Does Malaysia have laws to nix ‘offensive’ brand names or ones that cause ‘public anxiety’? Lawyers explain

I was asked by The Malay Mail to give my thoughts on the issue of the word TIMAH by a local whisky brand. The Government has asked the brand owner to consider to change its brand name in view of the alleged public outcry over the use of a Malay word for an alcoholic product. I said-

How companies could navigate the use of brand names

Foong Cheng Leong, who is also a co-chair of the Bar Council’s Intellectual Property Committee, told Malay Mail: “Businesses in Malaysia are generally free to use whatever brand name they want on their goods and services so long that, among others, it is not a brand name of another person or a confusingly or deceptively similar one, or a false trade description.

“For certain industries, prior approval is required from local government/agencies. For example, a name of a property development would need approval from the local council,” he said, adding that he is not aware of any name approval requirement for alcoholic products.

Foong also noted that a trademark could still be used even if it is not registered, noting that the registration of a brand name with MyIPO “is merely a process to protect the mark from being infringed by a third party”.

“MyIPO has the right to object to the registration of a mark that is offensive or scandalous, or against morality, among others. However, the non-registration of a trademark does not prohibit the use of a trademark. The effect is only that they do not get protection under the Trademarks Act 2019,” he said.

“When it comes to using a name that could cause fear or alarm to the public or against public tranquility, Section 505(b) of the Penal Code may be relevant. However, I am not aware of this section being used against anyone using a brand name that has caused public anxiety.

“A use of a brand name is a commercial decision. One would use a name that would attract customers and certainly not a name to cause public anxiety,” he added.

Section 505(b) covers the crime of making, publishing, circulating any statement, rumour or report with intention to cause or which is likely to cause fear or alarm to the public or to any section of the public where any person may be induced to commit an offence against the state, or with such statements being against public tranquility.

When asked if companies should avoid using the Malay language altogether for brand names to avoid possibly causing public anxiety in Malaysia (including in the context of race and religion), Foong replied: “There is no issue in the use of Malay words as a brand name. Many Malaysians are proud to use Malay words as their brand name to show that their goods and services are from Malaysia.”

“However, the Timah case has shown us that there is a limitation to such use. It seems to me that it is not so much on Muslims being confused but rather the use of Malay words on products prohibited by religion e.g. alcoholic products. I do not think that there is an express prohibition by law on this.

“But historically, there had always been a prohibition on use of religious words or words which connotes religious meaning on all forms of publication.

“Nevertheless, I think brands would now need to rethink their strategy, especially when using local names on products which are prohibited for consumption by religion or custom,” he said.

BFM Podcast: SONG CATALOGUES UP FOR SALE



Once upon a time, it was considered totally unacceptable for musicians to even consider selling their song catalogues, but now, we see a trend of musicians, especially the senior ones, doing so. Some have cited estate planning as one of the reasons for doing this, but surely, these songs have value too and can be kept and passed on to their family members? Lawyer Foong Cheng Leong joins us on the show to share his take on this trend.

Produced by: Daryl Ong, Haniff Baharudin
Presented by: Daryl Ong, Haniff Baharudin

Bread & Kaya: Practical tips to ensure your electronic contracts are enforceable

By Foong Cheng Leong and Mira Marie Wong and Nur Faiqah Nadhra

– Court decisions on thorny issues of hyperlinked agreements’ enforceability
– Heavy price to pay for not reading online terms of any commercial agreement
– 8 practical tips to ensure that your electronic contracts are enforceable
– Tracking mechanism to track if counterparty accessed terms and condition

These days, many businesses no longer print or provide their entire contract to their customers or suppliers. It is relatively commonplace for businesses to point their contracting partners to the terms contained on a website, i.e. through a hyperlink.

We can see these in application forms, emails, and even in physical or electronic contracts. With the advent of the Covid-19 pandemic, it would be beneficial for businesses to adopt electronic contracts, particularly using hyperlinked contracts or terms, rather than physical contracts.

