BFM Radio Interview: Privacy Laws in Malaysia

Privacy laws is one of my specialized areas. It’s a relatively new area in Malaysia. It was not until recently the Federal Court held that the Malaysian Constitution recognises our right to privacy and that invasion of privacy rights is actionable in Malaysia. Few years ago, invasion of privacy rights is not actionable in Malaysia.

It is highly developed in the United Kingdom. So developed that there are law firms well known for their privacy law practice. For example, Schillings, a law firm in London, is well known to have develop privacy laws in the United Kingdom and they have well known celebrity clients such as Naomi Campbell, JK Rowling, Ryan Giggs, Tiger Woods, Keira Knightley and Cristiano Ronaldo. I hope we could develop something like this in Malaysia.

Anyway, thanks to LoyarBurok and Edmund Bon, I was invited to speak at BFM Radio on privacy laws in Malaysia. How this opportunity came about was also through two (2) articles I wrote for LoyarBurok regarding the right to privacy in Malaysia. One of the articles was later republished by the Malaysia Insider. Amazing how articles can help a lawyer’s legal practice.

Without further ado, you can listen to the podcast below.

Gosh, it’s so weird to hear myself on radio! It’s a pity we don’t have much time. There are so many other things we could cover! Hope there will be a 2nd series soon!

Malaysia’s Intellectual Property bLawG

I started a blawg with a focus on intellectual property, information technology and data protection. At the moment, it houses all my articles and media appearances. Purpose of housing them is to separate my identity as a blogger and a lawyer.

Instead of giving my blog address during professional networking sessions (where sometimes people like think..xes…SEX arr???), I can give my blawg address. Click here to visit! Will be updating it from time to time.

Articles are good marketing tools. They generally do not generate direct work but they do generate a lot of opportunities such as speaking arrangements.

Recently, I gave a talk on data protection at the Annual Conference for Chartered Secretaries of Malaysia. It was probably my 20th talk within a span of one year. Since I’ve done the same topic so many times, I didn’t bother to prepare and also didn’t bother to ask anything about the participants (biggest sin when giving presentation!). I thought it would be a small crowd of 20 – 30 people.


However, it had over 300 people /(*O*)\. I was shocked!

Nevertheless, practice makes perfect. Since I’ve done the same topic many times, it went well. I started off with a question to the crowd and the crowd faintly answered it. When I gave the answer, loud gasps were heard. From there onwards, they were all ears.

The talk went so well that it received positive feed backs. So positive that the same association contacted me again for another round of talks. The results of this talk is far cry from one talk where one participant came up to me asking me to learn public speaking. And yes, I did follow his advice.

So weeks later, the association sent a picture of me on stage.


My face was photoshopped. I lost all my pimples and pores -_-

Visit FoongChengLeong.com

Right to Privacy in Malaysia: Do we have it? – Part II

If you remember my article “Right to Privacy in Malaysia: Do we have it?” which was published in LoyarBurok, I just found out that it was picked up by well known online news portal Malaysian Insider. It’s a dream come true!

For everyone’s easy reading, I am reproducing my article below:-

If someone installs a CCTV in front of your house, can you stop him from doing so? If our Prime Minister sends his best wishes for the festive seasons to your email and mobile, is he invading your privacy? Whats the state of the right to privacy, and invasions of your privacy, in Malaysia?

Long story short, yes, our constitution recognises the right to privacy under article 5 of the constitution according to the recent Federal Court case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 at 519. Article 5(1) of the Constitution provides that “No person shall be deprived of his life or personal liberty save in accordance with law.” According to Gopal Sri Ram FCJ (as then he was) in the Sivarasa case, the right to personal liberty includes the right to privacy.

What is a “right to privacy”?

The right to privacy is basically the right to be left alone and to live the private aspects of one’s life without being subjected to unwarranted, or undesired, publicity or public disclosure. It is also a right of an individual to seclude oneself or information about himself and thereby reveal himself selectively. For example, the right of being strip searched (and probably do some squats and get recorded see: squatgate).

Invasion of Privacy

However, althought the right to privacy provided by the Constitution, is there an actionable right against someone who invaded your privacy?

Notwithstanding the recognition of such right, such right may not be enforced by an individual against another private individual for the infringement of rights of the private individual as constitutional law (substantive or procedural) will take no cognisance of it (Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor [2004] 4 CLJ 403).

The tort of invasion of privacy is not a recognized tort under common law (Malone v MPC [1979] Ch 344; Kaye v Robertson [1991] FSR 62 (CA); Khorasandjian v Bush [1993] QB 727, 744 (CA); Wainwright v Home Office [2003] UKHL 53, [2003] All ER (D) 279 (Oct), House of Lords).

The tort of invasion of privacy is not recognized in Malaysia. This basically means that you cannot sue someone for invading your privacy.

