By Foong Cheng Leong | Apr 04, 2016
– New, complex cases emerged, and Parliament enacted new laws
– With the advent of the TPPA, we can expect more changes
IN 2015, industry regulator the Malaysian Communications and Multimedia Commission (MCMC) reported that 10 people were convicted of offences under Section 233 of the Communications and Multimedia Act 2010 for, among others, disseminating pornographic material. MCMC also ordered 1,074 pornography websites to be blocked.
There were important developments in Malaysian and global cyberlaws in 2015. New, complex cases emerged in our courts, and Parliament enacted new laws to combat ‘negativities’ created by social media.
Facebook, Twitter and Google
As usual, our most popular online platforms caused rifts and problems. Fortunately, Deputy Communications and Multimedia Minister Jailani Johari stated that MCMC has no plans to require Facebook or any social media users to register with MCMC.
This is because the cost involved and there is a risk that such database may be hacked (see Hansard dated 15.12.2015).
In Mohd Desa bin Ahmad & 1 lagi v Hazudin bin Hashim & 2 lagi (Malacca Sessions Court Civil Suit No: A51-02-01-2015), the Malacca Sessions Court struck off a defamation suit initiated by a couple against the Yang Dipertua Majlis Perbandaran Jasin, Jasin Municipal Council and the Malacca State Government.
The couple alleged that the Jasin Municipal Council had uploaded pictures of their premises being seized for allegedly failing to pay assessment tax on the Yang Dipertua Majlis Perbandaran Jasin’s Facebook page. The Facebook posting allegedly went viral.
The Sessions Court however struck out the plaintiffs’ suit on the grounds that the plaintiffs had failed to identify who in the Jasin Municipal Council had uploaded the pictures. The Jasin Municipal Council and the Malacca State Government are not individuals, hence they cannot upload the pictures, and the plaintiffs ought to have named the individuals who had uploaded the pictures.
In PP v Yuneswaran a/l Ramaraj (Criminal Appeal No: J-09-229-09/2014), the accused was charged under Section 9(5) of the Peaceful Assembly Act 2012 (PAA) for failing to give at least 10 days’ notice before the Black 505 Rally was scheduled to have been held, to the Officer in Charge of the Police District (OCPD) of Johor Baru Selatan.
The notice had only been submitted to the OCPD on the day of the rally and was signed by the accused, Yuneswaran.
The accused had denied he was an organiser within the meaning of Section 3 of the PAA as the assembly was organised by the Majlis Pimpinan Negeri Parti Keadilan Rakyat, Negeri Johor (PKR Negeri Johor), chaired by Chua Jui Meng, and he had only signed the form on behalf of Chua.
However, the Sessions Court Judge held that he falls within such definition as he had filled up and signed the notification and announced the upcoming assembly using his Twitter feed and Facebook page, both of which would serve to invite the members or public and likely cause them to attend the assembly.
In addition, the Court of Appeal held that Section 9(5) of the PAA is not unconstitutional (thus departing from the earlier Court of Appeal case of Nik Nazmi Nik Ahmad v PP [2014] 4 CLJ 944), and the sentence against Yuneswaran was upheld.
In Network Pet Products (M) Sdn Bhd v Royal Canin SAS & Anor (Civil Appeal No. W-02(NCC)-1454-06/2013), there was a contractual dispute between the parties.
In this dispute however, the first defendant, being the brand owners of Royal Canin, filed a suit against the plaintiff for passing off and using the Royal Canin mark in a Facebook page opened by the plaintiff. The first defendant was successful and the High Court further directed the Facebook account to be deactivated.
The Court of Appeal overturned the High Court’s decision and held that there was no passing off. The Court of Appeal was of the view that the evidence disclosed showed that the first defendant was aware of the activation of the Facebook account from the start and had allowed it to continue.
In any event, the alleged confusion in the use of the Royal Canin mark simply did not exist. There was no confusion in the use of the mark in trade in the traditional sense of ‘passing off.’ The mark was used as denoting products belonging to RCSA. There was no attempt to pass off the first defendant’s products as the plaintiff’s products.
Interestingly, there was a dispute over the ownership of Facebook pages in the Singapore case of Lee Kien Meng v Cintamani Frank [2015] SGHC 109.
The plaintiff sought a declaration that he is the owner/sole administrator of the Men’s Fashion Week and Women’s Fashion Week Facebook pages. The Singapore High Court had reservations on declaring whether a Facebook page could be considered ‘property.’
Facebook Inc has control over the pages and has an unfettered right to remove Facebook pages. This control was strongly suggestive that the plaintiff did not own the Facebook pages above. If it did, it would not require the consent of Facebook Inc before it transferred the Facebook pages and Facebook Inc would not be able to remove the Facebook pages at its own discretion.
The case however did not discuss whether a Facebook page can be considered a transferable software licence.
