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We live in an age where information and communications technology (ICT) has brought much improvement to human life. The digital revolution has revolutionised the way we live, study, work and play. Today’s computers and smartphones have enabled us to communicate with each other easily and obtain information from the Internet effortlessly. We can also use these electronic devices to take and share photos instantly, stream videos online and listen to music wherever and whenever we want. Parliament has enacted a series of cyber laws to address the various issues that may arise from the use of ICT. One of them is the Copyright (Amendment) Act 2012 (Amendment Act) which came into force on March 1, 2012. KEY FEATURES OF THE AMENDMENT ACT The Amendment Act aims to fulfil the requirements that will allow Malaysia to accede to the WIPO Copyright Treaty and WIPO Phonograms and Performance Treaty as well as to keep the Copyright Act 1987 abreast with new developments and international standards. (1) Notification of copyright Under the Amendment Act, the owner or licensee of a copyrighted work may notify the Controller of Copyright (controller) of the copyright in the work by providing the prescribed particulars and paying a fee. Notification is not mandatory. Upon notification, the particulars of the work such as the personal particulars of the copyright owner, a statutory declaration that the applicant is the owner, the category, title, name of the owner, date and place of the first publication of the work, will be recorded and maintained on the Register of Copyright. An advantage of notifying the copyright to the controller is that the certificate of notification issued by the controller constitutes prima facie evidence of the owner’s claim to the copyright and is admissible in court. This will assist copyright owners in discharging the burden of establishing their claim of copyright in a work, which is often a daunting task. (2) Anti-camcording It is now an offence for any person who operates an audiovisual recording device in a screening room (such as a cinema or theatre) to record any film in whole or in part. Anyone who attempts to do so commits an offence. (3) Circumvention of technological protection measures The Amendment Act makes it an offence for anyone to circumvent, or cause or authorise anyone to circumvent, technological protection measures used by copyright owners to protect their works, such as passwords, encryption, access codes, and watermarking. Such technological protection measures are necessary to prevent copying and restrict access to copyright works. It is also an offence for anyone to manufacture, import, distribute or possess any technology, device or component which is used, designed or produced for the purpose of enabling or facilitating the circumvention of technological protection measures. (4) Liabilities of service providers The Amendment Act also introduces new liabilities for service providers. “Service providers” are persons who provide services relating to, or connection for the access, transmission or routing of, data. It includes providers and operators of facilities for online services and network access and is arguably wide enough to cover Internet service providers and website operators. The Amendment Act exempts a service provider from liability for copyright infringement for certain activities such as transmitting, routing or providing connections of an electronic copy of the work through its primary networks or system caching, as parliament recognises that these activities are necessary to provide efficient access to data. A copyright owner whose work has been infringed on a network may request the service provider to remove or disable access to the infringing electronic copy on the network. The service provider must then remove or disable access to the infringing copy within 48 hours. The person whose electronic copy of the work was removed or to which access has been disabled may issue a counter notification to the service provider to request that the copy or access to it is restored on the network. The service provider must promptly provide the owner with a copy of the counter notification and inform him that the removed copy or access to it will be restored in 10 days unless confirmation is given by the owner that he has filed an injunction against the issuer of the counter notification stopping him from infringing activity on the network. The Amendment Act requires the copyright owner and the issuer of the counter notification to compensate the service provider for any loss incurred by complying with their notifications. CONCLUSION The Amendment Act keeps copyright law relevant in the ICT age. It demonstrates the government’s commitment to ensuring stronger protection for copyright owners and is a practical approach to combating copyright piracy in modern Malaysia. ***** About the author: This article was written by Edwin Lee Yong Cieh, Partner of LPP Law – law firm in Kuala Lumpur, Malaysia (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries. This article was first published in CHIP Magazine Malaysia. The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.

