INTRODUCTION TO LAW

Subject – Media Law (MLL2013)

Lecture 1

1
 DEFINITION OF LAW

3. Enforced by
State/Person

5. Subject to sanctions 4. Adjudicated by

Judiciary

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 What is Ethics?
Ethics : What is right? What ought to be? Not simply
accepting facts as it is.
Law : to govern the conduct of all members of
society (natural & artificial).
Ethic considerations : form of moral standards and
beliefs.

Both law and ethics are important to business. Why?

ü Legal standards for activities & decisions
ü Decision making process – refer to applicable
code of ethics
3
 Understanding Basic Legal Terms
What is Contract?
• An agreement which is based on a set of promises and is legally enforceable.
• Elements of contract – Offer, Acceptance, Capacity to contract, Lawful Object,
etc.
What is Tort?
• an obligation imposed by law and can be recovered via civil action for
unliquidated damages.
• Elements of tort – negligence, duty of care, causation & remoteness, etc.
What is Trust?
• An equitable obligation binding a person (trustee) to deal with property (trust
property) of which he has control for the benefits of the beneficiaries.

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 Classification
Of Law

International
Domestic Law
Law
 LAW

Domestic International Law Domestic

Public Law Private Law

Public IL Private IL

Constitutional & Criminal Law Contract Tort Trust

Admin. Law

Private Law – Civil Law

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 DOMESTIC LAW

Ø Also known as national law or municipal law

Ø Law that governs activity within a nation’s borders.
Ø Nation’s law making authority comes from the power to govern.
Ø Power usually comes from a constitution or monarchy.
Ø Includes both case law and statute law.
Ø All within a country’s borders are subject to that nation’s laws.
 INTERNATIONAL LAW
§ Includes laws that govern independent nations
in their relationships with one another
§ Created by custom
§ Nations sign treaties and are considered
binding as law (Extradition laws, NATO, and
NAFTA)
§ Some organizations have international legal
status (United Nation and International Courts
such as Permanent Court of Arbitration)
§ Difficult to enforce international law
 (1) HISTORICAL SOURCES
Religious belief, local customs,
opinion of jurists, historical
development

(2) LEGAL SOURCES

Where the law comes from

(3) FORMAL SOURCES

Statutes, law reports, text
books.

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 CIVIL/ PRIVATE LAW
§ Settles disputes between individuals / companies /
corporations.
§ Civil cases are brought to uphold the rights of individuals
and to provide redress such as damages, compensation.
§ A civil case is brought by an individual / company /
corporation.
§ Civil cases only have to be proven on the balance of
probabilities.
§ At the end of a case, the party at fault has to pay
compensation or comply with another suitable remedy,
such as an injunction.

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• Creates laws for the protection of the society as a
whole and to maintain law and order.
• Provides punishment for those who break the law.
• Sets out types of behaviour that are forbidden within
a society.
• Criminal cases must be proven beyond reasonable
doubt.
• Criminal cases are usually brought on behalf of the
State.
• At the end of a case, if the defendant is found guilty,
he will be punished by the State.

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 Sources of Malaysian Law

Written Law Unwritten Law

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 FEDERAL
LEGISLATION
CONSTITUTION

STATE SUBSIDIARY
CONSTITUTION LEGISLATION

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 Malaysian Legal System
• Malaysia consist of Peninsular Malaysia & Sabah and Sarawak.

• Federal & State Government whereby 13 states with its own government and
rules.

• The Parliament of Malaysia and the Federal Court are links that unite the two
parts of Malaysia whereby:-
1) Parliament - legislate laws;
2) The Federal Court - a final court of appeal.

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 1) The Federal Constitution
§ This is the supreme law of the land.
§ Any law passed must be consistent with the Federal
Constitution.
§ It means the law that was enacted must be consistent with
the provisions in the Federal Constitution. (Article 4 of the
Federal Constitution)
§ The Constitution lays down:-
i. The structure of Federal and State Governments
ii. Legislative powers of Parliament and State Legislative
Assemblies-Schedule 9 (List 1, List 2 & List 3)
iii. The fundamental rights of individual (Articles 5 to 13)
iv. and many more.

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2) The State Constitutions
§ There are 13 States in Malaysia. Each state has its
own Constitution.

§ The provisions in a State Constitution is

regulated by Schedule 8 of the Federal
Constitution.

§ Generally the State Constitution makes provision

on:
1) the State Ruler,
2) the State Government,
3) the State Legislative Assembly etc.
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 3) Legislation
§ Legislation is the law which is enacted by:-
1) The Federal Parliament; and
2) State Legislative Assembly.
§ It is a very important source of law. Legislative
function (Law-making) is to make, amend or replace
laws.
§ Parliament & State Legislative Assembly are not
supreme law because they can only enact laws
within the limits & manner prescribed by Federal &
State Constitutions

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 4. Subsidiary Legislation
§ It is enacted by persons or bodies to whom the power is delegated.
§ Such persons or bodies may include:-
1) Yang DiPertuan Agong;
2) Ministers; and
3) Local Government Authorities.

§ The Parliament enacts the main and basic laws leaving the detail and technical matters to
be handled by subsidiary legislation due to time constraint and lack of technical knowledge.

§ E.g. various parking rules set out by municipal councils, income tax rules made by the tax
department etc.

§ The subsidiary legislation cannot contravene the main Act (Parent Act) or the Constitution.

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1. English common law and 2. Judicial
rules of equity decisions/precedent

3. Customary Law 4. Islamic Law

Unwritten law is law which is not made by the Parliament or State Legislative
Assembly.
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 1) English Common Law and Equity

Section 3(1) of the Civil Law Act, 1956 provides that

English Common Law and Equity (statute of general
application in Sabah and Sarawak only) will be
applicable subject to 2 restrictions:

1) There should not be no local law governing the

particular issue; and
2) That part of English law must be suitable to the
local customs and circumstances of the people
of Malaysia.

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English Common Law and Equity (and Statutes of
General Application for Sabah and Sarawak only)

7 April 1956

1 December 1951

12 December 1949

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2) Judicial Decisions/Precedent
§ Law can also be found in decisions of the Courts of
Malaysia.
§ These decisions are made systematically and it is
regulated by doctrine called “Doctrine of Binding
Judicial Precedent”:-
1) Vertical application of the doctrine
Decision of superior courts such as Federal Court
bind courts below it in the hierarchy
2) Horizontal application of the doctrine
Superior court such as Court of Appeal bound by
previous decision

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 Doctrine of Binding Precedents

§ What is Precedent?
Means a judgment or decision of a Court of Law cited as
an authority for the legal principle in its decision.
Doctrine of Binding Precedents is known as Doctrine of
Stare Decisis

§ Ratio decidendi- Reason for the decision by Judge and

binding for similar cases in the future.

§ Obiter dictum- (sayings by the way) whereby any facts

about the law which does not part of the judgment. No
binding power although extremely influencing in lower
courts. 23
Application of Doctrine of Judicial Binding Precedent-
example

§ The Federal Court (Superior Court in Malaysia)

decided that a minor is not liable under contract.

§ If a minor is sued in the High Court for not fulfilling

his obligation in a contract, the High Court will
follow previous decision of the Federal Court.

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 3) Customary Law
§ It is the customs of the local inhabitants of
Malaysia.
§ Customs are regular pattern of behaviour
accepted by a given society as binding upon itself.
§ Mostly customs relating to marriage, divorce and
inheritance are given legal force. E.g. Adat
Temenggong and Adat Perpatih in Peninsular
Malaysia.
§ In Sabah & Sarawak, native custom matters apply
in land dealings and family matters.

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 4) Islamic Law

§ Islamic law pertaining to personal law of Muslims and

Islamic law pertaining to some criminal offences against
Islam is a State matter.
ü This law is only applicable to Muslims and it is
administered in the Shariah Court.
ü The power to administer the Shariah Court is left to
the respective state.
§ The civil court has no jurisdiction over a matter within
jurisdiction of the Shariah Court.(A121A of FC)

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 Doctrine of Separation of Powers

Under the Federal Constitution of Malaysia - Yang Di- Pertuan Agong is the head of
country & 3 main authorities are:-
1. Executive

2. Legislative
SEPARATION OF POWERS
3. Judiciary

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 (1) The Executive Authority
• Involves in administering the nation and ensuring that government policies are
carried out in accordance with the law. E.g: The Prime Minister & The Cabinet.

• The government departments which assist in administering the nation are part
of the executive. E.g. The Ministry & government agencies.

• The duties & responsibilities must be done according to the powers granted by
the law so that it will not be void and be held as “ultra vires” (no effect).

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 (2) The Legislative Authority
• Will enact law so that the administration of the government
and country could run smoothly. E.g: The Parliament & State
Assemblies.

• C a n n o t i n t e r fe r e w i t h t h e E xe c u t i v e b e c a u s e t h e
administration are undertaken by the Executive.

• Law will be enacted in accordance with the interest of the

citizen. The voice of the people will be heard through their
appointed representatives at Dewan Negara & Dewan Rakyat.

• Law enacted by the Legislative will govern the people, the

states including the 3 government authorities.

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(3) The Judiciary Authority
• Interpret and decide the cases according to the law
enacted by the Legislative. E.g The Federal Courts,
High Courts, Session Courts & Magistrate Courts.

• The system of court in Malaysia plays an important

role in determining as to whether action done is
legal or illegal and in resolving any dispute or
disagreement between the parties.

• All parties will be treated equally and the Judiciary

is free to make judgments without coercion, fear or
favour.

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Malaysian Judicial Legal
System

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 Judicial Legal System in Malaysia
• Judicial System evolves around the Court structure.

• Litigation – the process of instituting and defending a legal action in a

court of law.

• Role of the Court is concerning administration of the law and decide

cases.

• Crime committed by the wrongdoer will be prosecuted in a Criminal

Cour t whereby the action is brought by the State, i.e. via Public
Prosecutor.

• A civil case is brought by parties enforcing their legal rights under civil
law such as contract, defamation, etc.
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Judicial Legal System in Malaysia

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Subordinate & Superior Courts in Malaysia

Subordinate Courts Superior Courts

• Magistrate Court • High Court

• Child Court • Court of Appeal
• Session Court • Federal Court
• Sabah & Sarawak-
Native Court

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 (1) Federal Court
• The Federal Court is the highest judicial authority in Malaysia and established under Article
121(2) of the Federal Constitution. Its decision binds all the courts below.
• Jurisdiction:-
ü To hear appeals of civil decisions of the Court of Appeal where the Federal Court grants
leave to do so.
ü To hear criminal appeals from the Court of Appeal, but only in respect of matters heard
by the High Court in its original jurisdiction (i.e. where the case has not been appealed
from the Subordinate Courts).
ü Exclusive jurisdiction on the validity of any laws enacted by Parliament/Legislative
Authority & dispute on any matter between Federal & State Government.
• The highest position in Federal Court in Peninsular Malaysia is the Chief Justice of Federal
Court of Malaysia

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 (2) Court of Appeal

• The Court of Appeal is an appellate court of the judiciary system in Malaysia.

(hears the appeal of a trial court or lower tribunal).

• It is the second highest court in the hierarchy below the Federal Court.

• This court was created in 1994 so as to create a second tier appellate court
after the Privy Council appeals to the United Kingdom was abolished in 1985.

• The court is headed by the President of the Court of Appeal, who is the 2nd
most important person in Malaysian judiciary after the Chief Justice of
Malaysia.

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 3) The High Court

HIGH COURT HIGH COURT

OF MALAYA OF BORNEO

JURISDICTION

Ø Criminal – hear cases which carry death penalty.

Ø Civil - in divorce & matrimonial causes, bankruptcy & company cases,
appointment and control of guardians of infants, disabled persons & their
property & grant of probates of wills & Letters of administration.
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 4) The Session Court
Jurisdiction:

Civil:
• Running down cases, landlord and tenant &
distress;
Criminal • Other suits where the amount in dispute does
To try all offences other than not exceed RM250,000;
offences punishable with • Subject to the consent of the parties involved,
death. to try cases exceeding RM250,000 but the
award is limited to the statutory limit of
RM250,000 only.
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 Jurisdiction:

5) The Magistrate Court Criminal

§ To try all offences where
maximum term of
imprisonment not
exceeding 10 years &
punishable with fine only.
Pass any sentence allowed by law § E . g . C h e at i n g , ro b b e r y,
not exceeding: housebreaking, theft.
ü 5 years imprisonment;
ü a fine of RM10,000.00; Civil
ü whipping up to 12 strokes; or Legal suits of a civil nature
ü any combination of the where the amount in
sentence above. dispute does not exceed
RM25,000. 39
 6) Small Claims Court

Amount in Fast & swift process

dispute – Less of resolving
than RM5,000 disputes

No need for legal Heard by 1st class

representation Magistrate

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 Also known as Juvenile Court

Try all offences except punishable

with death
7) Child Court
Hearing is heard in camera – not
open to public

Malaysian Child Act 2001

Composition – 1 Magistrate, 2
Advisors, I welfare officer &
Prosecuting Officer

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 8) Special Tribunals

The Special
Industrial Court Commissioners
Public Services For Income Tax
Tribunal
Court Martial

Professional Disciplinary
Housebuyers Bodies
Labor Court
Tribunal

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Important Legislation Pertaining to Jurisdiction
of Courts

Courts of Judicature Act 1964

Subordinate Courts Act 1948

Federal Constitution

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44
 LAW OF CONTRACT

Contract 1
1
INTRODUCTION
WHAT IS CONTRACT?
 CONTRACT LAW
WHAT IS CONTRACT LAW?
● THE LAW OF CONTRACT IS THE BASIC LAW THAT GOVERNS
AND RELATES TO MOST ASPECTS OF HUMAN LIFE. IN OTHER
WORDS, CONTRACT LAW INTENDS TO FORMALISE AN
AGREEMENT BETWEEN TWO OR MORE PARTIES, IN RELATION TO
A PARTICULAR SUBJECT. CONTRACT LAW CAN COVER AN
EXTREMELY BROAD RANGE OF MATTERS, INCLUDING THE SALE
OF GOODS OR REAL PROPERTY, THE TERMS OF EMPLOYMENT
OR OF AN INDEPENDENT CONTRACTOR RELATIONSHIP, ETC.
● ALL IN ALL, CONTRACT LAW GOVERNS HUMAN DAILY
ACTIVITIES IN ALMOST ALL ASPECTS WHICH MAY VARY FROM
SIMPLE CONTRACTS I.E. GETTING DAILY SUPPLIES TO COMPLEX
ISSUES SUCH AS PROVIDING CONSULTANCY SERVICES.
 WHAT IS A CONTRACT?

• A CONTRACT MAY BE DEFINED AS A LEGALLY BINDING AGREEMENT .

“A PROMISE OR SET OF PROMISES WHICH THE LAW WILL ENFORCE”.

