Bread & Kaya: 2018 Malaysia Cyber-law and IT Cases - Fake news, private information & instant messaging
By Foong Cheng Leong April 19, 2019
- To date, the Anti-Fake News Act 2018 still stands despite an attempt to repeal it
- Means of communication extended to include WhatsApp, phone calls, SMS or WeChat
THE change of Government after the 14th General Election saw changes to our sphere of cyber and IT laws. The new Government withdrew numerous charges under s.233 of the Communications and Multimedia Act 1998, especially against those who had allegedly spoke against the previous Government.
The Anti-Fake News Act 2018 that was introduced before the 14th General Election was quickly shipped away by the House of Representatives via The Anti-Fake News (Repeal) Bill 2018, but was thwarted by the Senate. One person has been charged and sentenced under this Act.
There has also been an array of interesting cyber- and IT-related cases in our Courts.
An employee was dismissed from his job as his conduct could amount to sexual grooming under the Sexual Offences Against Children Act 2017. His action was recorded and featured in an undercover expose by the Star newspaper team of journalists know as The STAR R.AGE Team.
We saw the first decision on the liability of online service providers i.e whether they are liable for trademark infringement for the sale and advertisement of their Merchants’ products published on their website.
We also saw a greater adoption of the electronic service of Court documents. In 30 Maple Sdn Bhd v Noor Farah Kamilah Binti Che Ibrahim (Kuala Lumpur High Court Suit No: WA-22IP-50-12/2017), the Intellectual Property High Court granted an application to serve a Writ and Statement of Claim via email and WhatsApp messenger after it could not locate the Defendant at her last known address.
Traditionally, when a Defendant cannot be located, a Plaintiff would normally ask the Court to allow a notice relating to the lawsuit to be published in the newspaper, among others. The current Rules of Court 2012 does not expressly recognise the electronic service of Court documents notwithstanding that people are more mobile these days. Furthermore, the chance of being able to communicate with someone online is much higher than in person.
PKR communications director and Member of Parliament for Lembah Pantai, Fahmi Fadzil's civil suit against the Malaysian Communications and Multimedia Commission and Nuemera (M) Sdn Bhd (Ahmad Fahmi Bin Mohamed Fadzil v Suruhanjaya Komunikasi dan Multimedia & Anor (Kuala Lumpur Sessions Court Suit No. WA-A52-2-02/2018)) for allegedly failing to protect his personal data which resulted in the leakage of his personal data together with the personal information of 46.2 million mobile subscribers has now been settled. This was one of Malaysians’ biggest data leaks. However, the terms of settlement were not disclosed.
[An earlier version incorrectly described Fahmi Fadzil as the MP for Bangsar.]
Nevertheless, the lawsuit by Nuemera (M) Sdn Bhd against Malaysian Communications and Multimedia Commission (Nuemera (M) Sdn Bhd v Malaysian Communications and Multimedia Commission (Kuala Lumpur High Court Originating Summons No. WA-24NCC(ARB)-14-04/2018)) over its suspension of their services to the Commission due to the data leakage is pending before the Court of Appeal (Civil Appeal No. W-01(NCC)(A)-318-05/2018). The details of the lawsuit are unknown as the Court documents have been sealed by the Court.
I will summarise all these over four articles as part of my yearly tradition of what happened in the preceding year.
Anti-Fake News Act 2018 – Taking down fake news
The Anti-Fake News Act 2018 was quickly passed by the previous Government prior to the 14th General Election.
According to the explanatory note of the Anti-Fake News Bill 2018, the law was introduced to seek to deal with fake news by providing for certain offences and measures to curb the dissemination of fake news and to provide for related matters. As technology advances with time, the dissemination of fake news becomes a global concern and more serious in that it affects the public.
The Act seeks to safeguard the public against the proliferation of fake news whilst ensuring that the right to freedom of speech and expression under the Federal Constitution is respected. The provision on the power of the Court to make an order to remove any publication containing fake news serves as a measure to deal with the misuse of the publication medium, in particular social media platforms. With the Act, it is hoped that the public will be more responsible and cautious in sharing news and information.
S.4 of the Anti-Fake News Act 2018 makes it is an offence for any person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news.
"Fake news" is defined as any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.
