Digital News Asia

Bread & Kaya 27: 2020 Cyberlaw Cases: Cyberlaw in the Covid-19 Era

Since the Covid-19 pandemic, various aspects of our lives have been drastically changed to establish the new normal. The lockdown caused by the pandemic effectively closed our Courts for many months. Physical attendances were not allowed. Nevertheless, the Judiciary remained committed to ensuring the public’s access to justice.

During the early days of the lockdown, the Judiciary tried to encourage more lawyers to opt for online hearings. However, this can only happen if all the parties in the case consent to online hearing. Unfortunately, many lawyers were not receptive to the same and asked their matters to be adjourned to a date where physical attendance is allowed again. 

Due to this, many cases have been pushed back and many cases filed in 2020 can only be heard in the 4th quarter of 2021. This goes against the Judiciary’s self-imposed KPI, which requires cases to be completed within 9 months. With this in mind, the Judiciary introduced section 15A to the Courts of Judicature Act 1964 to allow the use of remote communication technology. Currently, cases are done via email, video conferencing and e-Review (Court’s own platform used for case management).

With the introduction of this new provision, no consent is required from any of the parties to have the matter heard online. The Court will only have to decide if it is in the “interest of justice” for the matter to be heard online. 

Other new laws were also introduced to deal with effects of the pandemic such as the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 on 23 October 2020. This new law was introduced to provide temporary relief to reduce the impact of the Covid-19 pandemic and the effects of the Movement Control Order. However, unlike other countries, this new law did not cover online remote access to services such as affirmation and notarisation. Physical appearance is still required for affirmation before a Commissioner for Oaths or Notary Public. 

On another note, I am happy to announce that my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” is now available on Thomson Reuters’ website and selected bookstores. This is the only book on cyberlaw and electronic evidence in Malaysia. Carrying more than 200 local cases and some selected foreign cases with commentaries, this publication looks at areas that have evolved in the digital sense such as civil issues like defamation, privacy and copyright.

Virtual Hearings Become The Norm 

During the Movement Control Order, issued under the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967, to combat the Covid-19 pandemic, our courts allowed hearings to be conducted online through e-Review or online conferencing, provided that the parties agreed to the same and such request for online hearing was based upon the discretion of the court.

The first online hearing at the Court of Appeal was broadcast live on the Internet on April 24, 2020 with the Court of Appeal Panel sitting at their respective premises. [Zhao Fangliang v. Syarikat Pengangkutan Satu Hati Sdn Bhd and Other Appeals (Unreported; Court of Appeal Civil Appeal No J-04(NCvC)(W)-552-10/2019, J-04(NCvC)(W)-554-10/2019 and J-04(NCvC)(W)-555-10/2019); available on YouTube.

The law in relation to remote hearing developed very quickly within a year. Justice Wong Kian Kheong published the first case regarding remote hearing in the year 2020. In SS Precast Sdn Bhd v. Serba Dinamik Group Bhd & Ors [2020] MLJU 400, his Lordship held that remote hearing can be done even without one party’s consent.

The court may order that a hearing of a notice of application or appeal before a Judge in Chambers be heard by way of video conferencing in view of a party’s fundamental right to have access to justice as guaranteed under Article 5(1) of the Federal Constitution. The court may exercise its discretion to proceed with video conferencing in the interests of justice under Order 32 rules 10 and 11(1) read with Order 1A and Order 2 rule 1(2) of the Rules of Court 2012.

In KNM Process Systems Sdn Bhd v. Cypark Sdn Bhd [2020] AMEJ 0540, his Lordship also applied the principles of SS Precast (above) to allow the hearing of an originating summons and notice of application by way of video conferencing. By late 2020, many cases have moved to online hearing save for criminal cases.

Prior to the lockdown, the physical location of a defendant and his witnesses are important when deciding where to conduct the legal proceeding. In Dr Zakir Abdul Karim Naik v. Raveentharan A/L Subramaniam [2020] 1 LNS 1149, the plaintiff sued the defendant, an advocate and solicitor practising in Penang, for publishing certain defamatory statements on the latter’s Facebook page. The High Court in Kuala Lumpur allowed the transfer of the proceedings to the Penang High Court. The High Court took into account the place of residence and practice of the defendant and his witnesses and where the subject matter of the defamation arose, i.e. Penang, and that the defendant’s Facebook account was created, edited and used in Penang.

Remote communication technology is now a factor to be considered when deciding whether to transfer proceedings to another court of another location. In Liziz Plantation v. Liew Ah Yong [2020] 10 CLJ 94, Justice Su Tiang Joo held that with the experience gained in using remote communication technology in dealing with the movement control order, conditional movement control order and the recovery movement control order that is extant and which were necessitated by the Covid-19 pandemic, the physical location of any one litigant or witness and the issue of having to physically travel to any court has become very much less important [Para 43].

The need for counsel, litigants, and witnesses to physically travel to the court for the hearing of their matters is getting less and less. Hearings and meetings can now be done and are, by reason of the Covid-19 pandemic, encouraged to be done electronically via a variety of Internet platforms such as “Zoom” or “Skype”, not to mention that there are other platforms as well such as “Google Duo”, “Google Hangouts”, “MS Teams” and “Adobe Connect” [Para 44]. Accordingly, the High Court held that it would not be in the interest of justice to allow the transfer application.

In an intellectual property dispute case Muhammad Hafidz Bin Mohd Dusuki v. Hassan Bin Zulkifli [2020] 1 LNS 1843, Justice Radzi Harun dismissed an application to transfer the proceeding to the Kota Bahru High Court notwithstanding that, among others, one of the witnesses is of old age and would be difficult to travel due to the Covid-19 pandemic. His Lordship held that the Court is cloaked with sufficient powers and can allow flexibility towards the said person by dispensing his attendance and resort to technology for his evidence taking.

To regulate the remote communication technology proceedings, the Chief Justice issued Practice Direction 1 of 2021: Management of Civil Case Proceedings Conducted by Long-distance Communications Technology for all Courts in Malaysia (Pengendalian Prosiding Kes Sivil Melalui Teknologi Komunikasi Jarak Jauh Bagi Mahkamah Di Seluruh Malaysia). Pursuant to paragraph 5 of the said practice direction, the Court may take into account the following factors, among others, in deciding whether to conduct remote proceedings: the type and duration of proceeding, witnesses, health factors, and availability and quality of technology to be used.

After considering the above factors, the Court will direct the proceedings to be conducted through long-distance communications technology, physically, or a combination of both modes (“hybrid method”). The Court will determine the digital platform and designated location for remote proceedings, along with other relevant instructions. Specific instructions have been laid out for witnesses to give evidence remotely.

Online Hearing for Admission to the Bar

We also saw the hearings for the petition for admission to the Bar moving online for the first time in December 2020. Since the commencement of petition for admission to the Bar (going as far back as the 1800s), such proceedings have always been done physically in the Court. Only in recent years it has become some form of celebration where friends and family will attend the event with flowers and gifts, and for photography sessions. On one occasion, one pupil’s friends and family came with a large banner with a large congratulatory note with his face on it. However, such proceedings were put to a halt by the Movement Control Order. This resulted in many pupils, who had finished their pupillage, not being able to qualify as an advocate and solicitor for many months. Fortunately, the Judiciary decided to have the proceeding done online and aired in platforms such as YouTube. This special occasion was not only witnessed by friends and family of the pupils, but also by the nation and the world.

It is also worth mentioning that the inquest to the death of Nora Anne Quoirin was conducted via Zoom and broadcasted on YouTube. Ms Nora Anne Quoirin, a 15-year-old with an abnormality of brain development, went missing in the middle of the night while staying with her family at a resort located at Negeri Sembilan in August 2019. She was found dead about 10 days later in a stream not too far from the resort. The learned Coroner found in Inquiry into the death of Nora Anne Quoirin [2021] 1 LNS 6 that the reason for her death is due to “misadventure”, i.e. she had gone out of the resort on her own and subsequently got lost in the abandoned palm oil plantation.

Defamation on Facebook

The case of Masyitah Binti Md Hassan v. Sakinah Binti Sulong [2020] 1 LNS 2108 is a defamation case involving many features of a social media posting. This judgment took into account hashtags, the type of reader who will view the posting and how public apologies can be published on social media.

In this case, the Plaintiff, a doula or a birth companion sued the Defendant, a doctor for publishing defamatory postings about the Plaintiff on the latter’s Facebook account. The Defendant had alleged that the Plaintiff was responsible for the death of a baby who died at birth via a home water birth.

The mother of the baby appeared as a witness for the Plaintiff and revealed that the Plaintiff did not attend to the home water birth as a doula but merely as a friend. The baby was already partially delivered when the Plaintiff reached the Defendant’s home during the delivery. 

Justice Evrol Mariette Peters found that the Defendant’s Facebook postings were defamatory of the Plaintiff, and the Defendant’s defence of justification fails since the Defendant had failed to prove the truth of the contents of her Facebook postings. The Defendant’s defence of fair comment failed as the comments which were based on falsity, were enveloped in bad faith, and not made in the interest of the public.

The High Court also held that, in deciding the natural and ordinary meaning of the impugned statement, the Court should look into the perspective of a reasonable netizen who is of ordinary and average intelligence, fair-minded, not avid for scandal, not unduly suspicious, and one who understands colloquial Bahasa Malaysia with a spattering of English.

The Defendant argued that the contents of the same had conveyed merely that the Plaintiff had been present at the birth of the baby, and that she had lied about that, and nothing more. The Court did not agree to this argument as it was very clear that the Facebook postings were littered with remarks that were not only disparaging, but accusatory as well. For instance, the hashtags #doulakeji was used, with ‘keji’ referring to vile. The word ‘vile’ is a parlance used interchangeably with ‘evil’, ‘abominable’, and ‘vicious’, which were sufficiently clear to an ordinary man.

In deciding on the damages, the High Court took into account the fact that the defamatory comments were made online on a Facebook account and bearing in mind the rapid forwarding and sharing that online comments are susceptible to, and the length of time that the postings were displayed, which in this case was six months. The Defendant argued that the postings were deleted after six months and, therefore, the news could not have spread at the extent as contended by the Plaintiff.

The Court held that publication over the Internet has wide circulation and the Court may presume such a fact under section 114 of the Evidence Act 1950. The Court also took judicial notice the breakneck speed that online news is susceptible to spreading, as this was a sufficiently notorious fact that the Court could not ignore; compounded by the fact that such news was false.

In addition, the High Court applied section 114A(1) of the Evidence Act 1950 and held that the Defendant is presumed to have published the comments posted by the public on her Facebook posting as she had provided a platform for such purpose.

The High Court ordered, among others, general damages of RM100,000.00. Exemplary or punitive damages of RM100,000 was also ordered in view of the indecorous conduct of the Defendant. Her Ladyship held that the Court cannot turn a blind eye to the activities of quidnuncs, since the moment false news is released into the wilderness of the World Wide Web, that bell cannot be un-rung.