• THE AGREEMENT WILL CREATE RIGHTS AND OBLIGATIONS THAT MAY

BE ENFORCED IN THE COURTS.
 • A CONTRACT MAY BE DEFINED AS AN
AGREEMENT BETWEEN TWO OR MORE
CONTRACT PARTIES THAT IS INTENDED TO BE
LEGALLY BINDING.
• KEYWORDS:
✔ AN AGREEMENT (CONSISTING OF AN
OFFER/PROPOSAL AND ACCEPTANCE).
✔ AT LEAST TWO PARTIES ARE REQUIRED
(THE OFFEROR/PROMISOR MAKES AN
OFFER & THE OFFEREE/PROMISEE
ACCEPTS THE OFFER.
✔ LEGALLY BINDING
 CONTRACT LAW
WHAT IS A CONTRACT?
● IS AN AGREEMENT (USUALLY BETWEEN TWO OR MORE PERSONS) GIVING RISE
TO OBLIGATIONS ON THE PART OF BOTH PERSONS WHICH ARE ENFORCED OR
RECOGNISED BY LAW.
●
● IT IS IMPORTANT TO NOTE THAT ‘PERSONS’ MENTIONED ABOVE ARE USUALLY
REFERRED TO AS ‘PARTIES’ TO THE CONTRACT. GENERALLY SPEAKING, AN
AGREEMENT IS MADE WHEN ONE PERSON ACCEPTS AN OFFER MADE BY THE
OTHER.

● ALL IN ALL, THE WORD ‘CONTRACT’ MAY BE DEFINED AS ‘AN AGREEMENT

ENFORCEABLE BY LAW’. IN OTHER WORDS, A CONTRACT IS AN AGREEMENT
WHICH IS LEGALLY BINDING BETWEEN THE PARTIES.
 AGREEMENTS AND CONTRACTS: ALL
CONTRACTS ARE AGREEMENTS BUT NOT ALL
AGREEMENTS ARE CONTRACTS.
THE GIST OF ALL CONTRACTS IS AN
AGREEMENT, I.E. ALL CONTRACTS MUST
BE BUILT UPON AN AGREEMENT
ALTHOUGH NOT ALL AGREEMENTS ARE
AUTOMATICALLY CONTRACTS.

SOME AGREEMENTS ARE NOT

CONTRACTS BECAUSE THEY LACK
CERTAIN ESSENTIAL ELEMENTS. 7
AGREEMENT? CONTRACT?

E
AR ALL
C TS OT
T RA UT N ARE
O N S B TS
C NT EN CTS
L E
AL EEM REEM TRA
G R G ON
A A C
 TYPES OF CONTRACT

1. BILATERAL CONTRACT
EACH PARTY TAKES AN OBLIGATION, USUALLY IN THE FORM OF SET OF
PROMISES. ONE PARTY PROMISES TO DO SOMETHING FOR THE OTHER
PARTY TO DO SOMETHING. EG BUYER AND SELLER. NOTE: BILATERAL
MAY INVOLVE MORE THAN TWO PARTIES.
TYPES OF CONTRACT (CONTINUED)
2. UNILATERAL CONTRACT

ONE PARTY MUST FULFIL HIS OBLIGATION WHEN THE

TERMS OF HIS OFFER ARE ACCEPTED. THE OTHER PARTY IS
NOT OBLIGED TO ACCEPT HIS OFFER. A PROMISE IN
EXCHANGE FOR AN ACT EXAMPLE – AN OFFER OF A
REWARD FOR THE RETURN OF LOST PROPERTY. THE
OFFER CAN ONLY BE ACCEPTED WHEN THE OTHER PARTY
COMPLETELY PERFORMS THE TERMS IN THE OFFER.
EXAMPLE: CARLILL V CARBOLIC SMOKE BALL COMPANY
SEE ALSO: BOWERMAN V ASSOCIATION OF
BRITISH TRAVEL AGENTS LTD (1996)

FACTS: A SCHOOL HAD BOOKED A SKIING TRIP WITH A TOUR AGENCY,

WHO WAS A MEMBER OF THE DEFENDANT. THE TOUR AGENCY WENT
BUST. THE SCHOOL DID GET REFUND BUT NOT 100% OF THE MONEY IT
HAD PAID. MEMBERS OF THE DEFENDANT WERE OBLIGED TO INFORM
THEIR CLIENTS THROUGH DISPLAY OF NOTICE ISSUED BY THE
DEFENDANTS, WHICH READ: WHERE HOLIDAYS OR OTHER TRAVEL
ARRANGEMENTS HAVE NOT YET COMMENCED AT THE TIME OF FAILURE
[OF THE TOUR OPERATOR]. ABTA ARRANGES FOR YOU TO BE REIMBURSED
THE MONEY IN RESPECT OF YOUR HOLIDAY ARRANGEMENTS.’
 BOWERMAN (CONTINUED)

HELD: THAT THE ABTA NOTICE CONSTITUTED AN OFFER, WHICH THE

CUSTOMER ACCEPTED BY CONTRACTING WITH AN ABTA MEMBER.

A CONTRACT ARISING FROM AN OFFER TO THE PUBLIC AT LARGE IS

USUALLY A UNILATERAL CONTRACT.
 TYPES OF CONTRACT (CONTINUED)

3. COLLATERAL CONTRACT

A SUBSIDIARY CONTRACT THAT INDUCES A PERSON TO ENTER INTO A MAIN

CONTRACT OR THAT DEPENDS UPON THE MAIN CONTRACT FOR ITS
EXISTENCE
FOR EXAMPLE, ENTERING INTO A TENANCY AGREEMENT WHEREBY THE
TENANT RENTS THE PROPERTY ON THE PREMISE THAT HE WOULD
SUBSEQUENTLY ENTER INTO A SALE AND PURCHASE AGREEMENT OF THE
SAID PROPERTY. THE TENANCY AGREEMENT WILL BE VALID SO LONG AS THE
S&P AGREEMENT EXISTS.
 NECESSARY ELEMENTS OF CONTRACT

Offer &
Acceptance Intention to
Create
Free Consent
Legal
Relations

Legally
enforceable
Legal CONTRACT Consideratio
Capacity
n

Legality Certainty

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 ELEMENTS OF CONTRACT

Agreement Intention to create Formalities

legal relations

Consideration Capacity
& Lawful Object & Free Consent

Offer
Acceptance
Certainty of Terms
ELEMENTS OF A LEGALLY ENFORCEABLE
CONTRACT
• OFFER AND ACCEPTANCE
• INTENTION TO CREATE LEGAL RELATIONS
• CONSIDERATION
• CERTAINTY
• LEGALITY
• LEGAL CAPACITY
• FREE CONSENT
 OFFER
FORMATION
 AN OFFER

IT IS A PROPOSITION PUT BY ONE PERSON TO ANOTHER PERSON MADE

WITH THE INTENTION THAT IT SHALL BECOME LEGALLY BINDING AS
SOON AS THE OTHER PERSON ACCEPTS IT. AN OFFER CAN LAST FOR A
SPECIFIED TIME, REASONABLE LENGTH OF TIME, FAILURE OF CONDITION,
REJECTION OF AN OFFER, COUNTER OFFER, DEATH OF A PARTY, ETC.
OR
AN OFFER IS AN EXPRESSION OF WILLINGNESS TO CONTRACT MADE
WITH THE INTENTION THAT IT SHALL BECOME BINDING ON THE OFFEROR
AS SOON AS IT IS ACCEPTED BY THE OFFEREE.
 PARTIES

MAKES OFFER OFFEREE

OFFEROR
 PARTIES TO CONTRACT

• Every contract must involve at least two parties that

is the person who proposes the contract, who is known
as the offeror, and the parties to whom the proposal is
made, who is known as the offeree.

• Hence, if A makes an
Makes offer to B offer to sell his books for
RM350 to B, A is the
offeror, being the person
who proposes a contract;
and B is the offeree, being
the person to whom the
proposal is made.

offeree offeror
 HOW IS AN OFFER MADE?

●CAN BE MADE EITHER ORALLY OR IN

WRITING

●IT CAN ALSO BE MADE TO AN INDIVIDUAL,

OR A GROUP OF PERSONS, OR TO THE
WHOLE WORLD AT LARGE (SEE THE CASE
OF CARLILL V CARBOLIC SMOKE BALL
COMPANY
 CARLILL V CARBOLIC SMOKE BALL
COMPANY
● WHERE THE DEFENDANT COMPANY ADVERTISED
IN THE NEWSPAPER THAT THEY WOULD OFFER
£1000 TO ANYONE WHO TOOK THE MEDICINE
AS PRESCRIBED BY THE DEFENDANT FOR A FIXED
PERIOD AND STILL SUCCUMBED TO INFLUENZA
AFTER FINISHING THE PRESCRIBED DOSAGE. THE
PLAINTIFF USED THE MEDICINE FOR A FIXED
PERIOD AS PRESCRIBED, BUT STILL CONTRACTED
INFLUENZA. THE PLAINTIFF THEN SUED THE
DEFENDANT FOR THE MONEY.
 CARLILL (CONTD)
THE COURT HELD THAT THE PLAINTIFF WAS
ENTITLED TO THE AMOUNT AS SHE HAD ACCEPTED
THE OFFER MADE TO THE WORLD AT LARGE….
 OFFER
●AN OFFER CAN BE
BILATERAL OR UNILATERAL
IN NATURE. BILATERAL
MEANS THE OFFER IS
MADE TO A SPECIFIC
PERSON OR GROUP OF
PERSONS AND
UNILATERAL MEANS THE
OFFER IS MADE TO THE
WORLD AT LARGE.
●SEE CARLILL ABOVE
 REQUIREMENTS OF AN OFFER

WHAT ARE THE REQUIREMENTS FOR A VALID OFFER?

● IT MUST BE DEFINITE- THE OFFER MUST BE CLEARLY ASCERTAINABLE. AS A
GENERAL RULE, IF AN OFFER IS SO INDEFINITE THAT THE PROMISE CANNOT
BE CLEARLY ASCERTAINED, IT IS NOT A LEGALLY BINDING AGREEMENT.
● IT MUST BE COMMUNICATED TO THE OFFEREE (PROMISEE) BEFORE IT CAN
BE ACCEPTED.
● AN OFFER MAY BE MADE UNCONDITIONAL OR UPON STATED CONDITIONS.
IN THE LATTER CASE, AN ACCEPTANCE TO BE VALID MUST ACCORD WITH
THE TERMS OF THE OFFER.
 WHAT IS AN INVITATION TO TREAT?

●IT IS A STATEMENT MADE BY ONE PERSON

ASKING THE OTHER TO MAKE THE FIRST
PERSON AN OFFER. IT IS SOMETIMES
DESCRIBED AS ‘AN INVITATION TO MAKE
AN OFFER’.
 OFFER V INVITATION TO TREAT
OFFER
• LEGALLY BINDING
• DEFINITE
• ENFORCEABLE IN COURT

INVITATION TO TREAT
• NOT LEGALLY BINDING
• INVITATION TO MAKE AN OFFER
• NOT ENFORCEABLE IN COURT
 INVITATION TO TREAT
• INVITATION TO TREAT IS NOT AN OFFER. IT IS
JUST AN INVITATION TO MAKE AN OFFER.
• IT IS A SORT OF PRELIMINARY NEGOTIATION
TO BUY SOMETHING.
• THE MAIN DIFFERENCE BETWEEN AN OFFER
AND AN INVITATION TO TREAT IS THAT AN
OFFER IS BINDING AND ENFORCEABLE IF
ACCEPTED. AN ITT IS NOT BINDING OR
ENFORCEABLE AS IT IS INCAPABLE OF BEING
ACCEPTED.

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 INVITATION TO TREAT
OFFER MUST BE DISTINGUISHED FROM INVITATION TO
TREAT:
1. DISPLAY OF GOODS IN SHOPS
(PHARMACEUTICAL SOCIETY OF GB V. BOOTS)

2. ADVERTISEMENTS
(PARTRIDGE V. CRITTENDEN C/F CARLILL V. CARBOLIC S.B.)

3. AUCTIONS (PAYNE V. CAVE)

4. TENDERS (SPENCER V. HARDING)

5. MERE ANSWER TO A REQUEST FOR

INFORMATION/PRICE (HARVEY V FACEY)
 ITT 1: DISPLAY OF GOODS: SUPERMARKET SHELVES:
PHARMACEUTICAL SOCIETY OF GREAT BRITAIN V BOOTS CASH
CHEMIST LTD [1953] 1 Q.B. 401

• FACTS:
BOOTS WAS CHARGED WITH UNLAWFULLY SELLING
CERTAIN POISONS UNDER THE PHARMACY AND
POISONS ACT 1933 WITHOUT THE SUPERVISION OF A
REGISTERED PHARMACIST. IT ALL DEPENDED ON WHEN
THE SALE TOOK PLACE.
• IF THE CONTRACT OR SALE WAS FORMED WHEN THE
CUSTOMER TOOK THE MEDICINES FROM THE SHELF AND
PUT THEM IN THE BASKET, THEN BOOTS WOULD BE LIABLE
EVEN IF THE CUSTOMER HAD NOT PAID FOR THE
MEDICINES. BUT IF THE CONTRACT WAS FORMED AT THE
CASHIER’S DESK, THEN BOOTS WILL NOT BE LIABLE
BECAUSE THERE WAS A PHARMACIST THERE WHO HAD
THE AUTHORITY TO PREVENT THE SALE.
 BOOTS CASH CHEMIST (CONTD)
• HELD: THE DISPLAY WAS AN INVITATION TO TREAT. A PROPOSAL TO BUY, I.E. AN
OFFER, WAS MADE WHEN THE CUSTOMER PUT THE MEDICINES IN THE BASKET. THE
CONTRACT OF SALE TOOK PLACE WHEN THE CUSTOMER PAID AT THE CASHIER’S
DESK WHERE THE PHARMACIST WAS PRESENT. AS SUCH BOOTS DID NOT MAKE AN
UNLAWFUL SALE.

• THE COURT SAID: "IN THE CASE OF AN ORDINARY SHOP, ALTHOUGH GOODS ARE
DISPLAYED AND IT IS INTENDED THAT CUSTOMERS SHOULD GO AND CHOOSE
WHAT THEY WANT, THE CONTRACT IS NOT COMPLETED UNTIL, THE CUSTOMER
HAVING INDICATED THE ARTICLES WHICH HE NEEDS, THE
• SHOPKEEPER, OR SOMEONE ON HIS BEHALF, ACCEPTS THAT OFFER. THEN THE
CONTRACT IS COMPLETED."
ITT1: DISPLAY OF GOODS IN SHOP
WINDOW: FISHER VDISPLAYED
• A SHOPKEEPER BELL A(1960)
FLICK KNIFE WITH A
PRICE TAG IN THE WINDOW. THE RESTRICTION OF
OFFENSIVE WEAPONS ACT 1959 MADE IT AN
OFFENCE TO 'OFFER FOR SALE' A 'FLICK KNIFE'. THE
SHOPKEEPER WAS PROSECUTED IN THE
MAGISTRATES' COURT BUT THE JUSTICES DECLINED TO
CONVICT ON THE BASIS THAT THE KNIFE HAD NOT, IN
LAW, BEEN 'OFFERED FOR SALE'.

