Bread & Kaya: A look at Malaysian cyberlaw cases
By Foong Cheng Leong February 17, 2014
- A summary of the plethora of Malaysian cases involving the online world in 2013
- The Government still needs to look at legislation to address many other issues
Bread & Kaya by Foong Cheng Leong
I HAVE been summarising some interesting cases related to online disputes from around the world every year since 2011.
For a summary of 2010 cases, click here; for 2011 cases click here; and for 2012 cases, click here.
Compiling legal cases is a hobby of mine. I recently published a compilation of Malaysian trademark cases under the title Compendium of Intellectual Property Cases – Trade Marks. This book consists of 70 reported and unreported Malaysian trademark cases.
The year 2013 was one packed with an unprecedented number of legal cases concerning the Malaysian Internet sphere so much so that I have enough cases for one full article!
Facebook and Twitter
Facebook and Twitter related lawsuits have flooded the Malaysian Courts.
In National Union of Bank Employees v Noorzeela Binti Lamin (Kuala Lumpur High Court Suit No. S-23-NCVC-14-2011), the plaintiff initiated an action against the defendant for posting alleged defamatory comments on her Facebook page.
The defendant denied making such comments on Facebook, and claimed that his sister operated the Facebook account, also testifying that “maybe someone hack[ed] my Facebook [account].”
The defendant further contended that the plaintiff had failed to take any steps to check the details of the owner of the Facebook account or the Internet address with the Facebook administrator to confirm that the account belonged to the first defendant.
Notwithstanding this evidence, the defendant admitted in her Statement of Defence that she had published the comments. As a result, the court held that she was bound by her pleadings and therefore could not dispute that she did not post the comments.
In Dato Seri Mohammad Nizar Bin Jamaluddin v Sistem Televisyen Malaysia & Anor (Kuala Lumpur High Court Suit No: 23 NCvC-84-07/2012) , the plaintiff, a well-known politician, filed an action against the defendants for defaming him through the first defendant’s television news report of materials regarding the plaintiff’s tweets on his Twitter account.
The plaintiff alleged that the news report wrongly accused him of making the allegation that the Sultan of Johor had used public funds to bid for car plate number WWW1.
The High Court held that the plaintiff’s tweets, read and understood by any reasonable man, clearly insinuated that the Sultan of Johor had used public funds for the WWW1 bid. Thus, the court held that the defendants succeeded in their defence based on justification.
However, the court held that the defendants did not practise responsible journalism because they failed to verify the truth of his tweet messages with the plaintiff, or to obtain his comments on the matter.
It said the defendants’ publication was lop-sided, leaning towards giving a negative impression about the plaintiff, even before the police completed their investigations. The court also stated that there should be freedom on the part of the plaintiff to tweet his personal messages on his own Twitter account for as long as the laws on defamation and sedition, and other laws of the land, were not breached.
Mohammad Nizar also initiated legal action against Malay-language daily Utusan Malaysia for allegedly misreporting his tweets (see Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Berhad [2013] 1 LNS 592). He succeeded and was granted, among others, damages of RM250,000.
[RM1 = US$0.30]
The learned High Court Judge also commented that Utusan Malaysia did not practice responsible journalism.
In Salleh Berindi Bin Hj Othman v Ruslili Nurzahara Hassan (Kota Kinabalu High Court Suit No. BKI-23-1/6-2012), Salleh, a schoolteacher, sued his colleague for damages of RM1 million for publishing three photographs of him on his colleague's Facebook page. The photographs showed Salleh sleeping on a sofa in the teacher’s room.
Similarly, Salleh also sued his other colleagues for the sum of RM10 million for posting several entries and comments on their Facebook pages (Salleh Berindi Bin Hj Othman v Abdul Hamid Ahmad & 4 Others (Kota Kinabalu High Court Suit No. K-22-134-2011)).
Salleh failed in both suits.
In Nor Hayati Binti Ali v Wan Nuredayu Binti Wan Shaharuddin & Ors (Kuantan Sessions Court Civil Suit No. 53-218-2012), the Kuantan Sessions Court granted a modest sum of RM20,000 against the first defendant for defaming the plaintiff on Facebook.
The use of Facebook pages as evidence in court is becoming the norm these days. However, such evidence is not always acceptable.
In Tan Swee Ean v Adrian Tan Soon Beng & Anor (Penang High Court Divorce Petition No. 33-295-201), the High Court rejected a wife's allegation that his husband had committed adultery based on pictures downloaded from a Facebook account belonging to the wife's friend. The Court held that such pictures are hearsay.