The Malaysian High Court cases of Ultra Dimension Sdn. Bhd. v. Kook Wei Kuan [2004] 5 CLJ 285 and Lew Cher Phow @ Lew Cha Paw & 11 Ors v. Pua Yong Yong & Anor [2009] 1 LNS 1256 Johor Bahru High Court Civil Suit No. MT 4-22-510-2007 had held that invasion or violation of privacy is not a recognized tort or a cause of action in Malaysia. In the former case, the Plaintiffs failed in their action for invasion of privacy against the Defendant for taking a photograph of a group of kindergarten pupils, including the Plaintiffs child, at an open area outside the kindergarten and published it in two local newspapers. As for the latter case, the Plaintiffs failed in their application to restrain the Defendants from having a CCTV which faces their house and to remove the same.

Similarly in the High Court case of Dr Bernadine Malini Martin v. MPH Magazines Sdn Bhd & Ors [2006] 2 CLJ 1117, the Court again stated that invasion of privacy is not an actionable wrongdoing.

However, the Court of Appeal judgement of Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 gave light to the tort of invasion of privacy. Some of you may recall the incident where a guest relations officer (GRO) was photographed easing herself in a truck by a volunteer reserve corps member (Rela) after the GRO was detained in a raid at a club in 2003. The GRO sued the Rela member, Director General of RELA, the Director of JAWI and the Government of Malaysia. She was granted damages for the wrongdoing. However, the case was not on point as to whether the tort of invasion of privacy is a recognized tort in Malaysia.


YB Elizabeth Wong, YB Dr Chua Soi Lek & Actress Nasha Aziz were all victims of privacy invasion.

The case of Lee Ewe Poh v Dr. Lim Teik Man & Anor [2010] 1 LNS 1162 is the first reported Malaysian case that recognizes the invasion of privacy as an actionable tort. In this case, the doctor had taken picture of the Plaintiff’s anus during a medical procedure without informing the Plaintiff. The doctor’s reason for taking such picture was for medical purpose and claimed that taking of photographs during the course of the medical procedure without the consent of the patient is an acceptable practice.

The Court of Appeal judgement of Maslinda Ishak was referred in the judgement of Lee Ewe Poh and the learned Judicial Commissioner relied on the said case to hold that invasion of privacy rights is actionable in Malaysia.

The Learned Judicial Commissioner held in the case of Lee Ewe Poh that (at page 6 of judgement):

The learned trial judge found for Maslinda Ishak against the 1st defendant but not against the other respondents for whom she appealed. The Court of Appeal allowed her appeal and held the respondents to be jointly and severally liable for the wrongful act of their agent as well as vicariously liable. Although Maslinda Ishak’s case is not directly on point, the fact remains that the High Court in so finding has departed from the old English law that invasion of privacy is not an actionable tort and our Court of Appeal indirectly, though this issue was not canvassed, seems to endorse such cause of action when the pleadings were specifically referred to and C.A. did not overrule invasion of privacy as a cause of action on ground that it is not one in line with the English law. Since such a cause of action has been accepted as a cause of action under our common law, it is thus permissible for a plaintiff to found his/her action on it. Drawing an analogy of this Court of Appeal case, I am inclined to hold the view that since our courts especially the Court of Appeal have accepted such an act to be a cause of action, it is thus actionable. The privacy right of a female in relation to her modesty, decency and dignity in the context of the high moral value existing in our society is her fundamental right in sustaining that high morality that is demanded of her and it ought to be entrenched. Hence, it is just right that our law should be sensitive to such rights. In the circumstances, Plaintiff in the instant case ought to be allowed to maintain such claim.

Both Maslinda Ishak and Lee Ewe Poh’s cases are in respect of women’s modesty. It will be interesting to see whether how our right to privacy would extend to. For example, will it extend someone’s surfing habits? If someone had recorded everything you serve on the Internet, would that be an invasion of privacy? (On an interesting note, Google does store your Google search keywords).

Lee Ewe Poh’s case is a High Court decision thus may not be followed by other courts of the same or higher jurisdiction. However, Sivarasa’s case was not referred in the decision of Lee Ewe Poh. With Sivarasa’s case, it will be interesting to see whether the recognition of tort of invasion of privacy will be strengthened by it.

Misuse of Private Information

The recognition of right to privacy in Sivarasa’s case may be a stepping stone to the expansion of the tort of breach of confidence to include “misuse of private information”, a term coined by Lord Nicholls in the House of Lords case of Campbell v. MGN Limited [2004] UKHL 22, in Malaysia. In this case, the House of Lords held that the publication of articles by the Mirror newspaper regarding well known model Naomi Campbell’s attendance at Narcotics Anonymous meetings and her efforts to overcome her addiction to drink and drugs was a misuse of private information. Basically, this tort protects information that is “private”. It affords respect for one aspect of an individual’s privacy.

Closing

If the tort of invasion of privacy or misuse of private information is recognised in Malaysia, this may be used as a remedy against those who had breached the Malaysian Personal Data Protection Act 2010 (which is not in force yet). The present Personal Data Protection Act 2010 does not provide for damages to data subjects for the breach of the said Act unlike the UK Data Protection Act 1988. With such torts, this may bridge the gaps in the Malaysian Personal Data Protection Act 2010.

