Bread & Kaya: Malaysian cyberlaw cases in 2014

By Foong Cheng Leong March 17, 2015

Courts flooded with interesting cyberlaw cases dealing with various issues
Year saw controversial Section 114A being invoked more than once

Bread & Kaya: Malaysian cyberlaw cases in 2014 2014 was another interesting year in cyberspace for Malaysia’s legal fraternity. Numerous sedition investigations and charges were made against statements made online and offline.

Notably, Twitter user @wonghoicheng was charged under Section 504 of the Penal Code and Section 233 of the Communications and Multimedia Act 1998 for “deliberately humiliating and provoking” Inspector-General of Police (IGP) Khalid Abu Bakar on Twitter by likening him to Nazi military commander Heinrich Himmler.

Our courts were also flooded with interesting cyberlaw cases dealing with various issues.

Tracing a person online and 114A

In 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 (Internet Protocol) 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. (However, the criminal case of PP v Rutinin Bin Suhaimin [Criminal Case No K42-60-2010] states it doesn’t apply retrospectively).

Section 114A (2) provides that the burden of proof lies on the subscriber of an ISP (Internet service provider) to prove that a certain statement was not published by him or her.

The 1st Defendant failed to convince the Court that Section 114A (2) does not apply because the defamatory statements were published before the enforcement date of Section 114A(2).

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.

Speaking about 114A, the said section was applied in a few other cases in 2014.

In YB Dato Haji Husam bin HJ Musa v Mohd Faisal bin Rohban Ahmad (Court of Appeal Civil Appeal No D-02-1859-08/2012), the Defendant denied that he was the writer of a defamatory article and the High Court held that there was insufficient evidence to prove so.

The Court of Appeal held that the learned High Court Judge ought to have applied Section 114A and in the present case, the Defendant failed to rebut the presumption in Section 114A.

The Court of Appeal held that as a general rule, once the elements of defamation are satisfied, liability is attached and the defendant's defence cannot survive on mere denial, and when it relates to cybercrime, Section 114A will assist the plaintiff to force the defendant to exonerate himself from liability.

In Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd [2013] 1 LNS 1446, the High Court held that Mead Johnson was liable for the defamatory postings made by users of Mead Johnson’s Internet forum and website.

The Court, in applying Section 114A, stated that the introduction of Section 114A is the Malaysian legislature’s response to address, amongst others, the issue of anonymity on the Internet to ensure users do not exploit the anonymity that the Internet can provide to escape the consequences of their actions.

In the present case, the Court held that the Defendants failed to rebut the presumptions cast by Section 114A.

Facebook defamation

There were numerous Facebook defamation cases. In Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384, the management corporation of Amber Court Condominium and its council members sued two unit owners of the condominium for allegedly defaming them on Facebook.

The High Court struck out the case after finding that a management corporation has no powers to do so under the Strata Titles Act 1985 and common law.

Salleh Berindi Bin Hj Othman, who had earlier sued his colleagues for Facebook defamation, lost another Facebook defamation case (Salleh Berindi Bin Hj Othman v Professors Madya Dr Abdul Hamid Ahmad & Ors [2014] 1 LNS 1611) in the High Court.

He alleged that the postings made by the Defendants on the 2nd Defendant's Facebook wall were defamatory of him. The High Court did not agree with him.

In Foo Hiap Siong v Chong Chin Hsiang [2014] 1 LNS 1196, the Plaintiff sued the Defendant, complaining about the following defamatory statement posted by the Defendant, in the said two Facebook forums named ‘Rakyat Ingin Jadi Bos’ and ‘Ubahkan Politik,’ showing an doctored coloured photograph of the Plaintiff's face, depicting him with long hair with the top half of a naked body dressed in a bra with certain defamatory comments in Mandarin.

The High Court held in favour of the Plaintiff and with cost of RM20,000 and further awarded general damages, aggravated damages and exemplary damages to the total sum of RM50,000. [RM1 = US$0.28]

In an action against the Defendant for publishing defamatory statements through emails (Mox-Linde Gases Sdn Bhd & Anor v Wong Siew Yap (Shah Alam High Court Civil Suit No 22-1514-2010), the High Court applied the principle of presumed publication on emails.