• THE COURT SAID: "IT IS PERFECTLY CLEAR THAT

ACCORDING TO THE ORDINARY LAW OF CONTRACT
THE DISPLAY OF AN ARTICLE WITH A PRICE ON IT IN A
SHOP WINDOW IS MERELY AN INVITATION TO TREAT.
IT IS IN NO SENSE AN OFFER FOR SALE THE
ACCEPTANCE OF WHICH CONSTITUTES A
CONTRACT."
 ITT 2: ADVERTISEMENTS

• ADVERTISEMENTS OF GOODS FOR SALE ARE NORMALLY INTERPRETED

AS INVITATIONS TO TREAT. SEE:

• PARTRIDGE V CRITTENDEN (1968)

PARTRIDGE V CRITTENDEN
• IT WAS AN OFFENCE TO OFFER FOR SALE CERTAIN WILD
BIRDS. THE DEFENDANT HAD ADVERTISED IN A PERIODICAL
'QUALITY BRAMBLEFINCH COCKS, BRAMBLEFINCH HENS,
25S EACH'. HIS CONVICTION WAS QUASHED BY THE
HIGH COURT. LORD PARKER CJ STATED THAT WHEN ONE
IS DEALING WITH ADVERTISEMENTS AND CIRCULARS,
UNLESS THEY INDEED COME FROM MANUFACTURERS,
THERE IS BUSINESS SENSE IN THEIR BEING CONSTRUED AS
INVITATIONS TO TREAT AND NOT OFFERS FOR SALE.
 BUT NOTE: ADVERTISEMENTS IN THE
CARLILLFORM
(ABOVE)OF AN UNILATERAL
THE COURT OFFER
IN DECIDING THAT THE PLAINTIFF
WAS ENTITLED TO RECOVER THE £100, HELD THAT:
• (A) THE DEPOSIT OF MONEY SHOWED AN INTENTION TO BE
BOUND, THEREFORE THE ADVERT WAS AN OFFER;
• (B) IT WAS POSSIBLE TO MAKE AN OFFER TO THE WORLD AT
LARGE, WHICH IS ACCEPTED BY ANYONE WHO BUYS A
SMOKEBALL;
• (C) THE OFFER OF PROTECTION WOULD COVER THE PERIOD
OF USE; AND
• (D) THE BUYING AND USING OF THE SMOKEBALL AMOUNTED
TO ACCEPTANCE.
 ITT 3: AUCTIONS

• IN AN AUCTION, THE AUCTIONEER'S CALL FOR BIDS IS AN INVITATION

TO TREAT, A REQUEST FOR OFFERS. THE BIDS MADE BY PERSONS AT
THE AUCTION ARE OFFERS, WHICH THE AUCTIONEER CAN ACCEPT OR
REJECT AS HE CHOOSES. SIMILARLY, THE BIDDER MAY RETRACT HIS BID
BEFORE IT IS ACCEPTED. SEE:

• PAYNE V CAVE (1789)

 PAYNE V CAVE
• THE DEFENDANT MADE THE HIGHEST BID FOR
THE PLAINTIFF'S GOODS AT AN AUCTION SALE,
BUT HE ITHDREW HIS BID BEFORE THE FALL OF
THE AUCTIONEER'S HAMMER. IT WAS HELD
THAT THE DEFENDANT WAS NOT BOUND TO
PURCHASE THE GOODS. HIS BID AMOUNTED
TO AN OFFER WHICH HE WAS ENTITLED TO
WITHDRAW AT ANY TIME BEFORE THE
AUCTIONEER SIGNIFIED ACCEPTANCE BY
KNOCKING DOWN THE HAMMER.
 ITT 4: TENDERS

•WHEN TENDERS ARE INVITED FROM THE

PUBLIC FOR THE HIGHEST PRICE FOR THE
TENDERED ITEMS/SERVICES OR LOWEST
PRICE TO SUPPLY THE REQUIRED
ITEMS/SERVICES IT IS REGARDED AS MERE
INVITATION TO TREAT.
•IN SPENCER V . HARDING, THE COURT HELD
THAT TENDERS ARE MERE INVITATION TO
TREAT LIKE AUCTION SALE.
 ITT 5: MERE REQUEST FOR PRICE

A STATEMENT OF THE MINIMUM PRICE AT WHICH A PARTY MAY BE

WILLING TO SELL WILL NOT AMOUNT TO AN OFFER. SEE:

HARVEY V FACEY (1893)

THE PLAINTIFFS SENT A TELEGRAM TO THE DEFENDANT, "WILL YOU SELL

BUMPER HALL PEN? TELEGRAPH LOWEST CASH PRICE". THE DEFENDANTS
REPLY WAS "LOWEST PRICE £900". THE PLAINTIFFS TELEGRAPHED "WE
AGREE TO BUY … FOR £900 ASKED BY YOU".
• IT WAS HELD BY THE PRIVY
COUNCIL THAT THE DEFENDANTS
TELEGRAM WAS NOT AN OFFER
BUT SIMPLY
• AN INDICATION OF THE MINIMUM
PRICE THE DEFENDANTS WOULD
WANT, IF THEY DECIDED TO SELL.
• THE PLAINTIFFS SECOND TELEGRAM
COULD NOT BE AN ACCEPTANCE.
TERMINATION OF OFFER

WHEN DOES AN OFFER COME TO AN END?

 TERMINATION OF OFFER
• AN OFFER CAN BE TERMINATED IN SEVERAL WAYS.
TERMINATION OF OFFER
• FACTS: THE DEFENDANT, MR MONTEFIORE, MADE AN OFFER TO
BUY SHARES IN THE PLAITIFF’S HOTEL. HE PAID A DEPOSIT WITH
THE INTENTION OF PURCHASING THEM IN JUNE. ND PAID A
DEPOSIT TO HIS BANK ACCOUNT TO BUY THEM IN JUNE. THE
OFFER WAS ACCEPTED SIX MONTHS LATER. BY THIS TIME THE
VALUE OF THE SHARES HAD DROPPED AND THE D WAS NO
LONGER INTERESTED. THE P SUED HIM FOR BREACH OF
CONTRACT.

• ISSUE : THE P BROUGHT AN ACTION FOR SPECIFIC TERMINATION OF OFFER THROUGH

PERFORMANCE OF THE CONTRACT AGAINST THE DEFENDANT. THE
LAPSE OF REASONABLE TIME
ISSUE WAS WHETHER THERE WAS A CONTRACT BETWEEN THE
PARTIES AFTER THE ACCEPTANCE OF THE ORIGINAL OFFER SIX
MONTHS AFTER IT WAS MADE.

• HELD : RAMSGATE VICTORIA HOTEL’S ACTION FOR SPECIFIC

PERFORMANCE WAS UNSUCCESSFUL. THE OFFER THAT THE
DEFENDANT HAD MADE BACK IN JUNE WAS NO LONGER VALID
TO FORM A CONTRACT. A REASONABLE PERIOD OF TIME HAD
PASSED AND THE OFFER HAD LAPSED. THE COURT STATED THAT
WHAT WOULD BE CLASSED AS REASONABLE TIME FOR AN OFFER
TO LAPSE WOULD DEPEND ON THE SUBJECT MATTER.
BYRNE V VAN TIENHOVEN (1880)
FACTS: VAN TIENHOVEN OFFERED TO SELL GOODS
TO BYRNE BY LETTER DATED 1
OCTOBER. BYRNE RECEIVED THE LETTER ON 11
OCTOBER AND TELEGRAPHED AN ACCEPTANCE ON
THE SAME DAY. ON 8 OCTOBER VAN
TIENHOVEN POSTED A LETTER REVOKING THE OFFER.
THIS LETTER WAS RECEIVED BY BYRNE ON 20
OCTOBER. VAN TIENHOVEN REFUSED TO GO
THROUGH WITH THE SALE.

ISSUE: WAS THERE A CONTRACT?

HELD: THE COURT HELD THAT THE WITHDRAWAL OF

THE OFFER WAS INEFFECTIVE AS A CONTRACT HAD
BEEN CONSTRUCTED BETWEEN THE PARTIES ON
OCTOBER 11 WHEN THE PLAINTIFFS ACCEPTED THE
OFFER IN THE LETTER DATED OCTOBER 1. ON THIS
BASIS, IT WAS HELD THAT AN OFFER FOR THE SALE OF
GOODS CANNOT BE WITHDRAWN BY SIMPLY
POSTING A SECONDARY LETTER WHICH DOES NOT
ARRIVE UNTIL AFTER THE FIRST LETTER HAD BEEN
RESPONDED TO AND ACCEPTED. THE COURT GAVE
JUDGMENT FOR THE PLAINTIFF AND AWARDED THAT
THE DEFENDANT PAID THEIR COSTS.
 ► FACTS: THE DEFENDANT CONTACTED THE CLAIMANT
ROUTLEDGE V GRANT (1828)
IN WRITING, OFFERING TO PURCHASE THE LEASE OF
THE CLAIMANT’S HOME. THE OFFER STATED THAT IT
WOULD REMAIN OPEN TO THE CLAIMANT FOR A
PERIOD OF SIX WEEKS. HOWEVER, DURING THIS
PERIOD, BEFORE THE CLAIMANT HAD ACCEPTED, THE
DEFENDANT CHANGED HIS MIND ABOUT THE
PURCHASE AND WROTE TO THE CLAIMANT ONCE
AGAIN PURPORTING TO WITHDRAW THE OFFER.
AFTER RECEIVING THIS SECOND LETTER, STILL WITHIN
SIX WEEKS FROM THE FIRST, THE CLAIMANT
ACCEPTED THE DEFENDANT’S OFFER.
Held : The original letter did not bind the
defendant to keep the offer open for a
full six weeks, and as such it had been
validly withdrawn by the defendant, and
the claimant’s purported acceptance
was ineffective. The underlying reason for
this was that it is a fundamental principle
of contract law that one party cannot be
bound whilst the other is not.
Issue
The issue was whether the defendant was
contractually bound by his original letter
to keep the offer open for six weeks, and
by extension whether he was therefore
bound by the claimant’s acceptance within
that period.
In the words of Best CJ:
“… If a party make an offer and fix a period
within which it is to be accepted or rejected
by the person to whom it is made, though the
latter may at any time within the stipulated
period accept the offer, still the former may
also at any time before it is accepted retract
it; for to be valid, the contract must be mutual:
both or neither of the parties must be bound
by it…
 DICKINSON V DODDS (1876)
• FACTS: THE DEFENDANT OFFERED TO SELL HIS HOUSE
TO THE CLAIMANT AND PROMISED TO KEEP THE OFFER
OPEN UNTIL FRIDAY. ON THE THURSDAY THE
DEFENDANT ACCEPTED AN OFFER FROM A THIRD
PARTY TO PURCHASE THE HOUSE. THE DEFENDANT
THEN ASKED A FRIEND TO TELL THE CLAIMANT THAT
THE OFFER WAS WITHDRAWN. ON HEARING THE
NEWS, THE CLAIMANT WENT ROUND TO THE
CLAIMANT'S HOUSE FIRST THING FRIDAY MORNING
PURPORTING TO ACCEPT THE OFFER. HE THEN
BROUGHT AN ACTION SEEKING SPECIFIC
PERFORMANCE OF THE CONTRACT.

HELD: THE OFFER HAD BEEN EFFECTIVELY REVOKED.

THEREFORE NO CONTRACT EXISTED BETWEEN THE
PARTIES. THERE WAS NO OBLIGATION TO KEEP THE
OFFER OPEN UNTIL FRIDAY SINCE THE CLAIMANT HAD
PROVIDED NO CONSIDERATION IN EXCHANGE FOR
THE PROMISE.

THE OFFEROR IS FREE TO WITHDRAW THE OFFER AT

ANY TIME BEFORE ACCEPTANCE TAKES PLACE UNLESS
 HYDE
ER E E X
V
I STS WRENCH
N O
FO
VALID
R T H E (1840)
: I T H INK TH E PARTIES T
S A I D THIS
T W E EN TH EFENDAN D
D L E Y LJ
R A C TB E
Y. T H ED H AT HA RE
I N T R T T
► L
I N
N E
G CO THIS PROP 000, AND EPTED THE
I F
I N D £1 C
B
H A S E OF I T F O R A L LY AC RFECT
PU R C SE L L ITIO N PE TIFF
E D TO C O N D E E N A P L A I N
OFFER ONCE UN DLY HAVE B F THAT, THE THE
AT BTE DO ASE
BEEN U N D O U
; I N S T E A
O P U R C H
T E D THE
L D C T , T C
WOU C O NTRA HIS OWN EREBY REJE . I THINK
G F H T
BINDIN N OFFER O , AND HE T DEFENDAN FOR
A
MADE TY FOR £9
50 Y THE T ENT
E R M A D E B
S C O M P E
F E N D ANT,
PROP REVIOUSLY FTERWARD OF THE DE HAT,
P A L T
OFFER WAS NOT PROPOSA OF IT; AND F ANY
THAT
IT
I V E THE P TANCE IGATION O
O R E V AC C E BL
HIM T ERING AN XISTS NO O
D E
BY TEN RE, THERE PARTIES
FO E
THERE ETWEEN TH
B
SORT
• FACTS : THE DEFENDANT, MR. WRENCH, OFFERED TO SELL HIS FARM TO THE
PLAINTIFF. MR HYDE FOR THE SUM OF £1,200,. THE P REFISED. THE D THEN
MADE ANOTHER OFFER TO SELL THE FARM AT £1,000. THIS TIME HE STATED
THAT IT WAS HIS FINAL OFFER. THE P OFFERED £950 FOR THE FARM BUT THE
D REJECTED THIS OFFER. THE P THEN AGREED TO BUY THE FARM FOR £1,000.
THE D REFUSED TO SELL.
• ISSUES: THE P SUED THE D FOR SPECIFIC PERFORMANCE, CLAIMING THAT AS
THE D REFUSED TO SELL THE FARM, THIS WAS A BREACH OF CONTRACT. THE
ISSUE IN THIS CASE WAS WHETHER THERE WAS A VALID CONTRACT
BETWEEN THE PARTIES AND IF A COUNTER OFFER WAS MADE IN
DISCUSSIONS, WHETHER THE ORIGINAL OFFER WOULD STILL REMAIN OPEN.
• HELD : THERE WAS NO BINDING CONTRACT FOR THE FARM BETWEEN MR
HYDE AND MR WRENCH. IT WAS STATED THAT WHEN A COUNTER OFFER IS
MADE, THIS SUPERSEDES AND DESTROYS THE ORIGINAL OFFER. THIS
ORIGINAL OFFER IS NO LONGER AVAILABLE OR ON THE TABLE. IN THIS CASE,
WHEN MR HYDE OFFERED £950, HE CANCELLED THE £1,000 OFFER AND
COULD NOT BACK TRACK AND ACCEPT.