The effect of the recognition of the privacy rights in Malaysia is far reaching. It may, in no particular order, affect the following:

  • Employees’ rights especially when it comes to employee monitoring;
  • Authorities’ right to conduct searches such as strip searches or search of a premise or vehicle;
  • Internet users’ rights such as the right to remain anonymous (note: bloggers have problem claiming anonymity pursuant to the case of The Author of a Blog v Times Newspapers Limited [2009] EWHC 1358 (QB) where the UK Court held that blogging is a public activity);
  • Details of relationships such as intimate details of partners including intimate pictures;
  • The right of the media to report news regarding individuals;
  • Rights of public figures such as politicians and celebrities; and
  • The position of the admissibility in Court proceedings of illegally obtained evidence which infringes’ an individual’s right to privacy

Well, if you ask me whether the Prime Minister has infringed your right to privacy or had committed misuse of private information, when he sent festive greetings (although I understand it is for good intention) to your emails or mobile phone, my answer is that, it will be an interesting test case in Malaysia!

NTV7 Breakfast Show Interview – 2.3.2011

Edwin was invited as a guest of NTV7 Breakfast Show for the segment “Know your rights” and he was kind of enough to invite me as a guest as well. The both of us spoke about privacy and data protection.

Our interview was a telecast live from Sri Pentas. Before the show, we were specifically asked not wear green. Edwin and I decided to be traditional and wore black and white.

I tweeted that I got myself brand new shades before the show.


Chocolate filled glasses yo…

Unfortunately, I ate them all before the show.

When I first saw the show, I thought the venue is quite big. Then when we arrived at the set, I find that the place much smaller! And the background was all green!

The background on TV was super imposed! No wonder we are not allowed to wear green. If we did, we will be “one with the background”.

We initially prepared Q&A for the anchors, Aishah Sinclair and Hansen Lee. However, they did not rely on the Q&A. Fortunately, Edwin and I were ready to answer the questions.

We covered a lot of the upcoming Personal Data Protection Act 2010 and some privacy issues.


Edwin, Hansen, Aishah and me..damn Aishah is hot..and she’s a mother of one!

I’ll post the video up once I get it from the producers. Will be on again on Thursday to speak about social media and the law!

Interview on BFM – 2.3.2011

My firm hooked me up with BFM radio station when BFM was looking for a lawyer to speak about social media.

If you’re wondering who and what is BFM. It’s a radio station with a focus on business. They interview people from various industries daily and even have programs on how to improve your business. I listen to it everyday.

Barely 5 hours of sleep I marched to BFM’s office for my interview and arrived there at 645am.


It was still dark when I got there.

There was only 5 people in the entire office at that time and they were already on air! I didn’t know that you can run a radio program with 5 people.

Khoo Hsu Chuang was my interviewer. He is one of my favourite BFM DJs. I love it whenever he shoots interviewees when they evade or doesn’t answer his questions. But I got a little bit worried when I found out that he was my interviewer. Heh

Chuang and I had a short discussion on the topics to be discussed. I was warned not to swear otherwise they would have to use the “dumb” button to censor me. Hehe. It was difficult for me not to swear!!

You can listen to my interview below. Here’s a synopsis of the interview.

… discusses the legal aspects of social media, focusing in particular on online defamation, admissibility of online data in courts, cybersquatting, domain disputes, and whether there should there be regulation of the Internet and social media, whether directly or indirectly.

He also discusses the fine line between fair Internet policing and control over the Internet, proposed Amendments to the PPPA and the perceived threats to online publications and bloggers.

He also talks about the Malaysian Personal Data Protection Act 2010 (not in force yet) and explains its implications for the ordinary layman.

It was the first time I had to speak live on national radio. Some of the topics can be quite sensitive especially when it comes to Government plans. I have to tip toe the line. I rather be seen as apolitical.


After the interview was done, I took some pictures with Chuang and producer Chun (on the right).

It was definitely a good experience. I initially thought not many people listened to it as it was so early in the morning. However, I was surprise that some of my friends were listening to the radio. Some even tweeted questions to me!

Coincidentally, on the next day, I was invited as a guest at the NTV7 Breakfast Show. Will blog about it later!

Right to Privacy in Malaysia: Do we have it?

Once again, I contribute another article to local Blawg, LoyarBurok, and it is titled “Right to Privacy in Malaysia: Do we have it?

If someone installs a CCTV in front of your house, can you stop him from doing so? If our Prime Minister sends his best wishes for the festive seasons to your email and mobile, is he invading your privacy? Whats the state of the right to privacy, and invasions of your privacy, in Malaysia?

Long story short, yes, our constitution recognises the right to privacy under article 5 of the constitution according to the recent Federal Court case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 at 519. Article 5(1) of the Constitution provides that “No person shall be deprived of his life or personal liberty save in accordance with law.” According to Gopal Sri Ram FCJ (as then he was) in the Sivarasa case, the right to personal liberty includes the right to privacy.

What is a “right to privacy”?

The right to privacy is basically the right to be left alone and to live the private aspects of one’s life without being subjected to unwarranted, or undesired, publicity or public disclosure. It is also a right of an individual to seclude oneself or information about himself and thereby reveal himself selectively. For example, the right of being strip searched (and probably do some squats and get recorded see: squatgate).

Invasion of Privacy

However, althought the right to privacy provided by the Constitution, is there an actionable right against someone who invaded your privacy?