The court held that there is a legal presumption that emails are published on being sent without actual proof that anyone did in fact read them.

Under defamation law, a defamatory statement must be published in order to have an actionable cause of action. Using this presumed publication, it is not necessary to prove someone has read the defamatory statement.

Such a legal principle was applied to materials sent in post such as telegram and postcards. It seems that the court had expended this presumption to email, notwithstanding that emails do sometimes get diverted into the Spam folder or get rejected by the recipient server.

Others

In Dato’ Ibrahim Ali v. Datuk Seri Anwar Ibrahim [2015] 1 CLJ 176, the Court dealt with the liability of an office bearer of an association with respect to contempt of court.

In 2013, president of Malay right-wing group Perkasa, Ibrahim Ali, was jailed for a day and fined by the High Court for contempt of court over a posting on the website http:www.pribumiperkasa.com/ made by one Zainuddin bin Salleh, a member of Perkasa.

The posting is said to be outright contemptuous of the court. The High Court held that Ibrahim Ali was liable for the posting made by Zainuddin on that website by virtue of his position as president of Perkasa.

In the appeal before the Court of Appeal, Ibrahim claimed that the posting was made on a website which is not the official website of Perkasa. He also claimed that he is not liable for the posting because he had no actual knowledge and had no control as to the so-called offence.

The Court of Appeal dismissed the first ground but agreed with Ibrahim on the second ground and overturned the conviction.

Sex bloggers ‘Alvivi’ (Alvin Tan Jye Yee and Vivian Lee May Ling) were freed from the charge under Section 298A of the Penal Code (Tan Jye Lee & Anor v PP [2014] 1 LNS 860) for posting their controversial 'Hari Raya Greeting' which contained the couple's photograph enjoying the Chinese pork dish Bah Kut Teh with the ‘Halal’ logo with, among others, the words ‘Selamat Berbuka Puasa (dengan Bah Kut Teh ... wangi, enak, menyelerakan!!!...’

The post had allegedly created enmity between persons of different religions under Section 298A of the Penal Code. The Court of Appeal, in striking out the charge under Section 298A of the Penal Code, held that the said section had already been declared invalid by the Federal Court in another case.

The dispute over the use of the word ‘Allah’ in the Herald – The Catholic Weekly had an interesting point over the use of Internet research by judges.

In 2013, the Court of Appeal, in deciding to overturn the High Court’s decision allowing the of the word ‘Allah,’ conducted its own research via the Internet and relied on the information and points obtained therefrom to substantiate its judgments (see Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur [2013] 8 CLJ 890 on Pages 959-960).

Upon the overturn of the appeal, the Titular Roman Catholic Archbishop of Kuala Lumpur (see Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541) filed an application for leave to appeal to the Federal Court (permission is required before one can appeal to the Federal Court and it must satisfy certain thresholds). The Federal Court however refused to grant leave.

The majority judgement by the Chief Justice of Malaya (Arifin Zakaria, on Page 584) held that those views obtained from the Internet were merely obiter (said in passing – not binding but persuasive) whereas Chief Justice of Sabah and Sarawak Richard Malanjum held that leave ought to be granted as the suo moto (on its own motion) research sets a precedent binding on the lower courts yet untested before the Federal Court, and also that the Court of Appeal relied upon the materials gathered suo moto from the Internet in upholding the impugned decision (on Page 617).

It seems that the Federal Court did not endorse such suo moto research by the Court of Appeal Judges.

Closing

Last year, I wrote a ‘wishlist’ of laws to be introduced to govern or deal with cyberspace issues. Out of the five proposed laws, two of them may be potentially addressed with the proposed anti-harassment law.

I understand that the drafting of this anti-harassment law is at its infancy stage and may not be introduced so soon.

Singapore’s Protection from Harassment Act 2014 came into effect on Nov 15 2014. It was reported that Singapore blogger Xiaxue is the first person or one of the first persons who had obtained a protection order under this law against online satire site SMRT Ltd (Feedback) for trolling her online.

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.

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