Articles

In recent years, the electronic cigarette (“E-Cigarette”) has enjoyed a boom in popularity and has become a trend among urbanites. But What Are E-Cigarette? An e-cigarette is a battery-operated smoking device designed to deliver nicotine or related substances to users in the form of an aerosol. It typically consists of a heating element, a cartridge that contains liquid nicotine or other substances and an atomizer that, when heated, convert the contents of the cartridge into an aerosol that the user inhales. As the liquid solution is converted into vapour, E-Cigarette is sometimes referred to as “vaping”, rather than smoking. There are two main categories of E-Cigarette! One is a closed system, in which pre-filled cartridges are used; the other one is an open system, where users are allowed to manually add solutions to a refillable cartridge. When E-Cigarettes were first introduced, they were shaped like cigarettes, cigars or pipes. Over the years, the designs and ingredients have evolved. Today, E-Cigarettes come in hundreds of brands with a variety of shapes and flavours, with some even mimicking common household products such as pens, lipsticks and power banks. Sales of E-Cigarettes have risen exponentially over the years. It is speculated that sales of E-Cigarettes might even overtake conventional cigarettes within the next 5-10 years. Safety and Public Health Impact Many public health organizations and policymakers are concerned about the safety and public health impact of E-Cigarettes. This is due to the lack of manufacturing standards and ingredient disclosure requirements. They agree that further scientific study needs to be undertaken to assess the safety claims about E-Cigarettes and to determine the public health impact of E-Cigarettes. The nicotine in E-Cigarettes, like any other tobacco products, is highly addictive and can be toxic if taken in high doses. For example, E-Cigarette cartridge typically contains between 6 and 24 mg of nicotine per millilitre, but in some brands, the nicotine level has been found to be much higher. It is also still unknown about the health impacts of E-Cigarette aerosol on both the users and those in close proximity who are exposed to the second-hand aerosol. One study conducted by the U.S. Food and Drug Administration (“FDA”) has found that E-Cigarettes contain a number of dangerous substances. The World Health Organization has strongly advised consumers against the use of E-Cigarettes until they are “deemed safe and effective and of acceptable quality by a competent national regulatory body.” As a result of this, governments around the world have stepped in to regulate the sale, price, and use of E-Cigarettes. The regulation varies across countries. Some countries have come up with regulations while some have completely banned E-Cigarettes altogether. Legal Status of E-Cigarette around the World In the US, at the Federal level, the FDA has regulated cigarettes, smokeless, and roll-your-own tobacco since 2009. On 8th August 2016, the FDA finalised a rule that extends its regulatory authority to all tobacco products, including E-Cigarettes, cigars and hookah and pipe tobacco, as part of its goal to improve public health. “Before this final rule, these products could be sold without any review of their ingredients, how they were made, and their potential dangers,” explains Mitch Zeller, J.D., director of the FDA’s Center for Tobacco Products. “Under this new rule, we’re taking steps to protect Americans from the dangers of tobacco products, ensure these tobacco products have health warnings and restrict sales to minors.” The New Rule The new rule does numerous things. As mentioned, the new rule extends the FDA’s regulatory authority to all tobacco products, including E-Cigarettes (also called electronic cigarettes or electronic nicotine delivery systems (ENDS)), all cigars, hookah (also called waterpipe tobacco), pipe tobacco, nicotine gels and dissolvables that did not previously fall under the FDA’s authority. It requires health warnings on roll-your-own tobacco, cigarette tobacco, and certain newly regulated tobacco products and also bans free samples. In addition, manufacturers of newly regulated tobacco products that were not on the market as of 15th February 2007 will have to show that their products meet the applicable public health standard set by the law. Most importantly, these manufacturers will have to receive marketing authorisation from the FDA. Furthermore, the new rule also restricts youth access to newly regulated tobacco products by not allowing such products to be sold to those younger than 18 and not allowing tobacco products to be sold in vending machines (unless in an adult-only facility). Finally, it gives a foundation for future FDA actions related to tobacco. At the state level, local governments can pass their own state laws to regulate the use of E-Cigarettes. In California, it is illegal to sell or otherwise furnish an E-Cigarette to a person under 18 years of age. Some states have imposed a tax on E-Cigarettes as they are treated as tobacco products while some states have extended their indoor smoking bans to include E-Cigarettes. The U.S. Department of Transportation has stated that it interprets the federal regulations that prohibit smoking on aeroplanes to apply to E-Cigarettes. In some parts of Europe, E-Cigarettes are currently banned while some other EU member states allow the sale and use of E-Cigarettes, albeit with some restrictions. The EU has passed a revised Tobacco Products Directive (“Directive”) which aims to improve the functioning of the internal market for tobacco and related products while ensuring a high level of health protection for European citizens. The Directive, which is based on the proposal of the European Commission, entered into force on 19th May 2014 and became applicable in the EU Member States on 20th May 2016. The Directive includes E-Cigarettes as tobacco-related products and introduces certain new rules on how E-Cigarettes can be sold and manufactured, as well as how they can be displayed in shops. The Directive also requires health warnings, instructions for use, information on addictiveness and toxicity to be displayed on packages on E-Cigarettes and it controls the maximum sizes of the liquid bottles (2ml for cartridges and 10ml for refill containers) and the maximum nicotine level they can