Notwithstanding the recognition of such right, such right may not be enforced by an individual against another private individual for the infringement of rights of the private individual as constitutional law (substantive or procedural) will take no cognisance of it (Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor [2004] 4 CLJ 403).

The tort of invasion of privacy is not a recognized tort under common law (Malone v MPC [1979] Ch 344; Kaye v Robertson [1991] FSR 62 (CA); Khorasandjian v Bush [1993] QB 727, 744 (CA); Wainwright v Home Office [2003] UKHL 53, [2003] All ER (D) 279 (Oct), House of Lords).

The tort of invasion of privacy is not recognized in Malaysia. This basically means that you cannot sue someone for invading your privacy.

The Malaysian High Court cases of Ultra Dimension Sdn. Bhd. v. Kook Wei Kuan [2004] 5 CLJ 285 and Lew Cher Phow @ Lew Cha Paw & 11 Ors v. Pua Yong Yong & Anor [2009] 1 LNS 1256 Johor Bahru High Court Civil Suit No. MT 4-22-510-2007 had held that invasion or violation of privacy is not a recognized tort or a cause of action in Malaysia. In the former case, the Plaintiffs failed in their action for invasion of privacy against the Defendant for taking a photograph of a group of kindergarten pupils, including the Plaintiffs child, at an open area outside the kindergarten and published it in two local newspapers. As for the latter case, the Plaintiffs failed in their application to restrain the Defendants from having a CCTV which faces their house and to remove the same.

Similarly in the High Court case of Dr Bernadine Malini Martin v. MPH Magazines Sdn Bhd & Ors [2006] 2 CLJ 1117, the Court again stated that invasion of privacy is not an actionable wrongdoing.

However, the Court of Appeal judgement of Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 gave light to the tort of invasion of privacy. Some of you may recall the incident where a guest relations officer (GRO) was photographed easing herself in a truck by a volunteer reserve corps member (Rela) after the GRO was detained in a raid at a club in 2003. The GRO sued the Rela member, Director General of RELA, the Director of JAWI and the Government of Malaysia. She was granted damages for the wrongdoing. However, the case was not on point as to whether the tort of invasion of privacy is a recognized tort in Malaysia.


YB Elizabeth Wong, YB Dr Chua Soi Lek & Actress Nasha Aziz were all victims of privacy invasion.

The case of Lee Ewe Poh v Dr. Lim Teik Man & Anor [2010] 1 LNS 1162 is the first reported Malaysian case that recognizes the invasion of privacy as an actionable tort. In this case, the doctor had taken picture of the Plaintiff’s anus during a medical procedure without informing the Plaintiff. The doctor’s reason for taking such picture was for medical purpose and claimed that taking of photographs during the course of the medical procedure without the consent of the patient is an acceptable practice.

The Court of Appeal judgement of Maslinda Ishak was referred in the judgement of Lee Ewe Poh and the learned Judicial Commissioner relied on the said case to hold that invasion of privacy rights is actionable in Malaysia.

The Learned Judicial Commissioner held in the case of Lee Ewe Poh that (at page 6 of judgement):

The learned trial judge found for Maslinda Ishak against the 1st defendant but not against the other respondents for whom she appealed. The Court of Appeal allowed her appeal and held the respondents to be jointly and severally liable for the wrongful act of their agent as well as vicariously liable. Although Maslinda Ishak’s case is not directly on point, the fact remains that the High Court in so finding has departed from the old English law that invasion of privacy is not an actionable tort and our Court of Appeal indirectly, though this issue was not canvassed, seems to endorse such cause of action when the pleadings were specifically referred to and C.A. did not overrule invasion of privacy as a cause of action on ground that it is not one in line with the English law. Since such a cause of action has been accepted as a cause of action under our common law, it is thus permissible for a plaintiff to found his/her action on it. Drawing an analogy of this Court of Appeal case, I am inclined to hold the view that since our courts especially the Court of Appeal have accepted such an act to be a cause of action, it is thus actionable. The privacy right of a female in relation to her modesty, decency and dignity in the context of the high moral value existing in our society is her fundamental right in sustaining that high morality that is demanded of her and it ought to be entrenched. Hence, it is just right that our law should be sensitive to such rights. In the circumstances, Plaintiff in the instant case ought to be allowed to maintain such claim.

Both Maslinda Ishak and Lee Ewe Poh’s cases are in respect of women’s modesty. It will be interesting to see whether how our right to privacy would extend to. For example, will it extend someone’s surfing habits? If someone had recorded everything you serve on the Internet, would that be an invasion of privacy? (On an interesting note, Google does store your Google search keywords).

Lee Ewe Poh’s case is a High Court decision thus may not be followed by other courts of the same or higher jurisdiction. However, Sivarasa’s case was not referred in the decision of Lee Ewe Poh. With Sivarasa’s case, it will be interesting to see whether the recognition of tort of invasion of privacy will be strengthened by it.

