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Published online by Cambridge University Press: 28 February 2019
The first cyberlaws of Malaysia were passed in 1997 and Malaysia has been hailed as one of the first ASEAN countries to have done so. Since then, there have been various amendments to current legislation to adapt to Internet situations, and new cyberlaws have been passed, such as the Electronic Commerce Act 2006 (Act 658) and the Personal Data Protection Act 2010 (Act 709). This paper will give an overview of these laws relating to the Internet.
1 The term cyberlaw or cyberlaws are used by the author to describe legislation that had been created specifically for Internet situations.Google Scholar
2 Gazetted on 31 August 2006. The issue of jurisdiction was touched upon indirectly as ‘place of contracting’ was determined when electronic means were used. This will be looked at in greater detail in subsequently.Google Scholar
3 Date of Royal Assent 18 June 1997, Gazetted on 30 June 1997, Date came into operation is 1 October 1998 [P.U.(B) 397/98] and amended in 2001 (Digital Signature (Amendment) Act 2001 [Act A1121]). In addition, there are Digital Signature Regulations 1998 [P.U.(A) 359/98],Google Scholar
4 S.2 Digital Signature Act 1997 provides that a digital signature is “a transformation of a message using an asymmetric cryptosystem” and that an asymmetric cryptosystem is “an algorithm or series of algorithms which provide a secure key pair.”Google Scholar
5 Since 1 November 2001, the Communications and Multimedia Commission have taken over in the regulatory function of the Digital Signature Act.Google Scholar
6 As per s.64(1) of the Digital Signature Act 1997, “A message shall be as valid, enforceable and effective as if it had been written on paper if – (a) it bears in its entirety a digital signature; and (b) that digital signature is verified by the public key listed in a certificate which - (i) was issued by a licensed certification authority; and (ii) was valid at the time the digital signature was created.”Google Scholar
7 “The provisions of this Act shall, in relation to any person, whatever his nationality or citizenship, have effect outside as well as within Malaysia, and where an offence under this Act is committed by any person in any place outside Malaysia, he may be dealt with in respect of such offence as if it was committed at any place within Malaysia”Google Scholar
8 S.3(1) which stipulates that “A person shall be guilty of an offence if- (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; (b) the access he intends to secure is unauthorized; and (c) he knows at the time when he causes the computer to perform the function that that is the case.”Google Scholar
9 As per s.5(1), “A person shall be guilty of an offence if he does any act which he knows will cause unauthorized modification of the contents of any computer.”Google Scholar
10 By s.6(1), “A person shall be guilty of an offence if he communicates directly or indirectly a number, code, password or other means of access to a computer to any person other than a person to whom he is duly authorized to communicate.”Google Scholar
11 By s.7(1), “A person who abets the commission of or who attempts to commit any offene under this Act shall be guilty of that offence and shall on conviction be liable to the punishment provided for the offence.”Google Scholar
12 As per s.7(2) which stipulates that “A person who does any act preparatory to or in furtherance of the commission of any offence under this Act shall be guilty of that offence and shall on conviction be liable to the punishment provided for the offence: Provided that any term of imprisonment imposed shall not exceed one-half of the maximum term provided for the offence.”Google Scholar
13 S.3(3)Google Scholar
14 S.4(3)Google Scholar
15 Both (i) and (ii) can be found under s.5(4). Here, ‘causing injury’ is as per defined under the Penal Code.Google Scholar
16 By s.6(1), “A person shall be guilty of an offence if he communicates directly or indirectly a number, code, password or other means of access to a computer to any person other than a person to whom he is duly authorized to communicate.”Google Scholar
17 As per s.3(1).Google Scholar
18 As per s.3(1)(b), “a medical practitioner who is registered or licensed outside Malaysia and – (i) holds a certificate to practice telemedicine issued by the Council; and (ii) practices telemedicine from outside Malaysia through a fully registered medical practitioner holding a valid practicing certificate.”Google Scholar
19 As per s.3(2).Google Scholar
20 Under s.5(2), the fully registered medical practitioner must have informed the patient that “(a) he is free to withdraw his consent at any time without affecting his right to future care or treatment; (b) of the potential risks, consequences and benefits of telemedicine; (c) that all existing confidentially protection apply to any information about the patient obtained or disclosed in the course of the telemedicine interaction; (d) that any image or information communicated or used during or resulting from telemedicine interaction which can be identified as being that of or about the patient will not be disseminated to any researcher or any other person without the consent of the patient.”Google Scholar