If you weren’t aware, the Malaysian online community has been in a tizzy commenting about one man’s actions, which may be considered as cyber-bullying. Just this week, a man named Eddy Rajang drew widespread public condemnation after he posted a video of him berating a Carlsberg promoter. Even though he quickly took down the post, the damage was done. Within hours, Malaysian netizen took it upon themselves to expose his and his family members’ personal information and publicly shamed him. Going to the extent of revealing where he worked, the faces of his family members and even locating where his young daughter went to school! Some even claimed that they wanted to go to the daughter’s school to track her down. Following the uproar, Eddy lost his job. This was despite issuing a public apology in the following video. This was what he said in the video: Salam Sejahtera. Saya yang dikenali sebagai Eddy Rejang ingin membuat permohonan maaf secara terbuka kepada semua rakyat Malaysia dan terutama kepada perempuan tersebut…Akui kesalahan saya dan amat menyesal tindakan saya terhadap perempuan tersebut. Saya berharap isu ini tidak lagi dipanjangkan oleh mana – mana pihak memandangkan saya telah bertemu dengan YB Lim Lip Eng dan telah membuat permohonan maaf kepada pihak YB Lim. YB Lim juga mengatakan akan membuat perjumpaan dengan promoter perempuan tersebut secepat mungkin. Sekian , terima kasih . – Eddy Rejang However, despite not condoning Eddy’s actions towards the poor promoter; we do not think Eddy’s action deserved such a reaction either because it is considered cyber-bullying. Why? Because not only has he issued a public apology; harassing him online can be considered as CYBER-BULLYING! Moreover, photos and the identity of the Carlsberg promoter are also making their round on social media. The Carlsberg promoter – which we must praise her for high EQ and calmness in responding to Eddy’s remarks – has issued a press release through Carlsberg saying that while she appreciated the encouraging words and support from all parties, she preferred everybody to also respect her privacy. In the statement, Managing Director of Carlsberg Malaysia Lars Lehmann commented; We respect the promoter’s decision not to further pursue the matter. She appreciates the encouraging words and support received from all parties…Nonetheless, she urged all parties to respect her privacy by not circulating any images, videos and personal information of her But before we go into the nitty-gritty behind the law, there was another case that took place in 2014 which relates to cyber bullying. Kiki’s road rage incident: cyber-bullying? Kiki became an overnight sensation because she over-reacted and retaliated by repeatedly hitting the car of an elderly man who had accidentally bumped into her new Peugeot car. The incident became viral within hours after it was video-recorded and uploaded onto YouTube by an onlooker. Like Eddy, angry netizens took it upon themselves by scouring through social media and public domain databases to look for Kiki’s personal data and then exposing her personal data to the public. Such a practice is known as “doxing” or document tracing. It means tracing someone or gathering information about an individual using publicly available sources on the Internet. Some have posted distasteful remarks on her Facebook page, while others have publicly cursed and shamed her – acts considered as cyber-bullying, with some even threatening to harm her physically. In fact, her company’s website came under attack and her social media account was hacked! Similarly, while we do not condone what Kiki had done to the elderly man, we do believe that “two wrongs do not make a right”. The extent to which the netizens have done is tantamount to cyber-bullying and harassing. Imagine what would happen if someone harmed her using the personal data that they got online?! Just because the information is available online, that does not mean we all should also behave like a bully by mining and exposing her personal data online. While many would have agreed that Kiki should not have taken the law into her own hands, or that Eddy had himself to be blamed for doing such a thing on that poor girl, likewise, we also should not behave like a judge, jury and executioner. In the online world, that is considered cyber-bullying. That is precisely why we have the Parliament, police and courts. In both cases, the authorities have taken the appropriate – and most importantly, LEGAL – method of handling the matter. Kiki had since pleaded guilty and the court had fined her RM5,000 and ordered her to do 240 hours of community service. As for Eddy, we understand that the police have opened an investigation file and therefore, we should just let the law to take its own course. The Law Unfortunately, there is NO law that regulates the disclosing of private information online. The Personal Data Protection Act 2010 only applies to the processing of personal data in commercial transactions. If there is evidence that shows that the personal data was pulled out from private databases, then arguably that may constitute hacking under the Computer Crimes Act 1997. Otherwise, if the personal data was merely extracted from the public domain, then there is no case. That being said, there is also a potential cause of action under the common law right to privacy. The victim will have to sue and prove that his privacy has been invaded.  In addition, he must show that the action has caused severe intrusion into his personal life. But, there 2 other laws that might get you in trouble. Eddy Rejang got tonnes of hate comments online. However, those hateful comments can land you or anyone else in the hot water with the law. S.509 of the Penal Code A word or gesture intended to insult the modesty of a person is a crime. In this case, modesty includes attacks to a person’s sexuality and also manhood. It states that; Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits

I was recently invited to give a talk on “business contracts” to a group of entrepreneurs and SME business owners. I realized that many business owners lack a basic understanding of certain important legal concepts, one of which is about the contract. As such, I have decided to cover this simple but yet important legal topic in this and the next article. What is a contract? Many entrepreneurs jump into building a company without considering important issues like contracts and agreements. Contracts play a crucial role in managing the relationship between companies and business partners. Dealing with contracts is part of running a business. You may be a purchaser of goods or services; a supplier of goods or services or a business partner of a venture you recently set up. In each of this situation, you will be entering into a contract, and that little document will specify terms which set out the agreement reached between the parties to prevent disputes and misunderstandings. A contract also provides legal remedies if one party does not uphold his end of the contract. So, what is a contract? It can be anything from a formal written document to a purely oral promise. A contract is an oral or written agreement to do work in exchange for some benefits, usually in the form of payment. Although an oral contract is still legally binding (except for specific situations where the contract must be in writing), most contracts nowadays are in writing. For a contract to be legally binding, it must contain four essential elements, namely: offer – what you offer to the other party to buy acceptance – when the other party agrees to buy your offer intention to create a legal relationship – a serious commitment to enter into a binding contract consideration – something of value to be exchanged between the parties However, if a contract has any of the following elements, it will not be considered as a binding and valid contract: illegal – if a contract is for an illegal purpose (for e.g. selling drugs, prostitution, illegal gambling) lack of capacity – if the other party is a minor (below 18 years of age); a bankrupt; a mentally-ill person; a person under influence of drug or alcohol when entering into the contract unconscionable conduct – if a party is forced, coerced, deceived or misled into signing a contract Written or oral contract? Depending on the value or seriousness of the subject matter, as a general rule, I always encourage parties to sign a written contract. It is because a written contract provides more certainty, sets out clearly the details of what was agreed from the outset as well as minimizes risks as it is much safer to have something in writing than to rely on someone’s word or your own memory. If you do not have a written contract, parties are likely to have disputes over what was actually agreed because both are relying on own memory (a typical “your words against my words” kind of situation). The court will not enforce the contract if you are unable to prove the existence of the contract or its terms. When a written contract is essential? These are some of the tips to help you in deciding whether you should enter into a written contract: when the contract price is large enough to make or break your business i.e. high-risk transaction; where there are quality requirements, specifications or specific materials that must be used; where there is some doubt as to whether the other party has enough money to pay you; when you need to have certain types of insurance for the type of work you do; where the contract contains essential terms, such as a critical date for the completion of the work before payment can be made; where parties need to keep certain information confidential; when it is required by your insurance company for professional indemnity insurance. Other types of contracts recognised by law. Oral contract An oral contract or some call it a handshake agreement is nonetheless a valid contract provided it fulfills the 4 elements stated above. However, the challenge lies in proving the existence of such a contract. You may want to keep any paperwork/conversations that are associated with the contract so that in the event there is a dispute, you can still use them as evidence. These would include emails, WhatsApp chats, minutes of the meeting, purchase orders or fee quotes with relevant details, list of specifications and materials, etc. Implied contract This is an unwritten contract that can be inferred from parties’ conduct, actions and the circumstances. For example, if a vendor sends goods to a customer, and the customer takes the goods without paying and uses those goods to make products or re-sell for a profit, a contract to buy and sell those goods might be inferred. The customer must pay for the goods because an implied contract has been created. Standard contract This is a pre-prepared contract where most of the terms are set in advance. And it leaves little or no room for negotiation. The most common example would be the terms and conditions that you usually have to agree to before you subscribe to a service. This type of contract tends to be one-sided (“take it or leave it”) that benefits the party who prepared the contract. So, please read the fine print because if you don’t, you cannot later argue that you didn’t understand or read it before you sign. This type of contract will need to be drafted in a fair manner too, in light of the new unfair term provisions under the Consumer Protection Act 1999. Tips for signing a contract Now that you know how important it is to sign a contract, below are some tips for signing a contract. Before you sign read every word, including the fine print; ensure that it reflects the terms and conditions that were negotiated; seek legal advice, if necessary; allow