It creates convenience, not only are they great for easy drafting but it makes editing documents a breeze, it is an attempt to achieve a much more friendly and acceptable clientele experience within business.

However, there are certain issues to be looked at when adopting the use of hyperlinked contracts or terms. One of such situations would be where the contracting parties each have their own terms of engagement with reference to their own hyperlinked contracts or terms. Without a signed contract, this poses a dilemma which contract or terms would apply.

This article addresses the measures businesses may use to incorporate a hyperlink successfully and the current state of law in disputes involving contracts or terms incorporated by reference by way of a hyperlink. Therefore, we will look into the cases below to see how the courts deal with such a dilemma.

English Law Position

In tackling the enforceability of whether the electronics terms and conditions form part of the agreement, the English courts critically analyzed whether a party had taken reasonable steps to ensure that its terms and conditions had been brought to the attention of the other side. The two following courts had based their focus on the conspicuousness of the terms.

In Impala Warehousing v Wanxiang Resources [2015] EWHC 25, Impala issued a warehousing certificate in respect of Wanxiang’s goods pledged to a bank as security. The warehouse certificate was then endorsed to Wanxiang after the sum advance by the bank had been paid off. A dispute arose thereof and parties disagreed where the matter ought to be adjudicated. The back of the warehousing certificate contains a term stating that its latest version of its terms and conditions is posted on its official website. The website contains an agreement stating that, among others, the governing law of the matter is English law and the English court shall have exclusive jurisdiction to adjudicate the matter.

In deciding whether the English court has exclusive jurisdiction, the English High Court held that as a matter of English law where terms are incorporated it must be shown that the party seeking to rely on the conditions has done what is reasonably sufficient to give the other party notice of the conditions. The learned Judge found that the first page of the warehouse certificate contains a clause stating that all disputes shall be subject to Impala’s terms and conditions. At the base of the page the reader is invited to refer to the reverse of the page for additional conditions. On the reverse, the reader is referred to Impala’s website for its terms and conditions.

Thus, the holder of the warehouse certificate knows that the certificate is subject to Impala’s terms and conditions. The High Court held that these steps taken by Impala were reasonably sufficient to give the holder notice of condition. In this day and age when standard terms are frequently to be found on websites, the High Court considered that reference to the website is a sufficient incorporation of the warehousing terms to be found on the website.

Cockett Marine Oil DMCC v Ing Bank NV & Anor [2019] EWHC 1533, on the other hand, involves a challenge of two arbitration awards on the ground that the arbitral tribunal had no jurisdiction. The tribunal held that it had jurisdiction because the terms of the contract between the parties included a London arbitration clause. The claimants had agreed to purchase bunkers from the defendants in two separate transactions. The defendants, being the sellers, had earlier sent a mass email to their customers enclosing their terms and conditions which contained the London arbitration clause which provides for the jurisdiction of the arbitral tribunal in London in the event of a dispute. The parties had a dispute and the defendants brought the matter to arbitration.

In one of the two transactions, it was done through an exchange of email. The defendant sent a copy of its sales order confirmation which contained the particulars of the sale and purchase. The email also stated that “…The fixed terms and conditions are well known to you and remain in your possession. If this is not the case, the terms can be found under the web address [to the defendant’s terms and conditions]”.

The English High Court held that the defendants’ terms and conditions apply to the contract for the supply of bunkers and therefore the arbitral tribunal has jurisdiction. The High Court found that the claimants were aware of the defendants’ terms and conditions since the defendants had taken steps to inform their customers, including the claimants, regarding the defendants’ terms and conditions by way of the said mass email. In respect of the transaction involving the email exchange and sales confirmation order, the High Court further held that the claimant could access the defendants’ terms and conditions by clicking on the hyperlink in the sales order confirmation.