21 As per s.5(6).Google Scholar
22 Date of Royal Assent is 23 September 1998, Gazetted on 15 October 1998 and came into force on 1 April 1999 (except for sections 157, 159, 160, 161, 162, 164, 165, 166, 167, 168, 169, 170, 171, 176, 178, 197 and 198 [P.U.(B) 128/99]); 1 April 2000 for sections 157, 159, 160, 161, 162, 164, 165, 166, 167, 168, 169, 170, 171, 176 and 178 [P.U.(B) 106/2000] and 1 March 2002 for sections 197 and 198 [P.U.(B) 66/2002]. There had been one amendment in 2002: Communications and Multimedia (Amendment) Act 2004 [Act A1220]Google Scholar
23 S.4(1) stipulates that ‘This Act and its subsidiary legislation apply both within and outside Malaysia”.Google Scholar
24 S.4(2).Google Scholar
25 As required by s.126, “Subject to such exemptions as may be determined by the Minister by order published in the Gazette, no person shall – (a) own or provide any network facilities; (b) provide any network services; or (c) provide any application services, [–] except under and in accordance with the terms and conditions of – (aa) a valid individual licence granted under this Act; or (bb) a class licence granted under this Act, [–] expressly authorizing the ownership or provision of the facilities or services.”Google Scholar
26 As per s.6, “Any element or combination of elements of physical infrastructure used principally for, or in connection with, the provision of network services, but does not include customer equipment.”Google Scholar
27 As per s.6, “A service for carrying communications by means of guided and/or unguided electromagnetic radiation”.Google Scholar
28 As per s.6, “Service provided by means of, but not solely by means of, one or more network services.”Google Scholar
29 S.4(3) states that “For the purposes of this section, “a place” means a point of any nature or description whether on land, in the atmosphere, in outer space, underground, underwater, at sea or anywhere else.”Google Scholar
30 Boundaries here denotes the territorial limits of Malaysia, be it its geographical boundaries (land) or territorial waters (sea).Google Scholar
31 As per s.4(3). In addition, s.4(4) stipulates that “For the purpose of this section, a place that is – (a) in or below the stratosphere; and (b)above the geographical limits of Malaysia and her territorial waters, is taken to be a place within the geographical limits of Malaysia and her territorial waters.”Google Scholar
32 By s.232(1), “A person who – (a) dishonestly transmits or allows to be transmitted any communication or obtains a service provided by a licensed network facilities provider, network service provider, applications service provider or content applications service provider; or (b) dishonestly receives a content applications service from a place within Malaysia not intended for general reception, with intent to avoid payment of any rate or fee applicable to the provision of that facility or service commits an offence.Google Scholar
33 By s.232(2), “A person who possesses, obtains or creates a system designed to fraudulently use or obtain any network facilities, network service, applications service or content applications service commits an offence.Google Scholar
34 Under s.233(1), “A person who – (a) by means of any network facilities or network service or applications service knowingly – (i) makes, creates or solicits; and (ii) 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.” And under s.233(2), “A person who knowingly – (a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or (b) permits a network service or applications service under the person's control to be used for an activity described in paragraph (a), commits an offence.”Google Scholar
35 As under s.233(3).Google Scholar
36 Date of Royal Assent is 23 September 1998, Gazetted on 15 October 1998, came into force 1 November 1998 [P.U.(B) 451/98] and amended twice in 2002: the Malaysian Communications and Multimedia Commission (Amendment) Act 2002 [Act A1148] and the Malaysian Communications and Multimedia Commission (Amendment) Act 2002 [Act A1231]Google Scholar
37 Date of Royal Assent: 30 August 2006. Gazetted 31 August 2006.Google Scholar
38 Date of Royal Assent:Google Scholar
39 By s.5 ECA and EGA, this refers to “a single communication or multiple communications of a commercial nature, whether contractual or not, which includes any matters relating to the supply or exchange of goods or services, agency, investments, financing, banking and insurance”. Section 2(2) ECA states, however, that the Electronic Commerce Act would not apply to the transactions or documents in the Schedule i.e. the power of attorney, the creation of wills and codicils, the creation of trusts and negotiable instruments.Google Scholar
40 By s.2, ‘electronic messages’ refers to “information generated, sent, received or stored by electronic means”Google Scholar