Last year, I wrote that in Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384, the management corporation of Amber Court Condominium and its council members sued two unit owners of the condominium for allegedly defaming them on Facebook.
The High Court struck out the case after finding that a management corporation has no powers to do so under the Strata Titles Act 1985 and common law. The case went up to Court of Appeal and the Court agreed with the High Court’s views and dismissed the appeal (see Amber Court Management Corporation & Ors v Hong Gan Gui & Anor W-02 [IM] [NCVC] 1840-10/2014).
Last year, I also reported that the Federal Court in Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541 did not endorse Internet research by Judges on their own motion.
Notwithstanding that, in Siti Nur Syahira Binti Abdullah & Ors v Kamri Bin Jini & Ors (Civil Appeal No. KCH-12B-13/11-2014), the learned High Court Judge stated that he “googled” for certain information (at page para 10 – “Based on what I have googled, the width of a Kancil is 1395 mm [1.4 metres]).
WhatsApp and Yahoo Chat
Instant messaging has taken on new importance in legal practice and the courts.
In Mok Yii Chek v. Sovo Sdn Bhd & Ors [2015] 1 LNS 448, the High Court finally addressed the admissibility of WhatsApp messages. The learned High Court Judge found that such messages are a document under Section 3 of the Evidence Act 1950 and admissible if agreed to by both parties.
Even if one party doesn’t agree, such a document can be admitted in Court if it meet certain criteria. Such criteria includes whether there is oral evidence that the messages were produced by the computer in the course of the ordinary use of the computer (see Para 24). In this case, a screenshot of the messages would be admissible.
In Ram Kumar a/l Gopal Ram and Anor v Ram Kailash a/l Gopal Ram (Civil Suit No: 22NCVC-317-06/2014), the Court dealt with WhatsApp conversations.
In this dispute between two brothers over a piece of property, the elder brother and his wife (plaintiffs) alleged that they had an arrangement where they would buy the property in the younger brother’s name (defendant). They sought a court order to declare that fact.
However, the defendant claims that the property was bought as a wedding gift for him. In a bid to strike out the case, the defendant tried to use the WhatsApp conversation between the defendant and his sister-in-law against the plaintiff to strike out the case.
However, the Court held that the WhatsApp conversation was insufficient to show that the plaintiffs’ case was plain and obvious unsustainable.
In Alliance Bank Malaysia Berhad [2015] 1 LNS 666, the High Court Judge refused to grant a further adjournment on the ground that the defendant is uncontactable.
The Judge stated it is highly improbable that the defendant’s lawyer could not contact the defendant in this electronic age when communication can be effected instantaneously by telephone, facsimile, email, short message system (SMS), WhatsApp and other modes of electronic communications.
In Rina Simanjuntak v PP (Criminal Appeal NO: P-05-256-09/2014), a Yahoo Messenger Chat log saved the life of Rina Simanjuntak who had been sentenced to death by the High Court for drug trafficking.
The Court of Appeal held that the High Court ought to have considered the Yahoo Messenger Chat between her and one Dr Jossy, who was her boyfriend and had sent her to India to collect samples of children’s clothes.
The Yahoo Messenger Chat was sufficient to prove that Rina was an innocent carrier and she had no knowledge that she had been carrying drugs.
Our local court cases also revealed that Malaysian youth had been influenced through social media to join the Islamic State (ISIS) as fighters.
In Pendakwa Raya v Mohd Syafrein Rasid [2015] 1 LNS 943, the accused was charged under Section 130J of the Penal Code for attempting to support the Islamic State and attempted to be a member of the same.
It was revealed in this case that the accused was influenced by what he saw about the war in Syria on Facebook. He even joined a few WhatsApp groups which had members sharing information about the Islamic State and their movement in Syria.
He then decided to travel out from Malaysia to join the Islamic State but was caught at the Immigration counter at the Kuala Lumpur International Airport. He pleaded guilty and was sentenced to two years’ imprisonment.
New cyberlaws and amendments
The Malaysian Government has introduced the Sedition (Amendment) Bill 2015 which, among others, creates liability on website operators such as online forums, online news portals, and even Facebook page/ group owners.
The new Section 10(5) of the Sedition Act 1948 compels a person who knowingly has in his possession, power or control a prohibited publication by electronic means, to remove or cause to be removed, such publication – failing which, he shall be liable to a fine not exceeding RM500,000 (US$137,000) or imprisonment not exceeding three years, or both.
As per the new Section 10(1), a Sessions Court Judge, on the application by the Public Prosecutor, can make an order to prohibit the making or circulation of certain sedition publications (that are likely to lead to bodily injury, damage to property, promote feelings of ill will, etc.).
Any person making or circulating the prohibited publication shall remove or caused to be removed that publication, or be prohibited from accessing any electronic device. Any person who fails to do so shall be guilty to a fine not exceeding RM500,000 or to imprisonment not exceeding three years, or both.