Special Cyber Court The number of cybercrime cases in Malaysia has increased at an average of 10,000 cases reported every year. It was reported that in 2015 alone, CyberSecurity Malaysia received 3,752 cases of online fraud and hacking along with a staggering figure of 191,096 reports of malicious malware and botnet infections. CyberSecurity Malaysia believes that there are many more cases that may have gone unreported or unnoticed by the victims. From the statistics garnered, an average of 30 Malaysian Internet users fall victim to cybercrimes every day, and fraud and intrusion cases appear to be the most common offences faced by Malaysians. According to a UK based market research firm Juniper Research, global cybercrime losses are projected to reach USD 2 Trillion by 2019. Based on statistics given by the Malaysian Government, Malaysia lost RM179.3 million to cybercrime in 2015. In light of the increasing threat in cybercrime and the need for effectively dealing with cybercrime cases, the Government has announced the establishment of the Special Cyber Court. The 1st Special Cyber Court, based at the Kuala Lumpur Court Complex came into operation on 1 September 2016. Owing to the high rates of cybercrime in other States, subsequent phases will see the establishment of Special Cyber Courts in Selangor and Johor, followed by the remaining States within the next couple of years. Functions of Special Cyber Court The purpose of this initiative is to provide the judicial system with sufficient and adequate means of handling cybercrime offences, such as hacking, online fraud/scamming, botnet attacks, online defamation, sedition and harassment, web-defacement, theft of online information, cyber gambling and pornography, etc. The Special Cyber Court will deploy specialised and trained judges to hear cases relating to cybercrime and other computer related civil matters. The Special Cyber Court is expected to function in the same way as other special courts such as those that are already in place to deal with intellectual property, corruption, environmental as well as anti-profiteering matters. Interestingly, in the same statement that was released regarding the establishment of the Special Cyber Court, a statement was also made that the Government will also set up a special team to assist the authorities in tracing slanderous and seditious statements made on social media and on the Internet. The combination of these two messages suggests that anti-government sentiment in the form of statements on social media is one of the drivers behind the establishment of the Special Cyber Court. The Special Cyber Court is already in operation and it currently hears cases related to cybercrime. Its ambit will ultimately extend to civil and tort related matters as well, as per the Practice Direction No.5 of 2016 issued by the Chief Registrar of the Federal Court of Malaysia. The first judge to sit in the Special Cyber Court is Tuan Zaman bin Mohamad Noor. Benefits of Special Cyber Court The establishment of the Special Cyber Court will hopefully help expedite disposal of cybercrime cases, strengthen the legal institutions in Malaysia as well as reduce cybercrimes. The Special Cyber Court will be equipped with appropriate tools and equipment to handle evidence gathered in cybercrime cases. Judges, prosecutors and other relevant stakeholders will be given training to ensure that they are equipped with the necessary IT knowledge and skills which will help them in understanding the complex subject matter of cybercrime. Way forward for Special Cyber Court The Government’s initiative in introducing the Special Cyber Court to combat the rising trend of cybercrimes is indeed commendable and marks a step in the right direction. To ensure the successful implementation of the Special Cyber Court, it is hoped that the Government will: put in place the necessary legal frameworks (processes, procedures and practices) to enable and support the establishment of the Special Cyber Court; make amendments to certain cyber laws on the practices and procedures for handling cybercrime cases, electronic and digital forensics evidence; train judges, prosecutors, lawyers and other relevant stakeholders in the field of cybercrime and computer forensics so that they can understand the nuances and issues pertaining to detection, investigation, prosecution of cybercrimes and have better appreciation and analysis of the evidence and submissions presented in courts; and conduct case studies and analysis to learn the lessons and past experiences of cyber court in other jurisdictions. The introduction of the Special Cyber Court marks a significant milestone for Malaysia, as it is the first specialised court in this region designed to only handle cybercrime cases. It shows the Government’s commitment in fighting cybercrimes, and we hope that with this initiative, the public awareness towards protecting themselves from cybercrime threats will also increase. Electronic Court While cyber court is still a very new concept, many countries including Malaysia have introduced electronic court (“E-Court”). Essentially, E-Court utilises supportive technology to facilitate the day-in day-out functions of a court. The aim of the system is to efficiently speed up the disposal of cases using technology. The shift towards computerisation of the courts system in Malaysia began in 2009 and the E-Court system was fully implemented in main Court Complexes in Kuala Lumpur, Shah Alam, Ipoh, Penang, Johor Bharu, Sabah, Sarawak and Putrajaya in March 2011. To date, more than one million cases and six million documents have been filed online via the E-Court system. 4 Types of Mechanism The E-Court system in Malaysia currently has 4 types of mechanism, as follows: Video Conferencing System (VCS); Case Management System (CMS); Community and Advocate Portal System (CAP); and Case Recording and Transcribing (CRT). The E-Court system as a whole aims to use technology to address problems which have plagued the judicial system for years. Since the introduction of the E-Court system, 80% of the pending cases were reduced in the first 12 months. It also recorded a 50% reduction in days required for trial, judgment, filing and service. The E-Court system enables courts and lawyers to be more efficient in observing a strict schedule and effective case management system. E-Court also presents a huge step towards