In addition, the High Court ordered the defendant to post an apology on the Facebook timelines of both the Plaintiff and Defendant, within seven days of the decision of this Court, and for such apology to remain at such timelines for six months.

The High Court also dealt with a case where a defamatory Facebook posting had not named or described the Plaintiff but nevertheless, the Plaintiff took legal action against the Defendant. In Ahmad Suhaimi Abdullah lwn. Amir Shariffuddin Abd Raub [2020] 1 LNS 687, the Plaintiff sued the Defendant for publishing certain statements on his Facebook account allegedly to be defamatory of the Plaintiff. The Plaintiff and his wife were business partners of the Defendant for a company selling imported cars. The Plaintiff and his wife pulled out from that company. The Defendant published a statement alleging a person had misappropriated the company’s money without naming anyone. The Defendant also alleged that the statement did not specify the Plaintiff’s designation or in relation to his conduct in the performance of his duties, or that the words refer to or are understood to refer to or may refer to the Plaintiff, among others.

In dismissing the Plaintiff’s claim, the High Court held that other than the Plaintiff, his wife and his driver, the Plaintiff did not call any independent witness, namely any witness that is acquainted with the Plaintiff, to testify that the words in the impugned posting referred to the Plaintiff. The Court was also of the view that the Plaintiff’s witnesses are interested witnesses because the Plaintiff himself had admitted that he taught or coached them in giving evidence in Court.

Employee who was dismissed for leaving a WhatsApp group

Last year, I reported that an employee was terminated by her employer after she left the WhatsApp group of the company (Thilagavathy a/p Arunasalam v. Maxis Mobile Sdn Bhd [2019] 2 LNS 1050). The Industrial Court held that that the Claimant was in breach of her terms of employment with the company when she failed to follow the reasonable oral and written instructions of the company, i.e. to obtain approval prior to exiting the WhatsApp group.

On appeal to the High Court (Thilagavathy a/p Arunasalam v. Maxis Mobile Sdn Bhd [2020] 1 LNS 1062), the High Court overturned the Industrial Court’s decision and ordered the matter to be decided by another Industrial Court Chairperson. The High Court held that the Industrial Court failed to make an objective assessment on the facts and evidence before them in determining whether the employee was guilty based on the charges stated in the show cause notice. Amongst the reasons for the decision is that the Industrial Court ought to take into account that there was no clear notice or warning to the Claimant that she cannot leave the company’s WhatsApp group without the permission of the company.

When the Claimant asked to be re-added to the group, the company refused to do so. The company’s witness also could not confirm that every employee has been informed that they need permission to exit the group. Therefore, it is reasonable to assume that the Claimant has no knowledge that permission is required to exit the group. The Industrial Court had earlier held that the Claimant ought to have cross examined the company’s witness regarding the issue of exiting the WhatsApp group. However, the High Court held that the Industrial Court failed to consider that the Claimant was not legally represented, hence she does not know how to cross examine a witness, and it is not fair to judge the Claimant with technical matters not within her capability as a layperson with no legal background.

On the topic of WhatsApp groups, we also saw defamation lawsuits being filed for publications on WhatsApp groups. In Mohamed Fahamy Mohamed Suyud v. Iscada Net Sdn Bhd [2020] 1 LNS 867, the Defendant filed a counterclaim against the Plaintiff for publishing certain alleged defamatory statements on a WhatsApp group. However, the High Court found that the Defendant has failed to prove that those statements referred to the Defendant. The High Court was of the view that pure speculation is not sufficient, and the ordinary reader must have rational grounds for his belief that the words refer to the Defendant.

First Decision on a Persons Unknown Injunction in Cyberspace

In most litigation cases, the defendant is usually named. However, the use of the Internet has made it harder for a plaintiff to trace the identity of a wrongdoer. This is coupled with internet users’ assertions of their right to remain anonymous for, among other things, their own safety, right to privacy and speech and expression.

Where a defendant’s name is unknown, it is still possible to file an action against such person in Malaysia. We have seen this in land possession matters and accident matters. It is now possible to file an action against “persons unknown” in Malaysia in respect of matters arising from the cyberspace sphere.

In Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v. Persons Unknown & Anor [2021] 7 MLJ 178, the High Court granted an ex parte proprietary injunction and Mareva injunction against “persons unknown” as the 1st Defendant. In this case, the Plaintiff was a victim of cross-border cyber fraud known as a “push payment fraud” where the victim is tricked over emails to make a payment for a legitimate transaction into a different bank account under the control of the fraudster.

The Plaintiff, a German company, was in communication with its South Korean counterparty. The fraudster, being Persons Unknown, deceived the Plaintiff into paying into the 2nd Defendant’s bank account the sum of EUR 123,014.65 (approximately RM600,000.00) by infiltrating the email communications between the Plaintiff and the South Korean counterparty. The Plaintiff thought it was making a genuine payment to its South Korean counterparty for a commission payment. Instead, the fraudster had siphoned the Plaintiff’s monies away.

Justice Ong Chee Kwan delivered the first known decision on a Persons Unknown injunction. After going through a series of English cases against Persons Unknown, his Lordship held-

[40] It is not usually the case that a defendant is described as ‘Persons Unknown’. Nevertheless, the Court can grant interlocutory orders against the 1st Defendant — being Persons Unknown. In cases like the present which involve cyber fraud and fake email addresses, the fraudster or fraudsters are unknown. English case law have allowed for similar injunctive orders against ‘Persons Unknown’. There is nothing in our Rules of Court 2012 that would prevent the Writ of Summons and applications from being filed against Persons Unknown.

..

[49] As stated above, there is nothing in our Rules of Court 2012 prohibiting the making of an order against Persons Unknown. In fact, Order 89 of the Rules of Court 2012 for summary proceedings for possession of land allows for a defendant reference to Persons Unknown.[See Fauziah Ismail & Ors v Lazim Kanan & Orang-Orang Yang Tidak Diketahui [2013] 7 CLJ 37 (CA); the commentary in Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law, para [8.098] to [8.100]].

This case clears the doubt on whether action can be taken against Persons Unknown in respect of matters arising from the cyberspace sphere. With the increase of online scams and fraud, we can expect similar cases to be filed in Court so that victims of these cybercrimes are able to seek redress and preserve their assets.

Short Term Lodging – AirBnB Effect

The Federal Court finally resolved the issue of whether a management corporation has the power to ban short term lodging. In Innab Salil & 8 Ors v. Verve Suites Mont’ Kiara Management Corporation [2018] 1 LNS 2318, the Defendants operated and/or caused to be operated a short-term rental in the Verve Suites. The Plaintiff, being the management corporation, passed a special resolution, which was then incorporated into its House Rule No. 3, to stop the operation of short-term rentals in the Verve Suites. The Plaintiff then filed an action against the Defendants to stop them from breaching House Rule No. 3. The Defendants argued that the management corporation does not have the power to pass House Rule No. 3 as it is beyond their powers provided under section 70 of the Strata Management Act 2013.

On appeal, the Court of Appeal ([2019] MLJU 1496) held, among other things, that the Strata Management Act 2013 was to advance the interest in communal living within a strata scheme. Therefore, it would defeat the spirit and purpose of the Act for the proprietors, such as the Defendants, to use their residential units in the form of a business enterprise such as short-term rentals. The majority of the residents had voted against the same. The wish of the majority had to be taken heed of, hence there could never be any violation of section 70(5) when House Rules No. 3 was adopted.

The Federal Court ([2020] 10 CLJ 285) held that by-laws passed pursuant to section 70 of the Strata Management Act 2013 stipulated in subsection (2) are justifiable if they exist for the good of the strata community. In other words, even if the State Authority permits the use of the land for commercial purposes, such use is still subject to other laws in force, in particular to section 70 of the Strata Management Act 2013. Hence, the passing of House Rule No. 3 is not unlawful. The Federal Court also held that the arrangements by the Defendants are nothing more than mere licences, and therefore do not amount in law to “dealings” within the ambit of section 70(5) of the Strata Management Act 2013.

Accordingly, House Rule No. 3 is not ultra vires section 70(5). As concurrently found by the High Court and the Court of Appeal, the said House Rule was enacted for the many legitimate purposes under section 70(2) or for that matter, for the purposes under which the Plaintiff has established under section 59 of the Strata Management Act 2013. As such, the Federal Court held that the said short-term rentals in this case amount to licences and not tenancies.

TT Dotcom Sdn Bhd v Low Wey Heng & Ors [2020] 1 LNS 2136 is a case that concerns Anton Piller orders against operators of short term rental business. An Anton Piller order is a court order that allows a plaintiff to, among others, search the premise(s) of the defendant to obtain evidence without prior notice or warning.

In this case, the 1st and 2nd defendants, having subscribed to the plaintiff’s single home-user internet service plan by the name of “1 Gbps Home Package” for the use of 3rd and 4th defendants’ short term rental businesses i.e. an AirBnB business, were found to have allegedly tampered with the service line to enable multiple access which enable internet connectivity outside and beyond the named location to other units unspecified in the forms for subscription.

This had allegedly contravened the General Terms and Conditions signed, where it was stipulated that the plaintiff’s services should only be intended for personal use and any providing or sub-providing to 3rd parties is prohibited.

The plaintiff contended that the defendants breached the contract with the plaintiff as they had (i) unlawfully provided and extended the Wi-Fi connectivity or internet service for unlawful use of 3rd parties, and (ii) conspired to injure the plaintiff by unlawful means which had deprived the plaintiff of the monetary benefit it could have gained. The unlawful connection and usage is also a deliberate interference with the plaintiff’s trade and business.

The plaintiff contended that in order to carry out the unlawful activities, they have in possession certain and custody of certain electronic equipment. The plaintiff then obtained the Anton Piller orders for, among others, its search team to carry out enforcement activities by searching and seizing those equipment and by conducting a LIVE TEST Recording.

Understandably, given the draconian nature of an Anton Piller order, a stringent threshold must be met in order for the Courts to grant an Anton Piller order. The High Court held that the plaintiff has complied with all legal requirements to grant the order. The Court dismissed the contention that the plaintiff’s sales agent is aware of the 1st and 2nd defendants’ AirBnB business. The Court held that as the name of the package suggest, it is a package for home subscription and clearly was not meant for commercial and business subscription / subscribers (where the latter obviously requires higher volume of internet connectivity). A dwelling or residence that is monetized or commercialized as an Airbnb is not at all a Home. Taking into account of the 1st to 4th defendants’ deliberate effort to abuse the Internet service provided by the plaintiff, the plaintiff established a strong prima facie case. In this regard, the learned Judge was of the view that the Anton Piller orders were necessary because-

(a) It was necessary to negate any notion that the earlier tests had been tampered with or manipulated by the plaintiff (because the previous investigation/tests were carried out without the presence of the 1st to 4th defendants).
(b) The Anton Piller order has specified a limited number of units i.e to run LIVE TESTS in 2 unoccupied units with Wi-Fi facility. This refutes the allegation by the defendants that the applications for an Anton Piller orders were a fishing expedition.
(c) The disclosure required was only in respect of certain listed items which were discovered and identified even before the investigation under the first Anton Piller order.
(d) The enforcement of the Anton Piller order was done under the supervision of the Supervising Solicitors who had ensured that it was carried out without any disruption to the operations of the 1st to 4th defendants’ premises. Furthermore, there has been no evidence led by the 1st to 4th defendants to prove of such disruption.
(e) If the Defendants had any objections against the Anton Piller orders, they could have applied for a variation or a stay of the execution of the first Anton Piller order but this was exactly what the 1st to 4th defendants have either failed, refused, or neglected to do.

