2020 Cyberlaw Cases: Cyberlaw in the Covid-19 Era

• Pandemic response by Malaysian judiciary sees it embracing virtual
• Need for counsel, litigants, witnesses to travel for hearings getting less

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 at https://youtu.be/5zuKiIxj4_M.]

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, Judicial Commissioner 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 (Kuala Lumpur High Court Suit No. WA-221P-25-04/2020), 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.

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 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 (Johor Bahru High Court Civil Suit No. JA-22NCVC-162-08/2018) 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.

This is Part 1 of a 3-part review. On Thursday in Pt 2: First Decision on a Persons Unknown Injunction in Cyberspace , AirBnB, Discovery of the Identity of Social Media User 

 Foong Cheng Leong is an Advocate and Solicitor of the High Court of Malaya. He blogs at foongchengleong.com, and tweets at @FCLCo. www.linkedin.com/in/foongchengleong/