Malaysian Court’s position

Our Court’s approach in assessing whether the hyperlinked contract or terms is similar to the English court’s position. Essentially, there must be a clear and concise notice informing the reader that their hyperlinked contract or terms apply. Therefore, parties who wish their hyperlinked contract or terms to be incorporated must ensure that they provide an avenue for the user to read the terms of the agreement. Simply inserting a hyperlink to the terms and conditions may not be effective in making them form part of the overall contract. The following recent court decisions highlighted the thorny issues of hyperlinked agreements’ enforceability in businesses in whether or not it could be incorporated by reference.

In Able Food Sdn Bhd v Open Country Dairy Ltd [2021] 7 CLJ 716, the plaintiff, a Malaysian company, sued the defendant, a New Zealand company, for alleged breach of contract(s) in, among others, supplying instant whole milk powder of unmerchantable quality. The plaintiff demanded, among others, special damages and general damages for loss of profit and loss of market.

The defendant challenged the jurisdiction of the High Court in Malaysia to hear the dispute on the ground that the parties had submitted to the exclusive jurisdiction of the courts in New Zealand. In this regard, the parties had entered into seven (7) sales contracts. Each of the sales contracts (except for one) contains an endorsement with a hyperlink to its terms of trade (“Terms of Trade”) and it reads as follows: “http://opencountry.co.nz/termsoftrade

The Terms of Trade form part of this contract for sale and the parties agree to comply with the Terms of Trade in performing their obligation under this contract. Please be advised that OCD has modified its Terms of Trade please consult the attached terms.”`

The defendant argued that their “Terms of Trade” were incorporated by reference in each of the sales contracts wherein the parties had agreed that New Zealand law would apply and the parties are subject to the exclusive jurisdiction of the courts in New Zealand (hereinafter referred as the “choice of law and jurisdiction clauses”).

The High Court ([2021] 4 CLJ 614) held that the choice of law and jurisdiction clauses were not incorporated in the contracts because the Terms of Trade were not attached to the sales contracts, among others.

However, on appeal the Court of Appeal overturned the High Court’s decision and held that the choice of law and jurisdiction clause was, in fact, incorporated into the sales contracts.

In regard to whether the Terms of Trade were incorporated by reference, the Court reiterated the following basic principles of the law of contract:-

  1. To incorporate a binding term, reasonable notice must be given either before or at the time the contract was made (Olley v Marlborough Court Hotel [1949] 1 KB 532 CA).
  2. The terms incorporated should be located in a document where terms are expected to be printed (Chapelton v Barry Urban District Council [1940] 1 KB 532 CA).
  3. Whether or not the parties had read the terms, contractual documents signed by the parties would automatically be considered as binding (L’Estrange v F Graucob Ltd [1934] 2 KB 394).
  4. Reasonable steps must be taken by the party who inserted the term to bring it to the attention of the other party (Parker v South Eastern Railway Company [1877] 2 CPD 416).

The Court of Appeal found that the parties had a course of dealings. In all the sales contracts (issued by the defendant and duly accepted/signed by the plaintiff without any comment, modification, or qualification), it was clearly stated that the Terms of Trade formed part of the contract and that parties agreed to comply with the Terms of Trade in performing their obligations under the contracts. The endorsement in each of the sales contracts referred to a hyperlink, to wit, http://opencountry.co.nz/termsoftrade. The Terms of Trade could be found in the hyperlink. The plaintiff, for whatever reason, did not click on or look up the hyperlink. But that does not mean that the Terms of Trade, which are contained in the hyperlink, do not apply.

The Court of Appeal held that the burden was on the plaintiff to look up the Terms of Trade via the hyperlink. The failure on the plaintiff’s part to do so is akin to a contracting party not bothering to avail themselves of the terms, and to read and understand the same, with the benefit of legal advice or otherwise.

The plaintiff argued that the defendant was under a duty or obligation to furnish them with a copy of the Terms of Trade. The Court of Appeal was of the view that there was no such duty or obligation as the Terms of Trade were, as the defendant put it, just a “click away”.