c h (1 840 )
e v Wr e n
Hy d
STEVENSON JAQUES & CO. V MCLEAN
(1880) 5

• FACTS: THE DEFENDANT, MCLEAN, OFFERED TO SELL IRON TO THE P,

STEVENSON JAQUES & COAS FOR THE PRICE OF 40S. THE OFFER
WAS TO REMAIN OPEN UNTIL MONDAY. THE P SENT A TELEGRAM TO
THE D ASKING WHETHER HE WOULD ACCEPT A PAYMENT OF 40
OVER A TWO-MONTH PERIOD, OR WHAT HIS LONGEST LIMIT WOULD
BE FOR PAYMENT. THE D DID NOT RESPOND TO THIS TELEGRAM. HE
SOLD THE IRON TO ANOTHER PARTY, BUT DID NOT INFORM THE P OF
THIS ACTION. ON MONDAY MORNING, THE P SENT A TELEGRAM TO
ACCEPT THE OFFER, UNWARE HAD BEEN SOLD.
► ISSUE: THE P ALLEGED THAT THERE WAS NON-DELIVERY SUED THE D
FOR NON-DELIVERY OF THE IRON AND THAT THIS WAS A BREACH OF
CONTRACT. THE ISSUE IN THE CASE WAS WHETHER THERE WAS
BINDING CONTRACT BETWEEN THE PARTIES AND IF THE TELEGRAM
SENT BY THE COMPLAINANT WAS AN INQUIRY FOR INFORMATION
OR A COUNTER OFFER.
► HELD: THE P WAS ONLY INQUIRING FOR MORE INFORMATION
ABOUT WHETHER THE TERMS OF THE OFFER COULD BE CHANGED;
THERE WAS NO SPECIFIC WORDING TO INDICATE THAT IT WAS A
COUNTER OFFER OR REJECTION. THIS WAS IN CONTRAST TO HYDE V
WRENCH. THIS MEANT THAT THE OFFER MADE BY THE DEFENDANT
WAS STILL VALID AND THE SECOND TELEGRAM BY THE COMPLAINT
FORMED A BINDING CONTRACT. WHILE THE PROMISE OF THE OFFER
REMAINING OPEN UNTIL MONDAY WAS NOT ITSELF BINDING AND
AN OFFEROR CAN REVOKE THIS AT ANY TIME, THERE HAD BEEN NO
REVOCATION COMMUNICATED TO THE COMPLAINANT IN THIS CASE.
FINANCINGS LTD V STIMSON (1962)
• FACTS: A PURCHASER SIGNED A HIRE PURCHASE AGREEMENT FOR A
MOTOR VEHICLE IN EARLY MARCH 1961. A CLAUSE IN THE AGREEMENT
PROVIDED THAT WHEN THE FORM WAS SIGNED BY THE PURCHASER IT
WOULD BECOME BINDING ‘UPON ACCEPTANCE BY SIGNATURE’ OF AN
OFFICER OF THE FINANCE COMPANY. AN OFFICER OF THE FINANCE
COMPANY DID NOT SIGN THE AGREEMENT UNTIL LATE MARCH 1961 AND
IN THE INTERVENING PERIOD THE PURCHASER RETURNED THE VEHICLE
DUE TO DISSATISFACTION WITH ITS CONDITION AND PERFORMANCE AND
THE VEHICLE WAS SUBSEQUENTLY STOLEN RESULTING IN DAMAGE.
• HELD: THE PURCHASER’S SIGNATURE ON THE HIRE PURCHASE AGREEMENT FORM
WAS ‘IN LAW NOT AN AGREEMENT, BUT ONLY AN OFFER BY [THE PURCHASER] TO
ENTER INTO A HIRE PURCHASE AGREEMENT WITH A . . FINANCE COMPANY.’ THERE
WAS IMPLIED A CONDITION INTO THE OFFER THAT THE SUBJECT MATTER OF THE
OFFER MUST REMAIN IN SUBSTANTIALLY THE SAME CONDITION IT WAS IN AT THE
TIME OF THE OFFER, FAILING WHICH THE OFFER LAPSES.
Pearson LJ said: …… this car suffered severe damage before
the acceptance and that there was substantial depreciation
as the result. On that basis it seems to me that we should
by implication read into this offer, in order to give the
transaction that business efficacy which the parties must
have intended it to have, an implied condition that this
offer was capable of acceptance only if the car remained in
substantially the same condition with substantially the same
value. That condition in this case was not fulfilled because
the car was severely damaged and its value was
substantially depreciated. Therefore, when the [plaintiffs]
purported to accept it . . it was an offer which was no
longer capable of acceptance, and therefore no agreement
was concluded
 HE
H
EH EH
E
TO BE CONTINUED
END OF PART 1
CONTRACT • A CONTRACT MAY BE DEFINED AS AN
AGREEMENT BETWEEN TWO OR MORE
PARTIES THAT IS INTENDED TO BE LEGALLY
BINDING.
• KEYWORDS:
✔ AN AGREEMENT (CONSISTING OF AN
OFFER/PROPOSAL AND ACCEPTANCE).
✔ AT LEAST TWO PARTIES ARE REQUIRED (THE
OFFEROR/PROMISOR MAKES AN OFFER &
THE OFFEREE/PROMISEE ACCEPTS THE
OFFER.
✔ LEGALLY BINDING
ESSENC
E OF AN
OFFER?
LAW OF CONTRACT

TOPIC 2 - PART 1
 Topics to be covered under Law of
Contract
▪ What is Contract?
▪ Formation of Contracts
▪ Elements of Contracts
▪ Content of Contract - Conditions and Warranties of Contract
▪ Discharge of Contracts
▪ Remedies for Breach of Contracts
 WHAT IS A CONTRACT?

Section 2 (h) of the Contract Act, 1950 defines

that:-

“an agreement enforceable by law is a

contract.”
 WHAT IS A CONTRACT?
• Agreement - legally binding - between two or
more parties.
• Definition:
“an agreement between two or more parties in
which legal rights and obligations are created
and enforced by a court”
• Mode:
✔ oral
✔ written
✔ conduct
 Valid
Contract

TYPES
OF
CONTRACT
Voidable Void
Contract Contract
 VOID CONTRACT VOIDABLE CONTRACT
• A void contract is an agreement that is not • A voidable contract is voidable at the option of the
enforceable by law (Section 2(g) of the Contracts aggrieved party and hence, remains valid until
Act 1950). such rescission.

• E.g. A promise to commit a crime in return for a • E.g. Contracts caused by coercion, undue
money payment—is void. influence, fraud & misrepresentation.

• An agreement which is against the public policy or • The contract is voidable at the option of the party
against any law is also void (Section 24 - An whose consent is caused.
agreement which is unlawful is void).

• It creates no obligations on any party. Hence, no • If the contract is revoked by a person whose
claim can be made on a void contract consent is caused, he can claim for
compensation
 ELEMENTS OF CONTRACT

(1) Offer
(2) Acceptance
(3) Consideration
(4) Intention to create legal relations
(5) Certainty of terms
(6) Capacity to contract
 AGREEMENT? CONTRACT?

Every contract is
an agreement, (Refer to
but every Section 10 of
agreement may the Contract Act,
not be a 1950)
contract.
CONTRACT • A contract may be defined as an
agreement between two or more parties
that is intended to be legally binding.
• Keywords:
✔ An agreement (consisting of an
offer/proposal and acceptance).
✔ At least two parties are required (the
offeror/promisor makes an offer & the
offeree/promisee accepts the offer.
✔ Legally binding
 ONLINE CONTRACT
▪ Online contracts are binding on the parties without having to meet
each other physically or putting a signature on a hardcopy document.

▪ However, many do not read the contracts whenever they purchase the
goods or services.

▪ Online contract can be proven through WhatsApp conversation.

In Lim Choon Hau v. Simpson Wong [2019] 1 LNS 217, the High
Court held that a WhatsApp conversion can be direct evidence of the
Defendants receiving money as friendly loan from the 1st Plaintiff.
 (1) OFFER

What is a Proposal or an Offer?

▪ A legally binding promise made by one party
to another party:
A B
Offeror Offeree
Promisor Promisee
Proposal Acceptor
 OFFER/PROPOSAL
▪ Section 2(a) of the Contracts Act 1950 states:

“when one person signifies to another his

willingness to do or to abstain from doing
anything, with a view to obtaining the assent
of that other to the act or abstinence, he said
to make a proposal”
 TYPES OF OFFER

Unilateral offer:
not made to any specific person
Bilateral offer: but rather it is made to the world
made to a specific person at large.
or group of persons Case: Carlill v. The Carbolic
Smoke Ball Company Ltd. (1893)
 Facts:
CSC took out an advertisement that they would offer GBP
1000 to anyone who incurred influenza after taking their
remedy for a fixed period.
The plaintiff incurred influenza after taking the remedy
and sued for the money.
CARLILL
V Held:
• The advertisement was a unilateral offer and Mrs.
CARBOLIC Carlill had accepted the offer. The defendants were
bound to pay her the 1000 pounds.
SMOKEBALL • (Note that the Defendant had deposited 1000 pounds in
CO a bank account to show that they were serious about
their challenge).
(1893) • Plaintiff was entitled to the amount as she had
accepted the offer made to the world at large.
 Form - oral / writing / conduct

Promissory - Promise to do something or to refrain

from doing a certain act

ESSENCE Intention: To be legally binding

OF AN Communication: To Offeree/ Promisee before it can be

OFFER? accepted

Certainty: Terms must be clear & certain

Finality: Must be a degree of finality with the terms

 INVITATION TO TREAT (ITT)

▪ It is a statement made by one person asking the

other to make the first person an offer.
▪ It is sometimes described as ‘an invitation to
make an offer’.
▪ Invitation to treat is not an offer. It is just an
invitation to make an offer.
▪ It is a sort of preliminary negotiation to buy
something.
 COMPARISON
OFFER INVITATION TO TREAT
BETWEEN
Meaning When one person expresses his will to When a person expresses something to another
another person to do or not to do something, person, to invite him to make an offer, it is known
to take his approval, is known as an offer. - as invitation to offer.

Defined in Section Section 2(a) of the CA 1950. Not defined

Objective To enter into a contract To receive offers from people and negotiate the
terms on which the contract will be created.

Essential to make an Yes No

agreement

Consequence The Offer becomes an agreement when An Invitation to Treat, becomes an offer when
accepted responded by the party to whom it is made.

Enforceability Legally binding - enforceable in court Not legally binding - not enforceable in court
Examples of Invitation To Treat (ITT)
• Shop Display
• Advertisement
• Catalogues
• Advertisement/circular
• Price list
• Call for bid at auction
• Call for tender
 ITT NO. 1 - DISPLAY OF GOODS
• The display of goods with a price ticket attached
in a shop window or on a supermarket shelf is
not an offer to sell but an invitation for
customers to make an offer to buy.
• Shop owners - inviting offers to be made to
public at large.
• Case law:
(1) Pharmaceutical Society of Great Britain v.
Boots Cash Chemist (Southern) Ltd. (1953)
(2) Fisher v. Bell (1961)
 Pharmaceutical Society of Great Britain v. Boots Cash
Chemist (Southern) Ltd. (1953)
Facts:
Boots was charged with unlawfully selling certain poisons
under the Pharmacy and Poisons Act 1933 without the
supervision of a registered pharmacist. It all depended on
when the sale took place.

Held:
The display was an invitation to treat. A proposal to buy, i.e.
an offer, was made when the customer put the medicines in
the basket. The contract of sale took place when the customer
paid at the cashier’s desk where the pharmacist was present.
As such Boots did not make an unlawful sale.

•
 Facts:
Fisher vs. Bell A shopkeeper displayed a flick knife with a price tag in
(1961) the window. The Restriction of Offensive Weapons Act
1959 made it an offence to 'offer for sale' a 'flick knife'.
The shopkeeper was prosecuted in the magistrates'
court but the Justices declined to convict on the basis
that the knife had not, in law, been 'offered for sale'.
Held:
• "It is perfectly clear that according to the ordinary
law of contract the display of an article with a price
on it in a shop window is merely an invitation to
treat.
• It is in no sense an offer for sale the acceptance of
which constitutes a contract."
ITT No.2 - ADVERTISEMENTS

• Advertisements of goods for sale are normally

interpreted as invitations to treat.
• Case Law - Partridge v Crittenden [1968] 2 All ER
42
✔ advertised the sale of birds
✔ charged under the Protection of Birds Act
1954
✔ advertisement was not an offer to sell
✔ it is just an invitation to treat
 ITT No.2 - ADVERTISEMENTS……..cont’d

• Case law - MN Guha Majumder v RE Donough

[1974] 2 MLJ 114

• Decision by Court:
The sale of house through an advertisement in
the newspaper amounts to an invitation to treat.
PRICE LIST & CATALOGUES
 ADVERTISEMENTS

However, advertisements
may be construed as offers Case Law - Carlill v
if they are unilateral, i.e., Carbolic Smoke Ball [1893] 1
open to the entire world to QB 256
accept (e.g., offers for
rewards).
 In Carlill’s case, the Court in deciding that the Plaintiff was
entitled to recover the £100, held that:
(a) the deposit of money showed an intention to be
bound, therefore the advert was an offer;
Advertisements (b) it was possible to make an offer to the world at large,
in the form of a which is accepted by anyone who buys a smokeball;
(c) the offer of protection would cover the period of use;
unilateral offer and
(d) the buying and using of the smokeball amounted to
acceptance.
ITT No.3 - AUCTIONS

• In an auction, the auctioneer's call for bids is an

invitation to treat, a request for offers.
• Case Law - Payne v Cave (1789) –
• Facts - The defendant made the highest bid for the
plaintiff's goods at an auction sale, but he withdrew
his bid before the fall of the auctioneer's hammer.
• Held: The defendant was not bound to purchase the
goods. His bid amounted to an offer which he was
entitled to withdraw at any time before the
auctioneer signified acceptance by knocking down
the hammer.
 ITT No.4 - TENDERS

• Where goods are advertised for sale by tender,

the statement is not an offer, but an invitation to
treat.
• Competing parties make bids in the same terms
without the knowledge of each other’s bid.
• The party placing his/her bid makes the offer
(Tenderer) and this is either accepted or rejected
by the party placing the tender (Tenderee).
ITT No.5 – MERE REQUEST FOR INFORMATION/
PRELIMINARY ENQUIRY

• A statement of the minimum price at which a

party may be willing to sell during
preliminary negotiations will not amount to
an offer.
• Offer must be specific and unconditional.
• See: Harvey v Facey [1893] AC 552
• See Stevenson Jaques & Co v McLean
(1880) 5 QBD 345
 HARVEY v. FACEY (1893)
• Mere statement of price is not enough:
Defendant replied "Lowest price £900".
• Plaintiff then said, "we agree to buy at
£900 - send deeds."
• It was held that there was no contract.
• A mere statement of price is not enough to
constitute an offer.
• The statement of price was merely the
provision of information.
 OFFER MUST BE COMMUNICATED

(i) Instantaneous means of (ii) Postal Rule - use post as a

communication - mean of communication
telephone, facsimile,
telex, face to face
 TERMINATION OF OFFER
• Expiration or lapse of the offer

• Rejection by the offeree

• A counteroffer by the offeree

• A qualified or conditional acceptance by the offeree

• A valid revocation of the offer by the offeror

• By operation of law, either by death or incapacity of the offeror

 SECTION 6
• Revocation
TERMINATION
• Lapse of time
OF OFFER
UNDER • Failure to fulfill a condition
CONTRACTS
ACT 1950 • Death/ mental disorder

• Rejection/ Counteroffer
 1) Revocation – Section 6 (a)

1 2 3
Revocation means Payne v Cave (1789) An However, the revocation must
an offer is withdrawn offer can be revoked at be communicated effectively
by the offeror. any time before directly or indirectly to the
acceptance takes offeree before acceptance
place.
 2) Lapse Of Time – Section 6 (b)

▪ A proposal may lapse by the passage of

time.
▪ A proposal that is expressly stated to last
for a period of time cannot be accepted
after that time.
▪ If no time limit is stated in the proposal,
the proposal lapses after a reasonable
time.
 3) Failure of acceptor to fulfill condition precedent to
acceptance – Section 6(c)

• Proposal is revoked by the failure of the acceptor to fulfill a

condition precedent to acceptance.

