E-Business Law 21st May 2008

Question 1:

What is Cyberlaw?

It is the law, governing the use of computers and the internet and focuses on a combination of a statutory decisions and administrative law arising out of the use of the internet as any other law. Cyberlaw can be in the category of criminal or civil, because crime and civil wrongs can take place in the cyber space. Cyberlaw has no traditional safeguards. Therefore, those who pioneer the new world of online commerce need to understand both the existing laws and those elements of the new environment.

Question 2:

Why is there a need for Cyberlaw?

In the current transition into the new virtual internet world of unseen parties and machine interactions, old laws are loosing their effectiveness to ensure that the innocent are protected and the guilty paralyzed. This happens when e-commerce becomes part of our daily life and the involvement in business or e-commerce is increasing from day to day. Old laws will not be sufficient to do justice in parallel with social and economic developments, naturally progressing with IT environment on the new economic front.

The laws we have today are based on environments and economist that existed decades ago. Much of these, legislations will no longer be relevant in the new economy. In the new, borderless world, contracts are concluded within seconds with machines making deals with other machines while playing the intermediary role for humans. The need for machine centric law is the internet has also created new areas that married governs. We need cyber laws that define how machines can co-operate better for our betterment.

Question 3:

What is the Cyberlaw legislative trend in Malaysia?

The emergence of cyber laws in Malaysia is at a fast phase. Malaysia, whose e-commerce market is still at its initial state, it is actually looking at us, UK and some other Europeans country laws as a basis of information in “enacting” the cyberlaws and as a possible role-model for the national approach and few legislations have been enacted in Malaysia concerning cyberlaws since 1997. They are:

i) The Digital Signature Act 1997

ii) The Telemedicine Act 1997

iii) The Copyright (amended) Act 1997

iv) The Computer Act 1997

v) The Communication and Multimedia Act 1998

In addition, the government has passed the data production of 1999. This act is intended to provide for protection or individual personal data rather than regeneration of industry.

Question 4:

What are computer crimes?

Computer crimes have been defined as an illegal act that involves the computers, its systems or its applications. It is an intentional act associated in any way with a computer where a victim suffered or could had suffered a lost and the “perpetrator” make or could have made again. Computer crime in other words is any illegal act for which knowledge of computer technology is essential for its perpetration, investigation or prosecution.

Computer crime may include,

i) Intrusion

ii) Password Sniffing

iii) Cyber stalking

iv) Computer sabotage

v) Mail bombs or identity theft

Password sniffers are program that monitor and record the name and password of network users as they login, “jeopardizing” security. On the other hand, cyber stalking is a computer crime of sending harassing or threatening email to others. These includes e-mail threats, e-mail bombs, sending unwanted message forged e-mail source address and in appropriate posting on message box. Cyber stalking usually targets woman and children.

Many agree that cyber criminals have to be prosecuted. However, securing a conviction is not that easy. Main obstacles are the trans-jurisdictional, nature of computer crime. Extra jurisdictional nature of computer crimes always gives rise to difficult jurisdictional issues. Example of case: R against Governs or Brixton Exparte Levin.

Question 5:

What is Internet Service Provider (ISP)?

ISP’s are organizations that have permanent connection with the internet and sell temporary connection to others for a fee. Such local ISP’s connect to regional host computers operated by national service providers. The ISP’s may be vulnerable for providing avenue for breaching copyright hosting pornographic material and defamation act 1988.

In Malaysia the ISP’s may be remediable under Section 211 and 233 of the Communication and Multimedia Act 1998 Prohibits Communication. However, do not give explanations as to whether an ISP liability depends on its function as a publisher.

Question 6:

Is pornographic materials posted by foreign ISP is a crime in Malaysia?

Under the Malaysian Penal Court, distributing pornographic materials is a crime. Section 292 and 293 of the Penal Court prohibits selling litany, distributing or circulating pornographic materials. The Communication and Multimedia Act 1998 prohibits communication of pornographic materials over the internet under Section 211 and 213. Under these two sections not only the content provider but also the service provider can be held liable for allowing transmitting and accessing off scene materials.

Question 7:

How the Malaysian courts, got jurisdiction to hear cyber law case?

The Malaysia court, has assigned by the Federal Constitution under Article 128 can hear civil cases if the course of action arose in Malaysia. The Malaysian Courts may have jurisdiction over non-resident defended if punitive co of action falls within the scope of OPER II (I) or RULE 2, of the rule of high court 1980. In addition the Malaysian courts under Section 121 of the criminal procedure court will have criminal jurisdiction of every offense that was committed within the local limits – REJONG NAM SENG (because of retired).

Question 8:

What is the future trend for cyber law?

There far too many technical features in cyber space that will certainly call for legal response. Therefore, there is a need to have sufficient comprehensive law to settle the misconduct civil breaches and criminal act. In enacting cyber law, one of the pain problems is the failure of the legislators to understand the nature of the internet how it is used in the online environment. Due to this failure law may be challenged in Malaysia as in the US and UK. Therefore, cyber laws have to be drafted with knowledge of the nature of internet even if it means a considerable burden. Since cyber activities involve trans-border and borderless activities, international efforts in this regards should be welcome.