Misuse of Private Information

The recognition of right to privacy in Sivarasa’s case may be a stepping stone to the expansion of the tort of breach of confidence to include “misuse of private information”, a term coined by Lord Nicholls in the House of Lords case of Campbell v. MGN Limited [2004] UKHL 22, in Malaysia. In this case, the House of Lords held that the publication of articles by the Mirror newspaper regarding well known model Naomi Campbell’s attendance at Narcotics Anonymous meetings and her efforts to overcome her addiction to drink and drugs was a misuse of private information. Basically, this tort protects information that is “private”. It affords respect for one aspect of an individual’s privacy.

Closing

If the tort of invasion of privacy or misuse of private information is recognised in Malaysia, this may be used as a remedy against those who had breached the Malaysian Personal Data Protection Act 2010 (which is not in force yet). The present Personal Data Protection Act 2010 does not provide for damages to data subjects for the breach of the said Act unlike the UK Data Protection Act 1988. With such torts, this may bridge the gaps in the Malaysian Personal Data Protection Act 2010.

The effect of the recognition of the privacy rights in Malaysia is far reaching. It may, in no particular order, affect the following:

  • Employees’ rights especially when it comes to employee monitoring;
  • Authorities’ right to conduct searches such as strip searches or search of a premise or vehicle;
  • Internet users’ rights such as the right to remain anonymous (note: bloggers have problem claiming anonymity pursuant to the case of The Author of a Blog v Times Newspapers Limited [2009] EWHC 1358 (QB) where the UK Court held that blogging is a public activity);
  • Details of relationships such as intimate details of partners including intimate pictures;
  • The right of the media to report news regarding individuals;
  • Rights of public figures such as politicians and celebrities; and
  • The position of the admissibility in Court proceedings of illegally obtained evidence which infringes’ an individual’s right to privacy

Well, if you ask me whether the Prime Minister has infringed your right to privacy or had committed misuse of private information, when he sent festive greetings (although I understand it is for good intention) to your emails or mobile phone, my answer is that, it will be an interesting test case in Malaysia!

If you’re wondering why I write so many legal articles, well, other than for sharing information purpose and educating the public, it is also for marketing purpose.

The legal profession is a funny profession. When someone qualifies as a lawyer in Malaysia, they can work in a law firm as a legal assistant (or associate as some firms call it). Assuming that the lawyer would like to make it big in practice, he or she should aim to be a partner of a firm or proprietor of his own firm.

To be able to do so, one of the most important skills is, of course, being able to market your practice. Nobody would use your services if you are unknown.

There are many ways to market your practice. For example, attend networking events, join associations, give talks and write legal articles.

Being a young lawyer, having clients of your own is quite difficult. Getting your name out there as early as possible is important. For me, I try to as much as I can to market myself by attending conferences, give talks and write legal articles.

Writing legal article is actually quite easy. Find a topic and write it. The most difficult part of it is to find a good place to publish it. No point publishing something in a medium that has low readership. For young lawyers out there, there are Putik Lada (a column in The Star Newspaper run by the Bar Council) and Loyarburok. These two medium have wide readership. (Loyarburok has about 20,000 hits a week).

Having said that, I will be on BFM radio station to talk about social media law next Wednesday, 730am to 8am. Please tune in to 89.9FM!

Blog postings can backfire

My article, originally titled “Social Media Development 2010” (title was changed by The Star as usual), was published in The Putik Lada column of The Star Newspaper on 20.01.2011. You can check it out at this link.

You will notice that I did not mention the names of the Malaysian cases. I initially was torn whether to post the names of the cases as it may cause a little embarrassment to those involved in the cases.

The cases were no doubt in public domain as they were reported in, among others, legal journals – which is widely known to the legal circle.

However, by publishing them in The Star, this would highlight the cases to the general public. Niki Cheong was kind enough to advise that if the disadvantages of posting of names outweigh the benefit, I shouldn’t put them.

Anyway, for the benefit of those interested to know the sources of my article, you can click on the links above. My blog doesn’t have the same readership as The Star newspaper so chance of embarrassing the parties involved is slim.

Blog postings can backfire

PUTIK LADA
By FOONG CHENG LEONG

Social media influence has hit court proceedings, with lawyers trolling blogs and Wikipedia in search of material that can help them argue the case for their clients.

LAST year brought further interesting development to social media and laws all around the world. Cases making references to social media tools saw an increase.

Social media was a tool for lawyers and litigants to help parties to fight their cases. Social media was also the cause of some parties’ mortification and incarceration.

In one High Court judgment last year, the judge recognised the publication of defamatory blog postings by a husband as one of the grounds to present a divorce petition before the expiry of two years from the date of marriage.

He also recognised that a defamatory statement in a blog posting operated in a borderless realm, and would continue to exist until the maker of the blog removed it.

The challenge against the constitutionality of S. 233 of the Communications and Multimedia Act 1998, the provision commonly used against Internet users, was dismissed by the High Court.

In this case, the defendant was charged with making disparaging remarks against the Sultan of Perak during the struggle between Barisan Nasional and Pakatan Rakyat. The court held, among other things, that the section did not impede freedom of expression. S. 233 is to ensure that the freedom given by the Constitution is exercised responsibly.

The use of Wikipedia as a reference is increasingly recognised in Malaysia, notwithstanding that the reliability of Wikipedia is questionable, as anyone can add or edit an entry in Wikipedia.

