Bread & Kaya: 2018 Malaysia Cyber-law and IT Cases PT3 – Cyber-crimes and -offences

IN THIS 1/3 of a four-part collection, I will speak cyber-crime cases and other cyber offenses.
Communications and Multimedia Act 1998
The establishment of Cyber Courts inside the Kuala Lumpur Sessions Court saw the boom of decisions regarding the Communications and Multimedia Act 1998.
In Pendakwa Raya own Dato’ Mohd Zaid Bin Ibrahim (Kuala Lumpur Criminal Sessions Court Case No. Sixty three-003-12/2015), the discovered Sessions Court Judge gave a comprehensive judgment concerning a fee underneaths. 233(1)(a) of the Communications and Multimedia Act 1998.
The accused, a former Minister of Law, become charged for publishing a declaration that’s offensive in nature on his weblog with a motive to harass every other individual. The assertion includes a transcript of the accused’s speech given at a luncheon regarding the behavior of the then Prime Minister Najib Razak.
The discovered Sessions Court Judge acquitted the accused on the prosecution level primarily based on the subsequent grounds, among others:-
(1) In figuring out whether or not the object is offensive in nature, the thing should be examined as an entire and no longer by way of searching in a few paragraphs or words. This is due to the fact the accused was charged for uploading the item and for this reason the entire article is taken into consideration as offensive in character. The prosecutor cannot choose and choose the applicable paragraphs or words favorable to them and conclude that the article is offensive in an individual.
(2) The learned Sessions Court Judge appeared into the object of the Communications and Multimedia Act 1998 set out in s.Three of the said Act. One of the goals of the Act is to sell a civil society where statistics-primarily based offerings will offer the premise of continuing upgrades to great of labor and lifestyles. The learned Sessions Court Judge also took into consideration that the said Act addressed the issue of censorship wherein not anything in the said Act shall be construed as permitting the censorship of the Internet.
(three) None of the Prosecution’s witnesses said that they determined that the complete article is offensive in character. Two (2) of the prosecution’s witnesses referred a part of the item and now not the whole article. In truth, the complainant’s police report in opposition to the accused had best said that the article is seditious in nature which is different from offensive in person.
(four) Such an article ought to be tested and no longer taken without in addition examination without vital wondering. This is one of the objectives that s. 3 of the said Act seeks to reap. The attitude of receiving information blindly ought to be prevented and the brand new way of life in accordance with the reason and goal of the stated Act should be promoted.
(five) In appreciate of the element “with a purpose” to annoy some other man or woman, the discovered Sessions Court Judge held that that cause has to be proved and no evidence has been adduced to prove equal. As for the element “annoy every other character”, the found out Sessions Court Judge discovered that the complainant did now not experience annoyed when he examines the article. The found out Sessions Court Judge held that annoyance or anger or dissatisfaction could appear spontaneously while the object is examined. The learned Sessions Court Judge determined that the item is supposed for blog readers to garner aid for what it is written for i.E. To offer support to Prime Minister Dr. Mahathir.
(6) The price is defective because the prosecution didn’t kingdom genuinely in the prices sheet who is the person supposed to be irritated with the aid of the accused whilst the object was uploaded. The price sheet had best stated “with the purpose to bother every other individual”. The individual within the price sheet ought to be named sincerely.
(7) The Prosecution must have also called the character supposed to be annoyed through the article to testify whether the victim felt irritated by using the object. Without proof from the victim, the Court is left wondering whether or not the sufferer felt irritated by the article.
In Sivarasa Rasiah v Pendakwa Raya (Kuala Lumpur Criminal Sessions Court Case No. 63-001-04/2016 & 63-002-04/2016, Criminal Application No: 64-1/2-07/2016) and Premesh Chandran a/l Jeyachandran v Pendakwa Raya (Kuala Lumpur Criminal Sessions Court Case: WA-64-a hundred and fifty five-12/2017), the 2 accused have been charged below s. 233(1) of the Communications and Multimedia Act 1998. They filed an application to refer some constitutional troubles to the High Court pursuant to s. 30 of the Courts of Judicature Act 1964 on the ground that s. 233(1) of the Communications and Multimedia Act 1998 is in contravention of Article eight and 10(2)(a) of the Federal Constitution.
The Prosecution raised an initial objection towards this software on the floor that s. 233(1) of the Communications and Multimedia Act 1998 is settled and not in contravention of the Federal Constitution. The identical Sessions Court Judge brushed off the software on the floor that the case of Nor Hisham Osman v PP [2010] MLJU 1429 has already decided that s. 233(1) of the Communications and Multimedia Act 1998 is reasonable and now not unconstitutional.
Fortunately for the two accused, the fees were withdrawn towards them after the exchange of Government after the 14th General Election.