• Example: You must pay deposit to the Offeror within 14 days from
the date of acceptance of offer by the Offeree.
 4) Death of a party or mental disorder
– Section 6 (d)

• A proposal is revoked by the death or

mental disorder.
• The death of either the offeror or the
offeree will cause such termination: the
right to accept an ordinary offer is not
transferable.
• The unaccepted offer of a deceased
person cannot be converted into a
contract binding upon his estate.
• Case - Dickinson v Dodds (1875)
 5) Rejection

1 2 3
An offer is terminated Hence, the offeree Case law :
when the offeree making a counter-offer Hyde v Wrench (1840)
communicates his and introduces a new Any counter-offer
rejection to the offeror. offer amounts to a cancels the original offer.
rejection of the
original offer.
(2) ACCEPTANCE
Elements of contract
 ACCEPTANCE
• Acceptance must be communicated to the proposer in order to make a contract valid.

• Section 4(1) of CA 1950 - The communication of proposal is complete when it comes

to the knowledge of the person to whom it is made (offeree).

• Case law - Entorres v Miles Far East [1955] 2 QB 327 - Lord Denning stated:

(i) that the offeree must communicate acceptance, or someone authorised by the
offeree.
(ii) If someone accepts on behalf of the offeree, without authorisation, this will not be
a valid acceptance.
 ACCEPTANCE
• Section 2(b) states: “When the person to whom the proposal is made
signifies his assent thereto, the proposal is said to be accepted: a
proposal, when accepted, becomes a promise..”

• Acceptance is a final and unqualified assent to the terms of the offer,

made in the manner specified or indicated by the offeror.
 ACCEPTANCE MUST BE ABSOLUTE

Section 7 - A proposal converts into a promise

when:-

• The acceptance is absolute and unqualified;

• Acceptance must be communicated to the offeror; and
• Must be expressed in some usual and reasonable manner.
 Essentials of a Valid Acceptance

Offer still in Given by the Absolute & In a prescribed

force Offeree Unconditional manner

Communication
Express or
Communicated to Given within -silence does
Implied or by
the Offeror reasonable time not constitute an
conduct
acceptance
COUNTEROFFER
• If in his reply to an offer, the offeree introduces
a new term or varies the terms of the offer,
then that reply cannot amount to an
acceptance.
• Instead, the reply is treated as a
"counteroffer", which the original offeror is free
to accept or reject.
• Case Law - Hyde v. Wrench (1840).
A counter-offer should be distinguished from a
mere request for further information.
 HYDE v. WRENCH (1840)
Facts:
W offered to sell his property to H for $1000 . H countered with
an offer to buy for $950. It was not acceptable to W. Then, H
wrote to him offering to buy at the earlier amount of $1000. W
did not reply & refused to transfer the land to H.

Decision :-
• W is not obligated to sell to H.
• Offer had been rejected by H’s counter offer.
• An offer once rejected cannot be accepted.
 COMMUNICATION
OF ACCEPTANCE

The acceptance must be

communicated…..
(i) Instantaneous;
(ii) Where an instantaneous
method of communication is
used, e.g. fax, it will take
effect when and where it is
received.
 POSTAL RULE
▪ Acceptance by post
✔ requested or
✔ appropriate and
✔ reasonable means of communication
▪ Acceptance is complete as soon as the letter
of acceptance is posted, even if the letter is
delayed, destroyed or lost in the post so that it
never reaches the offeror.
 EXCEPTIONS TO POSTAL RULE
• The postal rule will not apply:
✔ Where the letter of acceptance has not been
properly posted
✔ Where the letter is not properly addressed
✔ Where the express terms of the offer exclude
the postal rule
✔ Rule would not be applied where it would
produce a "manifest inconvenience or
absurdity".
• The offer may specify that acceptance must reach
the offeror in which case actual communication
will be required.
 TERMINATION OF ACCEPTANCE

Acceptance - Once an The Contracts Act 1950

offer has been accepted, a does not make reference
binding contract is made to this as this method of
and the offer ends. termination is obvious.
- END OF PART 1 -
Thank You
 TOPIC 2 - PART 2

SUBJECT – MEDIA LAW (MLL2013)

Elements of contract
• Offer
• Acceptance

(3) Intention to create legal relations

(4) Consideration

(5) Certainty of terms

(6) Capacity to contract

§ The parties to a contract must intend the agreement to be
legally binding.

§ The courts have classified agreements as being either:

(1) Social or domestic where it is presumed that the parties
do not intend to create legal relations; or
(2) Business or commercial where the parties do intend to
create legal relations.

§ In each case, the presumption is rebuttable.

§ It is presumed that the parties (husband & wife) did not intend to create
legal relations and that the agreement is non-binding.
§ Facts:
Defendant stationed in Ceylon. Wife alleged that he has promised her that
when she could not accompany him for his work then he would pay her ₤30
during the time they were apart. The parties living together when promise
made. She sued for breach of contract.
§ Held:
1) Ordinary domestic arrangement between wife and husband.
2) No intention to create contractual relationship.
§ Facts :
Agreement about disposition of property after marriage breakdown. The husband
left the wife and agreed to pay her an allowance out of which she would pay off
mortgage.
A document was signed to this effect. She would pay the mortgage until
completed. In consideration he would transfer title to her. He did not. He claimed
there was no intention and so, no contract.
§ Held:
They had a binding contract and intention was present.
 SIMPKINS V PAYS [1955] 1 WLR 975
Facts:
A Grandmother, granddaughter and a lodger entered into a weekly competition run by
the Sunday Empire News. The coupon was sent in the Grandmothers name each week
and all three made forecasts and they paid in turn. They had agreed that if any of them
won they would share the winnings between them. The grandmother received £250 in
prize money and refused to share it with the other two. The lodger brought the action
to claim one third of the prize money.
Held:
There was a binding contract despite the family connection as the lodger was also party
to the contract. This rebutted the presumption of no intention to create legal relations.
 BUSINESS & COMMERCIAL AGREEMENTS
§ It is presumed that the parties had contractual intention and that the
agreement is legally binding unless Defendant can rebut the presumption.
§ Case: Edwards v Skyways Ltd [1964] QB
Facts:
E was an employee of S. S adopted a redundancy scheme in which it promised
an ex gratia payment equivalent to the company’s contribution. E accepted the
redundancy but S refused to make the ex gratia payment arguing that an ex
gratia payment is one made without obligation to do so.
§ Held:
(1) Commercial agreement & presumption applied.
(2) Defendant did not have any evidence to rebut it.
§ Definition of consideration:(Section 2(d) of the Contracts Act 1950)
“When at the desire of the promisor, the promisee or any other person has done
or abstained from doing, or does or abstains from doing, or promises to do or to
abstain from doing, something, such act or abstinence or promise is called a
consideration for the promise”.
§ Section 26 provides that “an agreement made without consideration is void”.
§ Consideration - is an essential element to make a contract and must be provided
for a contract to be legally binding. Consideration must move from the promisee.
§ Case law - University Malaya v Lee Ming Chong (1986) 2 MLJ 148
 UNIVERSITY MALAYA v LEE MING CHONG (1986) 2 MLJ 148

Facts:
§ Lee was given a scholarship to study in Canada on one condition that he must
work for the University for 2.5 years.
§ Upon Lee’s return, he left the University and argued that he had not provided
consideration and hence there is no contract between Lee and UM.
§ Held by Federal Court:
(i) There was consideration as UM paid the fees.
(ii) Even if there was no consideration, the agreement is still valid as Section 4(c)
Contracts (Amendment) Act 1976 provides that a scholarship agreement is
not void by absence of consideration.
 DOCTRINE OF CONSIDERATION

The doctrine of consideration requires that:-

1) There must be an exchange between the parties, involving either a

promise for promise, or promise for performance.

2) Promise/performance must have value.

3) Consideration may move from a third party (Refer to Section 2(d).

 § Case – Venkata Chinnaya v. Verikatara Maya
(1881)
Consideration (A piece of land) came from the mother for
the sister to take care of her brother – valid contract and
she is liable.
§ Case - Guthrie Waugh Bhd vs. Malaippan
CASES Muthucumaru (1972)
ON Held – (i) Deed without consideration;
CONSIDERATION (ii) Defendant undertaken a moral obligation.

§ Case – Wong Hon Leong David vs. Noorazman

bin Adnan
Held – (i) Exchange of mutual promises although executory
consideration – good consideration
(ii) Binding consideration – valid contract
 TYPES OF CONSIDERATION……
Executory Consideration:
Where there is an exchange of promises to perform acts in the future
(promise to promise)
Executed Consideration:
If one party makes a promise in exchange for an act by the other party, when
that act is completed, it is executed consideration (promise to act)
Past Consideration:
Where an action is performed before the promise was made. The action is
made or given not in the response to the promise. The promise is subsequent
to the act and independent of it.
 1) EXECUTORY CONSIDERATION

§ This type of consideration is formed by an exchange of promises by the

parties and most commonly found in a bilateral contract.

§ Example - A bilateral contract for the supply of goods whereby A promises

to deliver goods to B at a future date and B promises to pay on delivery. If A
does not deliver them, this is a breach of contract and B can sue. If A
delivers the goods, his consideration then becomes completed/executed.
Facts:

• Nestle ran a sales promotion whereby if persons sent in 3 chocolate bar wrappers
and a postal order for 1 shilling 6d, they would be sent a record.
• Chapell owned the copyright in one of the records offered and disputed the right of
Nestle to offer the records and sought an injunction to prevent the sales of the
records which normally retailed at 6 shillings 8d.
• Under Section 8 of the Copyright Act 1956 retailers were protected from breach of
copyright if they gave notice to the copyright holders of the ordinary retail selling
price and paid them 6.25% of this.
• Nestle gave notice stating the ordinary selling price was the 1 shilling 6d and three
chocolate bar wrappers.
 CHAPELL vs. NESTLE LTD……………………cont’d
Issue:
• The question for the court was whether the chocolate bar wrappers formed part of
the consideration. If they did, it was impossible to ascertain the value they
represented and therefore Nestle would not have complied with their obligation to
give notice of the ordinary retail selling price.
• If the wrappers were a mere token or condition of sale rather than constituting
consideration, then the notice would be valid and Nestle could sell the records.

Held:
The wrappers did form part of the consideration as the object was to increase sales
and therefore provided value.
The fact that the wrappers were simply to be thrown away did not detract from this.
Therefore Chapell were granted the injunction and Nestle could not sell the records as
they had not complied with the notice requirements under Section 8.
 (2) EXECUTED CONSIDERATION

§ This type of consideration is found in unilateral

contracts, where one party makes a promise in
exchange for an act by the other party.

§ Example: A offers RM50 reward for the return of

her lost handbag. If B finds the bag and returns it,
B's consideration is executed. A is legally bound to
give the reward of RM50.
 (3) PAST CONSIDERATION

§ Meaning - Perform the act first and then promise follow.

§ Position in U.K – at common law, not a good consideration unless there is a
request. Case - Re McArdle [1951]
§ Position in Malaysia - good consideration under Section 26(d) & 26(b);
both voluntary & request. Case - Kepong Prospecting Ltd & Ors v Schmidt
(1968)
§ Exception To English law - Lampleigh v Braithwait (1615) – Held that at the
request of a promisor, a promise made subsequent to the doing of the act
is binding – because the act constituted consideration.
 RULES OF CONSIDERATION
Under Malaysian Law, the rules of consideration are as follows:-
1. Consideration need not be adequate but must be sufficient.
§ Need not be of market value but of some value;
§ Case law – Phang Swee Kim v Beh I Hock (1964)
2. Past consideration is a valid consideration.
§ Section 2(d) of Contract Act 1950
§ Case law – Kepong Prospecting Ltd & Ors v Schmidt (1968)
 RULES OF CONSIDERATION…..cont’d
3. Consideration need not move from the promisee.
§ Promisee or any third party may provide the consideration.
4. Part payment of debt – may discharge an obligation.
5. Natural love and Affection
§ Refer to Section 26 (a) of the Contracts Act 1950
ü Must be in writing
ü Must be registered
ü The parties stand in near relation to each other.
KEPONG PROSPECTING LTD & ORS v. SCHMIDT
(1968)
Facts:
§ A contract between the company and Schmidt whereby the company will
pay 1% of the value of the oil ore sold from the mining land.
§ The clause stated that “… in consideration of the services given by S for or
on behalf of the company before its formation, after incorporation and
future services”. However, the Company failed to pay to S. and S claimed
for that.
Held :
The service given by S before the promise was made is considered as a valid
consideration even though the services were already past/ done.
• Under English Law – payment of a smaller sum is not a satisfaction of an
obligation to pay a large sum. (Case – Pinnel’s case [1602].
• Section 64 of the CA 1950 allows for the above situation whereby the
promisee may dispense with or remit the performance of promise.
• Case – Kerpa Singh v. Bariam Singh (1966)
Held- As the creditor has accepted the tender by cashing the cheque and
retaining the money, he must be taken to have agreed to discharge
the debtor from further liability.
 5. CERTAINTY OF TERMS
§ Terms must be clear & certain.
§ Court will not enforce incomplete agreements/ uncertain terms.
§ To determine the essential terms of the agreement:
- Trade customs.
- Usage - previous dealings between the parties.
§ Both parties must have a clear understanding of their rights and duties in the
transaction for there to be consensus.
§ Case law - Karuppan Chetty v. Suan Thian (1916)
Held:– (i) The Agreement between the parties was not enforceable due to
uncertainty; (ii) The granting of a lease at RM35 per month “for as
long as he likes” is uncertain.
 6. CAPACITY TO CONTRACT
SECTION 10
§ In order to enter into legally binding
contract, parties to the contract
must have the full capacity to do so.
§ He must be competent or capable
person.
§ If lack of capacity, the contract may
be invalid or void.
SECTION 11
§ Age of majority – not underaged
person. Natural & Legal persons -
: properly registered companies.
§ Sound mind – mentally
d i s o rd e re d o r i n ca p a c i tate d
through sickness, alcohol or other
drugs.
§ Not prevented or prohibited by
law to enter the contract – e.g.
bankruptcy.
WHAT IS THE AGE OF MAJORITY?

