comments on Facebook, and claimed that his sister operated the Facebook account, also testifying that \u201cmaybe someone hack[ed] my Facebook [account].\u201d<\/p>\n 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.<\/p>\n 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.<\/p>\n In\u00a0Dato Seri Mohammad Nizar Bin Jamaluddin v Sistem Televisyen Malaysia & Anor<\/a><\/em>\u00a0(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\u2019s television news report of materials regarding the plaintiff\u2019s tweets on his Twitter account.<\/p>\n 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.<\/p>\n The High Court held that the plaintiff\u2019s 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.<\/p>\n 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.<\/p>\n It said the defendants\u2019 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.<\/p>\n Mohammad Nizar also initiated legal action against Malay-language daily\u00a0Utusan Malaysia<\/em>\u00a0for allegedly misreporting his tweets (see\u00a0Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Berhad\u00a0[2013] 1 LNS 592<\/a><\/em>). He succeeded and was granted, among others, damages of RM250,000.<\/p>\n The learned High Court Judge also commented that\u00a0Utusan Malaysia<\/em>\u00a0did not practice responsible journalism.<\/p>\n In\u00a0Salleh Berindi Bin Hj Othman v Ruslili Nurzahara Hassan<\/a><\/em>\u00a0(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\u2019s room.<\/p>\n 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<\/a><\/em>\u00a0(Kota Kinabalu High Court Suit No. K-22-134-2011)).<\/p>\n Salleh failed in both suits.<\/p>\n In\u00a0Nor Hayati Binti Ali v Wan Nuredayu Binti Wan Shaharuddin\u00a0& Ors<\/a><\/em>\u00a0(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.<\/p>\n The use of Facebook pages as evidence in court is becoming the norm these days. However, such evidence is not always acceptable.<\/p>\n In\u00a0Tan Swee Ean v Adrian Tan Soon Beng & Anor<\/a>\u00a0(<\/em>Penang High Court Divorce Petition No. 33-295-201)<\/em>, 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.<\/p>\n Sex bloggers \u2018Alvivi\u2019 (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\u00a0controversial \u2018Bah Kut Teh\u2019<\/a>\u00a0picture on their Facebook page, which allegedly insulted Muslims during the holy month of Ramadhan.<\/p>\n Blogs<\/strong><\/p>\n 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<\/a>.<\/p>\n His appeal to the Federal Court is now pending.<\/p>\n Pro-Umno blogger \u2018Papa Gomo\u2019 was also ordered to pay a businessman RM500,000 in damages over a defamation suit.<\/p>\n Forums<\/strong><\/p>\n Notwithstanding the\u00a0introduction of Section 114A<\/a>\u00a0(which makes website operators liable for their users\u2019 posts), there were not many lawsuits taken against forum owners.<\/p>\n However, in\u00a0Gloco Malaysia Sdn Bhd v Lam Ming Yuet<\/a><\/em>\u00a0(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.<\/p>\n The High Court dismissed the plaintiff’s action on, among others, the grounds that such postings were not defamatory.<\/p>\n 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.<\/p>\n Interestingly, one can be arrested for hosting links instead of hosting the content itself!<\/p>\n Wikipedia<\/strong><\/p>\n In the past, the Malaysian courts have referred to Wikipedia articles as evidence or guidance.<\/p>\n However, in\u00a0Ganga Gouri ap Raja Sundram Mohd Faizal Bin Mat Taib\u00a0<\/a><\/em>(Kuala Lumpur Civil Suit No. 21 NCvC-168-07\/2012), the High Court rejected evidence from a Wikipedia page used to rebut an expert\u2019s testimonial.<\/p>\n The Court highlighted that Wikipedia has a legal disclaimer stating that \u201cWikipedia 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.\u201d<\/p>\n In\u00a0Mycron Steel Berhad v Multi Resources Holdings Sdn Bhd\u00a0<\/em>(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\u00a0Subprime Mortgage Crisis<\/em>\u00a0because it was not evidence adduced at the trial or an authored publication on the subject.<\/p>\n However, in\u00a0Lee Lai Ching v Lim Hooi Teik<\/em>\u00a0[2013] 1 LNS 18, the learned High Court Judge downloaded a Wikipedia page relating legal issues on parental testing in other jurisdictions.<\/p>\n Closing<\/strong><\/p>\n 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:<\/p>\n 1)<\/strong>\u00a0Instigating 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.<\/p>\n 2)<\/strong>\u00a0Cyberstalking 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\u00a0here<\/a><\/strong>.<\/p>\n 3)<\/strong>\u00a0Disseminating gruesome images of victims. See my previous DNA article\u00a0here<\/a><\/strong>.<\/p>\n 4)<\/strong>\u00a0A law to absolve electronic platform providers (e.g. forums) from liability when a user makes an unlawful posting. The United Kingdom has\u00a0introduced the Defamation Act 2014<\/a>\u00a0to protect operators of websites.<\/p>\n
\nFeb 17, 2014<\/p>\n
\n – The Government still needs to look at legislation to address many other issues<\/strong><\/p>\n