Cyber Crimes and the Internet

The Internet doesn't give you the licence to shoot your "dirty" mouth off and get away with it, experts tell Sonia Ramachandran of The New Straits Times .
You have your very own blog, an online journal where you express your thoughts and emotions. There is this sense of freedom, an impunity you feel in cyberspace, and you are quite liberal with the comments you post. Some comments are disturbing, some even personal, about your friends, acquaintances and family.Perhaps you dish out more "severe" comments to your enemies. But before you post "explosive" comments on your blog, cyberlaw expert Deepak Pillai warns: "Anything that is not allowed in the real world, in most cases, is also an offence in cyberspace." This sense of impunity is also felt when you send a provocative text message through your mobile phone."Cyberlaws extend to more than just computers. It extends to any device that has a computing function, including mobile phones," he says.

According to Deepak, who served on the Bar Council's Information Technology and Cyberlaws Committee for almost a decade, cyber crimes fall into several categories, and one is crime against computers. "This means the crime is focused against computers. This would include unauthorised access to a computer, modification of information or data on a computer, or theft of information from a computer."The second category is crimes perpetrated through the use of computers, says Deepak."Before the Internet age, crime was focused against the computer itself. But now, it's gone beyond that. The computer has become a tool in the execution of other crimes, particularly on the Internet and on networks."It must be remembered, just because something is done in cyberspace does not mean the laws do not apply there."Yes, it's open and fast moving, and people have a sense of freedom online, but at the end of the day the law still applies." Deepak says he is surprised and concerned by people's attitude online. "People seem to think that there is no consequence to what they do online. "They have no reservations about putting their entire life story online and they are surprised when they apply for a job and the prospective employer has already extracted all this data from the Internet." So what is Deepak's advice?"A statement you make online will be there for a long time because Internet search engines like Google will capture it and store it in their cache. So be careful what you post online, especially with the proliferation of Internet-enabled mobile phones."

Information technology lawyer Ravin Vello says the Computer Crimes Act 1997 deals with offences relating to the misuse of computers. Section 211 of the Communications and Multimedia Act 1998 states that no content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

When does something written on a blog become an offence? "When it fulfils the legal requirements in order for it to constitute an offence. Defamation, for instance, is something you can sue someone for, whether it's done in a newspaper or on a blog," says Deepak."So the ingredients to establish defamation through a newspaper or a blog will be the same. It's just that you're dealing with different environments."The laws against libel and slander apply to the Internet, says Deepak. "But the thing is, if the server is not in Malaysia and the content is actually in a server in the United States, has it actually taken place in Malaysia? Does Malaysian law extend to it?"Look at the 'Negarakuku' case (student Wee Meng Chee's parody of the national anthem which was interspersed with rap and allegedly derogatory lyrics posted on YouTube last year). Where was the singer when he made and uploaded the song? He was in Taiwan. Where was the song posted? YouTube. So where did the offence take place?That will be one of the first things you have to consider."The Australian case of Dow Jones vs Gutnick was cited by Deepak as an example. Gutnick, an Australian, sued Dow Jones & Co in Australia for publishing an article defamatory of him in one of its publications which has 550,000 Internet subscribers, of whom 1,700 are in Australia. The High Court of Australia (the highest court in Australia) unanimously ruled that Gutnick could sue Dow Jones & Co for defamation in Australia despite the fact that Dow Jones' server was located in the United States. Deepak points out that the Computer Crimes Act 1997 and the Communications and Multimedia Act 1998 provide that they apply to offences in Malaysia that are committed from abroad. He also cites the landmark English case of Godfrey vs Demon Internet Limited. The case concerns a defamatory statement made on an Internet Usenet discussion group hosted by Demon Internet, a major British Internet service provider."Someone had posted messages pretending to be Godfrey, and these messages were of such a nature that they were defamatory to Godfrey's character. He brought it to the attention of Demon Internet, who hosted the discussion group, and asked them to delete the forged messages, but they chose not do anything. The court found Demon Internet liable."

Can a person be forced to reveal the source of his information posted on the blog? "A person could be ordered or compelled to do so by a court order," says Ravin. This procedure is called the Norwich Pharmacal proceedings."This came from the case of Norwich Pharmacal where the (British) House of Lords held that in certain circumstances an independent action for discovery may be brought to obtain information on the identity of the wrongdoer."Another procedure is the Anton Pillar Order, says Ravin."This is where seizure of a computer may be allowed for investigations to locate electronic evidence that may be useful in locating sources of information."The Anton Pillar in information technology-related cases is used especially for the preservation of electronic evidence found in a defendant's computer or within an organisation's network. In such cases, the extraction, preservation and presentation of electronic evidence by computer forensic experts is of great importance when prosecuting in court. "Sources here could mean Internet protocol addresses which may be useful in tracking someone who has posted information," says Ravin."This order can be termed 'indirect forcing' as the application for it is made without the knowledge of the person it is intended against."

But would preventing a person from expressing himself in any way he chooses amount to censorship? Wouldn't this be against the Multimedia Super Corridor (MSC) Bill of Guarantees issued by the government which, among others, provides there will be no censorship of the Internet? "The Bill of Guarantees is a list of promises given by the government in order to promote the MSC and some of it, for instance the non-censorship of the Internet, has been enshrined in our laws as well," says Deepak."But what does 'no censorship' mean in the first place? Some people think it means that the laws don't apply to the Internet and anything goes. Others, including myself, think it means that Internet content won't be filtered, but if the content breaks the law, then the necessary legal action can be taken. So which is it? I think that is one of the key issues that law enforcement agencies, especially those who are on the policy end, have to deal with."Ravin says just because the government does not censor publications on the Internet did not mean a person could not be liable for information published which is false or meant to ridicule another person."There must be limitations. If not, there won't be rule of law."Deepak says Section 3(3) of the Communications and Multimedia Act 1998 states that nothing in the Act authorises censorship. But what amounts to "censorship" itself is not defined. "If I was in a law enforcement agency, what action would I take when I have complaints of offensive content being accessed or being posted on the Internet, and I have to deal with this particular section? From a policy perspective, there are several approaches. One is reactive, where action is taken after an offence has occurred and been reported. The other is preventive, like China's, where content is filtered right from the start."

Another important section is Section 263 (1) and (2) of the Act which provides that a licensee shall use his "best endeavour" to ensure that the services he provides are not used for the commission of any offence under any law of Malaysia.Upon the request of the Malaysian Communications and Multimedia Commission or any other authority, the licensee also has to assist, as far as is necessary, in preventing the commissioning of, or attempted commissioning of an offence. "A licensee is someone like an Internet service provider. So he shall not filter content because censorship is not permitted. But if it comes through and he notices, or it is brought to his attention that the content is an offence under the laws of this country, under Section 263 (1) he has to use his best endeavours to stop it. Which in the case of websites is to actually block access. So is blocking censoring? I think it is arguable, as it is against the law, you are allowing the offence to continue if you don't block it off. But to prevent something from coming through, isn't that censorship?"

Illegal Internet action
• Downloading pirated content like movies and music.
• Online gambling.
• Connecting to the wireless networks of others without permission.

Do’s and don’t’s of blogging
• Do not post anything on your blog which you would not publish or sayin the physical world.
• Do not assume that you are anonymous on the Internet.
• Do not assume that blog providers will not give your information to lawenforcement agencies— read the terms and conditions.

• Do not use copyrighted materials (eg. pictures, videos) of others on your blog without permission.

2008/08/31 Cyber crimes: The Net is not in a legal vacuum. New Straits Times Online Local News

source :
http://www.nst.com.my/Current_News/NST/Sunday/National/2336828/Article/index_html