Bread & Kaya (Part 2): 2016 Cyberlaw cases – Electronic evidence, news portals and legislation

• Amendments to Communications and Multimedia Act 1998 to be introduced in 2017
• Online platforms available to match lawyers and members of public

Crime has now moved from the real world into the virtual world. Although transgressions have become virtual, evidence is still needed in a court of law. Given the largely unregulated nature of the Internet, online news portals have flourished and flooded the community with news like never before. Information on almost anything provided by just about everyone can be found online. In this second article Foong Cheng Leong discusses electronic evidence and what may or may not be acceptable in a court of law. He also considers the implications of the flood of information available online to the public and the legal problems that may arise for both individuals and a nation.

In Norfariza Binti Harun V Dr Yusaidah Binti Yusof & Anor (Negeri Sembilan Sessions Court Civil Suit No. A53KP-04-11/2014), the Plaintiff sued the 1st Defendant for medical negligence while treating the Plaintiff. In support of the Plaintiff's case, the Plaintiff had relied on various medical articles obtained from websites such as Healthline.com, webMD, Medicine Net.Com. However, the Court held that Plaintiff’s reliance on various websites to establish the effects of medications, misdiagnosis of Plaintiff’s symptoms and the prescriptions given is insufficient to establish the Plaintiff’s case without calling any medical expert. The Plaintiff's case was therefore dismissed.

In Reka Setia Playground Sdn. Bhd. v Siow Wee Hong (Berniaga sebagai AZ Playground Builder) (Shah Alam High Court Suit No. 22NCVC-553-10/2015), the Plaintiff sued for copyright infringement over certain designs and works. In attempting to prove that the Plaintiff has no valid copyright claim over the design and works, the Defendant referred to a Prior Art Search Report.

The said Report utilised, among others, Google Search Results as a gauge or yard stick to determine whether or not there are contradicting copyright claims. The Court held that Google cannot be a credible copyright database. Google is merely an internet search engine and cannot be a determinant of any copyright claims or contradictions. Therefore, this Court held that it will not take into account any portions of the Search Report pertaining to Google Search Results.

On a slightly technical side, in the case of Wing Fah Enterprise Sdn Bhd v Matsushita Electronic Components (M) Sdn Bhd (Shah Alam High Court Suit No. 22-753-2005), the High Court held that s. 90A of the Evidence Act 1950 was not enacted to allow admissibility of documents downloaded from the internet. The High Court said that the meaning of computer producing the document must be a computer in the course of its ordinary use.

This refers to dedicated computers kept in organisations to do a certain function of general purport. This provision would cover for instance computers producing receipts on payments. In the present case the Plaintiff’s computers keeping details of accounts for instance would be covered by this provision. The production of the account sheets of the company from this computer would therefore be admissible under this provision. However information downloaded from the internet in no way form the ordinary use for the Plaintiff’s computers.

Computer Crimes Act 1997

Before 2016, it's a rarity to find reported judgments relating to the Computer Crimes Act 1997. However, three (3) judgments relating to the same were published by the High Court in 2016.

In Basheer Ahmad Maula Sahul Hameed & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-44-06/2015), the High Court dismissed the appeal by the accused over their sentencing for, among others, stealing from the accounts of a few victims from the MH370 air flight tragedy using their ATM cards and online banking.

In Roslan bin Mohamad Som & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-69- 05/2014 and 42(S)–131–11/2014), the 2nd accused's appeal over his conviction for making unauthorised modification to Tabung Haji's database by inserting certain information therein was dismissed by the High Court.

However, in Pendakwa Raya v Vishnu Devarajan (Kuala Lumpur High Court Criminal Appeal No. 42(ORS)-60-07/2015), it was reported that the accused's 36 charges under the Computer Crimes Act 1997 were struck out by the Sessions Court and subsequently upheld by the High Court as the charges failed to state the physical location where the alleged crime had happened. The High Court also held that an internet protocol (IP) address is not an address where a crime had happened in a charge sheet.

Communications and Multimedia Act 1998 (CMA)

Numerous netizens were subject to an investigation under s. 233 of the CMA (“s. 233”). Notable, a 19 year old boy, Muhammad Amirul Azwan Mohd Shakri, was given the maximum sentence of 1 year for a charge under s. 233 for insulting the Crown Prince of Johor on Facebook notwithstanding that he had pleaded guilty and was unrepresented.