The Court of Appeal found that notice of the Terms of Trade was given at the time when the contract was formed, and it was referred to in a document (Sales Contract) that one would reasonably expect to contain contractual terms. The express notice was given to the plaintiff that the Sales Contracts were subject to the Terms of Trade, which was accessible via a hyperlink provided. There was no ambiguity whatsoever as to where the Terms of Trade were located. Thus, the Court of Appeal was satisfied that the defendant had fulfilled the requirement of having taken reasonable steps to bring the Terms of Trade to the plaintiff’s attention and incorporating it in the Sales Contracts.

Additionally, during product purchase by the plaintiff, it is apparent that there is an exclusive jurisdiction clause. Therefore, the Malaysian Court is obliged to give effect to the exclusive jurisdiction clause unless the plaintiff, as the party sought to avoid the application of the clause, is able to establish that there are exceptional circumstances to justify the contrary. Since there was no convincing evidence to show that the plaintiff has an exceptional circumstance to exclude the express choice of jurisdiction, the most appropriate jurisdiction to hear the dispute would be in New Zealand.

The Court of Appeal further stated that although it would seem unfair in the plaintiff’s perspective to file the action in New Zealand, however, it is what they had agreed upon when they had signed the contract, and so if any inconvenience were to be faced by the plaintiff, it would merely amount to the consequences of their agreement.

In MISC Berhad v Cockett Marine Oil (Asia) Pte Ltd [2021] MLJU 563, the plaintiff had invited tenders for the supply of bunkers via email and in the email, the plaintiff had attached their proposal form and terms and conditions (“the Plaintiff’s Terms”).

In the body of the said email under the heading “Important Note”, the plaintiff set out terms and conditions of the purchase attached to the email. The Plaintiff’s Terms stated that the provisions of the agreement shall be subject to, construed, and interpreted in accordance with the laws of Malaysia, and the parties hereto submit to the exclusive jurisdiction of Malaysian courts.

In addition, the Plaintiff’s Terms stated that the Plaintiff’s Terms constitute the entire agreement between the parties and no modification would be effective unless in writing and signed by both parties.

After a series of emails were exchanged between the parties, the tender was awarded to the defendant. The plaintiff contended that the contract was concluded on the Plaintiff’s Terms when the parties agreed on the price. The defendant, on the other hand, contended that the contract was made on its terms as the defendant’s emails carries a hyperlink to the defendant’s website containing the Fuel Supply Terms & Conditions (“the Defendant’s Terms”) at its footer.

The parties made the necessary arrangements to perform the contract to supply bunkers to the plaintiff by the defendant (“Supply Contract”). The supply went into trouble when the bunkers were detained by the Malaysian Maritime Enforcement Agency for potential offences. The plaintiff then terminated the Supply Contract on the grounds that the defendant was in breach of its obligation to deliver the bunkers free of claims and encumbrances.

After the bunkers were released by the Malaysian Maritime Enforcement Agency, the parties’ solicitors had commenced negotiation with reference to the Plaintiff’s Terms. The negotiation failed and the plaintiff initiated proceedings against the defendant in the High Court of Malaysia for damages arising from the defendant’s alleged breach of contract. The defendant, however, commenced arbitration proceedings in London and consequently sought a stay order pursuant to section 10 of the Arbitration Act 2005 and challenged the jurisdiction of Malaysia’s High Court. In response, the plaintiff applied for an anti-arbitration injunction on the grounds that the English courts have no jurisdiction over the proceedings based on the terms agreed between both parties in the Supply Contract.

On the issue of whose terms apply, the High Court held that the parties are contracted on the Plaintiff’s Terms and therefore, the Malaysian court has jurisdiction to adjudicate the matter. Judicial Commissioner Atan Mustaffa held that the plaintiff had attached their terms during their invitation to tender whereby it clearly states the recipients were invited to tender using the form provided and on the basis that it was the Plaintiff’s Terms that were to apply as found under the heading of “IMPORTANT NOTE”. Although the defendant’s hyperlink to the Defendant’s Terms was stated in the footer of its emails to the plaintiff during negotiation, there was no indication that the defendant’s offer made pursuant to the plaintiff’s invitation was a counter-offer on the Plaintiff’s terms.

