Bread & Kaya 2023 Pt1: Noteworthy cyberlaw cases include use of thumbs up emoji, defamation, anti-stalking law

• The unreliability of metadata and poison pen letters
• Beware use of the thumbs up and other such emojis

2023 was the year where many lawyers started to experiment with ChatGPT in their legal practice. In fact, some parts of this article were drafted with the assistance of ChatGPT where I had used it to summarise my cases below. However, many parts were imprecise and had to be corrected.

These cases are additions to the new edition (2^nd edition) of my upcoming textbook, Foong's Malaysia Cyber, Electronic Evidence and Information Technology. The case summaries were originally written in detail for the textbook but with the help of ChatGPT, it halved the original text and made them easier for lay people to read.

The use of ChatGPT by lawyers however had not attracted positive use.

In the American case of Mata v. Avianca, Inc  (1:22-cv-01461). The United States District Court found that the attorney in charge and his law firm had “abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question”.

Essentially, the attorney had submitted a document with purported judicial cases that were generated with the help of ChatGPT but these judicial cases did not exists. The Court issued a show cause notice to him. He and his firm were sanctioned by the Court and fined US$5,000 (RM21,892), among others.

This later led to some US Courts imposing restrictions on the use of generative artificial intelligence. One example is where United States District Court for the Western District of North Carolina imposed the requirement of filing a certificate with any brief or memorandum submitted to the Court stating that no artificial intelligence was employed in doing the research for the preparation of the document, with the exception of such artificial intelligence embedded in the standard on-line legal research sources, among others.

Anti-stalking law bites

The anti-stalking law introduced last year under s. 507A of the Penal Code had its first bite when one Mohamad Safiq bin Rosli (Shah Alam Magistrate Criminal Case No. BA-83-1937-08/2023)) was charged with allegedly stalking one Acacia Diana who had highlighted her ordeal on the social media platform X. Her story became viral, and this led to an arrest and charge of the accused. He was later found to be of unsound mind and acquitted and discharged and placed and detained at the pleasure of the Sultan of Selangor under section 348 of the Criminal Procedure Code.

[Ed: At the pleasure of the Sultan means a prison sentence that does not have a set length and the prisoner can be released at the discretion of the Sultan.]

Defamation

Based on the number of cases filed in the Court assigned code for defamation cases (i.e. 23CY and B53CY), there were at least 103 defamation cases filed in the Klang Valley. However, the number of cases should be greater as some of these cases were not filed in the said Court assigned codes.

[Ed: Cases are focused on those filed in the Klang Valley as it is not easy to trace the numbers for other courts.]

In Sundra Rajoo Nadarajah v Leaderonomics Sdn. Bhd. & Anor (2023) 5 MLRH 284, the plaintiff, a respected arbitrator and former Director of the Asian International Arbitration Centre (AIAC), sued the defendants for defamation after an anonymous "Poison Pen Letter" was published, which went viral and significantly harmed his reputation and career. The plaintiff alleged that the defendants were responsible for the letter's publication.

To identify the author of the Poison Pen Letter, the plaintiff employed IT forensic experts who analysed the metadata of the Microsoft Word document ("MACC.docx") version of the poison pen letter. They found that the username associated with the document was "Leaderonomics," the name of the 1st defendant. However, the defendants contested this evidence, arguing that metadata can be edited and manipulated, and thus, it was unreliable for proving authorship.

The 2nd defendant, alleged to be involved in the publication, had passed away before the trial, so the case against him was withdrawn. The plaintiff also invoked section 114A(3) of the Evidence Act 1950, which presumes that whoever has control of a computer from which defamatory content originates is considered the publisher, unless proven otherwise.

The High Court ruled that while the metadata suggested "Leaderonomics" as the author, this alone was not sufficient evidence to prove authorship. The plaintiff’s own expert witness admitted that the poison pen letter itself cannot establish or prove which computer, server, account or IP address that the file originated from. The metadata properties do not prove the identity of the actual user behind the username “Leaderonomics”.

Additionally, the court found that the 1st defendant, being a corporate entity, could only be held liable if it was proven that an authorized employee had published the letter, which was not adequately pleaded by the plaintiff.

Regarding section 114A(3), the court acknowledged that the presumption could apply to the 1st defendant if it had control over the computer used to publish the letter. However, the defendants successfully rebutted this presumption by demonstrating that the 2nd defendant had custody of the laptop from which the letter was published.

Consequently, the High Court dismissed the plaintiff's claim against the 1st defendant with cost.

Defamation suit by business against online users is a common occurrence these days. In Loh Li Sze v. Eugene Chong Haou Inn & Anor [2023] CLJU 1620, the parties were involved in a dispute over the sale of frozen seafood by the plaintiffs to the defendant over Facebook Live. The defendant was dissatisfied with the weight and size of the seafood and the plaintiffs eventually refunded the money paid for the frozen seafood. However, the frozen seafood was never returned.