The sentence was subsequently substituted the jail term and sent Amirul to the correction school. In another case, A 76 year old man who goes by the name of "Pa Ya" was arrested and remanded for 3 days for uploading an allegedly insulting photo of Prime Minister Najib Razak. Activist Fahmi Reza was also charged under s. 233 for posting an edited image of Prime Minister Najib Razak on his Instagram account.

On the independent media side, the access to The Malaysian Insider had been blocked pursuant to the direction of the Malaysia Communications and Multimedia Commission (MCMC) vide its powers under s. 263 (2) of the CMA. The MCMC frequently uses the said s. 263 to direct its licensees (i.e. Internet Service Providers) to deny access of netizens to websites to prevent the commission or attempted commission of an offence in Malaysia.

Further, Malaysiakini’s editor-in-chief Steven Gan and KiniTV Sdn Bhd were also charged under s. 233 for airing an allegedly offensive video on KiniTV’s website. The alleged offensive video was of a press conference held by Khairuddin Abu Hassan titled “Khairuddin: Apandi Ali is not fit to be AG and he should quit immediately. Steven Gan was also charged on his capacity as a director of KiniTV Sdn Bhd pursuant to s. 244 of the CMA.

Others

In an interesting case regarding Groupon (an e-commerce marketplace), a user of Groupon Malaysia purchased a tour package vide its platform from one of Groupon's merchant. However, the said merchant allegedly cancelled the tour and no refund was made by the said merchant to the user. Groupon, however, made a refund to the user. Dissatisfied, the user demanded that Groupon bear the payment he made to Groupon's merchant.

Groupon rejected the demand and the user made a complaint to the Consumer Tribunal. The Consumer Tribunal held in favour of the user and held Groupon liable for the payment to its merchant. Groupon thereafter filed an application for judicial review against the Consumer Tribunal's decision in Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor (Kuala Lumpur High Court Judicial Review Application No. 25-332-12/2015)

In the said application, Groupon stated that, among others, that it is merely an online marketing platform and never an agent of the travel company and pointed out that this was highlighted in its terms and conditions - as agreed by the user.

According to the Court's records, the High Court overturned the Consumer Tribunal's decision. Unfortunately, no grounds of judgment had been published. But one can assume that an online marketing platform is not necessarily liable for its merchants' actions.

There are some interesting developments in the realm of cyber and electronic world not seen in Malaysia.

In Lancashire County Council v M & Ors (Rev 1) [2016] EWFC 9, Mr Justice Peter Jackson and published online is thought to be the first in English legal history to incorporate an emoji, or web symbol, to explain a point of evidence. In paragraph 27(13), the Court said:-

In the United States of In the Matter of the Search of an Apple iPhone Seized during the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203 (popularly known as the Apple v. FBI case), the FBI requested the Court to compel Apple, Inc to assist the FBI to access an Apple phone found in a car of one of the San Bernardino shooters.

The FBI had requested Apple, Inc to remove some features from its phone such as the auto erase function, the requirement for passwords to be entered manually and any software-invoked delay-upon-failure functions. Apple, Inc contested the request heavily. However, the FBI dropped its case after it found other ways to access the phone.

Closing

We can expect that amendments to the Communications and Multimedia Act 1998 to be introduced this year. The amendments of the CMA were supposed to be tabled in the 2016 Dewan Rakyat sitting but it never came to light. It is still unclear what are the exact proposed changes. However, we do know that the punishment for contravention of s. 233 will be increased.

There should also be an increase of harassment case be brought to Court with the advent of tort of harassment (Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)). One may bring a person to Court with a help of a lawyer without relying on the authorities.

The cost of hiring a lawyer should now decrease with the advent of many new start-up law firms in Malaysia. Furthermore, there are now online platforms that can match lawyers and members of public such as BurgieLaw and CanLaw.

Foong Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. He blogs at foongchengleong.com, and tweets at @FCLCo.   

Part One: 2016 Cyberlaw cases – Cyber Court, Facebook fights and hacking

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