Bread & Kaya: 2022 Cyberlaw cases of interest..Pt 1

  • Challenges to Constitutionality of s. 233 Communications and Multimedia Act 1998
  • Discovery of WhatsApp messages and marital privilege of the Evidence Act 1950

Bread & Kaya: 2022 Cyberlaw cases of interest..Pt 12022 saw the final appeal and incarceration of our former Prime Minister, Najib Razak. The result of his case caused effects on various laws including cyberlaw. One of them is the reliance of Facebook postings by the Chief Justice’s husband announcing his personal views made four years ago to recluse the Chief Justice from hearing Najib’s final appeal at the Federal Court (Dato' Sri Mohd Najib Hj Abd Razak v. PP & Other Appeals (No 3) [2022] 8 CLJ 387). The Chief Justice dismissed the application and held that there is “absolutely no nexus between the Facebook post and the present appeals”. As such, there is no real danger of bias.

Lawyers are now physically back in Court. Hearings at the High Court and subordinate courts are normally done through remote communication technology (i.e. Zoom) but for trials, it may be through a physical court hearing or remote communication technology. Meanwhile, hearings at the appellants courts are still conducted by way of remote communication technology.

However, our Courts are still reliant on the existing technology available to the general public. There is a need for a customised solution for the Court and lawyers in terms of remote communication technology. A customised solution for parties to view recordings and transcripts or see users’ activities (like a witness logging off while testifying in Court to avoid being questioned or consult third parties while giving evidence) would be one of the ideal features to be added.

In the digital assets front, we saw the rise of Non-Fungible Token (NFT) and this resulted in new legal cases being reported. Amongst these cases, the Singapore High Court in Janesh s/o Rajkumar v Unknown Person [2022] SGHC 264 recognised that NFT is a form of property as it fulfils the four legal requirements of being a property, namely, definable, identifiable by third parties, capable in their nature of assumption by third parties and having some degree of permanence.

Whereas in Malaysia, it was reported that several investors were allegedly scammed in a Digital Currency Investment Scheme in (Chen Yook Bee & Ors v Neurogine Capital (L) Sdn Bhd & Ors ([2022] 1 LNS 1832)) involving the sale and purchase of foreign currencies and cryptocurrencies. The 1st and 2nd defendants tried to strike out the action against them but they failed and the High Court ordered the matter to proceed to trial.

The interesting part is that the High Court recognised that digital currency and cryptocurrency are “currency held in digital form and/or there is no physical form and only exists online” and “exclusively digital currency that is based on the blockchain storage format” respectively.


Defamation through iMessage

In Pushparajan a/l R. Thachanamoorthy v Chin Wai Yee [2023] 1 CLJ 97, the High Court dealt with a case involving defamation through iMessage, the iPhone’s messaging application via an iCloud email address.

The plaintiff alleged that the defendant had sent a message to the former's wife alleging that the former is having an extramarital affair. The defendant denied the allegation and she has never owned the iCloud email address.

Notwithstanding that the High Court found that the iMessage was defamatory and there had been publication, the High Court found that the plaintiff has failed to prove that the iMessage was sent by the defendant and the case was dismissed accordingly.

The plaintiff relied on s. 114A of the Evidence Act 1950 to impose a presumption that the iCloud email address was owned by the defendant at all material times. The defendant argued that the iCloud Email Address was not and has never been her email address and the screenshot iMessage had never displayed her profile picture nor her handphone number.

The High Court accepted the defendant's contention. The plaintiff argued that the ownership of the iCloud email address could not be checked due to the privacy policy held by Apple. However, the plaintiff did not confirm the ownership of the iCloud email address with any officer from Apple or the Malaysian Communications and Multimedia Commission (MCMC).

On top of that, it was also stated in the iMessage that ‘the sender is not in your contact list Report Junk’ which indicates that the sender is not in the contact list of the recipient’s mobile phone. The recipient had earlier testified that she had saved the defendant's phone number in her phone. There was also no evidence to show that anyone had contacted the defendant through the iCloud email address. The Court found that there is a possibility that the iMessage may not even be sent by the iCloud Email Address user. In addition, the High Court denied the admissibility of the screenshot of the iMessage as the original message had been deleted by the recipient and could not recover the message.