Technology makes our lives better, helps us to get things done faster, and thereby allows to save more time so that we can focus on the more important things in our lives. While some may disagree with this statement, many would agree that technology is omnipresent and forms an integral part of our lives. Let’s talk about the mobile transportation or ride hailing apps that are touted as the game changers, which has created a lot of hype and controversy all over the world including Malaysia. The three most popular taxi apps in Malaysia are, My Teksi, Easy Taxi and Uber. There are also other local taxi apps such as Taxi Monger, UniCabLink and EzCab. My Teksi is our home-grown ride hailing app which has made its name not just in Malaysia, but also abroad, whereas Easy Taxi is backed primarily by Rocket Internet from Germany, while Uber is an American based app originated from San Francisco. Each of them has garnered a lot of interests from investors, consumers, as well as taxi drivers and at the same, they have attracted a great deal of attention from the regulators too, particularly Uber. In terms of funding, to date, My Teksi has raised RM293 million, Easy Taxi has raised RM257 million, and Uber has raised RM5 billion. This goes to show that it is a multi-billion dollar industry and it sets to revolutionise, if not, transform the taxi booking system and the notorious practice in the taxi industry. These taxi apps leverage on mobile technology to connect passengers to drivers in a reliable, efficient and safe way. These taxi apps basically have three main features: allow the passenger to search for the nearest taxi in less than a minute; provide transparency in the sense that the information of the specific driver who accepted the booking request (such as name, plate number, personal picture, car type, license number and phone number), estimated fare as well as estimated time of arrival will be displayed on the passenger’s smartphone/tablet screen; and promote safety as the passenger can track the driver on the screen map in real time as the driver approaches passenger’s current location and share the location as the journey runs. Using these ride hailing apps, getting a taxi has never been that easier and safer before! In addition to the above features, some of these apps provide cashless payment feature (hence eliminating the need for bringing cash and getting a response from drivers like, “Bro, I have no small change la”). To ensure safety is of the top priority, some of these ride hailing app companies will do stringent criminal background checks on the drivers and require them to meet certain requirements before allowing them to join the network. Drivers who received bad ratings from their passengers will be banned from providing the services, thereby indirectly forcing drivers to improve their services. Many of you would be quite familiar with the following scenes before the days of ride hailing: 1st scenario You step out from your office, trying to flag down a taxi. You wait for 10 minutes, finally, a taxi comes. You tell him your desired destination, the driver says, RM15. You ask the driver to use the meter, but the driver says the distance is too short, so it is not worth using the meter. You either haggle for a discount or waste another 10 minutes waiting for the next taxi to come. 2nd scenario You call up the taxi booking hotline, and immediately you are put on hold for 5 minutes. Finally, someone answers, “pergi mana?”, and you tell him/her your desired destination. You are then put on hold for 5 minutes, while he/she go and check for any available taxi drivers who can pick you up. After 5 minutes, you either get a good response that says, a taxi will arrive in 10 minutes, or you get a familiar response like “no taxi” or “tak mau pergi”. Many have lauded the introduction of these godsend ride hailing apps into the market as they set to solve the taxi woes, end the frustration and ease the pain when it comes to booking a taxi. My Teksi and Easy Taxi are essentially taxi booking apps, where passengers can summon taxis through the apps. They both work with licensed taxi drivers and do not charge passengers anything extra. They make money from the fixed RM2 booking fee, which is a government regulated surcharge for any booking that is arranged through a phone. Passengers will pay the metered fare as regulated by the government. From the look of it, it appears that they work within the boundaries of the law. Unlike My Teksi and Easy Taxi, Uber is not quite like any other taxi booking apps, rather it is described as a ride-sharing app. Uber, which is available in 222 cities in 45 countries, does not work with licensed taxi drivers. Instead, private vehicle owners can apply to become a driver for Uber and make money out of it. A recent interview with Uber’s regional manager, Michael Brown, seems to suggest that for Malaysia market, Uber also partners with licensed for-hire chauffeur-driven limousine and registered rental car companies. Uber drivers do not use a taxi meter, but rather they use the ride hailing app to calculate fares based on distance travelled and time taken, which according to Uber, the fares are much cheaper than the regulated metered fare. The fare is split 20/80, with Uber taking 20% and the driver taking the rest. Uber also has a surge pricing system whereby fares will go up in busy periods and on certain special occasions such as during bad weather or public holidays. Change often brings resistance. Due to Uber’s unique and novel business model, the response to Uber has been twofold: on one hand, passengers welcome Uber because they get better services for the fare that they pay; while on the other hand, incumbent taxi drivers are up in arms, claiming that