Sex bloggers ‘Alvivi’ (Alvin Tan Jye Yee and Vivian Lee May Ling) were charged under Subsection 4 (1)(c) of the Sedition Act 1948, Penal Code, and Subsection 5(1) of the Film Censorship Act 2002 for displaying pornographic pictures on their blog and posting their controversial ‘Bah Kut Teh’ picture on their Facebook page, which allegedly insulted Muslims during the holy month of Ramadhan.
Blogs
In 2011, Sri Muda state assemblyman Mat Shuhaimi Shafiei was charged with sedition over a blog post which allegedly insulted the royal institution. He challenge the constitutionality of S. 4(1)(c) of the Sedition Act 1948 but failed in the Court of Appeal as reported in Mat Shuhaimi bin Shafiei v Pendakwa Raya.
His appeal to the Federal Court is now pending.
Pro-Umno blogger ‘Papa Gomo’ was also ordered to pay a businessman RM500,000 in damages over a defamation suit.
Forums
Notwithstanding the introduction of Section 114A (which makes website operators liable for their users’ posts), there were not many lawsuits taken against forum owners.
However, in Gloco Malaysia Sdn Bhd v Lam Ming Yuet (Shah Alam High Court Suit No. 22NCVC-1284-10/2012), the plaintiff sued its former employee for posting her experience working with the plaintiff on the popular forum LowYat.net.
The High Court dismissed the plaintiff's action on, among others, the grounds that such postings were not defamatory.
The Enforcement Division of the Ministry of Domestic Trade, Cooperatives and Consumerism, with the help of other authorities, arrested the operator of JIWANG.org for hosting links to music, television shows and movie files via the website JIWANG.org.
Interestingly, one can be arrested for hosting links instead of hosting the content itself!
Wikipedia
In the past, the Malaysian courts have referred to Wikipedia articles as evidence or guidance.
However, in Ganga Gouri ap Raja Sundram Mohd Faizal Bin Mat Taib (Kuala Lumpur Civil Suit No. 21 NCvC-168-07/2012), the High Court rejected evidence from a Wikipedia page used to rebut an expert’s testimonial.
The Court highlighted that Wikipedia has a legal disclaimer stating that “Wikipedia does not give legal opinions. There is absolutely no assurance that any statement contained in an article touching on legal matters is true, correct or precise.”
In Mycron Steel Berhad v Multi Resources Holdings Sdn Bhd (High Court Suit No: KCH-22-80-2011), the High Court declined to take judicial notice of an economic downturn based on an extract from Wikipedia on a write-up titled Subprime Mortgage Crisis because it was not evidence adduced at the trial or an authored publication on the subject.
However, in Lee Lai Ching v Lim Hooi Teik [2013] 1 LNS 18, the learned High Court Judge downloaded a Wikipedia page relating legal issues on parental testing in other jurisdictions.
Closing
Although Malaysia had a plethora of cyberlaw cases flooding its courts in 2013, we can see that there are many issues that our laws have not specifically dealt with. Our Government has yet to come out with legislation or regulations to deal with issues such as:
2) Cyberstalking and publication of images of young girls on a blog without their consent (although I would argue Copyright Act 1987 applies). See my previous Digital News Asia (DNA) article here.
3) Disseminating gruesome images of victims. See my previous DNA article here.
4) A law to absolve electronic platform providers (e.g. forums) from liability when a user makes an unlawful posting. The United Kingdom has introduced the Defamation Act 2014 to protect operators of websites.
5) Guidelines for Internet service providers (ISPs) to follow before a website can be blocked from access by the general public. Instead of allowing the Government or ISPs to arbitrary block websites without notifying the public, there should be a rule to make any decision to block a website published in the Government Gazette and any party may challenge such a decision unless there are good reasons to exempt such publication (e.g. for national security reasons). The arcane Printing Presses and Publications Act 1984 has similar provisions and I don't see why we can't have the same thing for blocked websites!
Foong Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. He blogs at xes.cx and foongchengleong.com, and tweets at @xescx and @FCLCo.
Previous Instalments of Bread & Kaya:
The law and the Sweet Young Malaysian Girls blog
Bread & Kaya: Sharing images of crime victims
Choosing a good trademark for your startup
Using Facebook's marks for your business
Limited Liability Partnership: An alternative business structure
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