There was a real possibility that the defendants may destroy the evidence within their possession. The Court recognised that the defendants’ alleged abuse would not have discovered had the plaintiff not conduct a random inspect on the usage of their Wi-Fi connectivity. It can be seen that many technical manoeuvres can be discreetly carried out without the knowledge of the service provider. Stemming from this fact, the Court held that it can be inferred that concealment and possible destruction of evidence (crucial to prove the unauthorized connections link setup by the defendants) is definitely a real possibility. In addition, the devices for connectivity are within the control and possession of the defendants. The 1st to 4th defendants’ alleged breach could only be further demystified or unravelled through proper investigation and inspection on the devices for wi-fi connectivity installed at defendants’ premises.

Furthermore, the application contained specific undertakings and safeguards, with two supervising solicitors to supervise the execution.

Thus, there were no meritable grounds for the Court to set aside the Anton Piller orders.

Discovery of the Identity of Social Media User

Last year, I reported that it is possible to file an action to obtain information about certain Facebook users in Malaysia. In Universiti Utara Malaysia v. Facebook Inc (Alor Setar High Court Originating Summons No. KA-24-1-01/2019), Facebook agreed to disclose basic subscriber information of certain Facebook users who allegedly have published defamatory statements against the Plaintiff (also known as a pre-action discovery order). However, in usual cases against foreign defendants, one would need to make a formal application to Court to have the court documents served overseas through, among others, the assistance of our Government and the foreign government or judicial authorities of that country. This is a long and complicated process. 

The Court has also now allowed the service of court documents on Facebook Malaysia Sdn Bhd (“Facebook Malaysia”) as the Court found that Facebook Malaysia is the agent of Facebook, Inc under Order 10 Rule 2 of the Rules of Court 2012 (Abu Jamal Bin Sulaiman & Anor v Facebook, Inc (Kuala Lumpur High Court Original Summons No. WA-24NCVC-57)). In this case, the Applicants, who are husband and wife, filed a pre-action discovery order against Facebook, Inc to obtain information about certain Instagram users who had allegedly defamed them.

Instead of applying to have the court documents served on Facebook, Inc in the United States, the Applicants obtained an ex parte order to have the court documents served on Facebook Malaysia. Facebook, Inc then applied to set aside the ex parte order on the ground that Facebook Malaysia is not an agent of Facebook, Inc and has never authorised them to accept documents on behalf of Facebook Inc. Furthermore, Facebook, Inc and Facebook Malaysia are separate legal entities. 

The High Court dismissed Facebook Inc’s application to set aside the service of the ex-parte order with cost of RM5,000. The High Court was of the view that:-

(1)        any reasonable man would conclude that Facebook Malaysia is indeed an agent of the Defendant by virtue of implied contract in existence between them as there were numerous online publications such as publication on the Prime Minister’s Office on the attendance of the then Prime Minister and Communication Minister at the official opening of Facebook Malaysia, and New Straits Times report with the caption “It’s official: Facebook opens office in Malaysia”; 
(2)        Facebook Malaysia is involved in the marketing and sales support services based on a search from the Companies Commission of Malaysia;
(3)        nothing was adduced to show that Facebook Malaysia had officially declared that it is not part of or an agent of the Defendant and vice versa; and 
(4)        the Applicants’ solicitors had earlier sent a letter to Facebook Malaysia regarding this matter and Facebook, Inc had replied to the Applicants’ solicitors directly stating that “We are responding in our capacity as Facebook, Inc which operates Facebook for Malaysia users”. Accordingly, if Facebook Malaysia is not Facebook, Inc’s agent or has locus standi to act for Facebook, Inc, it should have returned those letters/documents straight back to the Applicants’ solicitors. Facebook Malaysia had failed to mention specifically that it is not an agent of the Defendant. 

The High Court also held that when Facebook Malaysia was officially opened or launched in Malaysia, Facebook, Inc. was indeed conducting business in Malaysia. It follows that it can receive any mode of originating process on behalf of its principal here in Malaysia. 

There were numerous malicious and defamatory remarks made by eight Instagram accounts which have reduced the Applicants into as though they are criminals and an irresponsible couple who does not deserve any respect from society. The defamatory words used, among others, are that the couple are kidnappers, paedophiles rapists, Satan practising black magic etc. The couple is experiencing great difficulties to identify the right party to sue, and the many court procedures to be adhered to, creating a great stumbling block for them to seek justice.

The Court was of the opinion that it will be highly prejudicial and cause grave injustice to the Applicants as though their rights to bring the actual culprits to court will be completely shut. There is no prejudice caused to the Defendants but on the other hand, the Applicants and family are still receiving continuous accusations and slanders. Even if there are some shortcomings or non-compliance on the part of the Applicants regarding the service of the court documents, such irregularity can be cured by Order 2 Rule 1 of the Rules of Court 2012. 

Electronic service of court documents

Prior to the enforcement of Rules of Court (Amendment) 2020, Order 10 rule 1 of the Rules of Court 2012 provides that a writ and originating summons shall be served personally on each defendant or sent to each defendant by prepaid AR registered post, addressed to his last known address. The Rules of Court 2012 was silent as to whether such court documents can be served via electronic means other than by way of facsimile.

The Rules of Court (Amendment) 2020, which came to force on 15 December 2020, introduced service of Court documents by means of electronic communication in accordance with any practice direction issued for that purpose. As of the date of writing, no such practice direction has been issued yet. Perhaps the Court may soon expressly allow the service of court documents by email and other instant messages applications such as WhatsApp, Facebook or WeChat. Our Courts have in the past allowed service of court documents in certain selected cases (for example, see 30 Maple Sdn Bhd v. Noor Farah Kamilah binti Che Ibrahim (Unreported; Kuala Lumpur High Court Suit No. WA-22IP-50-12/2017); Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v. Persons Unknown & Anor [2021] 7 MLJ).

Cybercrime

In PP v. Mohamad Faezi bin Abd Latif [2020] 5 LNS 42, the learned Sessions Court Judge produced a helpful table consisting of sentences for those who had pleaded guilty at first instance under a section 233(1)(a) of the Communications and Multimedia Act 1998 charge. The table is reproduced below (together with the sentence in that case):

No. Case Offence Sentence
1. PP v. Ranendar Bijoy Bhattacharyya(Kuala Lumpur Sessions Court Suit No. WA-63-1024-10/2019) The offender posted fake content using application service Facebook A fine of RM5,000 in default of 3 months’ imprisonment
2. PP v. See Foo Hoong (Petaling Jaya Sessions Court Suit No. BB-MS4-63-29-9/2019 The offender sent obscene video to the complainant using application service Facebook Messenger A fine of RM10,000 in default of 4 months’ imprisonment
3. PP v. Ruziman bin Kamaruzaman (Petaling Jaya Sessions Court Suit No. BB-MS3-63-28-9/2019) The offender sold obscene content using application service Telegram A fine of RM8,000 in default of 12 months’ imprisonment
4. PP v. Azhar bin Mamat (Kuala Lumpur Cyber Court Suit No. WA-63-130-01/2018 4 charges under s 233(1)(a)The offender sent offensive communications using application service Facebook  A fine of RM5,000 in default of 1 month imprisonment for each charge
5. PP v. Mohd Shariman Shahir bin Omar (Kuala Lumpur Cyber Court Suit No. WA-63-785-12/2017) The offender sent offensive communications using application service Facebook  A fine of RM10,000 in default of 6 months’ imprisonment
6. PP v. Mohd Nazri bin Sulaiman (Klang Sessions Court Suit No. BI-63-14-7/2017) The offender sent false communication using application service Facebook A fine of RM7,000 in default of 3 months’ imprisonment
7. PP v. Ng Thai Quen (Kuala Lumpur Cyber Court Suit No. WA-63-199-08/2017) The offender sent offensive communication using application service Facebook A fine of RM7,000.00 in default of 3 months’ imprisonment
8. PP v. Mazlan bin Yusoff (Kuala Lumpur Cyber Court WA-63-202-08/2017 The offender sent offensive communication using application service Facebook A fine of RM7,000 in default of 3 months’ imprisonment
9. PP v. Kamarzaman bin Mustafa(Kuala Lumpur Cyber Court Suit No. WA-63-209-08/2017) The offender sent false communication using application service Facebook A fine of RM5,000 in default of 3 months’ imprisonment
10. PP v. Mohamad Faezi bin Abd Latif (supra) 10 charges under s 233(1)(a)The offender sent obscene communications on his Twitter account, comprising still images and videos depicting the male genitalia with lewd and lascivious captions. The offender also posted obscene communications on his Twitter account to promote his reproductive health product. The Sessions Court Judge commented that this case appears to be the first in this country involving commercial exploitation of obscene communication on Twitter. A fine of RM5,000 in default of 3 months’ imprisonment on each charge, totalling RM50,000 in default of 30 months’ imprisonment

Notwithstanding the sentencing trends above, the learned Sessions Court Judge stated that the sentencing trends merely serve as a guide on the prevailing trends and the range thereof. It does not in any way take precedence over the Court’s judicial discretion on sentencing. The learned Sessions Court Judge stated that “sentences are not binding precedents, but are merely historical statements of what has happened in the past”.

Contempt proceedings against Malaysiakini

In Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd & Anor [2020] 7 CLJ 173, the Attorney General obtained an ex parte order for leave to initiate contempt proceedings against the operator of the online news portal Malaysiakini (1st Respondent) and its Chief Editor (2nd Respondent) in the Federal Court for certain contemptuous comments made by the readers of Malaysiakini. The Respondents filed an application to set aside the ex parte order. In dismissing the said application to set aside the ex parte order, the Federal Court held that the Respondents were the publisher of the comments based on the following facts:

(1) the 1st Respondent facilitated publication;
(2) the editorial policy allowed editing, removing and modifying of comments;
(3) only upon being made aware by the police, the 1st Respondent indeed removed the comments; and
(4) evidence revealing that the editors of the 1st Respondent reviewed postings on a daily basis.

The Federal Court also held that, by virtue of section 114A of the Evidence Act 1950, the Respondents are presumed to have published the impugned comments. The Federal Court found that a prima facie case of contempt in the form of scandalising the Court had been made out.