There is also news that the Communications and Multimedia Act 1998 will be amended but the details of the amendments are still vague.
However, the new amendments have also been rumoured to include harsher sentences and restrictions on social media users in posting comments or opinions online.
The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution.
Before the dispute on the legality of the sale of vaping products started, the Malaysian Government introduced a new law to prohibit the sale of tobacco products (Reg 10 Control of Tobacco Product (Amendment) Regulations 2015).
Any person who does so shall be liable to a fine not exceeding RM10,000 or imprisonment for a term not exceeding two years, or both. Any person who is thinking of launching a startup to sell and deliver cigarettes online can now bin that idea.
Online harassment
Last year I wrote about the passing of the Singapore Protection from Harassment Act 2014. Prominent blogger Xiaxue was the first or one of the first persons who took advantage of this new law by putting in an order against the operators of the satirical Facebook page SMRT (Feedback).
The Singapore Government tried to invoke the new law to protect itself from harassment but the Court held that the protection is not available to the Government (Ting Choon Meng v Attorney-General and another appeal [2015] SGHC 315).
Sadly, the Malaysian Government has not introduced such laws to protect individuals from harassment. It is noted that Section 233 of the CMA does provide some form of protection from harassment, but it is limited to electronic harassment which is obscene, indecent, false, menacing or offensive in character.
I later found out the Singapore anti-harassment law was ‘inspired’ by the online harassment against the son of prominent Malaysian bloggers Timothy Tiah and Audrey Ooi (Fourfeetnine).
In Ooi’s blog, she quoted the Singapore Minister of Law as stating: “In another case, cyberbullies targeted the baby of a blogger. The blogger had given birth prematurely because there was a life-threatening condition during the pregnancy. Cyberbullies called her baby an ‘alien’. They said the baby should be euthanised. This was really quite sickening behaviour. It comes from basic bullying instincts of some, unchecked by any notion of civil conduct, and aided by anonymity.”
It is unfortunate that our Government had not introduced any new law to address this problem, notwithstanding that such harassment is happening to fellow Malaysians.
Nevertheless, the Court of Appeal did recognise sexual harassment as an actionable tort – that means one can file a civil suit against the harasser instead of filing a report with the authorities such as the police or MCMC.
In Mohd. Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd. Nor [2015] 4 CLJ 295, the Court of Appeal held that sexual harassment falls within the category of tort of intentionally causing/ inflicting nervous shock.
With this case, it is arguable that harassment may be actionable in Court if it fulfils the element of tort of intentionally causing/ inflicting nervous shock.
Ride-sharing, other developments
The year 2015 finally saw the battle between app-based transportation network companies such as Uber and local taxis arriving in Malaysia.
On Aug 7 2015, Malaysia’s Land Public Transport Commission (SPAD) announced on its Facebook page that it had seized 12 cars alleged to have been providing public vehicle services without a licence, under Uber and GrabCar.
Local taxi drivers had also taken matters on their own hands by ‘arresting’ Uber and GrabCar drivers in the Kuala Lumpur City Centre (KLCC) area.
While the battle is still on going in Malaysia, the Singaporean Government introduced a new law called the Third-Party Taxi Booking Service Providers Act 2015.
The Act is designed for a ‘light-touch approach’ and imposes only the basic requirements necessary to protect commuter interests and safety, but at the same time it aims to preserve the fundamental tenets of Singapore’s taxi regulatory policies (see Third-Party Taxi Booking Service Providers Act 2015 Comes Into Force On 1 September 2015 by Drew & Napier, PDF).
In the lead-up to the Bersih 4 demonstration [which called for the resignation of Prime Minister Najib Razak as well as institutional reforms – ED], the websites bersih.org and sarawakreport.org were ordered to be blocked by MCMC on the grounds that they “violate national laws.”
Although the blocking order, purportedly under Section 263(2) of the Communications and Multimedia Act 1998, had been made for some time, activists and the media started to question MCMC’s moves. No actual offence needs to be committed but an attempt is sufficient to enable MCMC to act against a website.
Nevertheless, the block against bersih.org was subsequently lifted after its operator issued a letter of demand to MCMC to lift the block.
Nevertheless, I am made to understand that the amendment to CMA will include express powers to block certain websites.
In closing …
With the advent of the Trans-Pacific Partnership, we can expect more changes to our laws. The Trans-Pacific Partnership Agreement (TPPA), of which Malaysia is a signatory, will require signatories to amend their laws to comply with the provisions of the TPPA.
The TPPA includes a specific section on electronic commerce (e-commerce). For example, a signatory to the TPPA shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.
There are also provisions to deal with personal information, online consumer protection and electronic spam.
First published on Digital News Asia on 4 April 2016.
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