Malaysia:

The age of majority is 18 years old as stated in

Section 2 of the Age of Majority Act 1971.
 CONTRACT BY MINOR
General principles:

§ The contract with a minor (below the age of 18 years old is

generally void.

§ The minor cannot be sued under a void contract.

 (1) CONTRACT BETWEEN MINOR & ADULT
Consequences:
• An adult cannot enforce the contract.
• The adult cannot recover property that he had transferred to the minor.
Case - Mohori Bibee v Dharmodas Ghose (1903)
Facts:
A lent the infant (R) the sum of 20,000 rupees at 12% interest and secured the
loan by way of mortgage executed by the infant in favour of A. Later the
mother of the children claim that the mortgage was void for lack of capacity.
Held:
§ The contract was void and so as to the mortgage.
§ A cannot recover the money from the infant.
 2) TRANSFER OF PROPERTY BY A MINOR
§ A minor who had transferred his property on receipt of the purchase money, may get
the contract declared void.
§ At the same time, the minor have the advantage of not returning the monies
received from the adult.
Case - Tan Hee Juan v Teh Boon Keat [1934]
Facts:
P (an infant) executed transfer of land in favour of the D. The transfer were witnessed and
subsequently registered. Subsequently, P by his representatives, applied to the court for an
order setting aside the transfer.
Held:
The transactions were void and ordered restoration of the land to the minor and the minor
does not need to return the money received to the adult.
 (3) PURCHASE OF PROPERTY BY A MINOR
§ A minor who paid the money to an adult, can recover the money upon returning
the property transferred to him.
§ Case - Leha Jusoh v Awang Johari [1978]
Facts:
M (minor) had entered into an agreement to purchase of land belonging to an
estate of which A was the administrator.
Held:
A is ordered by the Court to refund the purchase price to M upon M vacating the
land occupied by M and his mother.
 MISREPRESENTATION OF AGE BY MINOR
§ Where a minor has misrepresented his age and thereby induced a person to
contract with him. In a situation where a minor purposely misrepresent the
other party about his capacity, his action does not make the contract to be
valid.
§ Under Malaysian law, the person cannot sue the minor on the contract. The
minor can plea minority to avoid the contract.
§ Case: Natesan v Thanaletchumi & Anor (1952) MLJ 1
Facts - D is a minor. He contracted with P after making false statement about
his age. When sued, he use of lack of capacity as reason. P claimed that D
may no longer use the reason because D made false statement of his age.
Held: Misrepresentation does not obstruct the minor to use lack of capacity
as defence.
 EXCEPTIONS – SECTION 11 OF CA 1950
Exceptions whereby a minor can enter into valid contract & be
liable on that contracts:-
1) Contract for necessaries;
2) Contract of scholarship;
3) Insurance contract;
4) Contract of marriage; and
5) Apprenticeship contract.
 1. CONTRACT FOR NECESSARIES

§ Minor is liable on contracts for necessaries.

§ What is necessaries???
Examples - Food, shelter, clothing, medical
services and even education. However, luxurious
articles are excluded.
§ Whether the minor is in need of such goods or
services or the goods suitable to the condition in
life of such infants and to his actual requirements
at the date of the sale.
CONTRACT FOR NECESSARIES....................cont’d
§ Refer to Section 69 of the CA 1950:
“if a person, incapable of entering into a contract, or anyone whom he is legally
bound to support, is supplied by another person with necessaries suited to his
condition in life, the person who has furnished such supplies is entitled to be
reimbursed from the property of such incapable person.”
§ The supplier of necessaries may claim a price from the minor only if he has the
property to do so.
§ Case law – Nash vs. Inman (1908)
- A tailor sued a minor to whom he had supplied clothes including fancy
waistcoats.
- Held: that although the clothes were suitable according to the minor’s life,
they were not necessary as he already had sufficient clothing.
 SCARBOROUGH V. STURZAKER
(1905) 1 TAS LR 117
Facts:
The defendant, a minor bought a new bicycle and
traded his old bike as part payment. Then, he
refused to honour the contract.

Held:
• Contract by a minor to buy a bicycle was valid
and the minor is liable to pay.
• The bicycle was a necessity to enable the minor
to travel to work each day.
2. CONTRACTS OF SCHOLARSHIP
• A scholarship agreement entered into by an infant is
valid e.g. loan, sponsorship for the purpose of learning
by government or educational institution.

• No scholarship agreement shall be invalidated on the

ground that the scholar entering into such agreement is
below than 18 years old.

• Case- Government of Malaysia v. Gurcharan Singh

(1971] 1 MLJ 211
Facts:
Gurcharan received a scholarship from government to attend
trainings, as a teacher and he is to serve with the Government for 5
years upon graduation.
Unfortunately, Gurcharan left before the full term. When sued, he
claims that the contract is void. He was lack of capacity during the
time.
Held - The court held that education is a necessity to a minor. Thus,
Gurcharan was in breach of contract.
§ New amendments were added to the Contracts Act through the Contracts
(Amendment) Act 1976 (Act A329) whereby Section 4 provides that:
“Notwithstanding anything to the contrary contained in the principal Act,
no scholarship agreement shall be invalidated on the ground that-
(a)the scholar entering into such agreement is not of the age of majority...”

§ Section 5 sets out the exact amount that the student would be liable for
in the event they breach the contract.
 3. INSURANCE CONTRACT
§ Under Financial Services Act 2013, a 10 years old child
may enter into a contract of insurance.

§ But, if he/she is below sixteen, the infant can only do so

with the written consent of his parents or guardian.

§ It is because it is in a minor’s best interest to insure

himself or his property.
§ Section 4(a) of the Age of Majority Act 1971 provides that a
minors ability to enter into a marriage, divorce, dower and
adoption is not affected.
§ Nevertheless, a person below the age of 21 though of majority
age need to still get the consent of his/her father in a written
form before the marriage.
§ Case law: Rajeswary v Balakrishnan (Marriage)
Facts - D is a Hindu. He broke a promise to marry P, also a
Hindu. When P claim damages for breach of contract,
court granted the claims although P is a minor.
Held: D broke contract of marriage which is made under
normal practice of their customs.
 5. APPRENTICESHIP CONTRACT
§ A minor is bound by a contract of apprenticeship or employment as long as it is in
the whole, for his benefit.

§ Case: Doyle v White City Stadium - A minor agreed to undergo a training to be a

boxer. So he was bound by the terms of this agreement with the stadium.

§ Section 13 Children and Young Persons (Employment) Act 1966 - any child or
young person is competent to enter into a contract of service. Under the Act, a
“child” is a person who is under the age of 15 and a “young person” is a person
who is 15 or older, but below the age of 18 years.
 CHILDREN AND YOUNG PERSONS (EMPLOYMENT) ACT 1966
§ The Act allows for children and young person to be employed, but in limited
capacities. For example, children can be employed for light work.
§ Can also be employed in any public entertainment in accordance with the terms
and conditions of the license granted, or to be employed as an apprentice under a
written apprenticeship contract approved by the Director General.
§ May also be employed in any office, shop (including hotels, restaurants and stalls),
go down, factory, workshop, store, boarding house, theatre, cinema or association.
§ However, there are limitations as to the number of days of work and hours of
work for children and young persons.
§ In line International Labour Organisation (ILO) in ensuring that children’s labour
rights are protected and a higher accountability by the employer for their
employees who are children or young persons.
 THE END
LAW OF CONTRACT – PART 2
INTELLECTUAL PROPERTY
AN OVERVIEW
TOPIC 3 (PART 1)

1
Table of Content…………………….

• Concept of IP
• Definitions of IP and IP Rights (IPR)
• Types of IP

2
 WHAT IS INTELLECTUAL PROPERTY (IP)?
• IP is a property that arises from the human intellect. It is
a product of human creation.
• Refers to creations of the mind such as inventions,
literary and artistic works, and symbols, names, images,
and designs used in commerce.
• Difference with other forms of property – IP is an
intangible property, i.e., cannot be identified or defined
by its own physical parameters.
• Example: Purchasing a book (tangible property) but the
right to copyright belongs to the author (intangible
property).

• Source- http://www.wipo.int/about-ip/en/index.html
3
IP AS A PROPERTY

• Can be sold
• Can be bought
• Can be lease or rent
• Can pass under a will
• Can be assigned

4
WHAT ARE INTELLECTUAL PROPERTY RIGHTS (IPR)?
• A right held by a person/by a company to have exclusive
rights to use its own plans, ideas, or other intangible assets
without the worry of competition, at least for a specific
period of time.
• Examples - Copyrights, patents, trademarks, and trade
secrets and these rights can be enforced by a court via a
lawsuit.
• Purpose for intellectual property - to encourage innovation
without the fear that a competitor will steal the idea and/or
take the credit for it.
• IPR - similar to other property rights.
• IPR allows the creator or owner of patents, trademarks or
copyrighted works to benefit from their own work or
investment in a creation.
5
 ROLE OF IP AS INTANGIBLE PROPERTY

• Economic rights of creators

• Commercial exploitation of
owner of IP
• Capital expenditure
• Transfer of technology
• Cultural development

6
 Intellectual Property

✓ Patents
✓ Copyright ✓ Trademarks
✓ Industrial designs
✓ Geographical
indications
7
 PATENT

TRADEMARK

INDUSTRIAL DESIGN
INDUSTRIAL GEOGRAPHICAL INDICATION
PROPERTY
TRADE SECRETS

CONFIDENTIAL INFORMATION

LAYOUT DESIGN OF INTEGRATED CIRCUITS

8
 IPR LEGISLATION
• Patent Act 1983
• Trade Marks Act 1976
• Copyright Act 1987
• Industrial Designs Act 1996
• Geographical Indications Act 2000
• Layout Designs of Integrated
Circuit Act 2000

9
 (1) PATENT
• Invention for a product or process that provides a new
way of doing something or offers a new technical
solution to a problem.
• An idea of an inventor which permits in practice the
solution to a specific problem in the field of
technology.
• Patent is granted to an invention :-
✓ New/ Novel
✓ Involves an inventive step
✓ Industrially applicable
• In Malaysia, patents are governed under Patent Act
1983.
• Duration: 20 years from the filing date of the
application.

10
 VRINGO INFRASTRUCTURE INC. V ZTE MALAYSIA
CORPORATION SDN. BHD. (2014)

Facts:
• Plaintiff sued the Defendant on the patent which relates to the
handover between different networks initiated by a mobile device.
• Vringo has settled the patent dispute with ZTE whereby ZTE will
make a $21.5M lump sum payment within 15 days of the
settlement, and also be "responsible for the payment of any
withholding, value added or other taxes.“
• ZTE will get a non-exclusive, perpetual, license to "certain" Vringo
patents and patent applications.

11
 (2) TRADEMARK
▪ A trademark is a sign capable of distinguishing the
goods or services of one enterprise from those of
other enterprises.
▪ A trademark helps consumers to identify and choose
between products/services based on their reputation
and quality.
▪ Examples - Coca-Cola registered since 1887 & Nike
registered since 1971.
▪ Trademark Act 1976 – provides exclusive rights &
legal evidence to the owner to use their markings in
trading & trademark ownership via registration.
▪ Trademark registration is valid for 10 years from the
date of application and may be renewed every 10
years.
12
McCurry Restaurant (KL) Sdn. Bhd. v McDonald’s Corporation
[2009] 3 MLJ 774
Facts:
• The plaintiff, McDonald's Corporation, is a renown international fast-food chain.
The defendant sold Indian food and other Malaysian cuisine under the name and
style of "McCurry Restaurant" or "Restoran McCurry".
• McDonald sought an injunction to restrain the defendant from using the pre-fix
"Mc", claiming that the defendant had passed off the plaintiff's business as its own.
• COA found no evidence to suggest the appellant, McCurry Restaurant, had passed
off its business as that of McDonald’s based on the above:-
1) Difference in signage
2) Defendant’s food does not have the prefix “Mc”
3) Difference in customer profile adults and senior vs. children and teenagers
4) Difference in types of food western v Indian food
13
 30 MAPLE SDN. BHD. V SITI SAFIYYAH MOHD
FIRDAUS CHEW (2019) 1 LNS 404
Held by the Intellectual Property High Court:
• The Defendant was found to have infringed the Plaintiff’s
registered trade marks for selling counterfeit dUCk products
on her social media accounts such as Instagram, Instagram
Stories, Facebook, etc.
• In addition, the social media postings amount to advertising
circulars or other advertisement representing as having the
right either as the registered proprietor or user to use the
trade mark.
• Therefore, the Defendant was in breach of s. 38(1)(b) of the
Trade Marks Act 1976 (repealed and replaced by the
Trademarks Act 2019) which prohibits the use of a registered
trade mark on goods or in physical relation thereto or in an
advertising circular, or other advertisement. 14
 TELEKOM MALAYSIA BERHAD & ANOR v. CA MULTIMEDIA
SDN. BHD. (2019) MLJU 1664

Held by the Intellectual Property High Court:

• Certain Defendants had infringed and passed off the
trademark TMPOINT for using the domain name
tmpoint.com and the mark TMPOINT on their
website.
• The Defendants have attempted to differentiate
between website and domain name.
• Though they may be technically different in
function, the Court found that they operate in
unison and hence, ought to be treated as one for
purposes of trademark infringement.

15
THE END
PART 1

16
COPYRIGHT

Topic 3 - Part 2
 What is Copyright ?

“The exclusive right given by law for a certain term

of years to an author, composer etc. (or his
assignee) to print, publish and sell copies of his
original work”

(Oxford English Dictionary)

 COPYRIGHT

Protects Promote &

Educates creators encourage arts
& science
 What is Copyright ?
▪ Applies to the expression of an idea, not the idea itself.
It is the medium in which the thought/idea was
expressed.
▪ Copyright belongs to the person who gives form to the
WHAT IS idea – author/creator.
COPYRIGHT?.......CONT’D
▪ Copyright covers both published and unpublished
works.
▪ Protection of copyright is automatic the moment the
work is created and fixed in a tangible form that it is
perceptible.
 What is Copyright ?............cont’d
 A form of protection given to authors/creators of
original works of literary and artistic works.

 The word “Original” does not in this connection mean

WHAT IS
that the work must be an expression of original or
COPYRIGHT?.......CONT’D
inventive thought.

 Like other tangible property, this IPR can be sold or

transferred to others.
 COPYRIGHT LAWS IN MALAYSIA
▪ Source - Copyright Act 1987 (CA 1987) which came in force on 1 December 1987
▪ Malaysia became a signatory to the WIPO Berne Convention for the Protection of
Literary and Artistic Works 1971 (Berne Convention) in 1990.
 Section 7 (2A) – Copyright protection shall not extend to any idea, procedure,
WHAT ISmethod of operation or mathematical concept.
COPYRIGHT?.......CONT’D
▪ Case - Goodyear Tyre & Rubber Company & Anor v Silverstone Tyre and
Rubber Co Sdn Bhd 1 CLJ 509 - held by the High Court:
“that copyright laws were not concerned with the reproduction of ideas (however
original). They are concerned with reproduction of the forms in which the ideas are
expressed, and in this case the function of the tyre, as opposed to its artistic value,
is not protected.”
 DURATION OF COPYRIGHT

▪ Literary, Musical or Artistic Works = reflects to the human being which

shall subsist during the life of the author + 50 years after his death.