Doctored video clip of a Court proceeding

[Ed Note: This judgment was written by the learned Judge on the grounds of public interest regarding the due administration of justice for members of the public, in particular practising advocate & solicitors, to be aware of the following adverse consequences in respect of the making and distribution of the doctored video clip. It does not, in any way, relate to the main dispute between the parties of this case.]

In Celcom (Malaysia) Bhd & Anor v. Tan Sri Dato’ Tajudin Ramli & Ors And Another Case (No 2) [2022] 4 CLJ 381, it was reported that a doctored video clip containing of an online Court trial was circulating online. The video purportedly shows four (4) “frames” of three (3) counsels with the High Court Judge. It was doctored to show that the learned Judge had admonished a counsel in a loud voice during the trial for asking a question on contractual interpretation, and the learned Judge had asked the court interpreter to record the time of the above matter so that he could complain to the Disciplinary Board against the counsel. However, the learned Judge was in fact speaking to another counsel whose video frame was deliberately omitted from the video clip.

The learned Judge was of the view that any reasonable person who has only watched the doctored video clip would form the view, opinion and/or belief that the court had unjustly dealt with the counsel by complaining to the Disciplinary Board about him merely because he had asked the witness regarding the interpretation of a contractual provision.

The learned High Court Judge said that any person making such video clip had breached the Court’s order not to make any recording of the online court trial. Any person who had abetted or assisted in the commission of the said act may be liable for contempt of court. It amounts to scandalizing the Court.

His Lordship also expressed the view that the making of the video clip is an offence under s. 233(1) of the Communications and Multimedia Act 1998 while the counsel who was seen to have been admonished by the learned Judge has a remedy for criminal defamation under section 499 of the Penal Code. The video clip has defamed the counsel by “visible representation” which was made and/or transmitted with the knowledge or reason to believe that the imputation concerning the counsel in the video clip would harm the counsel’s reputation.


Discovery of WhatsApp messages

In Court proceedings, a litigant may be entitled to request the Court to direct the other party to disclose documents for the purpose of the Court proceedings. In the past, such orders generally apply to documents and correspondences. However, such an order can include instant messages.

In Su Tiang Joo v Chai Ah Ming [2021] 1 LNS 2398, the High Court dealt with two (2) applications for discovery of WhatsApp messages under Order 24 rule 3 of the Rules of Court 2012 each filed by the plaintiff and defendant. The plaintiff sought for "All WhatsApp messages between the Defendant and participants in the WhatsApp Group Chat or WhatsApp Group Chat in relation to the tender exercises for the maintenance contracts with the Mines Residence Association ("MRA") and / or mines MRA Services Sdn Bhd."

As for the defendant, the defendant sought for, among others, the WhatsApp messages between the plaintiff and one Cornelius De Costa regarding a tender exercise and WhatsApp messages between the plaintiff and his wife.

In respect of the plaintiff's application, the plaintiff's counsel revealed the existence of a WhatsApp group that had discussed or apparently discussed the issues that are now pending before the Court. The plaintiff contends that the contents of what was discussed in this WhatsApp Group will assist him in his claim against the defendant or at the very least assist him in putting forward his potential measure of damages against the defendant if he is successful. The defendant on the other hand submitted that, among others, the application is merely a fishing expedition filed by the plaintiff and (ii) it is not necessary as he has given the documents in his possession that are relevant to the plaintiff's solicitors. The defendant also contended that the statements contained in the WhatsApp discussions are not relevant for the purposes of this proceedings and the production of these documents is unnecessary and would be a waste of time and costs.

To determine whether the defendant's contention is correct, the High Court directed that the defendant provide the document that is within his control that may fall within the purview of the discovery sought by the plaintiff pursuant to Order 24 rule 12 of the Rules of Court 2012. The High Court found that the WhatsApp communication does not contain any statements that are relevant for this proceeding. The High Court was of the view that the aforesaid WhatsApp messages are irrelevant for the determination of the suit.

As for the defendant's application, the High Court held that the plaintiff's WhatsApp messages between Cornelius De Costa does not exists and the WhatsApp messages between himself are subject to marital privilege pursuant to section 122 of the Evidence Act 1950.


Constitutionality of s. 233 of the Communications and Multimedia Act 1998

Since the introduction of s. 233 of the Communications and Multimedia Act 1998, various legal actions were made to challenge the constitutionality of this section. 2022 saw a number of attempts to challenge this section but the applicants were not successful.