The matter was then heard by a seven-judge panel on the issue of whether the Respondents are liable for contempt of court over the readers’ comments (Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd & Anor [2021] 1 LNS 89). The Federal Court recognised that there were difficulties faced by the Court in pinning down the role of publication on the internet content provider when the comments were made and posted by third parties. The Federal Court held that the Malaysian Parliament must had resolved this difficulty by enacting section 114A of the Evidence Act 1950.

In rebutting the presumption, the Respondents relied mainly on three measures to safeguards itself from pre- and post-publication comments by third party subscribers. The first by its terms and conditions warning subscribers that abusive posting offending any law or which create unpleasantness would be banned. Second, it installs a filter program which disallows the use of certain foul words. Failing that filter any article or comment would not get posted. This filter program is also used to review third party comments. Third is the peer reporting system. This process entails other users or readers of the online news portal to report on offensive comments. Only upon the receipt of such report will an editor immediately examine and decide on the removal of the same. It is for this reason, the 1st Respondent reserves the right to remove or modify comments posted at its discretion. In this way, the 1st Respondent’s take down policy would be effectively implemented.

The Respondents also argued that it is not practical or possible for the 1st respondent to moderate all the comments posted by third parties as they have a high volume of about 2,000 comments received per day with 25,000 online subscribers. The process of peer reporting is thus resorted to.

Nevertheless, the Federal Court found that the Respondents had failed to rebut the presumption of publication under section 114A of the Evidence Act 1950. The Federal Court held that the 1st Respondent is the owner of its website, publishes articles of public importance, allows subscribers to post comments to generate discussions. It designs its online platform for such purpose and decides to filter foul words and rely on all the three measures it has taken.

In other words, the 1st Respondent designs and controls its online platform in the way it chooses.  It has full control of what is publishable and what is not. It must carry with it, the risks that follow from allowing the way its platform operates. The 1st Respondent cannot be heard to say that its filter system failed to filter offensive comment when it deliberately chooses only to filter foul language but not offensive substance. The 1st Respondent cannot be allowed to turn their news portal into a runaway train, destroying anything and everything in its path, only because their riders are the ones creating such havoc albeit made possible by their train.

As for the 2nd Respondent, the Federal Court held that section 114A is not applicable to the Chief Editor as there was no evidence to show that he was owner or the host or the editor on the online news portal and that he is the person who reserves the sole discretion to edit or completely remove any comments by a third party. Therefore, the 2nd Respondent is found not guilty of contempt of court.

The Federal Court meted out a sentence of RM500,000 against the 1st Respondent to serve public interest, where the sentence must not be too lenient in order to provide a deterrence effect. The Respondents’ unreserved apology, and their cooperation with the police and the courts were also taken into account. The contempt committed was much more severe than previous cases on contempt, stating that there were baseless allegations of corruption, and that the comments made were “beyond any bound of decency”. The 1st Respondent subsequently managed to raise more than RM500,000 through public donations within hours of the Federal Court’s sentencing.

The use of Court’s “Artificial Intelligence” (AI) system in Criminal Proceedings

Last year, I reported about the use of artificial intelligence system to aid judges in passing sentence for criminal cases in respect of drug possession under s. 12 of the Dangerous Drugs Act 1952 and s. 376 of the Penal Code. There is now more information about this system as it is published by the learned Magistrate Jessica Ombou Kakayun in her judgment of Public Prosecutor v Denis P. Modili [2020] 5 LNS 21.

According to her judgment, to analyse and provide the recommendations to pass the sentence, the artificial intelligence system requires important information called parameters. For instance, under s. 12(2) of the Dangerous Drugs Act 1952, information regarding the weight of the drugs, the age and employment record of the accused are required. Once this crucial information is entered into the system, the artificial intelligence system will generate its own recommendations (either the sentence of fine or imprisonment) and this will reflect in a percentage form. Whichever percentage is higher, the recommendations provided are mere guidelines to assist the presiding judge to decide in applying the correct sentencing principles according to past precedents. This, in turn, will avoid disparity of sentences among the judicial officers. By meting the sentences accordingly, this will likely reduce any possible upcoming appeal to the higher courts since a uniform standard of sentencing principles is applied. The issue of sentencing principle being manifestly inadequate or excessive by the presiding officer will lessen and/or even be avoided in the future.

In Public Prosecutor v Denis P. Modili (supra), the counsel of the accused objected to the use of the artificial intelligence system in determining the sentence of the accused on the grounds that the use of the artificial intelligence system is a breach of Article 5(1) of the Federal Constitution which provides that that no person shall be deprived of his life or personal liberty, and Article 8 of the Federal Constitution which provides that all persons are equal before the law and entitled to the equal protection of the law. Further, the use of artificial intelligence system by the Court will influence the outcome and thus is prejudicial to the accused.

However, the learned Magistrate held that the issue of breach of constitutional rights is not within her competent jurisdiction. The matter should be decided by the higher court. Nevertheless, the learned Magistrate held that the artificial intelligence system is a mere guideline to assist the Court so as not to depart from the true spirit of a reasonable sentencing principle. The presiding officer may agree or depart from the sentence recommended by the artificial intelligence system. Ultimately, the sole discretion rests on the presiding judge in determining the sentence of the accused. Accordingly, the accused was sentenced to 12 months imprisonment notwithstanding that the artificial intelligence system recommended that the accused to be sentenced to 10 months.

However, on appeal to the High Court, the learned High Court judge allowed the appeal and reduced the sentence to 6 months. However, no reason was given for the reduction of the sentence and the issue of constitutionality was not addressed by the Court. 

Guidelines on Digital Assets

Towards the end of 2020, Securities Commission Malaysia issued the revised Guidelines on Digital Assets to regulate Initial Exchange Offerings (IEO) and Digital Asset Custodians (DAC). The aim is to promote responsible innovation in the digital asset space, while managing emerging risks and safeguarding the interests of issuers and investors.

The guideline is applicable to the following parties: a body corporate that seeks to raise funds through a digital token offering, a person who seeks to operate an IEO platform, and a person intending to provide the services of safekeeping, storing, holding or maintaining custody of digital assets for another person.

The guideline provides, among others, that IEO platform operators will be required to conduct due diligence on the issuer, review the issuer’s proposal and disclosures in the “whitepaper”, and assess the issuer’s ability to comply with the requirements of the guidelines and the SC’s Guidelines on Prevention of Money Laundering and Terrorism Financing.

In closing

In 2021, we can expect more interesting developments in the cyberlaw and IT sphere.

  • – In the e-hailing sector, Loh Guet Ching v. Myteksi Sdn. Bhd. (Berniaga atas nama Grab) & 2 Ors (Kuala Lumpur High Court Suit No. WA-25-296-10/2020) is an interesting case on the position of e-hailing drivers vis-a-vis e-hailing companies. Ms Loh brought a case against Grab at the Labour Department after she was terminated as an e-hailing driver. She had alleged that she is an employee, thus entitled to bring an action against Grab for unlawful dismissal. However, the Minister of Transport refused to refer the matter to the Industrial Court. A judicial review application was thereafter brought against the Director General of the Department of Industrial Relations, among others. While the matter is still pending before the High Court, perhaps the recent UK Supreme Court decision, Uber BV and others v. Aslam and others [2021] UKSC 5, would have some bearing on this case, where the UK Supreme Court upheld the UK’s Employment Tribunal’s decision that Uber drivers are considered workers rather than self-employed.

  • – Another e-hailing case is Gabungan Pertubuhan Teksi, Kereta Sewa, Limosin Dan Teksi Lapangan Terbang SeMalaysia-GTSM v. Grabcar Sdn Bhd (Kuala Lumpur High Court Suit No. WA-22NCvC-801-12/2020), where a RM100 million class-action lawsuit was mounted by Malaysian Association of Taxi, Rental Car, Limousine and Airport Taxi against Grabcar. The association claimed that Grabcar was running an illegal e-hailing service which contravened the Transport Act 2012, the Competition Act 2010 and the Federal Constitution. Grabcar’s service was alleged to be in violation of the right to livelihood, rights and interests of taxi drivers. As at the time of writing, the matter is still pending in Court.

  • – The Court of Appeal recently affirmed the High Court’s previous decision in Robert Ong Thien Cheng v. Luno Pte Ltd & Anor [2020] 3 AMR 143 and held that intangible cryptocurrency such as bitcoin falls within the ambit of “things” under section 73 of the Contracts Act 1950. The decision gives certainty to the modern business world whilst adapting to the digital revolution. The Malaysian courts are seemingly moving in the right direction to keep up with this digital age.

  • – The Government has also recently gazetted the Emergency (Essential Powers) (No. 2) Ordinance 2021 under the current state of emergency. This Ordinance reproduced a large section of the Anti-Fake News Act 2018, which was repealed by the Pakatan Harapan government.

    However, unlike its predecessor, this Ordinance is limited to “fake news” relating to Covid-19 or the proclamation of emergency. There are also no illustrations of what could amount to an offence unlike its predecessor. Nevertheless, spreading fake news about the effect of Covid-19 vaccines or that certain persons had contracted Covid-19 would clearly be an offence under the Ordinance.

    In respect of “proclamation of emergency”, it was reported by Malaysiakini that the de facto Minister of Law, Takiyuddin Hassan said that it is fake news to claim that the Government sought an emergency declaration because it lost its majority in the Dewan Rakyat. Those spreading “fake news”, whether in Malaysia or outside Malaysia, will face a fine not exceeding RM100,000, or an imprisonment for a term not exceeding 3 years, or both. Those providing financial assistance in spreading fake news or failing to remove any publication containing fake news will also commit an offence amounting to a fine not exceeding RM500,000, or an imprisonment for a term not exceeding 6 years, or both.

First published on Digital News Asia on 27 and 29 April 2021 and 2 May 2021. Article updated with the case of TT Dotcom Sdn Bhd v Low Wey Heng & Ors.

Bread & Kaya: Dear Attorney General Tommy Thomas, we need to speak about our Malaysia cyberlaw and IT laws reforms

By Foong Cheng Leong | Jun 22, 2018

– Act is clearly against the very fundamental principal of “innocent until proven guilty”
– Need law to curb creation of fake news, especially if created to stoke racial or religious sentiments

Repeal of 114A of Evidence Act 1950

WHEN s. 114A was introduced in the Parliament in 2012, a protest was held by netizens to urge the Government to repeal s. 114A. The #stop114A campaign was held and Malaysia had it first Internet Blackout Day to protest this section.

S. 114A provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely s. 114A(1), states that “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host , administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.

In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it.

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network. You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custody or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. If someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”.

Position of intermediaries (e.g. platform providers)

Currently, many platform providers are vulnerable to be sued or charged in Court for what their users do. For example, an online forum owner would be liable for publishing defamatory statements made by their users pursuant to s. 114A of the Evidence Act 1950. Online marketplace operators may also be sued because their users sold counterfeit products.