▪ Film, Sound Recordings and Performer = shall subsist for 50 years from
the work was published, fixed in a fixation for the film and sound recording.
For performer, the copyright work shall subsist from the performances was
perform or fixation in a sound recording.

▪ Broadcasts = protection occurred in way of transmission either by wire or

wireless means, the period for fifty years shall be computed from the which
the broadcasts was first made.
Types of work protected by CA 1987
▪ SECTION 7(1):

……the following works shall be eligible for copyright:

(a) literary works;
(b) musical works;
(c) artistic works;
(d) films;
(e) sound recordings; and
(f) broadcasts.
 SECTION 7(2):

Works will be protected irrespective

of:
Types of
✓ Quality; or
work
protected by ✓ The purpose of creation.
the Act
 ▪ Section 3 of CA 1987 – a non-exhaustive list.
▪ Not confined to a work of literature.
(a) ▪ Must be in material form that can be perceived
LITERARY by the senses and involves some form of writing.
WORKS ▪ Examples:
✓ Exam papers
✓ Advertisements
✓ Company's prospectus
✓ Dramatic works
✓ Tables & compilations
✓ Computer programs
✓ Lectures
 Mohd Ramly Ismail v. Sarimah Film Production
Sdn.Bhd. & Anor [1984] 2 CLJ 247

▪ Mohd Dzaiddin J decided that the Plaintiff’s work was based on a substantial
amount of labour, skill and creativity.

▪ Issue - What is the amount of sufficient effort needed?

▪ The skill, labour and judgment invested in the making of the work must be
significant.
 ❖ Section 3 – defined as any musical work.
❖ A musical composition consists of music,
(b) including any accompanying words, and is
MUSICAL normally registered as a work of performing
arts.
WORKS
❖ The author of a musical composition is
generally the composer and the lyricist, if
any.
❖ Include works composed for musical
accompaniment and the lyrics of songs and
music.
 ▪ Section 7(2) of the CA 1987 – covers works which are
artistic in nature though not of any artistic quality.
(c) ▪ Section 10 of the CA 1987 – artistic craftsmanship &
artistic works.
ARTISTIC ▪ Artistic craftsmanship covers artistry as well as
WORKS craftsmanship and it must originates from the same
person.
▪ Examples:
✓ Drawings
✓ Maps
✓ Plans
✓ Charts and the like
✓ Photographs
✓ Sculpture, etc.
(d) Films

(e) Sound productions

(f) Broadcast
 Before an author can claim ownership and therefore
protection under the Act, he/she must show 2
elements:-
(1) Originality:
In order for a material to be protected under
copyright, it must be “an original work of
ELEMENTS authorship”.
OF (2) Fixation:
COPYRIGHT Tangible medium i.e. It must be reduced to a
fixed form. Sufficiently permanent or stable
medium to permit the copyrightable material to
be perceived.
Example: A poem that is not recorded or a lecture
that is not taped cannot be protected under the law.
 (1) ORIGINALITY

What is original?
▪ Independently created
▪ Not copied or duplicated
▪ Sufficient skill and effort
▪ Creative
 Facts:
▪ The case dealt with examination papers which were written
for the University of London (UL) back in 1915. Under the
UL's senate's decision all examination papers created by
University of appointed examiners would belong to UL and UL reserved
all rights to reproduce those exams without any extra
London compensation to the examiners who had written them.
Press Ltd v. ▪ Subsequently examiners were appointed for the exam
period held in September of that year, among which were
University Mr. Jackson and Professor Lodge who were in charge of
Tutorial creating the exam papers for mathematics.
▪ After the exam papers had been created, UL entered into a
Press Ltd contract with University of London Press (ULP), assigning it
(1916) the copyrights and rights of publication to any specific
exams for a fixed period of 6 years. ULP were then issued
the rights to publish the exams written in the previous year,
which were then published by ULP in early 1916.
 ▪ In the same month, UTP published exam from the
previous year as well, containing 16 out of 42
exams from January 1916, which were attained
from students rather than the published copies
made by ULP.
University ▪ Among the 16 exams were three which were
of London written by Mr. Jackson and Professor Lodge.
Along with the published exams. ULP also
Press Ltd’s published the answers to some of the questions in
those exams, including some critique of those
case particular questions as well.
▪ Subsequently ULP sued UTP for copyright
infringement over the published exams.

Held: UTP was in breach of copyright.

  Petersen J said ‘The word ‘original’ does not in this connection
University of mean that the work must be the expression of original or inventive
thought. Copyright Acts are not concerned with the originality of
London Press ideas, but with the expression of thought, and, in the case of
‘literary work,’ with the expression of thought in print or writing.
case The originality which is required relates to the expression of the
thought. But the Act does not require that the expression must be
(continued) in an original or novel form, but that the work must not be copied
from another work – that it should originate from the author.
(1) Hardial Singh Hari Singh v. Daim Zainudin [1991] 2 CLJ 701

Facts:
The plaintiff claimed that he was the author and owner of the reproduced current "Custom
Duties Order" and that the defendant had infringed his copyright in his work. The said
"Customs Duties Order" was basically a reproduction by the plaintiff of all the information
contained in the various Customs Orders published from time to time.

Held:
▪ The plaintiff had no cause of action on the question of copyright infringement.
▪ In order to maintain an action for copyright infringement, the plaintiff had to show that the
"Customs Duties Order" was original in character.
▪ Since the work was copied wholesale from all the relevant official publications, it could not
be regarded as original in character and hence, no copyright could attach to it.
LADBROKE (FOOTBALL) LTD v. WILLIAM HILL (FOOTBALL) LTD
(1964)
Facts: The plaintiff alleged copying of their football pools coupons and copyright
infringement.
Issues:
(1) To what extent of copying required to establish infringement?
(2) Whether it was proper to look at the several parts of the work separately?

Held:
▪ The question of substantiality is a matter of quality rather than quantity.
▪ There must be a sufficient resemblance between the copyright work and the alleged
infringement, but there is no copyright in a mere idea.
▪ The subsistence of copyright involves an assessment of the whole work in which
copyright is claimed.
▪ It is wrong to make that assessment by dissecting the whole into separate parts and
then submitting that there is no copyright in the parts.
 (2) FIXATION – REDUCED IN MATERIAL FORM

Section 7(3) - A literary, musical or artistic work shall not be eligible for
copyright unless:
(a) sufficient effort has been expended to make the work original in character;
AND
(b) the work has been written down, recorded or otherwise reduced to
material form.

Example: Written down on paper or something else:

▪ recorded by keystrokes saved on a computer
▪ recorded on film
▪ recorded on tape
▪ recorded as software code saved on a computer
▪ recorded digitally onto a device
 WHAT IS “MATERIAL FORM”?

▪ Section 3 - including any form (visible or not) of storage from

which the work or derivative work or a substantial part of the work
or derivative work can be reproduced.

▪ Meaning of “Material Form”:

(1) Tangible
(2) Written down
(3) Recorded
WHAT IS “MATERIAL FORM”?...................cont’d

Case law - Computer Edge Pty Lid vs Apple Computer Inc. (1986) 161
CLR 171 (High Court Australia)

Facts: Apple Computer Inc. (Apple) sought an injunction against Computer Edge
Pty Ltd from importing and selling ‘Wombat’ microcomputers on the basis
that they violated their copyright on Apple operating system programs,
specifically, ‘Applesoft’ and ‘Autostart’. The case was first brought to the
Federal Court of Australia in 1983 where it was decided by Justice
Beaumont that the programs involved were not covered by the Copyright
Act 1968 as they did not fall under the category of ‘literary works.

Held: That Object codes in the silicon chips were not literary works because they
are not in material form which could be perceived by the senses.
 WEBSITES BLOGS EMAILS

Copyrightable
online
materials

VIDEOS SOUNDS/
GRAPHICS/
MUSIC
PHOTOS
 VOLUNTARY NOTIFICATION OF
COPYRIGHT IN MALAYSIA
 Countries with a system for voluntary registration
of copyright – USA, China & UK.
 In 2012, Malaysia passed the Copyright
(Amendment) Act, 2012 (the Act) and the new
Copyright (Voluntary Notification) Regulations
2012.
 Voluntary notification system allows an individual
to make a voluntary notification of copyright
informing the public of the rights and ownership of
such individual towards his or her copyright.
  The voluntary notification of copyright
may be made by a citizen or
permanent resident of Malaysia:
1) who is the author, owner, assignee
or licensee of an interest in the
Persons copyright;
2) who acts on behalf of the author,
eligible to file owner, assignee or licensee of an
the voluntary interest in the copyright.
notification of  A non-citizen or non-permanent
resident of Malaysia is required to
copyright appoint a representative who is a
Malaysian citizen or a permanent
resident of Malaysia to file the
voluntary notification of copyright on
his or her behalf.
 PROCEDURE FOR VOLUNTARY NOTIFICATION OF
COPYRIGHT

A voluntary notification of copyright must be made by submitting the following

to the Controller of Copyright:

(a) the relevant form(s) - Form CR-1 (Original Work) or Form CR-2
(Derivative Work)
(b) Statutory Declaration
(c) A clear and durable copy of the work
(d) Prescribed Fee
INFRINGEMENT
&
REMEDIES
OF
COPYRIGHT
 WHAT IS COPYRIGHT PROTECTION?
▪ Copyright laws provide protection to authors of “original
works” against unauthorized use, duplication, reproduction,
alteration, transmission, distribution and passing off as
another’s original work.

▪ If copyright is infringed, the copyright law provides for legal

remedies and restitution against the copyright infringer or
offender.

▪ Example: The unauthorized manufacture, sale, or distribution

of an item protected by a copyright, patent, or trademark
constitutes an infringement
 COPYRIGHT INFRINGEMENT
▪ Section 32 (1):
Copyright is infringed by any person who does, or causes any other person to
do, without the licence of the owner of the copyright, an act the doing of
which is controlled by copyright under this Act.
▪ Section 36 (2): The infringing acts are:
(a) selling, letting for hire, or by way of trade, offering or exposing for sale or
hire, the article;
(b) distributing the article — (i) for the purpose of trade; or (ii) for any other
purpose to an extent that it will affect prejudicially the owner of the copyright;
(c) by way of trade, exhibiting the article in public, where he knows or ought
reasonably to know that the making of the article was carried out without the
consent or licence of the owner of the copyright
 CASE:
UPIN & IPIN CASE (2011)
Facts:
▪ A wholesaler's director Yap Kien Sing was charged in the
Sessions Courts for owning the T-shirts without seeking
permission with owner Les' Copaque Production Sdn Bhd.
▪ An enforcement team from the Domestic Trade, Co-operatives and
Consumerism Ministry raided the alleged premises with a search
warrant.
▪ However, Yap failed to open the grille and left the place leaving
police officers to intervene to unlock the grille and to be allowed
into the premise.

Held :
Fook Tai Sdn Bhd was fined with RM300, 000 for being in possession
of 150 T-shirts for sale imprinted with local cartoon characters "Upin &
Ipin" without permission from its original copyright owner.
 INFRINGEMENT OF COPYRIGHT

▪ The acts of infringement are actionable by the

copyright owner by way of civil suit in the High
Court.

▪ The relief that may be granted includes damages,

i.e. financial compensation, an account of
profits, and an injunction to restrain the
infringing acts.
 The law provides certain ways in which
copyright works may be used without the need
to first obtain permission from the copyright
holder:
DEFENCE 1. Fair use (e.g. to make copies)
TO 2. Public domain
INFRINGEMENT 3. Library privilege
OF COPYRIGHT
4. Copying for examinations and copying for `
instruction
 WHAT IS FAIR USE?

▪ In essence, fair use is a limitation to the

exclusive rights of the copyright owner.
▪ A check and balance on the power of
copyright
▪ Rights conveyed to copyright owners are not
absolute.
▪ The copyrightable rights are only guaranteed
for a specific period.
▪ Under Malaysian Copyright Act, 1987, refer
to Section 13(2), Section 9(4) & (6) and
Section 15(2).
 Purpose and character of use;

Nature of Copyrighted Work;

FACTORS
FOR
DETERMINING Amount and substantiality of portion used in
FAIR USE relation to the work as a whole;

Effects of use upon potential markets for or

value of the copyrighted work.
 SECTION 13(2) – DEFENCE OF FAIR DEALING
▪ Private study, non-profit research,
criticism, review and reporting of
current events;
▪ Doing the above acts by way of
parody, pastiche or caricature;
▪ Use of a work for the purposes of
examination questions;
▪ Reading or recitation in public of
any reasonable extract from a
published work accompanied by
sufficient acknowledgment.
▪ Use of any work under the direction
of governmental bodies where such
use is in the public interest and no
profit is derived from it.
▪ Performance of a work by a non-profit
institution for charitable or educational
purposes, where no admission fee is
charged
▪ Any use of a work for the purposes of any
judicial proceedings, the proceedings of a
royal commission, a legislative body,
statutory or Governmental inquiry, or of
any report of any such proceedings, or for
the purpose of the giving of professional
advice by a legal practitioner
▪ Making of quotations from a published
work if they are compatible with fair
practice and their extent does not exceed
that justified by the purpose.
 CIVIL AND CRIMINAL REMEDIES
Remedies available for copyright holders/owners due to infringement of their
copyright works are:
▪ Civil Remedies (Section 37 of the Copyright Act 1987):
✓ By way of damages
✓ Injunctions (Anton Piller Order/Mareva Injunction)
✓ Account of profits
✓ Additional damages (in certain cases) (Section 37(2)

▪ Criminal Remedies (Section 41 of the Copyright Act 1987)

THANK
YOU!
SPEECH LAW

Topic 4 Part 1
QUOTE ON FREEDOM OF SPEECH
FREEDOM OF EXPRESSION
WHAT IS FREEDOM OF SPEECH?
▪ “Freedom of speech” is:-
✔ the right to express information & ideas
✔ the right to seek information & ideas
✔ the right to receive information & ideas
✔ the right to impart information & ideas

▪ It also includes:
✔ the right NOT to speak

4
 WHY FREEDOM OF EXPRESSION?
• Seeking the truth and useful information, e.g.,
buyers
• Contributes to a democratic society e.g.,
decision making
• Check on government powers/abuse –
media/press
• Allows orderly change – critics to be heard in
meetings/internet
• Contributes to human fulfillment – freedom to
write & speak
RIGHT TO ACCESS OF INFORMATION
▪ These rights are the essential pillars of a
democratic set-up society.
▪ Media plays a vital role in providing
information and shaping the society.
▪ Functions of Media - to inform, to educate
and to entertain.
▪ Access to information is vital in a
democracy
▪ Discussion before decision – Able to have
access to correct and vital information in
order to make correct decisions.
6
QUALIFICATION ON FREEDOM OF EXPRESSION
▪ The right to freedom of expression is
not absolute.
▪ Both international law and most
national constitutions recognise that
freedom of expression may be
restricted.
▪ Example : threat to national security
and if it damages the reputation of
others or invades privacy
 WHAT IS FREEDOM OF SPEECH?
Article 10 of the Constitution of Malaysia guarantees
Malaysian citizens the right to freedom of speech,
freedom of assembly and freedom of association.
✔ freedom to speak
✔ freedom to publish
✔ freedom to join with others/group
✔ freedom to receive information
✔ freedom not to speak
WHAT IS FREEDOM OF SPEECH?
• However, Parliament may promulgate
laws to restrict such rights on following
grounds:-
✔ interest of the Federation
✔ public order or morality
✔ questioning of any matter, right,
status, position, privilege,
sovereignty or prerogative
established or protected by the
Constitution.
• Refer to Article 10 (4) of Federal
Constitution
 RESTRICTIONS TO FREEDOM OF SPEECH -
VARIOUS ACTS IN MALAYSIA
Type of Offence National Law Enforcing Agencies

▪ Defamation Penal Code 1950 PDRM

Defamation Act 1957 Civil Action
▪ Sedition Sedition Act 1948 PDRM
▪ Printing Press and Printing Press and Ministry of Home Affairs
Publication Publication
Act 1984
▪ Communication and Communications and Malaysian
multimedia offences Multimedia Act 1998 Communication &
(CMA) Multimedia Commission
 FEDERAL COURT
• The final court of appeal has a crucial role in the protection
of the fundamental rights and freedoms as embodied in the
Federal Constitution and the Universal Declaration of
Human Rights.