This led to publication of 3 viral Facebook postings by the defendant that essentially said that the plaintiffs had cheated her. The defendant also urged her followers to viral one of the postings. The plaintiff filed the suit in the Sessions Court. The defendant claimed the defence of fair comments and justification.

The Sessions Court found that the postings to be defamatory and the publications were actuated by malice. The Sessions Court granted US$11,425 (RM50,000) damages.

The High Court declined to interfere with the findings of the Sessions Court as it was not shown that the Sessions Court was plainly wrong in arriving at its decision. As long as the Sessions Court's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate Court feels like it might have decided differently is irrelevant.

In addition, the High Court said that reading the melodramatic postings and the defendant's numerous urgings to her followers to viral her postings the defendant's motive was clearly to solicit more followers through her postings and she was delighted in gloating on the plaintiffs' predicament. There is basis for the Sessions Court judge to find malice based on the testimonies of the witnesses and certain postings of the defendant.

Further, the postings by the defendant that the plaintiffs are cheats are not comments on facts but a statement of fact. Therefore, the defence of fair comment is not available to the defendant. In addition, the defendant failed to state which of her words are comments and which are facts as required under the law.

The defendant also argued that the plaintiffs suffered no losses. The High Court held that this is a frivolous defence. The express averment of cheating entitles a party to damages without the need of proof.

Can “emojis” be used to signify an agreement?

In the Canadian case of South West Terminal Ltd. v Achter Land & Cattle Ltd  (2023 SKKB 116), the Court dealt with the question of whether a thumbs-up emoji “ " by the defendant in response to the plaintiff’s request to confirm the terms of a contract sent by way of an electronic message. The plaintiff had signed the contract and took a photo of the contract before texting it to the defendant. The defendant argued that it was simply to confirm that he had received the contract. The defendant was later cross examined on the use of the thumbs-up emoji.

The Court referred to the dictionary meaning of a thumbs-up emoji which meant “it is used to express assent, approval or encouragement in digital communications, especially in western cultures” and took judicial notice of the same.

The Court held that there was a contract between the parties. The Court looked into the circumstances leading to the conversation and those circumstances supported the plaintiff’s version. The Court also held that thumbs-up emoji is an action in electronic form that can be used to allow to express acceptance as contemplated under the Canadian Electronic Information and Documents Act, 2000, SS 2000, c E-7.22.

The defendant argued that a simple thumbs-up emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean. The Court held that the “Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like".

In our local case of SG Home Style Sdn Bhd lwn. Ng Kim Lian [2023] SMCU 46, the Magistrate held that the OK gesture emoji “” made by the defendant to the plaintiff in a WhatsApp conversation amounted to an agreement to an attendance fee. The learned Magistrate took judicial notice of the contents of the Wikipedia post for OK gesture stating that in most English-speaking countries, it denotes approval, agreement, agreement and that all is well or okay. The learned Magistrate also combed through the WhatsApp conversation between the defendant and plaintiff’s witness and found that defendant habitually reply to the plaintiff’s witness with the same emoji to answer the plaintiff’s messages.

However, in the High Court case of CC Land Resources Sdn Bhd & Anor v. Geo Win Sdn Bhd [2023] CLJU 1206, the High Court held that an emoji sent by way of a WhatsApp message between the parties is insufficient to amount to unequivocal admission by the defendant. The emoji, as explained by the defendant’s witness, is merely to indicate that he has taken note of the request, and he still requires approvals from his other partners.

In view of the above cases, the fact that an emoji to signal an agreement is used does not invalidate a transaction. The Court must keep up with technology and the way our society does its business. It is a form of electronic message and thus falling within the definition of “writing” under section 3 of the Interpretation Acts 1948 and 1967 and “electronic message” under the Electronic Commerce Act 2006.

It is submitted that in determining whether an emoji amount to an agreement to a certain term, the Court may look into the type of emoji that was being used (e.g. a thumbs-up or an OK gesture),  history of how the sender uses the emoji in the same conversation and the surrounding circumstances.

Online proceedings

Many Courts are now calling back lawyers to attend Court physically especially for trials. In the beginning of 2024, the appellant courts converted many of their online hearings to physically hearings. Online hearings are now things of the pandemic years. Nevertheless, there are still Court cases dealing with the effects of the pandemic to cases.

In Karen Yap Chew Ling v. Binary Group Services Bhd [2023] 7 CLJ 534, High Court dismissed the defendant’s application for the ongoing trial to be conducted via remote communication technology. The defendant, unable to return to Malaysia from Cyprus due to health concerns amidst the Covid-19 pandemic, sought multiple adjournments which were granted by the Court.

On the final trial date, the defendant did not appear, and despite requesting another adjournment, her counsel eventually closed her defence. The Court dismissed the application for remote communication technology on the ground that no live issues remained since the defendant had already closed her case. Judgment was subsequently entered against the defendant.