It would be ideal for the Government to induce new laws to protect such platform providers but also the punish errant platform providers. For example, a one-strike or three-strikes rule. Under such proposed one-strike rule, an aggrieved person may file a complaint against the platform provider to remove certain postings. If the platform providers remove such posting within a specific time, the platform provider should be absolved from liability. However, if it fails to do so, it will be liable for the acts of its users.

S. 43H of the Copyright Act 1987 is a good example on how to deal with intermediary’s liable in respect of copyright infringement.

In this regard, the Sedition (Amendment) Act 2015, which is not in operation yet, should be repealed. The said amendment creates, among others, liability on website operators such as online forums, online news portals, and even Facebook page/ group owners. [Read http://foongchengleong.com/2015/04/bread-kaya-how-the-new-sedition-act-affects-netizens/]

Specific laws to govern blocking of websites or other electronic platforms.

All blocking orders should be made public and their detailed reasons to block websites. Currently, there is no public list other than one independently maintained by Sinar Project and reasons given are usually one-liners (e.g. in breach of s. 233 of the Communications and Multimedia Act 1998).

However, there could be specific websites which need not be reviewed due to national security issue, among others. As we all know, blocked websites can still be accessed via other means.

Blocking orders should also be made by the Courts rather than the arbitrary decision of the Minister. The current s. 263 of the Communications and Multimedia Act 1998 is used by the Ministry of Communications and Multimedia to direct internet service providers to block platforms in order to prevent the commission or attempted commission of an offence under any written law of Malaysia. In the past however, we have seen websites being blocked due to political reasons e.g. medium.com and bersih.org.

The Anti-Fake News Act 2018 and Sedition (Amendment) Act 2015 have provisions for websites to be blocked by way of application to the Court. All these blocking order sections and s. 263 of the Communications and Multimedia Act 1998 should be replaced with one single law to govern blocking of electronic platforms.

The law should also allow any person such as users of the platforms to challenge any blocking orders. When the previous Government decided to block medium.com, as far as I know, the site owners did not file any challenge in Court to unblock their website. Many netizens were denied access to informative and educational content from medium.com. There were no specific laws allowing them to challenge the block. They were also unsure if they could meet the threshold to file an action for judicial review.

Specific channels to allow litigants to obtain information about wrongdoers

In the present case, a person who wishes to obtain information about another person, for example another Facebook user who had defamed or harasses him, would need to go through a long and expensive process to obtain such information. Normally these wrongdoers will use platforms provided by foreign companies to attack another user.

It would be ideal if a straight forward process be made to such person to obtain such information. For example, filing a request to the Government for it to request the same from the platform providers.

SS. 211 and 233 of the Communications and Multimedia Act 1998

S. 233 of the Communications and Multimedia Act 1998 (which is similar to s. 211) has been used by the previous administration against dissent. 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. I concur with the Bar Council on this.

However, I suggest that new laws be introduced to stop contents which can cause hatred and disturbance about certain individuals or organisations. We cannot have people sending fake messages which can cause a riot, for example.

Anti Fake News Act 2018

Many calls have been made to repeal the Anti Fake News Act 2018, which came into operation weeks before the 14th General Election. One person has been sentenced and many have been investigated for spreading fake news. Prime Minister Dr Mahathir Mohamad has confirmed that this Act will be repealed.

Notwithstanding such calls to repeal the law, I am of the view that there should be laws to curb the creation of fake news especially those created to stoke racial or religious sentiments. Note that s. 233 of the Communications and Multimedia Act 1998 requires a communication to target a certain person. Fake news may not necessary be targeting a certain person. It could target a race and a place, for example.

Revamp of the Admissibility of Electronic Evidence

Currently, almost every document printed by a computer is admissible under s. 90A of the Evidence Act 1950. This section should be examined to define clearly on what admissible and not admissible.

The Court’s electronic system should also be upgraded to allow the admissible of all forms of electronic media such as songs, videos and animated files. Currently, lawyers have to burn those evidence in a CD to be filed in Court. This defeats the open justice system where all Court proceedings are accessible to the public.

[Postscript] In addition, the Court’s file search system should also be updated. Currently it allows a user to conduct a file search for 30 minutes (per ticket) via its slow system. It loads page by page and one cannot download all the documents at one go. It should be revamped to allow a user to download the entire file with one single fee.

Laws to protect netizens

New laws should be introduced to criminalise cyberbullying, stalking and harassment. It is noted that this type of acts these days are not made directly against a person.

Government should also study the criminalisation of maintaining cybertroopers. Many organisations in the world including Governments use the services of cybertroopers to attack individuals. They would send threatening, harassing or annoying messages, posting private information of that individual and create fake content about that individual.

Lastly, what we need is meaningful and effectively consultation with the Government. The previous administration had basically shoved us with laws with little consultation. I remember when our #Stop114A team went to meet the then Deputy Minister of Law, V.K Liew, to hand in our petition to repeal s.114A, he said that the Bar Council needs professional advice. I trust that the new Government will make a wise choice in deciding the right people for the right job.


First published on Digital News Asia on 22 June 2018

Bread & Kaya: 2017 Cyberlaw Cases Pt2 – viral content, Uber and appearance of an emoji

By Foong Cheng Leong
Mar 29, 2018

A video clip that was viewed 3 million times deemed to be the truth of an incident
Groupon has its day in court, twice with users not happy with merchants

CARRYING off from where I left off in part one of my review of the interesting Cyberlaw related cases that came to the courts in 2017, I start off with viral content and a case where a video was shared almost 50,000 times. And while Uber Technologies is merging its operations with Grab, it still had its day in court last year with a case in Sabah.

Viral Content

The case of Public Prosecutor v Poovarasan Subramaniam & 2 Others [2017] 1 LNS 1619 determined whether a viral video can be admitted as evidence in a criminal trial.

The 3 accused were charged for murder for a man who had allegedly stolen a mobile phone. In the course of trial during the Prosecution’s case, the Prosecution sought to adduce in evidence a VCD containing a video clip that captured a portion of the incident wherein the victim was assaulted by several men. The video clip went viral on the internet and a prosecution witness had downloaded the same from the blog KITABANTAI into the VCD.

The second accused strenuously objected to the admissibility of the VCD principally because the authenticity of the contents of the VCD is questionable. A trial within a trial (TWT) was held to consider the admissibility of the VCD.

During the TWT, the Prosecution called two bloggers, namely the owners of the blogs KITABANTAI and SIAKAPKELI who had published the video clip, to testify as to the origin of the video clip. KITABANTAI stated that the video came from SIAKAPKELI. SIAKAPKELI later revealed that the video clip came from an online news website called MYNEWSHUB. However, the journalist at MYNEWSHUB does not the exact source of the video clip.

Notwithstanding that the person who originally recorded the video clip live and thereafter uploaded the same in the social media could not be traced and produced in Court as witness, the learned High Court Judge was satisfied that the police investigation team and the Prosecution have used their best endeavours to produce the evidence of the chain of movement of the video clip in cyberspace till it was extracted by the police. The said video clip was admitted as evidence following ss. 90A(1) and (2) and 90C of the Evidence Act 1950. The learned Judge stated that he has no reason to believe that the video clip wasn’t authentic in the circumstances.

This case is in stark contrast with the case of Tan Chow Cheang v Pendakwa Raya (Criminal Appeal No. J-05(LB)-54-01/2016). In this case, the accused was charged with drug trafficking under s. 39B of the Dangerous Drugs Act 1952. During the examination of one of the raiding officer, the defence suddenly produced a CCTV recording in a pen drive showing that the drug was planted. On completion of the raiding officer’s evidence, the High Court granted the accused a discharge not amounting to acquittal upon the prosecution’s application notwithstanding that the defence had submitted that the accused was entitled to be acquitted and discharged as upon the production of the CCTV recording, the sole or main prop in the prosecution case collapsed prematurely.

The Court of Appeal agreed with the High Court. The Court of Appeal was of the view that the production of a certificate under s. 90A(2) of the Evidence Act 1950 is not the conclusive way to prove the pen drive’s admissibility. The Court of Appeal held that “to allow it to be admitted in such circumstances in, our view, would be open to abuse. It is not impossible during this era of modern technology for images to be superimposed or tempered with. Therefore, it is only safe for witnesses to be called either to confirm or to rebut it“.

In another case involving viral video (Datuk Wira SM Faisal Sm Nasimuddin Kamal v. Emilia Hanafi & Ors [2017] 1 LNS 1373), the Plaintiff and his ex-wife (1st Defendant) were in Syariah Court of Kuala Lumpur to resolve their matrimonial dispute/issues. Together with them were the family members of the Plaintiff and the 1st Defendant, among others.

On 20.9.2016, the Syariah Court ordered the children of the Plaintiff and 1st Defendant to spend a night with the Plaintiff at his home. The Judge of the Syariah High Court further ordered that the children must not be forced if they do not want to follow the Plaintiff. After that, the proceedings between Plaintiff and 1st Defendant was adjourned for the day.

A video recording was taken after the proceeding in the Syariah Court had ended. The video allegedly showed the aggressive behaviour and use of force by Plaintiff outside the courtroom towards both his 2nd child and wife. The 1st to 4th Defendants then shared the said video clip. The 3rd Defendant had uploaded the video clip on her Snapchat virtual page with the words “SMF shoved them to the ground when he gave up” whereas the 1st Defendant had also uploaded the video clip on her Instagram account with the caption “A mother’s heartache .” On a side note, this is probably the first written judgment in Malaysia featuring an emoji.

The Plaintiff alleged that the video clip went viral. The video clip spread so widely that:

(a) Up to 3 million people viewed the video clip;

(b) Nearly 50 thousand people shared and/or distributed the video clip;

(c) Nearly 15 thousand people made comments, conclusions and/or inferences against the Plaintiff as result of the video clip.”

The Plaintiff sued the Defendants for publishing the video clip. Notwithstanding that the video clip went viral, the High Court struck out the Plaintiff’s case. The learned High Court Judge held that:-

“The video recording that was published was undisputably a recording of an actual and real incident and therefore, cannot be denied as being the truth.”

“The objectionable words and statements complained of are not prima facie defamatory. In fact, the same do not substantially even make reference to Plaintiff nor do they directly or by implication refer to or implicate Plaintiff.”

In Synergistic Duo Sdn Bhd v. Lai Mei Juan [2017] 9 CLJ 244, the Plaintiff sued the Defendant for publishing two (2) Facebook postings in relation to the bad service by BGT Lakeview Restaurant operated by the Plaintiff. The second posting went viral and were shared more than 9,500 times and was reposted and published in newspapers, websites, blogs and other Facebook pages. The Plaintiff submitted that: (i) because of the postings, many of its customers cancelled their bookings and reservations; and (ii) if the Defendant was not restrained by way of an interim injunction, the Plaintiff would continue to suffer grave irreparable loss and damage to its reputation and goodwill.