The rapid increase of mobile phone theft cases has demanded the authorities to take steps to prevent or reduce these cases and ensure that lost/stolen mobile phones are immobilised. One of the steps that the authority, in this case, the Malaysian Communications and Multimedia Commission (“MCMC”) is taking is to set up a national IMEI database and introduce a national phone blocking system using IMEI number. International Mobile Station Equipment Identity (“IMEI”) number is essentially a 15-digit unique number that is assigned to each and every mobile phone in the market, which is used for identifying a particular mobile phone and its functionality as a security feature is used extensively worldwide. Phone blocking system using IMEI number has been used for many years in many countries including the Europe, United States as well as Australia. The idea of phone blocking had first been mooted by the Government since 2008 and was finally rolled out in the 2nd quarter of 2014. Malaysia is the first country in this region that rolls out this phone blocking system. According to the Direction on Public Cellular Blocking Service for Cellular Mobile Access Devices under Required Application Services (Direction 1 of 2013) issued by the MCMC on 30 April 2013; each network service provider and application service provider is required to execute all acts necessary to prepare and/or facilitate the implementation of the Public Cellular Blocking Service (“PCBS“) within 3 months from the date of the Direction including, the installation of an Equipment Identity Register (“EIR”), ensure integration and connectivity of the EIR at all times to the Malaysian Central Equipment Identity Register (“MCEIR”) for the transmission of blocking and unblocking requests, ensure arrangements are in place to deal with the blocking requests of lost/stolen mobile phones and the unblocking requests for recovered mobile phones, ensure that all blocking/unblocking requests are updated to the MCEIR, ensure that all blocking and unblocking instructions from the MCEIR are updated to the EIR; as well as provide reports as required by the MCMC from time to time. PCBS is essentially a service that will enable mobile phone users to block a lost/stolen mobile phone from making /receiving calls, sending/receiving SMS/MMS and accessing all data networks within Malaysia. What it means is that, once the mobile phone is blocked, the mobile phone becomes unusable even if a new SIM card is inserted into the mobile phone. Users are not required to sign up for this service as it is available to all users free of charge. The MCMC said that the system was aimed at reducing street crime and mobile phone theft cases since stolen mobile phones can be sold at half the retail price in the black market. A check on the websites of the three main telecommunication companies (“telcos”) in Malaysia shows that they have already put in place some mechanisms to facilitate the PCBS. The IMEI number is usually stored automatically on the telco’s system when the users subscribe for the telco’s network service. However, users are encouraged to register their ownership details on the www.blockmyphone.my portal so that in the event their lost/stolen mobile phones are found subsequently, the users can claim back their mobile phones. The online ownership registration is free of charge. Only mobile phones that have a valid IMEI number can be blocked under the PCBS. A valid IMEI number is a unique identification number for each mobile phone that is recognized by GSMA. The IMEI number is usually found printed inside the battery compartment of the mobile phone or on the original packaging box. A user can also dial *#06# into the keypad on his mobile phone to obtain the IMEI number on the display screen. The user will need to contact his telco or walk into the participating customer service centre to make a PCBS request. If the mobile phone is found subsequently, the user can contact his telco again to request to unblock his mobile phone. Once the mobile phone is blocked, it will remain blocked until a legitimate unblock request is received by the telco. How does PCBS work? The PCBS uses the IMEI number of the mobile phone to block/unblock lost/stolen mobile phone. If your mobile phone is lost/stolen, immediately report the incident to your telco to; (i) block the SIM card (so that your mobile phone number will be blocked and you will not be charged for any calls made afterwards), and (ii) block your mobile phone under the PCBS (so that the functionality of your mobile phone will be blocked even if a new SIM card is inserted into the mobile phone). If a crime is involved, please also make a police report without delay and ensure that your mobile phone’s IMEI number is included in the police report. If you have registered your own details on the www.blockmyphone.my portal, remember to update your mobile phone’s status as lost/stolen. Upon receiving your PCBS request, your telco will blacklist your mobile phone’s IMEI number on its EIR, and then submit the blacklisted IMEI number to the MCEIR. The MCEIR will then forward the blacklisted IMEI number to all other telcos in Malaysia so that they can also blacklist the IMEI number on their EIRs. Once this is done, your mobile phone will be immobilised. Celcom says that it will take about one working day to process the blocking/unblocking request, but the actual blocking/unblocking will only take place when Celcom’s network detects the mobile phone. DiGi also states that the mobile phone will be blocked/unblocked as soon as DiGi’s network detects the mobile phone. Maxis, however, does not state how long it would take for it to block/unblock the mobile phone. If subsequently, you have recovered your lost/stolen mobile phone, you can request your telco to unblock the mobile phone. You should also update your details on the www.blockmyphone.my portal to remove your mobile phone’s lost/stolen status. If you sell or give away your mobile phone, you should also de-register your mobile phone on the www.blockmyphone.my