Nevertheless, the reliance on Wikipedia by our courts can be traced in reported cases as early as 2007.

Last year Wikipedia was referred to in Etonic Garment Manufacturing Sdn Bhd v Kunn-G Freight System (M) Sdn Bhd [2010] 1 LNS 13 (for the meaning of freight forwarder), PP v Murugan a/l Arumugam [2009] 1 LNS 1759 (for the meaning of atherosclerosis) and Thai Long Distance Telecommunication Co Ltd & Anor v Malaysian Maritime Dredging Corpo­ration Sdn Bhd (Kuala Lumpur Suit No: D-22-352-2005, for the meaning of chart datum).

Social media influence had also hit court room proceedings. It is common in Malaysia for people, in particular reporters, to tweet live from the courts. In the United Kingdom, the Lord Chief Justice issued a guideline for the use of live text-based forms of communication from court.

In this guideline, the Lord Chief Justice approved the use of Twitter for court reporting. However, in the US, certain courts ban the use of social media by juries.

In the US case of Romano v. Steelcase Inc, 2006-2233 (N.Y. Super. Sept. 21, 2010), Kathleen Romano sued Steelcase Inc for injuries she suffered after she fell off an allegedly defective desk chair manufactured by Steelcase Inc.

As a result of the fall, she claimed, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life”.

In defence, Steelcase applied to access Romano’s current and historical Facebook and Myspace pages and accounts which are believed to be inconsistent with her claims in the action concerning the extent and nature of her injuries, especially for loss of enjoyment of life. The court granted Steelcase’s application.

Similarly, in McMillen v Hummingbird Speedway Inc, et al, Court of Common Pleas of Jefferson County, Pennsylvania, Civil Division, No. 113-2010 CD, Opinion on Defendants’ Motion to Compel Discovery (Sept. 9. 2010), the plaintiff sued the defendants for injuries suffered.

The defendants claimed that posts on the public portion of his Facebook page showed that he had exaggerated his injuries. The court granted the defendants access to the plaintiff’s private portion of his Facebook and Myspace account to determine whether or not the plaintiff had made any other comments which impeached and contradicted his disability and damages claims.

Closer to home, in a reported Industrial Court case, an employee claimed that she was forced by her employer to resign.

In response, her employer argued that the resignation was voluntary and they produced extracts of the claimant’s blog which showed the claimant had written about her feelings regarding her employment with the employer.

In it, she stated that she wanted to leave the company and admitted that she went for job interviews as she had already decided to go away.

The Industrial Court chairman relied on the blog entries to find that the employee had intended to leave and found that she had gladly tendered her resignation to take on new employment.

In Australia, a hairdresser won compensation for wrongful dismissal after losing her job for making unflattering remarks about her employer on her Facebook.

In Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358, Commissioner Michelle Bissett for Fair Work Australia said that posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity.

This year brings another exciting watershed to Malaysia’s social media legal sphere. The Personal Data Protection Act 2010, which governs the processing of personal data, is pending enforcement.

Proposed amendments to the Copyright Act 1987 have been drawn up in the form of a Bill to exempt Internet service providers from liability for copyright infringement under certain circumstances.

The Bill also empowers the court to order an Internet service provider to disable access to infringing material.

Furthermore, the so-called Internet Service Providers Liability Act may be passed to compel Internet service providers to take action against their users if they download songs or movies illegally.

Internet Service Provider Liability Act: Do we need one?

Once again, I contributed an article to to LoyarBurok, a local blawg. This time round, I wrote about the repercussion of the proposed Internet Service Provider Liability Act – something that will affect all internet users. Basically, with this act, we cannot download any copyrighted materials including music and videos. The source of the news can be seen below:

New law to end illegal downloading of music and movies
By STEVEN PATRICK

KUALA LUMPUR: The free-and-easy days of illegal downloading of music and movies may soon be over. A proposed new law will enable Internet Service Providers (ISP) to suspend or terminate the Internet accounts of P2P (peer-to-peer) users.

This new law called the ISP Liability act, will be tabled in Parliament next month, according to Recording Industry Association of Malaysia (RIM) chairman Norman Halim.

RIM has been lobbying the Government for an ISP Liability act for the past 5 years as illegal online downloads have been cannibalising the legitimate sales of music, worldwide.

“The act makes the ISPs responsible for curbing online piracy. The ISPs will be fined if they don’t take action against illegal downloaders. The ISPs have the technology to track P2P users,” said Norman.

However, he said that the fine amount had yet to be determined.

ISPs will send two warning letters to illegal downloaders. Should the downloaders still persist, the Internet access will be suspended or even terminated.

“Other countries that have such an act have seen their respective music industries recover. One good example would be South Korea,” he said.

[Credits: The Star]

Here’s the reproduction of my article:

An analysis of the potential repercussions of the proposed Internet Service Provider Liability Act.

Recently, The Star reported that the Malaysian Parliament will be tabling the ISP Liability Act (”Act”). According to The Star, the Act makes internet service providers (ISPs) responsible for curbing online piracy. The ISP will be fined if they don’t take action against illegal downloaders.