In Teoh Kah Yong v Public Prosecutor [2022] 1 LNS 2982, the accused, popularly known as DJ Patrick Teoh, was charged under s. 233(1)(a) of the CMA for a posting he made on his Facebook page. Patrick Teoh sought to refer the following constitutional question to the High Court under s. 30 of the Courts of Judicature Act 1964-

“Whether ss. 233(1)(a) and 233(3) of the Communication and Multimedia Act 1998 are inconsistent with Article 5, Article 8 and Article 10 of the Federal Constitution and are therefore null, void and unconstitutional”

The Sessions Court dismissed the application and held, among others, the same issue had been determined and decided by the High Court in Norhisham Osman v PP (2010) 19 MLRH 662 and had passed the proportionality test and is reasonably clarified relying on the case of Syarul Ema Rena Binti Abu Samah v PP (2018) MLRHU 890. The Sessions Court Judge held that he is bound by the decision of the High Court cases. The High Court agreed with the decision of the Sessions Court.

The High Court further held that the purpose of s.233(1)(a) of the CMA is to criminalise the misuse of network facilities, network services and application services, particularly for the transmission of communications of an obscene, indecent, false, menacing or offensive in character with the intent to annoy, abuse, threaten or harass another person. This restriction was enacted to ensure public or moral order. The enumeration of the terms or objects which are offensive acts shows the clear intention of the legislature to limit it to such acts only. This cannot be construed as too broad or open for possible abuse by the authority as the individual act of the offender are still subject to evaluation and interpretation by the court as to whether the content or acts falls under the types of offensive content/acts in s.233.

The High Court also held that the accused's argument that the vagueness of the section potentially criminalizes all comments on topics of public interest is not a valid argument. S. 233 applies only to a class of persons who use network facilities, network services and application services to make an obscene, indecent, false, menacing or offensive character with the intent to annoy, abuse, threaten or harass another person. It is not a total prohibition on all citizens and all acts but is subject to certain restrictions and limitations outlined in the provision of s. 233(1)(a) itself. The section is intended only to prevent abuse in order to preserve the importance of public order and to achieve reasonable morality.

Similarly, in Pendakwaraya v Sarajun Hoda Bin Abdul Hassan (Sessions Court Criminal Case No. AB-62CY-2-08/2021), the Sessions Court refused to refer the following constitutional question to the High Court for determination under s. 30 of the Courts of Judicature Act 1964

"Whether s. 233(1)(a) and 233(3) of the Communication and Multimedia Act 1998 are inconsistent with Article 8 and Article 10(2) of the Federal Constitution and are therefore null, void and unconstitutional."

The accused argued that s. 233 is unclear, broad, vague and subjective. It does not provide adequate and fair criteria and/or standards with respect to prohibited restrictions. The Sessions Court dismissed this argument and held that s. 233 is a reasonable and fair classification to prevent the misuse of malicious communication networks in order to preserve public order and morals in Malaysia.

The accused also argued that the said s. 233 is too broad and may lead to abuse of power and allow arbitrary action by the authorities with respect to the power to arrest, investigate and prosecute. The Sessions Court dismissed this argument as it is not based on any facts or statistics or any form of evidence.

The Sessions Court also held that s. 233(1)(a) merely imposed a restriction on the freedom of speech and expression to prevent acts that prejudice public order, proportionate with the object that it intends to achieve and it is a specific restriction covering services, facilities and applications and the freedom of expression can still be practised so long it is within the parameters allowed by law.

The accused tried to rely on the Indian Supreme Court case of Shreya Singhal v Union of India [AIR] 2015 SC 1123 which held that s. 66A of the Information Technology Act of 2000 which is similar to s. 233 to be unconstitutional on the ground that it is vague and over-broad. However, the High Court in Syarul Ema Rena binti Abu Samah [2018] MLJU 1128 had already rejected the application of this case. The Sessions Court further held that the accused failed to show how the decision of Shreya Singhal is suitable with the context of the state of this country.


Related Stories :

Keyword(s) :
Author Name :
Download Digerati50 2020-2021 PDF

Digerati50 2020-2021

Get and download a digital copy of Digerati50 2020-2021