In addition, the learned Judicial Commissioner held that the invitation to tender issued by the plaintiff via email was an offer and capable of immediate acceptance and should not be regarded as a mere invitation to treat apart from the specific price made on the forms. The forms included specified time and place of supply, fuel specifications, and terms and conditions therewith, which were already present in the invitation to tender and was not left open for any further discussion.

The learned Judicial Commissioner held that the hyperlink to the Defendant’s Terms was not sufficient to be incorporated into the Supply Contract. There was no step taken by the defendant to draw the attention of the plaintiff to the application of the hyperlink which only appeared in the foot of the defendant’s emails.

The defendant did not make it plain that the Defendant’s Terms were to govern the Supply Contract by giving reasonable notice of the conditions in a visually prominent way. A reference to an inconspicuous hyperlink at the bottom of someone’s signature at the footer of the email does not constitute sufficient notice of intention to contract on different terms.

Tips when incorporating hyperlinked terms

Here are some tips that businesses may use when incorporating these hyperlinked terms during the course of negotiations-

1. Clarity is the key. You should expressly inform your counterparty that your terms apply and are available on a website. For example, the link is accompanied with a notice stating, “Please click here for our terms and conditions of trade”. Do consider placing your hyperlink at the body of the email. Avoid placing the hyperlink anywhere inconspicuous, such as the footer of the email using very small font size. Also, do ensure that the hyperlink is valid and not broken.
2. Insert a date on all your contracts. This is so that you know which version of the terms and conditions you were dealing with in the future.
3. Keep your terms and conditions up to date.
4. Keep a record of your previous contracts. As disputes may arise any time in the future, you may not know which contract is applicable if you have various versions of the contract. Such previous contracts may be recorded by way of a print screen.
5. Employ a tracking mechanism in the system. This could keep track of whether the counterparty had accessed the terms and conditions.
6. Verify whether the terms reflect what have been agreed by the parties. In other words, ensure the terms are parallel to what have been discussed or negotiated with the counterparty.
7. Check the terms thoroughly. Be extremely attentive to the accuracy and the detail of the terms. Staff should be trained to identify any ambiguous terms that may knock back any rights that you may wish to protect, especially when it involves any onerous provision. The court may hold against you for not examining the provisions stated in the terms and conditions.
8. Consider Response Procedure. This is even if you do not have any enquiries regarding the hyperlinked terms provided by the other party. Such response procedure can be in the following manner-
a. Open discussion regarding the contract or terms;
b. Investigate any problems which may affect your rights;
c. Review the terms and decide whether the contracted terms should apply.

First published on Digital News Asia on 20 and 21 September 2021.

Virtual Conference on Corporate and Commercial Law (6 to 10 Sept 2021)

I will be speaking in the 4th session on the topic “Digital/Electronic Signature Legislation and Developments” together with Satish Ramachandran and Azrul Abdul Hamid on 7 September 2021. In this session, we will share the history and current development of digital or electronic signature in Malaysia.

Do check out the other sessions by the other speakers!

To register, please visit this link.

The other side of tech

I was asked by The Edge Malaysia to comment on the collection of personal data by the Malaysian Government, particularly, the data submitting by individuals in compliance with pandemic control related laws. I said-

Currently, the PDPA [Personal Data Protection Act 2010] does not apply to the government. This should be addressed, adds Foong Cheng Leong, a lawyer focusing on areas such as privacy and data protection laws.

“There should be a law governing how the government can process our information. Such a law should include the right to request the government to disclose what kind of personal data it has collected or is collecting,” says Foong.

“This request is, of course, subject to certain exemptions such as national security. The law should also make the government accountable for misuse of our information or negligent handling of our information.”

Other suggestions by the interviewees include data localisation laws, mandatory data breach notifications and laws that allow the public to request information from the government.