In granting the Plaintiff’s application for interim injunction, the learned Judicial Commissioner held that the continued publication of postings on the Defendant’s Facebook would cause the Plaintiff’s to suffer further damage to their reputation and goodwill as the potential re-publication of the postings to potentially unlimited number of internet users would irreparably harm the plaintiff’s reputation: which harm cannot be adequately compensated with damages.

Digital Currencies

Due to the rising popularity of digital currencies in Malaysia, Bank Negara issued an exposure draft by the name of Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) – Digital Currencies (Sector 6). The document outlines the proposed requirements and standards that a digital currency exchanger as defined under the First Schedule of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) must carry out as reporting institutions. This is to ensure effective and robust Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) control measures are in place to safeguard the safety and integrity of the financial system as well as to promote greater transparency in the conduct of digital currencies transactions.

The draft exposure sets out the minimum requirements and standards that digital currency exchangers must observe as reporting institutions to increase the transparency of activities relating to digital currencies and ensure effective and robust AML/CFT control measures are in place to mitigate risks that digital currency exchangers may be used as conduits for illegal activities. Such requirement include conducting risk assessment, risk control and mitigation, risk profiling and customer due diligence, among others.

Digital currency exchangers must also comply with requirements in the document relating to: the identification and verification of customers and beneficial owners, on-going monitoring of customers’ transactions, sanction screening, suspicious transaction reporting and record keeping; transparency obligations; and requirements for the submission of data and statistics to the Bank for the purpose of managing ML/TF risks.

The document is applicable to reporting institutions, regardless that the person is not domiciled in Malaysia, carrying on the following activities listed in Paragraph 25 of the First Schedule to the AMLA:-

activities carried out by any person who provides any or any combination of the following services:

(i) exchanging digital currency for money;

(ii) exchanging money for digital currency; or

(iii) exchanging one digital currency for another digital currency, whether in the course of carrying on a digital currency exchange business or otherwise.

Singapore saw its first cryptocurrency dispute in its Court. The case of B2C2 Ltd v Quoine Pte Ltd [2017] SGHC(I) 11 concerns a cryptocurrency transaction dispute between the Plaintiff (a foreign electronic maker for virtual currency) and Defendant (an online virtual currency exchange platform provider in Singapore) which involves Bitcoin and Ethereum.

The Plaintiff alleged that the Defendant had acted in breach of the contract between them and breach of trust when the platform reversed transactions for the sale and purchase of the cryptocurrencies Bitcoin and Ethereum.

The transactions were unilaterally reversed after the Defendant identified that a technical glitch had occurred to the software used by the platform. Consequently, the Plaintiff had lost the benefit which it could have made if the transaction was not reversed.

The Defendant argued that there was unilateral mistake involved and they are entitled to reverse the transaction. The Plaintiff sought an order for summary judgment.

The Singapore International Court dismissed the summary judgment application by the Plaintiff as there were triable issues raised by Defendant and held that “a thorough investigation of the facts behind the setting of the abnormally high offer price is justified in order to place the court in a proper position fully to assess the state of the Plaintiff’s knowledge”as well as “the law on unilateral mistake where computers are involved in greater detail”.

E-Hailing Services

During the hype of prosecution of drivers of e-hailing vehicle, one Joe Vincent Singgoh sought an order from Court to protect drivers from such prosecution in Sabah. In the case of Joe Vincent Singgoh v Commercial Vehicles Licensing Board Sabah 1 & Ors (Sabah High Court Judicial Review No. BKI-13NCvC-10/10-2016), the Applicant, a person registered with e-hailing service provider Uber Technologies Inc. as a driver, had sought several orders amongst which an order of prohibition against the 1st and 2nd Respondents from relying on the provisions of Section 33 of the Commercial Licensing Vehicles Act 1987 to prosecute or prohibit the Applicant from using the services of Uber Technologies Inc. The Applicant also sought a mandatory injunction was also sought to restrain the prosecution, prohibition of the Applicant to drive or make drives for Uber.

The High Court held that the aggrieved person in this case is not the applicant. The proper person is Uber Technologies Inc. Uber Technologies Inc. has not made any application to the relevant authorities in Sabah for the relevant permits or licences. And in so far as Section 33 is concerned, Uber Technologies Inc. is the ‘person’ responsible to obtain such approvals and not the Applicant. It is not explained or disclosed why this is so.

The Court also held that whatever Uber is promoting is unlawful and illegal. Whether the Government will grant Uber Technologies Inc. the necessary approval or not is a matter for the former to decide as a matter of policy and the Applicants are not entitled to come to court to seek a prohibitive order to pre-empt any legal action that may be taken by the Police of JPJ to enforce the law.

However, the Government will soon be legalising operators of e-hailing service providers and their drivers. The Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 were introduced to amend the Commercial Vehicle Licensing Board Act 1987 (“CVLBA”) (applicable to Sabah, Sarawak and the Federal Territory of Labuan) and the Land Public Transport Act 2010 (“LPTA”) (applicable to Peninsular Malaysia) respectively to introduce the licensing of intermediation business. Intermediation business is defined as “business of facilitating arrangements, booking or transactions of e-hailing vehicle (pursuant to the new amendment to CVLBA) and for the provision of land public transport services (pursuant to the new amendment to LPTA). These amendments is clearly intended to regulate e-hailing services such as Uber and Grab.

The Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 also introduced a new class of commercial vehicle namely e-hailing vehicle. This would include the cars driving by Grab and Uber drivers.

Once these amendments are enforced, e-hailing providers like Grab and Uber and also their drivers would need to be registered.

E-Commerce

Groupon Malaysia had another challenging year. The Court had to decide in two (2) cases whether Groupon should be liable for the payment made to them for the purchase of products and services on the Groupon website.

In Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 555, the Groupon user in this case bought a tour travel package vide its platform from one of Groupon’s merchants and paid RM999 (tour travel package) and RM652 (compulsory airport tax, surcharges and tipping) to Groupon and the merchant respectively. However, the said merchant allegedly cancelled the tour and Groupon made a refund of only RM999 to the user. Dissatisfied, the user demanded the refund of RM652. Upon the rejection by Groupon, the user filed a complaint to the Consumer Tribunal and it held in favour of the user i.e. Groupon is liable for the said amount of RM652.

Groupon contended that there is an exclusion provision in the travel voucher which states that the RM652 charges is to be paid to the merchant, hence, Groupon should not be compelled to pay for monies it had not received in the first place. The Court conceded and held in favour of Groupon, that “it is unmistakable that the airport tax, surcharges and tipping were not included in the tour travel deal. In other words, they were not borne or absorbed by the Applicant”.

In Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 1009, similarly, the Groupon user in this case bought a tour travel package vide its platform from one of Groupon’s merchants and paid a RM999 (tour travel package) and RM450 (compulsory airport tax, surcharges and accommodation) respectively to Groupon and the merchant. Therein, the said merchant allegedly cancelled the tour and Groupon made a refund of only RM999 to the user. Dissatisfied, the user demanded the refund of RM450. Upon the rejection by Groupon, the user made a complaint to the Consumer Tribunal and it held in favour of the user i.e Groupon is liable for the third party payment to its merchant.

Groupon contended that there is no contractual relationship between Groupon and the user in the RM450 transaction and hence it shall not be liable to pay. The Court rejected the argument and held in favour of the user that Groupon had acted as an agent for the merchant and made a representation in the travel package voucher, instructing the user to make the RM450 payment to the merchant. Groupon shall be liable for the damages as the contractual relationship was established between Groupon and the user but not between merchant and user.

Defamation

The case of Dato’ Aishaf Falina Bt Ibrahim v Ismail Bin Othman & 2 Ors (Kuala Lumpur Civil Suit No. 22NCVC-352-07/2015) highlighted two interesting points.

The Plaintiff claimed that she was defamed by the retention of the erroneous information in the human resources information system of the 3rd Defendant (her former husband) and its “publication” via the said system. The alleged erroneous information was the information regarding the Plaintiff’s post-divorce marital status with the 1st Defendant, was kept in the 3rd Defendant’s human resources information system for a period of time after she and the 1st Defendant had been divorced. The first question is whether the publication of the erroneous information via the human resources information system amounts to defamation.

The second interesting point is whether the publication on the intranet amounts to publication.

The High Court held that the 2nd and 3rd Defendants are liable in defamation for the retention of erroneous information concerning the Plaintiff’s marital status in the 2nd Defendant’s human resources information system notwithstanding that the error was due to a glitch caused by its source code. The High Court also found that the publication of the erroneous information on the human resources information system via its intranet amounts to publication.

The High Court however dismissed the Plaintiff’s action for tort of misuse of private information as the erroneous information is not private information and there was no misuse of information.

Meanwhile, in Lye Eng Eng & Anor v Ho Kee Jin (Kuala Lumpur High Court Civil Appeal No: WA-12BNCVC-174-11/2016), the High Court, on an appeal from the Sessions Court by the Plaintiff, increased the damages awarded to RM35,000 for defaming the 1st Plaintiff by sending an email containing defamatory statements to 23 persons including those who mattered most to him, namely, his children, his friends and business associates. The Court also held that the Sessions Court Judge had failed to take into consideration of the “gravity of the libel”.

Part 3: In the final part we look at a few cases where individuals ran foul of the Communications and Multimedia Act 1998 and some cases under the Computer Crimes Act.


First published on Digital News Asia on 29 March 2018

Bread & Kaya: Are WhatsApp admins going to jail?

Bread & Kaya: Are WhatsApp admins going to jail?

By Foong Cheng Leong | May 02, 2017

– Two key elements in s. 233 are not fulfilled by a group chat admin
– To use s. 114A to attach liability on a group chat admin is stretching s. it too far

I REFER to the recent news reports stating that the Honourable Deputy Communications and Multimedia Minister Jailani Johari announced that group chat admins can be held accountable under the Communications and Multimedia Act 1998 (CMA) if they fail to stop the spread of false news to its members.

With due respect to the Honourable Deputy Ministry, the CMA, in particular s. 233 of the CMA, does not attach any liability to an admin of a group chat admin for spreading “false news”.

For ease of reference, I reproduce s. 233 of the Act:-

233 Improper use of network facilities or network service, etc

(1) A person who-

(a) by means of any network facilities or network service or applications service knowingly-

(ii) initiates the transmission of,

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,

commits an offence.

(2) A person who knowingly-

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a),

commits an offence.

(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.

The offence under s. 233(1) of the CMA is committed by a person who uses any network facilities or network service or applications service knowingly makes, creates or solicits and initiates the transmission of an offensive communication with intent to annoy, abuse, threaten or harass another person. Two key elements in s. 233 are not fulfilled by a group chat admin namely “knowingly make or initiates the offensive communication” and “with intent to annoy, abuse, threaten or harass another person”.

As for s. 233(2), liability is only attached to a person who knowingly provide or permits an applications service to provide any obscene communication for commercial purposes. This is also not applicable to the present case.

It is noted that s. 114A of the Evidence Act 1950 provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely s. 114A(1), states that “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host , administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.

In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content.