Some months ago, our Deputy Communications and Multimedia Minister Datuk Jailani Johari was quoted as saying that admins of group chat/messaging applications (such as WhatsApp, WeChat, Telegram, Viber, etc.) can be held responsible for offences (such as spreading of fake news, libel, fraud, exposure of classified information) committed by users in the group chat under the Communications and Multimedia Act 1998 (“CMA”). The Malaysian Communications and Multimedia Commission has even published an advisory note for group chat admins which sets out the Dos’ and Don’ts as a group chat admin. Some of the rules are such as requiring admins to comment on posts to ensure discussions stay on track; check posts regularly; consider removing or blocking those who persist in making inappropriate posts, etc. When the news first broke out, it sparked a lot of discussions on the social media and the news was even covered by foreign media, with many questioned the motive behind such move and the effectiveness of such enforcement if it ever happens. In fact, a disclaimer notice by WhatsApp group admins was making its round in many group chats that reads as follows: “I and other group admins do not allow or support any form of WhatsApp messages that display information that is pornographic, incorrect, libellous, seditious, false or inappropriate and as determined in accordance with/ by the Communication and Multimedia Act 1998. All WhatsApp messages displayed by individuals or myself in this group are not my responsibility, it is the responsibility of every individual in this group.” Putting aside whether the above disclaimer notice has any legal effect or not, one question that came to everyone’s mind was, can a WhatsApp group admin go to jail because of a message sent by a member in the group? The Deputy Minister did not specify clearly which provision under the CMA will such action be taken, but I believe he was referring to Section 233(1) of the CMA. Section 233(1) of the CMA reads as follows: (1) A person who – (a) by means of any network facilities or network service or applications service knowingly initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or (b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence. Whoever that commits the above offence can be fined up to RM50,000 and/or jailed up to 1 year. There are two important elements that must be fulfilled in order for the prosecution to use Section 233 against an offender, namely “knowingly initiates” and “with intent to commit an offence”. What that means is that the offensive message must have been knowingly initiated by the sender who had the intention to send out such a message. A group chat admin plays the role as an organiser of the group chat, not as a moderator. All messages sent in a group chat are transmitted instantaneously. It is not like the message will have to be first approved by the group chat admin before it goes online. Hence, if a user within the group sends out an offensive message, the group chat admin has no power to delete or cancel that message before it reaches everyone in the group. When that happens, how can the admin be responsible for a message not initiated by him and without his intention? A High Court judge in New Delhi in the case of Ashish Bhalla vs Suresh Chawdhury & Ors made the following remarks: “I am unable to understand as to how the Administrator of a Group can be held liable for defamation even if any, by the statements made by a member of the Group. To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation. When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.” Based on the above analysis, it is my humble opinion that the proposal to take legal action against group chat admins is not a viable option. The authorities should instead go after the sender of the message, as displayed in the cases below: Muslim Ahmad was convicted under Section 233 CMA for making offensive comments “damn your sultan”, “your sultan kantoi”, “what’s the kantoi with your sultan” against the then Sultan of Perak on the Internet. Rutinin Suhaimin was convicted under Section 233 CMA for posting a derogatory statement “Sultan Perak sudah gilaaaaaaa!!!!!!!” on the Sultan Perak’s website. Ahmad Abd Jalil was convicted under Section 233 CMA for saying “Sultan Johor kulitnya putih seperti kulit babi” on his Facebook’s account. A man in Johor Bahru who goes by the name of Pa Ya was arrested for uploading a crude photo insulting the Prime Minister in a WhatsApp group. A man in Penang was arrested for writing a malicious statement about the Sultan of Johor through WhatsApp. Many of these messaging apps encrypt the messages, so it is unlikely that the law enforcement authorities are able to read your messages on these messaging apps. The authorities would usually take actions only upon receiving complaints against the contents where the complainants show screenshots of the contents to the authorities. The authorities may also request these messaging apps to provide assistance provided certain conditions are met. ***** About the author: This article was written by Edwin Lee Yong