It was reported that one Salah Salem Saleh Sulaiman was charged and punished under s. 4(1) of the Anti-Fake News Act 2018, which carries a punishment of up to six years in prison and a fine of up to RM500,000, for maliciously publishing fake news in the form of a YouTube video under the user name Salah Sulaiman. He pleaded guilty and was sentenced to a week's jail and fined RM10,000.
Online news portal, Malaysiakini.com, tried to challenge the constitutionality of the Act but failed in the High Court. In Mkini Dotcom Sdn Bhd v Kerajaan Malaysia & Anor (Kuala Lumpur Judicial Review Application No. WA-25-111-04/2018), Justice Azizah Nawawi held that the application should be dismissed as neither Malaysiakini nor its reporters had been charged under the law. She allowed the objection by the Government to refuse the leave application as the applicant is not adversely affected and the action is premature. Malaysiakini appealed to the Court of Appeal (Civil Appeal No. W-01(A)-399-06/2018) but the appeal was subsequently withdrawn.
As soon as Pakatan Harapan took over the Government, the Anti-Fake News (Repeal) Bill 2018 was introduced to repeal the Anti-Fake News Act 2018. The explanatory note of the Bill stated that fake news may be dealt with under existing laws such as the Penal Code, the Printing Presses and Publications Act 1984 and the Communications and Multimedia Act 1998. As such, the Act is no longer relevant. The House of Representatives passed the said Bill. However, the Senate rejected the Bill. As of the date of this article, the Anti-Fake News Act 2018 still stands.
Private Information – Leaked nudes
As video recording and photography become easily accessible, our Courts are now stating to deal with electronic files containing intimate and/or private materials.
In Datuk Wira S.M Faisal Bin SM Nasimuddin Kamal v Datin Wira Emilia Binti Hanafi & 4 Ors  7 CLJ 290, the 1st Defendant, the ex-wife of the Plaintiff, had taken into possession mobile phones and USB Flash Drives belonging to the Plaintiff. It was alleged that one of the flash drives contains files which featured intimate and/or private audio-visuals.
The Plaintiff sued the 1st Defendant and her other family members for the return of the devices. The High Court held that there had been no denial that the devices belonged to the Plaintiff. In view of the aforesaid, the High Court ordered the return of the devices.
In M v S (Joint Petitioners) (Sabah and Sarawak High Court), the High Court had to deal with the expungement of nude pictures allegedly of the wife. The husband and wife were fighting over the custody of their children. Custody was earlier granted to the husband and the wife applied to vary the custody order.
In opposing the application, the husband exhibited in his affidavit nude photographs of the wife taken from her computer and hand phone without her consent and stated she is a “wild woman” and an unfit mother. The wife applied to expunge several paragraphs and related nude pictures in the said affidavit under Order 41 Rule 6 of the Rules of Court 2012.
The High Court found that the wife did not release the pictures into the public domain. She had stored them privately in her hand phone and laptop computer. It is the husband who accessed them without her permission and gave access to others including law firm staff and court staff by exhibiting them in the affidavit in opposition without any sort of censoring whatever.
Thus, the exhibition of the said pictures of the wife in the affidavit in opposition was a gratuitous and malicious act to embarrass and humiliate her. The exhibition of the uncensored pictures in the husband's affidavit was therefore scandalous and oppressive. Under these premises, the discretionary power vested in the court under Order 41 rule 6 of the Rules of Court 2012 should come to the aid of the wife.
The High Court also held that, in this day and age, private intimate photographs of a person stored in the computer or handphone should not suggest that person in question is immoral or an unfit parent.
Instant messaging – “WhatsApping” your children
In Lee Chui Si v Teh Yaw Poh (Sabah & Sarawak High Court Divorce Petition No. KCH-33JP-234/7-2017), the High Court found ways to soften the blow of a divorce by introducing the use of electronic messaging. The husband and wife fought over the custody of their children but two of their children do not wish to see their father.
Nevertheless, the learned Judge was of the view that a window of opportunity should be left open for the father to make amends to his two children. As such, in lieu of physical access, access to their father can be given by way of communicating with them via mobile phones (WhatsApp, phone calls, SMS or WeChat). In view of the present strained relationship between the two children and their father, the communication between them should be limited in the early stage and the Judge limited it to one phone call not exceeding ten minutes and two text messages a week. If the said two children respond and feel comfortable with communicating with their father, the number of phone calls and texting can be more than what the court has decreed.
Part 2 which focuses on cyber-defamation will be published on April 26