On appeal, the defendant argued a breach of natural justice. The Court of Appeal disagreed, emphasizing that sufficient time had been provided for the defendant to arrange her return and appear in court. The Court held that natural justice was not breached as the defendant had ample opportunity to present her evidence, undergo cross-examination, and engage in the proceedings.

The Court also highlighted practical concerns with remote cross-examination, such as connectivity issues and potential prompting during breaks, which might compromise the effectiveness of the process. Ultimately, the Court affirmed that the decision to utilize remote communication technology rests within the discretion of the trial judge, guided by considerations of justice, efficiency, and economy, rather than the preferences of the litigants.

The Court of Appeal agreed with the plaintiff’s objection that a trial by way of remote communications technology is not suitable based on the following reasons-

(a)        the trial Judge's ability to assess appellant's demeanor and credibility in this case without filter;

(b)       the plaintiff’s counsel's ability to cross examine the defendant without technical disruption;

(c)        the absence of party representatives to ensure that no off-camera coaching is taking place, not only while appellant is on-camera, but also during the expected breaks; and

(d)       the absence of the solemnity of oath taking in open Court in Malaysia and the general formality of such proceedings.

In Securities Commission Malaysia v. Wong Shee Kai & Ors [2023] 7 CLJ 825, the 1^st defendant, a fugitive facing arrest warrants in Malaysia, sought to attend trial via Zoom, citing risk of arrest and claiming entitlement to participate remotely in accordance with his civil rights. The High Court initially allowed his remote presence but later required a formal application for continued remote attendance. The 1^st defendant argued his right to participate remotely, while the plaintiff opposed, emphasizing the defendant's non-compliance with court orders and the potential undermining of justice.

The High Court dismissed the application, ruling that the 1^st defendant had not disclosed a specific location for attendance as required under the Practice Direction for Remote Communication Technology i.e Practice Direction 1 of 2021: Management of Civil Case Proceedings Conducted by Long-distance Communications Technology for all Courts in Malaysia (Pengendalian Prosiding Kes Sivil Melalui Teknologi Komunikasi Jarak Jauh Bagi Mahkamah Di Seluruh Malaysia) ("RCT Practice Direction”).

The 1^st defendant merely averted that his location is at Port Moresby, Papua New Guinea. The High Court ruled that a person attending the proceedings by means of remote communication technology has to disclose where he is logging in from. Because this specific location is not disclosed, it cannot be said that sufficient administrative and technical facilities and arrangements are made at the place. In the alternative, the 1^st defendant could provide proof that sufficient administrative and technical facilities and arrangements are made at whichever place he wants to log in from but none was given.

It found that granting the application would set a dangerous precedent, allowing fugitives to avoid criminal proceedings while participating in civil cases, thus compromising justice and public trust in the legal system. The Court prioritized the proper administration of justice over the 1^st defendant's assertion of rights to remote participation.

The Court retained discretion over the conduct of proceedings via remote communication, declining to grant the 1^st defendant's requests to continue the trial and interlocutory hearings remotely.

The Court of Appeal dismissed the 1^st defendant’s appeal based on the plaintiff’s preliminary objection i.e. that the High Court’s order is a ruling under section 3 of the Courts of Judicature Act 1964 and thus not appealable.

Leave to appeal the Federal Court was refused.  It held that “The court dismissed Wong’s leave application as the question of whether the trial judge had erred in his decision is a matter that can be challenged by way of appeal at the end of the trial”. “In this regard Wong’s right to appeal is reserved — it is not that the trial judge’s decision is non-appealable, but rather it is appealable at the end of the trial and not during the course of it. It would not be appropriate for the Federal Court to interfere with the trial court’s discretion at this juncture. Thus, there is no prejudice towards Wong”.

Do we need to check our spam emails?

Electronic service of documents saves parties’ costs and time and eases the administration of justice. However, this method may be disadvantageous to the intended recipient. For example, documents served via email may end up in the spam folder or left unsent in the outbox of the sender or the recipient’s email server may be down during the time of service.

The accused in the case of Mohd Ramadhan Bin Hussin v Pendakwa Raya (Alor Setar High Court Criminal Application No. KA-44-5-02/2023) was an unfortunate victim of this problem. The accused applied for extension of time in the High Court to file his petition of appeal as required by section 307(4) of the Criminal Procedure Code. The reason for the delay was that the grounds of judgment was sent to his lawyer’s email but it ended up in the spam folder.  The High Court dismissed the application and held that, among others, it is the responsibility of the accused’s lawyer to ensure that all emails received by their firm are carefully scrutinized and reviewed, this includes emails received in the 'spam' folder.

But when it comes to a litigant’s email address, the same responsibility should not be applied as ordinary email users do not check their spam folder regularly. In Patricia Sue Lin Knudsen v. Joey James Ghazlan [2019] CLJU 2037, the High Court held that cause papers in relation to the proceedings were not all served on the defendant as some of the documents were found in the spam folder of the defendant. 

Part 2 tomorrow looks at what the Syariah High Court had to say about cryptocurrencies. Online sexual grooming also had its day in court as did a software dispute case.