In addition, the following questions were posed to me but my answers were not featured in the article. I think it is beneficial for readers to know of the matters set out below.

1. Governments have been introducing contact tracing applications globally after the pandemic broke out. From location tracking to CCTV monitoring, these solutions are also putting people under surveillance more than ever. Concerns about data privacy and the surveillance state have already been present before — now, the pandemic has intensified this debate. What are your observations and thoughts about this? Should people be concerned?

At this juncture, the Government has represented that the information collected will only be for specific purposes eg risk assessment, contact tracing and compliance with the movement control order and other related rules and regulations. Such purposes are specifically stated in the privacy policy of the MySejahtera App at https://mysejahtera.malaysia.gov.my/privasi_en/. It even expressly declared that

The Personal Data collected will not be used for any purpose other than those mentioned above, unless if required in order to comply with any legal obligation”.

However, the Government stated that they may change the terms of privacy policy and any changes will be updated on that website. This is a cause for concern as the privacy policy may be changed to include other purposes. For example, the application may be update to, among others, track your movement which can be used to collaborate certain data. The traffic department may track if you are within a certain locality

2. At the same time, smart city solutions that use facial recognition CCTVs, smart policing, digital IDs are becoming more prevalent. Should we be concerned? What are the risks?

If it is managed in a proper manner and only for the purpose it is implemented, there should be little cause for concern. For example, if the CCTV is implemented for the purpose of prevention of crime, then any personal data collected should be for that purpose. Such personal data cannot be used for, among others, sold to third parties for targeted advertising, issuance of fines by local authorities etc.  

Personal profiling is also a cause of concern. Personal profiling can happen when one merges various data from other sources into one single dataset. For example, data collected from the traffic cams, social media profile, police reports, list of properties from the land office, and income tax information are all merged into one single data set by the Government and updated whenever there is new information. Quite clearly no one wants their personal life being intruded in this manner. Further, there is a cause for concern if there is a data leakage or misuse by third parties.

3. At the same time, we want more convenient services — enabled by technology — from the government, whom we also expect to protect us. How can we strike that balance? Is it possible? 

There can be no perfect balance. However, steps can be taken to strike this balance, and this include legislating how the Government should manage our information. Currently, the PDPA does not apply to the Government. There should be a law governing how the Government can process our information. Such law should include the right to request the Government to disclose what kind of personal data they have collected or are collecting. This request is, of course, subject to certain exemptions such as national security. The law should also make the Government accountable for misuse of our information by them or negligent handling of our information.

The Government should also hold regular consultations with the relevant stakeholders to see how citizen’s information should be processed and how it could also ease the business processes. Government must take into account of the business sectors’ needs as well. For example, a prudent lawyer would always ensure that the party that they are suing is the correct party. The National Registration Department should give leeway to lawyers to obtain such information quickly and with ease. However, the current procedure implemented by them is too stringent as they require, among others, the submission of the Court documents to prove that such information is required.

4. What can be done in Malaysia to prevent the overreach of surveillance technology? For instance, tightening the PDPA, being mindful of what technology providers we use etc. 

We should be concerned with the risk of data leakage or unauthorised disclosure especially out of Malaysia. For example, a surveillance device from a foreign country may be masqueraded as a mobile phone. The user’s data including his biometric information (e.g. fingerprint), personal photographs, other persons’ personal data may be all disclosed to these third parties.

Fortunately, many electronic devices imported or released to the country must obtain Malaysian Communications And Multimedia Commission’s approval. The Government will need to do a throughout examination of these devices before they can be made available to members of the public and trade.

Another law that we require is the data localisation laws. This means that certain personal data should only be stored in Malaysia and not transferred to another data server outside Malaysia. This could also pave way for more data centres in Malaysia.