This month marks the 2nd year anniversary of Section 114A of the Evidence Act 1950 (“Section 114A”), which came into force on 31 July 2012. Much has been said and written about this onerous provision under the Evidence Act 1950 since it was passed by the Malaysian Parliament in 2012. The call for repeal or review of Section 114A also fell on deaf ears as the authorities have not taken any action thus far, save for a short tweet by the Prime Minister saying that he had instructed his Cabinet to review this notorious provision of the law. The intention of Section 114A, according to the Government, is to facilitate the identification and proving of the identity of an anonymous person involved in illicit or harmful content published on the Internet. However, this controversial provision has attracted a lot of criticisms and sparked many debates, particularly from the netizens in Malaysia, who viewed this provision as a move by the Government to threaten the right to freedom of expression on the Web. Section 114A will have an impact on anyone who uses the Internet, computers, or mobile devices; those who administer, operate or provide spaces for online community forums, blogging and hosting services as well as any business premises which offer free WiFi access to their customers. The protest against Section 114A led to the occurrence of the very first Internet Blackout Day in Malaysia that took place on 14 August 2012, which was an action to create awareness about the negative impacts of Section 114A and to show protest against this draconian provision under the law. In a nutshell, Section 114A creates a legal presumption that any registered user/subscriber of a network service, or any person who has in his custody or control any computer on which any publication originates from, is presumed to be the publisher of a publication sent from a computer which is linked to that network service or that computer, unless the contrary is proved. It also provides that any person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved. Section 114A allows the prosecution in a criminal case or a plaintiff in a civil suit to rely on a presumption of fact to prove the identity of the person responsible for an internet publication. It shifts the burden of proof from the prosecution/plaintiff to the accused person/defendant in the sense that the accused person/defendant will be deemed as the publisher of the content unless the accused person/defendant proves otherwise. The implications of this wide and draconian provision could be very serious. For example, if a person hacks into another person’s mobile device or Facebook account, and uses that device or Facebook account to post a defamatory statement anonymously, the victim of the hacked device or Facebook account will be deemed as the publisher and could be sued for the defamatory statement that he did not post. Bloggers and forum administrators also opposed to Section 114A, simply because if a reader of their sites posts a libellous or seditious comment, the bloggers and forum administrators will be deemed as the publishers of the comment and could be charged for sedition or sued for defamation. Çafe operators that offer free WiFi facility at their cafes could also be potentially liable for the conducts of their customers who use the WiFi network to post unlawful content, simply because the operators are the “registered users/subscribers of the network service” which are linked to the content originating from a computer/mobile device using the WiFi service. In short, if an unlawful, illicit or harmful content is tracked back to your username, electronic device or network service, Section 114A presumes you as the publisher of the content. As most of the times, the authorities cannot trace the identity of the actual author who posts or makes those seditious, defamatory or libellous postings, Section 114A now enables the prosecution to hold these people as “publishers” and make them accountable for those unlawful contents, even though they are not the actual authors of the content. Do note that Section 114A is a rebuttable presumption of fact, not a direct presumption of guilt. Notwithstanding the presumption, the prosecution/plaintiff would still need to prove the other elements of the offence/claim. For example, if a person is charged under the Sedition Act 1948 for uttering a seditious statement, that person will be presumed as the publisher under Section 114A, but not necessarily guilty of sedition. The prosecution would still need to prove that those words are “seditious” before that person can be made guilty. Be that as it may, Section 114A essentially goes against the very fundamental principle of natural justice that “one is presumed to be innocent until proven guilty”. Most ordinary individuals would not have the resources to defend themselves in court, compared to the entire machinery that the authorities have, such as the police force, the Attorney General’s Chambers, the Malaysian Communication and Multimedia Commission, etc, who have the technology, manpower and resources to do the investigation. Under Section 114A, individuals will have to bear the disproportionate burden to prove their innocence when it should be the job of the prosecution to prove the commission of the offence by the individuals. Furthermore, dragging such individuals into court would cause unnecessary embarrassment, cost and inconvenience that no amount of compensation can make up for that. The Government has justified this Section 114A by saying that the cross-border nature of the Internet has made it extremely difficult for the authorities to trace the identity of the culprits, who often post those content anonymously. But this cannot be a valid justification, simply because if it is difficult for the authorities to gather the required evidence, what makes them think that it would be less difficult for