The ISP will send two warning letters to illegal downloaders. Should the downloaders persist, their internet access will be suspended or even terminated.

It is unclear at this juncture on how far-reaching the Act would be. Will it cover all methods of downloading copyrighted materials, such as music and movies, or only through P2P file sharing software? If a user streams videos or music through a website, would they be caught under this Act? Technically in such case, there is a download of copyrighted materials into a user’s computer.

It is also unclear at this juncture on how the Act would require ISPs to monitor their users’ activities. Are they compelled to keep track of all their users’ internet activities? Or would there be a need for active participation of intellectual property rights (IPR) holders to tell the ISPs that certain IP addresses are infringing their rights, so that the ISPs can reveal the users’ details?

How it works

Making ISPs responsible for their users’ actions is not something common. Jurisdictions such as United States of America and United Kingdom have laws in place to compel ISPs to take action their users.

In some jurisdictions, IPR holders would engage a third party to monitor the internet to see whether anyone is sharing copyrighted files online. If they detect someone, they will obtain the IP address, and thereafter pass it to the relevant ISPs for them to take action against their user. If the user persists notwithstanding that warning letters have been issued, the ISPs may suspend or terminate the user’s internet access.

This is also commonly known as graduated response, or in another words the “three strikes rule”.

Repercussions

It is argued that such a law would curb online piracy. Thousands of people are dependant on the music and movie industries, and online piracy is affecting these industries severely. I do not deny that online piracy has affected these industry, but the objective of this article is to show that the repercussions of such a law are severe to internet users.

What has happened in jurisdictions containing such a law is a good indication on where the implementation of such a law will take us.

In many cases, IPR holders take additional steps against alleged online infringers. IPR holders would normally request for the identity of the internet user (normally after obtaining a Court order) from the ISPs. Some ISPs are ready to divulge such information, whereas some ISPs put up a fight. Once the identity of the user is revealed, the IPR would initiate action against the user and such active enforcement has caused terrible impact on users.

In the United Kingdom, it was reported that IPR holders will send a letter to illegal file sharers demanding payments of between GBP500 and GBP700, failing which the file sharer will be brought to Court. In the United States, a lady decided to fight it out with the recording industry instead of settling out of Court after being accused of encouraging the illegal sharing of songs. She lost the case, and was fined US$220,000. It is a classic case of David against Goliath.

Such a law will also affect internet users who do not know that their internet connection has been piggy-backed by third parties. There are many cases where users do not know that someone has used their internet connection — especially those with unsecured Wi-fi connection — and subsequently receive a demand letter for an offence they did not commit. This happened to a 78 year old man in the United Kingdom, who received a demand letter from a lawyer accusing him of downloading pornography. The 78 year old man didn’t even know what file-sharing was!

At this juncture, we do not know whether the Act would provide for a defence of innocent infringement. But the fact that one can receive a demand letter from lawyers for something that one has not done is quite frightening.

Children are now exposed to the internet at very young age. They may not know that their act of sharing and downloading music or videos will cause serious repercussions to them. A child would obviously choose to download the latest single of Justin Bieber from the internet instead of begging and pleading with his or her parents to buy it. One would argue that we ought to teach our children against online piracy. But all parents know that not all of their advice is always heeded.

In Singapore, it was reported that Odex Pte Ltd, a distributor of Japanese anime in Singapore, had issued demand letters to children as young as 9 years old accusing them of illegal downloads. Further, in the United States, 16 year old Whitney Harper was sued by the recording industry after she was found sharing music via a P2P file sharing program. She claimed that she didn’t know the program she used was taking songs from the internet illegally. Notwithstanding that, judgement was entered against her.

The enactment of the Act would also be another deterioration of our (almost non-existence) privacy rights. Malaysian laws do not recognize invasion of privacy rights as an actionable wrongdoing (see Ultra Dimenson Sdn Bhd v. Kook Wei Kuan [2004] 5 CLJ 285; Dr Bernadine Malini Martin v MPH Magazine Sdn Bhd & Ors and Another Appeal [2010] 7 CLJ 525; and Lew Cher Pow @ Lew Cha Paw & 11 yang lain lwn. Pua Yong Yong & Satu Lagi [2009] 1 LNS 1256) except in very limited circumstances (Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 655).

ISPs are the “guardians” of our rights of privacy. They hold the key to our identity in the internet. Our identity, surfing habits and internet activities are our personal data and ISPs ought to give priority of such data over commercial interest of others.

By giving access to our personal data to third parties, our privacy is at risk, and such a risk is real. Recently, ACS:Law, a law firm specialising in taking action against file sharers in the United Kingdom, had accidentally divulged information of thousand of broadband users who were accused of illegal file sharing. The information that was leaked were unencrypted Excel spreadsheets, listing the names and addresses of people that ACS:Law had accused of illegally sharing media. One contained details of customers whom they had accused of illegally sharing pornography!

In light of the ACS: Law case, some ISPs in the UK resist efforts to divulge customer details to IPR holders. I urge the same is followed by our local ISPs in order to protect internet users’ privacy.

It should be remembered that customer data is protected under the upcoming Personal Data Protection Act 2010, which provides for a fine or imprisonment or to both in the event of a breach.