5. What is your advice to Malaysians?

Malaysians must be vocal about how their personal data is processed, whether by the Government or by the private sector. They should voice out their concerns if one of these bodies are collecting unnecessary personal data. They should also push for laws to protect themselves instead of relying on the Personal Data Protection Commissioner to do the prosecution and investigation. Perhaps an ombudsman like the Consumer Tribunal should be introduced by the Government to allow Malaysians to file their complaints directly to the ombudsman and have the matter heard before the ombudsman. They should have the powers to call upon any witnesses and punish those who disobey.

How much information can be revealed with your IC number?

I was asked by Malaysiakini to comment on the availability of a person’s identity card number to other members of the public, particularly, by the Government to the members of the members of the public.

Open data convenient for public to access

In Malaysia, it is not difficult to obtain another person’s IC number as it is needed for various forms issued by the public and private sectors. It might even be on display on a company’s working pass for employees. Now, even despatch riders ask for an IC number to confirm the identity of the consignee.

Another lawyer, Foong Cheng Leong, said the government’s stand on the matter seems to be to allow free access to others’ data for certain purposes based on the personal data published on government websites.

“Take traffic summonses as an example, banks or potential second-hand car buyers can check if a vehicle has pending summonses,” he noted.

Foong, who is the former co-chairperson of the Bar Council Ad-Hoc Committee on Personal Data Protection (2013 to 2016), said many companies also rely on public information on these websites to work. For example, a lawyer can verify whether someone’s name and IC number are correct.

“Open data websites are convenient for the public and companies, they can get information without paperwork and without the hassle and cost of writing to the relevant departments, which usually takes some time. This may free up time for government agencies to do other work,” he said.

Multi-factor authentication for protection

Several experts have suggested that a multi-factor authentication system and accounts registration be implemented to better protect privacy.

Meanwhile, Foong said it is difficult to strike a balance between privacy and the right to information, but there should be some barriers such as registering an account with full details or paying a fee before getting access to data.

“The rule of thumb is that if one submits to do something of a public nature e.g. conduct business, sue in court, certainly his or her personal data should be made public to ensure transparency or to protect the public.

“This is so the person is traceable if they commit fraud,” he added.

Microsoft’s data centre region project needs data security laws

I was asked by The Malaysian Reserve to comment on MICROSOFT Corp’s US$1 billion (RM4 billion) investment to establish its first data centre region in Malaysia, particularly on the data security laws aspect. I said-

Bar Council’s Information Technology and Cyber Laws Committee deputy chairman Foong Cheng Leong said new regulations should be introduced to protect such data centres once they are opened to the general public.

For example, he said the government could set up regulations against the seizure of equipment or surrendering of data to authorities, as well as laws to protect against intermediary liabilities.

Additionally, he said the data centre region would promote further data localisation, particularly for the government to improve data safety and protection.

“It may also be useful for the government to direct its agencies to store their data in such local data centres. Many data these days are held overseas and we do not know where they are stored.

“A data localisation requirement would be useful in helping Malaysians protect their personal data,” Foong told The Malaysian Reserve (TMR) recently.

Phone tapping is the issue, not PKR-Umno pact, says Zaid

I was asked by Free Malaysia Today to add in to the alleged leaked voice recording of political parties leaders, Umno president Ahmad Zahid Hamidi and PKR president Anwar Ibrahim. It was reported that the voice recording was of the two presidents but the source of the leakage is unknown. Zahid Hamidi has claimed that the recording is fake.

Privacy lawyer Foong Cheng Leong told FMT that the power to intercept communications was normally only exercised in cases involving serious offences such as terrorism or organised crime.

He added that phone tapping can only be carried out with permission. For example, interceptions for cases under the Security Offences (Special Measures) Act 2012 must be authorised by the public prosecutor.

On several claims that the government was behind the purported leaked audio recording, Foong said that no one knew for sure if the authorities had tapped the conversation.

“There could also be a possibility that the phones were compromised by the installation of certain mobile applications,” he said, referring to phone hackers.

If this were true, Foong said, there may be an offence committed under the Computer Crimes Act 1997, adding that there could be a cause of action for invasion of privacy or trespassing, among others.

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