Voting makes you feel good because you know you are involved in the democratic process, that your vote counts and your voice is heard. And it is your right and responsibility, too. We are all familiar with voting. We have been voting since we were very young, from voting for class monitor in school, president of the student council in university to voting for our favourite idols in reality TV shows such as Malaysian Idol and Akademi Fantasia. However, when it comes to voting in a general or state election, we still find people who are reluctant, or who do not even care, to cast their vote. The election is an important element in a democratic society. In the US Declaration of Independence, Thomas Jefferson (the third US president) wrote: “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” Put in layman terms, it means governments come into power because we, the citizens, grant them the consent to run the country. This reminds me of the famous quote by Abraham Lincoln (16th US president): “Democracy is the government of the people, by the people, for the people.” In Malaysia, Article 119 of the Federal Constitution guarantees every citizen’s constitutional right to vote in an election provided (a) he or she has attained the age of 21; (b) is resident in a constituency or, if not so resident, is an absent voter; and (c) is registered in the electoral roll as an elector in the constituency in which he or she resides on the qualifying date, unless he or she is disqualified under the law. We are very fortunate because our right is guaranteed under the Federal Constitution. Unfortunately, some people do not appreciate the right to vote. It is reported that as many as 4.3 million eligible voters have not registered themselves with the Election Commission, and many of them are young people who have just reached 21 (The Star, Aug 3, 2010). This is an alarming figure in view of the total number of registered voters in Malaysia, which currently stands at 11 million (The Star, Sept 2, 2010). There has been speculation that the 13th general election may be called anytime soon, and if this turns out to be true, a huge number of people, especially young people, will be deprived of their right to vote. Why should young people vote? It is an opportunity for them to choose the candidates or parties they wish to run and lead the nation. Voting recognises the right to equality; the right to speak and the right to be heard. Many people complain that their voices are not heard, but they seem to have forgotten that they have been given the right to express their voice through the ballot paper. Voting is a means to support the democratic system and to ensure that it will continue to work as long as people uphold the principles of democracy. Not voting means giving up on our democracy, and this would upset our forefathers who have fought to preserve and protect our nation’s independence and democracy. An election is an avenue for people to vote for honest and clean candidates of calibre who are fit and competent to lead the nation and be accountable and answerable to the people. It is the only time where changes can be made in the most peaceful and civilised manner without any violence involved. Many election issues have far-reaching implications on the people, especially the younger generation. Education, healthcare, employment, crime rate, corruption, fuel prices, environmental protection are among the issues that affect and will continue to affect the younger generation. Therefore, young people should appreciate that voting is actually an opportunity for them to speak for themselves. Voting sets a good example to others who are not bothered to vote but merely talk. Malaysians love to talk about politics. However, all talk but no walk would not make any difference. Voting is the best way to walk your talk, to tell the candidates that you care about the country; that you like to see how the country is run; how public funds ought to be spent; that you want them to bring positive development to the country. There is a myth that “one vote doesn’t make any difference”. This is not true. If everyone thinks that his or her vote is not significant and chooses not to vote, the democratic system will collapse because of a lack of confidence in the system Candidates who are voted in may not be representing the majority voice. This is dangerous because we are then putting our future in the hands of candidates who do not represent us, and we are letting them make decisions that may affect us. In reality, every vote counts, and history has repeatedly shown that some candidates had in fact won by a slim majority. Voting is also the trend now, and it is cool. You can proudly post a status on Facebook and Twitter and tell the world, “I have voted” or you can blog about Election Day. Besides, voting makes you feel good because you know you are involved in the democratic process; that your vote counts, and your voice is heard. So please, do get yourself registered. If you have already registered, just sit back, relax, do some reading and look forward to marking the “X” on the ballot paper in the near future. Election Day is not another public holiday. It is one of those few events that come once in four or five years, and one of those days when you feel that you are as significant as anyone else on the street because your vote is of equal weight with theirs. So make sure you vote on Election Day. Voting is not just a right; it is a responsibility, too. ***** About the author: This article was written by Edwin Lee Yong Cieh, Partner of LPP Law – law firm in Kuala Lumpur,