Lawyers appointed to act for IPR holders should also be vigilant when dealing with internet users. Solicitors who had been representing IPR holders were subject to public humiliation and harassment by internet users.


A partner of ACS: Law, one of the main targets.

Assuming that the Act would push through in any event, I urge our local ISPs to only take action or to provide customer information to IPR holders if they are satisfied that –

1. there is strong evidence to show infringing act has been committed by user, if possible only provide information if infringement is on a large or commercial scale or for commercial gain;
2. the requester’s storage system is secure, and they have given an undertaking that information will be kept securely e.g. encrypted;
3. the requester will only use that information for the purpose of pursuing legal action only and not to published it anywhere else; and
4. the requester is compelled to give access to the information obtained from ISPs to customers to ensure that a fair case can be fought.

Closing

I am not a file sharing advocate, and I do not condone internet piracy. I am only seeking to raise awareness of the repercussions of such a law. I hope what I have mentioned above is considered by the law and policy makers.

I would like to express my gratitude to David Wang of Blogjunkie.net for raising this issue on his blog.

IT Law Forum @ KDU College of Law and Business on 12.11.2010

After 6 months of organising this event, the KL Bar Information Technology Committee’s efforts finally paid off. The number of participants were around 100 people which consists mostly lawyers.

The events leading to the forum were quite dramatic. First, we had problems finding speakers. I was in charge of finding speakers from the social media session. My thought was to find someone from the business, journalism and political sides to give their version of their story on how social media has impacted them. Malaysia Top 10 Hottest Blogger Niki Cheong and Nuffnang Nicholas Chay were kind enough to address the part on journalism and business respectively. My top choice for politics side was UMNO Youth Chief Khairy Jamaluddin. However, he did not respond to our invitation and didn’t even bother to send a reply. I even sent him two messages to his twitter!

I couldn’t think of another politician who is well verse with social media except for opposition party politicians. We invited YB Datuk #Yorais Yatim, Minister of Information to grace the opening hence I don’t think it is wise to invite an opposition politician. Furthermore, we already invited fellow DAP member, Jeff Ooi to speak in our previous forum.

Fortunately, Timothy Tiah hooked me with someone from DiGi and I managed to get Azizi Jennis to speak.

Then few days before the event, #Yorais informed us we couldn’t make it but fortunately, Deputy Minister II Senator Datuk Maglin Dennis D’Cruz came.

There were many other problems were encountered but I guess this is part and parcel of event management. We had to be very, very flexible with changes in plans.

We had a huge problem with our caterer as well. They came extremely later. The Deputy Minister came earlier than them! They served our VIP sandwiches that looked like as if it were pressed using their fingers. Their coffee was so sweet as if they were trying to give us diabetes.

There were also no water. I had to supply them with my own supply of mineral water (which I keep in my car).

The worst part was that one of the waiters spilled a tray of curry, which was supposed to be for lunch, on the floor -___- We had to get KDU College to provide us with a new dish.

In regards to the speakers, the KL Bar Blog’s blog entry below sums it up the best:

Three speakers spoke on the Censorship on Malaysian Internet and all three of them spoke against censorship; though Mr Jagdish Singh of the Internet Society did promote internet censorship to protect certain segment of society such as young Children. Mr Steven Gan of Malaysiakini gave a resounding speech from a Journalist’s point of view and impressed upon the delegates that Internet Censorship should not exist in Malaysia. Mr HR Dipendra, a lawyer but speaking in his capacity as part of the international Media Defence Group articulated his point for a non-censored internet to allow the Media on the Net to flourish.

The 2nd Session saw two heavyweights in Data Protection Law in the form of Professor Abu Bakar Munir of University Malaya and Professor Sonny Zulhuda of International Islamic University of Malaysia. They spoke on the recently passed Personal Data Protection Act 2010, currently waiting to be in operation. The two Professors shared many intricate and delicate views on the matter. Professor Abu Bakar Munir, in particular, had inside knowledge of the Act, as he was in fact part of the team who drafted the Act.Many delegates posed interesting and sometimes difficult questions to the two Professors. The replies from the Academicians were extremely helpful and clarified many anomalies of the Act.

After the lunch break; the Forum saw three giants on Social Media speaking. Representing Nuffnang was Mr Nicholas Chay whilst DiGi sent their Head of Online, Mr Azizi Jennis. The trio was completed by the famous Blogger Mr Niki Cheong.They spoke candidly of the growth of Social Media and how far Social Media may grow in Malaysia. All three of them appeared to take the view that Social Media will be a major player in the dissemination of information in future. There were also survey results which indicated that people seems to trust what is written on famous blogs more than what the advertisement says. This may suggest that the trend of advertisement in the future may vary on the Internet.


The KL Bar IT Committee 2010.


Press conference by Deputy Minister after the first session! Reporters crammed in a small room just to hear Deputy Minister speak.

This will be my last term serving the KL Bar IT Committee. It was great serving the KL Bar IT Committee as it was an eye opener and gave me plenty of opportunity and training. I will concentrate in the Bar Council Intellectual Property Committee next year – it takes up quite a lot of my time serving two committees.

Till next year!