To use s. 114A to attach liability on a group chat admin is stretching s. 114A too far. It must be highlighted that s. 114A was introduced to “provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet” (Explanatory Statement of Evidence (Amendment) (No. 2) Bill 2012). Common sense would dictate that a group chat admin is not a publisher of their member’s messages.

In fact, in the Delhi High Court case of Ashish Bhalla vs Suresh Chawdhury & Ors, the Court held that:-

Similarly, I am unable to understand as to how the Administrator of a Group can be held liable for defamation even if any, by the statements made by a member of the Group. To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation. When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator‟s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform

Perhaps the Honourable Deputy Minister should clarify which section in the CMA attaches liability to a group chat admin to avoid further confusion and panic to group chat admins.


First published on Digital News Asia on 2 May 2017.

Bread & Kaya: Cyberbullying, stalking and sexual harassment

Bread & Kaya: Cyberbullying, stalking and sexual harassment
By Foong Cheng Leong | Jun 28, 2016

– Current laws narrowly and vaguely defines harassment
– It is high time Malaysia legislates against it

In Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Kuala Lumpur Civil Suit No. 23NCVC-102-12/2011), the Defendant alleged that the Plaintiff had sexually harassed her at their workplace.

The Defendant alleged that numerous vulgar and harassing words were uttered to her and they included the following:

– kalau nak cari jodoh cari yang beriman, solat, you kena solat istikarah .. . bila you solat istikarah, you akan mimpi you berjimak dengan orang tu! (If you’re looking for a partner, look for someone pious. You will need to pray. When you pray, you will dream of having sex with that person!)
– you ni asyik sakit kepala saja, you ni kena kahwin tau … you nak laki orang tak? (You’re always having a headache. You need to get married, you want someone’s husband?)
– you nak jadi wife I tak? I banyak duit tau. (You want to be my wife? I have a lot of money).

The Defendant filed a complaint against the Plaintiff to the company and a committee of inquiry was set up to investigate the complaint.

The committee found that there was insufficient evidence to warrant disciplinary action to be taken against the Plaintiff, but a strong administrative reprimand was given.

Aggrieved, the Plaintiff sued the Defendant for defamation and the Defendant counterclaimed for tort of sexual harassment.

The High Court dismissed the Plaintiff’s claim and allowed the Defendant’s counterclaim. She was awarded with RM100,000 in general damages and RM20,000 in aggravated and exemplary damages.

The Plaintiff appealed against the judgment to the Court of Appeal (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-2524-10-2012).

The Court of Appeal dismissed the appeal and held that what the Plaintiff did amounts to the tort of intentionally causing nervous shock.

The Court of Appeal however fell short of declaring that there is tort of harassment in Malaysia.

Dissatisfied again, the Plaintiff filed an appeal with the Federal Court. Unfortunately for the Plaintiff again, the Federal Court (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)) dismissed the appeal.

The Federal Court added:

[39] After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it.

The introduction of the tort of harassment is a significant improvement to our laws. Victims of harassment and cyberbullying now have an easier avenue to obtain redress from our Courts.

In my earlier article Bread & Kaya: Cyberstalking, harassment … and road rage, published in July 2014, I said that we do not have specific laws to govern harassment, and hence it is difficult to determine whether an act amounts to harassment without a legal definition.

Section 233 of the Communications and Multimedia Act 1998 criminalises certain forms of harassment, but it must be an electronic communication which is obscene, indecent, false, menacing or offensive in character.

But as we can see, harassment comes in all sorts of forms.

Furthermore, there had have been complaints that industry regulator the Malaysian Communications and Multimedia Commission (MCMC) is selective in prosecuting cases. Not all complaints are acted upon.

Before the Federal Court decision, it was tougher to seek legal redress as there were no reported case laws holding that there is tort of harassment in Malaysia. When the Court of Appeal delivered the decision of Ridzwan, it equated an action for tort of harassment as tort of intentionally inflicting nervous shock.

Such equation is significant because the threshold to succeed in an action for nervous shock is high. A victim needs to prove that he or she suffered some form of psychiatric illness or injury. Normally, this would need to be proven by a doctor, and a victim may not see a doctor immediately.

Further, a victim of harassment does not necessarily suffer such a medical condition. Harassment normally causes distress, annoyance, humiliation or annoyance.

In Malcomson Nicholas Hugh Bertram v Mehta Naresh Kumar (2001] 3 SLR 379, the Singapore High Court defined harassment as the following:

For the purposes of this application I shall take the term harassment to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.

This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

It would be interesting to see how far the tort of harassment could help victims of stalking, harassment and cyberbullying.

The common form of online harassment and cyberbullying nowadays is to set a mob of netizens against a person, or what is known as cyber-lynching.

Many have become victims of such cyber-lynching, and they may not have a legal redress as the attacks are not done by a single person – they could be shared by thousands of people and acted upon by numerous vigilante netizens independently.

Victims would have a hard time finding the perpetrators, and the legal costs would be prohibitive.

It is high time for Malaysia to legislate against harassment.


First published on Digital News Asia on 28 June 2016.

Bread & Kaya: How the ‘new’ Sedition Act affects netizens

Bread & Kaya: How the ‘new’ Sedition Act affects netizens
By Foong Cheng Leong
Apr 08, 2015

– As with Section 114A, website hosts and FB page owners can be held liable
– Particularly thorny are comments left by others on your portal

BY the time you read this article, the Sedition (Amendment) Bill 2015 – which seeks to amend the Sedition Act 1948 – will be debated in Parliament. The Bill is now published on the Parliament of Malaysia’s website. Click here to download a copy.

The Najib Administration is seeking to update the 1948 Act to now cover electronic publications, and this article will focus on how these amendments may affect the netizens of Malaysia, and website operators in particular.

The purpose of introducing the amendments is stated in the Explanatory Statement of the Bill.

On the eve of Malaysia Day 2011, Malaysian Prime Minister Najib Razak pledged watershed changes to enhance the parliamentary democracy system in Malaysia. This pledge was reiterated in July 2012 and a decision was made to repeal the Sedition Act 1948.

“However, events since that date have demonstrated the continued relevance of the Sedition Act 1948 in tandem with recognition for the need for enhanced safeguards against its misuse to stem legitimate criticism of Government and discussion of issues of concern to Malaysians,” the explanatory statement reads.

“Among the issues of concern are the increasingly harmful and malicious comments, postings and publications that jeopardise that most valued ideals of Malaysia – tolerance and racial and religious harmony in a multiracial, multireligious and multicultural nation.

“Even more alarming are calls for the secession of States in the Federation of Malaysia established by the consensus of the peoples of Malaysia and unwarranted attacks against the sovereign institutions of Malaysia, the Yang di-Pertuan Agong and the Rulers of the States.

“It is against this background that the Government has decided to retain the Sedition Act 1948 (‘Act 15’) at this time with the addition of enhanced measures and penalties to deal with the threats against peace, public order and the security of Malaysia, in particular through the irresponsible misuse of social media platforms and other communication devices to spread divisiveness and to insult the race, religion, culture, etc. of particular groups of Malaysians without regard for the consequences,” it says.

The definition of seditious tendency will be amended. It will no longer be seditious to “bring into hatred or contempt or to excite disaffection against any Government, administration of Justice (our Courts).

It will be seditious to excite the secession of a State from Malaysia. It is seditious to insult our Rulers, and to promote feelings of ill will and hostility between different races or classes of the population of Malaysia and, with the new amendments, between persons or groups of persons on the grounds of religion.

The Sedition (Amendment) Bill 2015 creates liability to website operators (I use this term loosely as the Bill uses the words ‘any person’ and thus may include owner, host, editor and subeditor) such as online forums, online news portals, and even Facebook Page/ Group owners.

Sections 3 and 4 of the Bill introduce the words “caused to be published.” Under the newly amended Section 4(1)(c) of the Sedition Act 1948, a person who, among others, publishes or caused to be published any seditious publication is guilty of an offence.

The punishment is now “a term not less than three years but not exceeding seven years.” Previously, it was not exceeding three years and a fine.

So what does “caused to be published” here mean? It seems to cover a website operator who allows a comment to be published on his website (especially in the case where comments are moderated). This also covers a comment or a posting published on a Facebook page.

Further, pursuant to Section 114A of the Evidence Act 1950, the owner, host, administrator, editor or a subeditor of the website is the publisher of that comment – notwithstanding that such person is not the author of such a comment (unless the contrary is proven).

If the offence involves a publication of a seditious comment under the new Section 4(1A) – that is, published or ‘caused to be published’ any seditious comments which caused bodily injury or damage to property – the Public Prosecutor has a right not to allow bail. Such a person will languish in jail until his trial is over.

Further, 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, shall 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.

However, there are exceptions for a website operator if he can prove that the seditious publication was done:

– Without his authority, consent and knowledge and without any want of due care or caution on his part, or
– That he did not know and had no reasonable grounds to believe that the publication had a seditious tendency.

The first exception will not be applicable to a website operator who moderates comments because publication of a comment was done by his authority, consent and knowledge when he approved the comment.

It would however be applicable to an unmoderated website but such an operator must show that due care and caution had been taken.

Nevertheless, the second exception above will be of assistance to a website operator who moderates comments. However, it is difficult to determine what amounts to seditious nowadays (we need a compendium of sedition statements!).

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., as per the new Section 10(1)).

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.

If the person making or circulating the seditious publication by electronic means cannot be identified, a Sessions Court Judge can direct that such publication be blocked (under the new Section 10A).

[Note: This article is subject to amendments in the event that there are new facts or clarifications from the First Meeting of the Third Session of the 13th Parliament (2015)].



First published on Digital News Asia on 8 April 2015.

Bread & Kaya: Tracing someone online

Bread & Kaya: Tracing someone online
Nov 17, 2014

– Getting the IP address is one way, but may not always be possible
– On issue of defamation, Section 114A has been applied retrospectively

ONE of the most difficult issues to deal with in cybercrime or cyber-bullying cases is finding the perpetrator online. My years of blogging have brought me some experience in dealing with this issue, especially when dealing with ‘trolls.’

I am glad to say that it is not impossible. Some guesswork is needed. Normally, such a perpetrator is someone you know, although he or she may or may not be close to you. Sometimes, however, it would be just a stranger.

There was one case where the perpetrator was found to be a friend’s spouse whom the victim had only met a few times. Strangely, there was no animosity between these parties.

In one case which I was personally involved, I made a guess on the possible perpetrator and worked from there. Eventually, the person confessed after being confronted.

Getting the Internet Protocol (IP) address of the perpetrator is one of the conventional ways to track someone down. Internet service providers (ISPs) assign unique IP address to each user account. However, IP addresses may not be retrievable if the person is on a proxy server.

Another problem is the jurisdictional issue. Many servers storing such IP addresses may be located overseas and owned by foreign entities. One may have to initiate legal action overseas to get such data, and many of these service providers do not release their user information easily due to data protection laws or their strict privacy practices.