More often than not, merchants and service providers, through exclusion clauses, force consumers to accept the terms in toto to enjoy goods or services, but things are definitely changing with more awareness on consumer protection. This year has been a wonderful year for consumers. In the last few months, Parliament passed a series of new laws that grant greater protection to consumers. For instance, the Personal Data Protection Act 2010 provides protection to an individual’s personal data, and the Competition Act 2010 prohibits anti-competitive conduct and abuse of dominant position, thereby protecting the interests of consumers. There is also the Price Control and Anti-Profiteering Bill 2010 in the pipeline, which will serve to control prices of goods and charges for services as well as to prohibit unreasonable profiteering. One of the most remarkable developments in terms of consumer protection is the enactment of the Consumer Protection (Amendment) Act 2010 (“the Act”) which addresses the issues of unfair contract terms. In Malaysia, exclusion clauses are widely used and commonly seen in many places. Car park operators often place a notice at the entrance or on the parking ticket that says to “park at your own risk”. Many traders also prefer to use standard forms of contract which provide a uniform set of terms for general use. More often than not, consumers are left with no choice but to accept the terms in toto in order to enjoy the goods or services. In some cases, one party may seek to exclude or disclaim his liabilities under the law, thereby depriving the other party of exercising his rights. It makes matter worse when the consumer does not read the terms or even if he does read them, there is no way for him to vary the terms. Unfortunately, the court has no general power to strike down a contract merely because it is unreasonable, unconscionable or unfair. Such inequality of bargaining power or unconscionable conduct by the contracting parties in entering into a contract was recognised for the first time in the Court of Appeal decision of Saad Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98. In this case, Gopal Sri Ram JCA was of the view that the time has arrived for our courts to recognise this wider doctrine of inequality of bargaining power in order to do justice. Instead of enacting a new piece of legislation to deal with the unfair contract terms, like what has been done in the UK, Malaysia decided to insert a new Part IIIA into the Consumer Protection Act 1999. This new Part IIIA is substantially modelled upon the recommendations of the Law Commission of India’s 199th Report on Unfair (Procedural & Substantive) Terms in Contract (August 2006). An “unfair term” is defined as a term in a consumer contract which, with regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer. Part IIIA of the Act introduces the concept of “procedural unfairness” and “substantive unfairness”. Procedural unfairness relates to the process of making the contract and arises when there is an element of oppression or wrongdoing in that process, whereas substantive unfairness is concerned with the contents of the contract and arises when the terms of the contract themselves lead to injustice. A contract is said to be procedurally unfair if it has resulted in an unjust advantage to the supplier or unjust disadvantage to the consumer on account of the conduct of the supplier or the manner in which or circumstances under which the contract has been entered into. A contract is said to be substantially unfair if it is harsh, oppressive, unconscionable, or excludes or restricts liability for negligence or for breach of express or implied terms of the contract without adequate justification. The enactment of the new Part IIIA is indeed an excellent move made by Parliament. It places the burden of proof on the supplier to prove that the exclusion or restriction is not without adequate justification. A court or the Tribunal has the power to raise an issue of the unfairness of contract even if none of the parties has raised such issue in its pleadings. In the event a court or the Tribunal finds the contract or any of the terms of the contract procedurally or substantively unfair, it can declare the contract or the terms as unenforceable or void and it may grant judgment or make an award. Contravention of any of the provisions of this new Part IIIA will attract a heavy fine or term of imprisonment or both. One criticism is that the Consumer Protection Act 1999 applies only to consumer contracts (for e.g. goods or services bought by the individual consumer for private use) and not commercial contracts. The new Section 24B of the Act states that the provisions of this Part IIIA shall apply to all contracts. It is not sure how broadly this provision is to be interpreted i.e. whether it may extend to include commercial contracts such as hire purchase contracts, sale and purchase agreements, insurance contracts, the supply of goods contracts, commercial charter parties, etc. Having said that, it is submitted that if the intention of Parliament is to extend the principles in Part IIIA of the Act beyond consumer contracts, it should have enacted a separate legislation on unfair contract terms (like the case in the UK) or should have incorporated those provisions into the Contracts Act 1950 rather than merely inserting a new part into an existing legislation on consumer protection. By inserting the new part into the Consumer Protection Act 1999, it is submitted that the new part only applies to consumer contracts that fall within the ambit of the Consumer Protection Act 1999. Lord Evershed MR once made an interesting remark where he said: “this contract is so one-sided that I am astonished to find it written on both sides of the paper”. Can we now