41 S.3(1) ECA and EGA.Google Scholar
42 S.3(2) ECA and EGA.Google Scholar
43 By s.7(2) ECA and s.11(2) EGA, “A contract shall not be denied legal effect, validity or enforceability on the ground that an electronic message is used in its formation”Google Scholar
44 By s.8 ECA and s.12 EGA, “Where any law requires information to be in writing, the requirement of the law is fulfilled if the information is contained in an electronic message that is accessible and intelligible so as to be usable for subsequent reference”Google Scholar
45 By s.9 ECA and s.13 EGA, “(1) Where any law requires a signature of a person on a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by an electronic signature”Google Scholar
46 Under s.10(1) ECA and s.14(1) EGA: “Where any law requires a seal to be affixed to a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by a digital signature as provided under the Digital Signature Act 1997”Google Scholar
47 By s.11 ECA and s.15 EGA, “Where any law requires the signature of a witness on a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by an electronic signature of the witness that complies with the requirements of section 9.”Google Scholar
48 By s.6(1) ECA and s.10(1) EGA, it is stated that “Any information shall not be denied legal effect, validity or enforceability on the ground that it is wholly or partly in an electronic form.”Google Scholar
49 As per s.20 ECA and s.31 EGA.Google Scholar
50 S.21 ECA and s.32 EGA.Google Scholar
51 By s.21(a), an electronic message is deemed received “where the addressee has designated an information processing system for the purpose of receiving electronic messages, when the electronic message enters the designated information processing system”Google Scholar
52 By s.21(b), it was stated that an electronic message is deemed received “where the addressee has not designated an information processing system for the purpose of receiving electronic messages, when the electronic message comes to the knowledge of the addressee.”Google Scholar
53 However, this does not include “any information that is processed for the purpose of a credit reporting business carried on by a credit reporting agency under the Credit Reporting Agencies Act 2009” (s.2)Google Scholar
54 That is, by s.4 of the Data Protection Act, “wholly or partly by means of equipment operating automatically in response to instructions given for that purpose”Google Scholar
55 This would be personal data that is recorded “with the intention that it should wholly or partly be processed by means of such equipment” (as per s.2(b) of the Data Protection Act 2010) or “as part of a relevant filing system or with the intention that it should form part of a relevant filing system” (as per s.2(c) of the Data Protection Act 2010).Google Scholar
56 As per s.4, and it would include “(a) the organization, adaptation or alteration of personal data; (b) the retrieval, consultation or use of personal data; (c) the disclosure of personal data by transmission, transfer, dissemination or otherwise making available; or (d) the alignment, combination, correction, erasure or destruction of personal data”Google Scholar
57 “whether contractual or not, which includes any matters relating to the supply of exchange of goods or services, agency, investments, financing, banking and insurance, but does not include a credit reporting business carried out by a credit reporting agency under the Credit Reporting Agencies Act 2009.Google Scholar
58 S.3(1)Google Scholar
59 S.3(2). Note, however, that the Act would still apply if the data would eventually be processed in Malaysia as well.Google Scholar
60 S.5(2)Google Scholar
61 By s.6(1)(a), a data user shall not “process personal data about a data subject unless the data subject has given his consent to the processing of the personal data.”Google Scholar
62 S.6(3)Google Scholar
63 S.7Google Scholar
64 S.8Google Scholar
65 S.9Google Scholar
66 S.10Google Scholar
67 S.11Google Scholar
68 S.12Google Scholar
69 That is, “(i) for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data user in connection with employment; (ii) in order to protect the vital interests of the data subject or another person, in a case where — (A) consent cannot be given by or on behalf of the data subject; or (B) the data user cannot reasonably be expected to obtain the consent of the data subject; (iii) in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld; (iv) for medical purposes and is undertaken by — (A) a healthcare professional; or (B) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a healthcare professional; (v) for the purpose of, or in connection with, any legal proceedings; (vi) for the purpose of obtaining legal advice; (vii) for the purposes of establishing, exercising or defending legal rights; (viii) for the administration of justice; (ix) for the exercise of any functions conferred on any person by or under any written law; or (x) for any other purposes as the Minister thinks fit;”Google Scholar
70 S.40(1)(c).Google Scholar
71 S.40(3)Google Scholar