In the recent case of Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904, the Plaintiffs initiated an action for cyberspace defamation against the 1st Defendant.

In tracing the perpetrator, who had posted defamatory statements on two Google Blogspot websites, the Plaintiffs filed an action called a John Doe action in the Superior Court of California. In compliance with the Court order, Google traced the blogs to two IP addresses which were revealed by Telekom Malaysia Bhd to be IP addresses belonging to the 1st Defendant’s account.

In the same case, the High Court had held that the controversial Section 114A (2) of the Evidence Act 1950 applied retrospectively.

S. 114A (2) provides that the burden of proof lies on the subscriber of an ISP to prove that a certain statement was not published by him or her. The 1st Defendant failed to convince the Court that s. 114A (2) does not apply because the defamatory statements were published before the enforcement date of s. 114A(2).

This retrospective stand however was not followed in the case of PP v Rutinin Bin Suhaimin [2013] 2 CLJ 427 as the High Court held that s. 114A does not apply retrospectively.

Perhaps the distinguishing factor between these cases is that the first case involved a civil dispute whereas the latter is a criminal prosecution.

Readers may recall that the #Stop114A campaign was initiated to get this law repealed. I am proud to say that Digital News Asia (DNA) was one of the organisers and participants in shutting down its website for one day. The campaign attracted the attention of Prime Minister Najib Razak but unfortunately, the law remained.

Going back to the case, the Court held that the 1st Defendant had failed to prove that he was not the publisher of the content. The 1st Defendant is now liable for a payment of RM600,000 (US$180,000) as damages to the Plaintiffs.

Not all tracing of a perpetrator requires an IP address. In Datuk Seri Anwar Bin Ibrahim v Wan Muhammad Azri Bin Wan Deris [2014] 3 MLRH 21, Opposition leader Anwar Ibrahim (pic) sued Wan Muhammad Azri Bin Wan Deris, allegedly a well-known blogger called Papagomo, for defamation.

In proving the identity of Papagomo, instead of tracing the IP address of Papagomo, the Court relied on the statement of a person who had met Papagomo in person before. The former also took a picture with Papagomo and this picture was tendered in Court.

There are other unconventional methods to identify a person online. I have heard of a private investigator entering a person’s home without knowledge to gain access to the computer of that person.

Many people do not password-protect their home computers and leave their email and other online accounts still logged into. This allows the private investigator to easily access a person’s emails and other online accounts without any technical skills.

One method that I always use is to find something unique in the content posted by the perpetrator. For example, I recently concluded that a website was held by a cyber-squatter by doing a Google search on certain sentences that appeared on the website. The cyber-squatter’s website looked like a legitimate website, but the search revealed that the same facade had been employed by the cyber-squatter on several websites using well-known brand names.

If there are images involved, a Google Image search would be useful to find whether other websites are hosting the same image.

It is of utmost importance that one must have reliable evidence to prove the identity of a perpetrator before suing or charging them. The person doing such investigation should be knowledgeable enough to conduct the investigation, know the rules of producing evidence and testifying in Court, and to thwart all challenges by the perpetrator’s lawyers.

Failure to do so would result in the case being dismissed or in a worst scenario, an innocent person being charged or sued in Court.


First published on Digital News Asia on 17 November 2014.

Bread & Kaya: Liking a Facebook page and the law

Bread & Kaya: Liking a Facebook page and the law

Foong Cheng Leong
Aug 14, 2014

– ‘Liking’ a page doesn’t necessary mean you agree with it
– Using Sedition Act for what you ‘Like’ sets dangerous precedent

THE recent report that Malaysian police are investigating a Penang teenager under the Sedition Act 1948 for liking the ‘I love Israel’ Facebook page has raised more than a few eyebrows.

This leads to some interesting questions: What does liking a Facebook page mean? Does it mean liking the idea that is expressed by the Facebook page? In the above case, does this mean that the teenager actually loves Israel?

To answer this, we first refer to Facebook’s definition of ‘Like.

What’s the difference between liking a Page and liking a post from a friend?

Liking a Page means you’re connecting to that Page. Liking a post from a friend means you’re letting that friend know you like their post without leaving a comment.

When you connect to a Page, you’ll start to see stories from that Page in your News Feed. The Page will also appear on your profile, and you’ll appear on the Page as a person who likes that Page.

Further, in the US case of Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013, click here for the PDF), the Court held that:

On the most basic level, clicking on the ‘Like’ button literally causes to be published the statement that the User ‘Likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he Likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

This is a US case thus it is not applicable to us, and Facebook’s definition may not be relevant here. So far, we have no reported case in Malaysia of the legal implications of Liking a Facebook page.

To me, when a person Likes a certain page, it doesn’t necessary mean he or she ‘likes’ what the page represents. I may ‘Like’ a page to ‘get the stories from that Page in my News Feed.’ I sometimes Like a page to support a friend who started such page, but that does not mean I like his postings or expressions there. I’m sure many of us here use the Facebook ‘Like’ button differently.

To charge the teenager for sedition for Liking the ‘I Love Israel’ Facebook page is a dangerous precedent. Each Facebook user would have to be very careful on the Facebook page they Like. Those who are oblivious to current affairs would be most vulnerable.

Furthermore, the name of a Facebook page can be changed. Imagine if someone changes a Facebook page in open support of child pornography, and those who had previously Liked the page seem to suddenly like child pornography!

(Note: No approval is required to change the name of a Facebook Page with fewer than 200 members).


First published on Digital News Asia on 14 August 2014

Unknown Caribbean company files for MH17 trademark

I was quoted by Digital News Asia in their article “Unknown Caribbean company files for MH17 trademark” published on 22 July 2014.



Unknown Caribbean company files for MH17 trademark
Gabey Goh
Jul 22, 2014

– Trademark applications filed for ‘MH17’ & ‘MH370’ for use in EU
– Case of companies or individuals using trademark register to take advantage of a tragedy

IN THE wake of the MH17 tragedy, reports have already surfaced about cybercriminals taking advantage with fake Facebook pages being created in the name of victims, for money.

Now it appears opportunism has reared its ugly head in another way – Digital News Asia (DNA) has learnt that claims have been filed to trademark the terms ‘MH17’ and ‘MH370.’

MH370 was the number of the Malaysian Airlines flight that inexplicably disappeared on March 8, remaining one of the aviation industry’s greatest mysteries. The Beijing-bound flight from Kuala Lumpur was carrying 12 crew members and 227 passengers, the majority of whom were China nationals. The search and rescue operation has yet to find remains of the craft.

Malaysia’s national carrier, already reeling from that disaster and a disappointing financial year, then experienced another disaster when Flight MH17 from Amsterdam to Kuala Lumpur was shot down over Ukrainian airspace on July 17, killing all 283 passengers and 15 crew on board.

Details of the ‘MH17’ filing, submitted on July 17 itself, were found on the European Trade Mark and Design Network website and the application under examination. The ‘MH370’ filing submitted on May 2 was found on the Justia Trademarks site, and according to the site, has yet to be assigned a case examiner.

According to available details, the same company, Seyefull Investments Limited which is incorporated in Belize City, filed both applications.

Belize City is the largest city in the Central American country of Belize and was once the capital of the former British Honduras. It is located at the mouth of the Belize River on the coast of the Caribbean.

The scope of usages listed within both applications is wide ranging: From conferences, exhibitions and competitions; to education and instruction, and entertainment services (namely, the provision of continuing programmes, segments, movies, and shows delivered by television, radio, satellite and the Internet).

DNA columnist and intellectual property lawyer Foong Cheng Leong (pic) noted that trademark rights are limited to the goods and services chosen by the proprietor.

“Here, the applicant is registering the mark MH17 for all sorts of products in the European Union. By being the registered proprietor, they have the rights over the mark [when it comes to] the registered goods and services in the European Union.

“They may stop people from using the mark or ask for payment in the European Union,” he added.

Asked whether these trademark claims were the groundwork for potential ‘trademark trolling’ efforts, Foong said that he would not be able to determine whether they are trademark trolls without a deep investigation into the entity in question.

‘Trademark troll’ is a pejorative term for any entity that attempts to register a trademark without intending to use it, and who then threatens to sue others who use that mark.

It is a different beast from a ‘patent troll,’ also called a patent assertion entity (PAE), a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in ‘economic rent-seeking.’

Claiming a stake in crisis

This is not the first time an attempt has been made to claim the intellectual property associated with a global event. Among the most notable was when a businessman named Moti Shniberg tried to trademark the term ‘September 11, 2001’ … on the day itself.

Shniberg said he had filed for the trademark for “charitable purposes,” but the US Patent and Trademark Office ultimately rejected the application. It was one of about two dozen reportedly filed trademarks related to the Sept 11, 2001 terrorist attacks in the United States.

Lawyers and trademark industry watchers DNA spoke to for this article noted that it is quite common for people to file trademarks based on words related to current affairs.

A trademark industry observer, who asked not to be named, said that such filings are “fairly common, but also fairly pointless” because they usually get rejected and lead to bad public relations for the people or company which filed the trademark, as well as for the trademark industry as a whole.

He said that the case in question was “another sign of companies or individuals taking advantage of tragedies using the trademark register.”

“I don’t know the reason for these, it’s probably opportunistic from what I can tell – the fact the MH17 one was filed on Thursday definitely suggests that.

“My guess would be it’s a shell company of some kind. The company’s other trademark is for ‘Mata Hara 308‘, which appears to be linked to this website which mentions MH370, and has the same image for its browser tab as the Seyefull website, so I think they’re linked.” he added.

Asked whether Malaysia Airlines (MAS) should be concerned about such moves, he pointed to another filing made by Aoan International Pty Ltd to register an Australian trademark for ‘MH370’ in March that is due to be accepted on July 30.

“However, it seems that Malaysia Airlines is concerned about this kind of thing because 10 days ago, [Malaysia Airlines] itself registered a trademark in Australia for ‘MH370′,” he said.

Additional checks also found that MAS had filed its own Community Trade Mark application for ‘MH17.’ However, this was made on July 21, a few days after the application made by Seyefull.

“I do not know why [Malaysia Airlines] filed, but it may have been alerted by the company’s application or is trying to block others from registering the mark,” said Foong.

A corporate lawyer who also declined to be named for this article said that to her knowledge, there are corporates and individuals “who more often than not, seize the opportunity to register certain names when they sense the potential in future commercial exploitation.”

“Apart from applications for registration of a trademark, another area is the registration of domain names. The name ‘everyone can fly’ and ‘airasia’ have been rampantly applied by different individuals from all over the world,” she said.

She noted that at first glance, the most obvious reason why one would want to register ‘MH370’ and ‘MH17’ now is probably due to the potential of these events being made into movies or books.

“However, one should also question whether they infringe the rights owned by MAS in applying to register such a mark in the first place.

“Usually, the Registrar would not allow registration should it feel that this infringes the existing rights of another party. MAS still retains the common law proprietary rights in the mark,” she added.

1 2 3  Scroll to top