• The Court’s role is important in protecting, enhancing and

advancing human rights in accordance with the existing
laws.
 CASE LAW - PP V. OOI KEE SAIK [1971] 2 MLJ 108
Raja Azlan Shah J in quoted the following passage from A.K. Gopalan v.
State of Madras AIR [1950] SC 27:
• There cannot be any such thing as absolute or uncontrolled liberty
wholly free from restraint; for that would lead to anarchy and
disorder.
• The possession and enjoyment of all rights…....are subject to such
reasonable conditions as may be deemed to be……essential to the
safety, health, peace and general order and morals of the
community.
• What the Constitution attempts to do in declaring the rights of the
people is to strike a balance between individual liberty and social
control. 12
 CASE LAW - FUNDAMENTAL RIGHT OF
ASSOCIATION

Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 2 CLJ 1125

• Kelantan State passed anti-hopping laws as amendments to its
State Constitution to prevent members of State Assembly from
changing their seat/party.
• Decision by Federal Court – amendments are void/ultra vires
against Article 10 of Federal Constitution.
• Any action by State to make human rights ineffective is
uncontitutional and hence, void.
DEFAMATION ACT 1957
 DEFINITION OF DEFAMATION, LIBEL & SLANDER
• Injuring a person’s character or reputation by way of false
statement of facts.
• 2 types of defamation in civil law are:-
✔ Libel is when such words are expressed in a permanent form
which is usually visible to the eye, like in a book, e-mail or
picture.
✔ Slander is when such words are expressed in a temporary
form, usually when spoken or made by body movements.
• Governing laws for defamation:-
✔ Defamation Act 1957 – for civil cases of defamation when a
private person sues another person for defamation.
✔ Section 499 to Section 502 of the Penal Code 1950 - for
criminal cases of defamation whereby the state prosecutes a
private person for defamation. 15
EXAMPLES OF DEFAMATORY CONTENT
▪ Crime – wrong reporting of crime
▪ Occupation – false charges on competency of
government employees, professional,
businesspeople
▪ Business – allegation of poor service/damage
to corporate reputation
▪ Trade libel – false statement about quality or
usefulness of product
▪ Character, habits and obligations –
incompetent or unethical in their work.
 ELEMENTS FOR DEFAMATION CASE
In a defamation case, a plaintiff must prove:-
✔ The words used by the defendant were false;
✔ The words used specifically referred to the Plaintiff; and
✔ The words were read or heard by a third party.

Protection of
individual’s Freedom of Speech?
reputation? vs.
ONLINE DEFAMATION
Defamation laws :-
• apply to all media, including online media;
• are meant to protect not just individuals but also
corporations from being affected by false allegations.
• Section 3 of Defamation Act 1957 provides that:-
• “For the law of libel and slander the broadcasting of w
ords by means of radio communication shall be treated
as publication in a permanent form‘.
• Section 13 (1) - reports or matters broadcast by radio
are regarded as equal to publications in newspapers.
 ONLINE DEFAMATION….cont’d
• No real difference between traditional copyright and electronic
copyright. The distinction lies in the way the electronic or online
material has to be decoded or read and used by the user.
• Works that are published or transmitted in electronic format or
medium e.g. CD-ROMs, Web pages of Web sites or portals,
online databases, computer programs or software, etc are
copyright protected as their printed or traditional medium
equivalents.
• Although there is no internet censorship in Malaysia, online
environment is not a legal vacuum. The relevant existing laws,
such as the Sedition Act, the Defamation Act and the Penal
Code would apply.
• There are 3 groups of online materials namely; (i) electronic
information; (ii) Computer programs and computer software;
and (iii) databases.
DEFENCES FOR DEFAMATION
SPEECH LAW
 DEFENCES FOR DEFAMATION CASE
1) Truth/Justification – If the statement is accurate,
then it is not defamation.
2) Statement of Opinion/Fair Comment - The
allegedly defamatory statement was merely a
statement of opinion. No need to prove the truth
of your comment.
3) Consent – permission for publication of the
allegedly defamatory statement. One cannot
defame someone else if they have given their
consent to publish the defamatory material.
Consent usually means that they said: "Yes, you
can publish those words.
DEFENCES FOR DEFAMATION CASE…….cont’d
4) Absolute privilege - During judicial proceedings, by high government officials,
by legislators during legislative debates, during political broadcasts or
speeches, and in between spouses.
5) Qualified privilege - The person making the allegedly defamatory statement
may have had some right to make that statement. The plaintiff must prove that
the defendant acted intentionally, recklessly, or with malice, hatred, spite, ill
will or resentment.
6) Retraction of the allegedly defamatory statement/Unintentional Mistake –
The defendant withdraws the said statement and apologize for the action.
7) Public interest - This right to know includes matters which are in the public
arena, but it does not cover matters which are the purely private concerns of
an individual.
 PUNISHMENT FOR DEFAMATION

CRIMINAL
CIVIL CASE
CASE

• Compensation • Jail sentence of a maximum of 2

• Quantum – depends on the damage years or a fine or both.
caused to the reputation of the • Refer to Section 500-502 of the Penal
person suing Code 1950.
• Refer to Defamation Act 1957
 ONLINE DEFAMATION CASES
Case Law – Mohamed  Azwan bin Haji Ali v Sistem Televisyen (M) Bhd & Ors
[2000] 4 MLJ 120 
• It is established principle in Malaysia that publications in printed materials and
broadcasting through radio or television constitute libel rather than slander.

Case Law - The New Straits Times Press (M) Bhd & Ors v Ahirudin bin Attan
[2008] 1 MLJ 814
• Defamatory statements in blogs and other online communications would be
regarded as libel and such publication shall not be treated differently from
printed materials and broadcasting through radio or television under the
Malaysian Defamation Act 1957.
 ONLINE DEFAMATION CASES……CONT’D
Datuk May Phng @ Cho Mai Sum & 2 Ors v Tan Pei Pei [2018] 4 AMR
784
• Issue on assessment of damages for the Plaintiff against the Defendant for
publishing defamatory statements in an email to at least 4 recipients..
• Held by High Court:
(i) The said e-mail was not an ordinary email directed to one person, but
the said e-mail was written in the context to address the public, to have
the said e-mail widely circulated among the public.
(ii) Therefore, the said e-mail had been widely circulated and/or presumed
to be so.
(iii) The onus is on the Defendant to prove the limited publication as alleged.
 ONLINE DEFAMATION CASES……CONT’D
Mohd Khaidir Ahmad v. Mohd Iqbal Zainal Abidin [2018] 1 LNS 1150
Facts:
• The Defendant had alleged that the Plaintiff, an Assistant District Officer of
Temerloh, had abused his power and was corrupt, among others. One of
the Facebook postings had an uploaded photograph of the Plaintiff, his
son and car together with defamatory statements.
• The Facebook postings attracted responses, negative ones at that, on his
Facebook page. The allegation of abuse of power and corruption appeared
to resonate with the netizens who posted their comments, generally
agreeing with the same.
• The Defendant denied that the words were defamatory of the Plaintiff, that
they were fair comments and disclaimed responsibility for the negative
comments by the netizens.
 DECISION OF COURT OF APPEAL (COA)
• The COA upheld the High Court’s decision in dismissing the
Defendant’s defence and also upheld the damages of RM50,000
granted by the High Court.
• The COA agreed with the High Court that the Defendant failed to
prove that the Plaintiff had received bribes, and rejected the defence
of qualified privilege as the postings were made without there being a
duty to do so for they were done for his own interest, not that of the
public.
• The COA upheld the High Court’s decision in finding the Defendant
liable for defaming the Plaintiff on his Facebook page.
SEDITION ACT 1948
 SEDITION ACT 1948
• Introduced in Malaysia in 1948 by the British, as part of legal
restrictions designed to silence dissent against colonialism and
British rule.
• It is a restraining law - it tells you what not to do.
• Prime Minister Datuk Seri Najib Razak on July 11, 2012, announced
the repeal of the Sedition Act 1948 which would be replaced with
the National Harmony Act. Then, the Government hoped to present
the draft of the Bill to Parliament by the end of 2015.
• Until the new legislation is in place, the existing cases would be tried
under the existing laws.
 WHAT ARE SEDITIOUS ACTIONS?

Refer to Section 3(1) of the Sedition Act, 1948 includes:-

(a) to bring into hatred or contempt or to excite disaffection against
any Ruler or against any Government;
(b) to excite the subjects of the Ruler or the inhabitants of any territory
governed by any government to attempt to procure in the territory
of the Ruler or governed by the Government, the alteration,
otherwise than by lawful means, of any matter as by law
established;
(c)to bring into hatred or contempt or to excite disaffection against the
administration of justice in Malaysia or in any State;
 WHAT ARE SEDITIOUS ACTIONS?

d) to raise discontent or dissatisfaction amongst the subjects of the

Yang di-Pertuan Agong or of the Ruler of any State or amongst the
inhabitants of Malaysia or of any State;
(e) to promote feelings of ill-will and hostility between different races
or classes of the population of Malaysia; or
(f) to question any matter, right, status, position, privilege, sovereignty
or prerogative established or protected by the provisions of part III
of the Federal constitution or Article 152, 153 or 181 of the Federal
Constitution.
 PUNISHMENT UNDER SEDITION ACT 1948
• Section 3(3) goes on to state that "the intention of the person
charged at the time he did or attempted (a seditious act) ... shall be
deemed to be irrelevant if in fact the act had, or would, if done, have
had, or the words, publication or thing had a seditious tendency".
• Under the Act, those who commit an offence can be fined up to
RM5,000 and/or imprisoned up to three (3) years.
• A second offence carries a sentence of up to five (5) years
imprisonment.
 EXAMPLES OF SEDITION CASES
• 2015 - Malaysian cartoonist, Zulkiflee Anwar Alhaque, better known
as Zunar has been charged with 9 cases of sedition for drawings
shared on Twitter.

• 2013 - Manager's statement on FB allegedly insulted the king (

http://www.malaysianbar.org.my/legal/general_news/woman_held
_over_royal_insult.html
)

• 2007 - NST sues Jeff Ooi, Rocky for defamation on their blogs (
http://www.thesundaily.my/node/171526)
 PRINTING PRESSES &
PUBLICATIONS ACT 1984
 PRINTING PRESSES & PUBLICATIONS ACT 1984
(PPPA)
▪ Introduced by British colonial government as the Printing Ordinance of 1948
during state of emergency in order to counteract Communist activities.
▪ Regulates the use of printing presses and the printing, importation,
production, reproduction, publishing and distribution of publications and for
matters connected thereof.
▪ Revision of the PPPA in 1971 – revocation of license if racial or national
sensitivities are invoked.
▪ 2nd revision in 1984 – powers of Government to seize or revoke printing
press or publication license.
 REVISION OF PPPA IN 2012
• SECTION 3 (3) & SECTION 6 - The words “in his absolute discretion” was
removed and hence, the Minister’s decision can be challenged in court.

• SECTION 12 - Instead of annual renewal, the license or permit shall remain

valid as long as it is not revoked and removal of the words “in his absolute
discretion”

• SECTION 13 A (1) - The Minister’s decision to grant or to refuse or to

suspend a license or permit is final but can be challenged in court.

• SECTION 13 B - A person is given the right to be heard if the Minister

intends to revoke or cancel the license or permit granted to him
 CASES ON PPPA 1984
(1) Lim Guan Eng v. PP (1998) 3 MLJ 14
Appeal by Lim Guan Eng had been
convicted for 18 months of
imprisonment and fined under :-
▪ Section 8A (1) of PPPA 1984 for
maliciously publishing false news in
the form of a pamphlet entitled
‘Mangsa Dipenjarakan’; and
▪ Section 4 (1) (b) of Sedition Act 1948
for making a speech which contained
seditious words regarding the non-
prosecution of an alleged rape case
involving Tan Sri Rahim Thamby Chik.
(2) The Edge Media Group v. Minister of
Home Affairs (2015)
▪ The applicant filed an application for
judicial review on July 27 after the Ministry
suspended their publishing permits due to
citing of 1MDB report.
▪ Decision by High Court in allowing the
judicial review application said the the
Home Minister had breached Section 7 (1)
of PPPA 1984.
▪ The Minister did not comply with
procedural fairness as he did not give
particulars of the suspension to the
applicant.
 CASES ON PPPA 1984

(3) Sepakat Efektif Sdn. Bhd. v Menteri Dalam Negeri & Anor [2015] 2 CLJ 328
(4) Zulkiflee SM Anwar UlHaque & Anor v. Arikrishna Apparau & Ors (2012) 1 LNS
1344
• In 2011, the High Court had dismissed a judicial review application by the
appellants to challenge the ban and seizure of 33 copies of the books under
Section 7(1) of PPPA 1984.
• 2 appeal challenges filed by the Plaintiff also known as “Zunar”.
• In 2014, the Court of Appeal ordered the ban on two cartoon books by the
cartoonist to be lifted and all the copies seized by the Home Ministry in 2010 to
be returned to him.
• The minister's decision in banning the books on the ground that they were
prejudicial to public order was unsupported. The minister had acted
unreasonably and irrationally in issuing the blanket ban order.
INTERNET FREE SPEECH
• Internet free speech is protected by CMA 1998
and guaranteed by Multimedia Super Corridor
(MSC) Malaysia Bill of Guarantees.

• Section 3 of Communications and Multimedia

Act 1998 (CMA 1998) states that:
“Nothing in this Act shall be construed as
permitting the censorship of the Internet".

▪ Section 7 of MSC Bill of Guarantees - ensures

no censorship of the Internet in order to
promote the development of the Internet with
the vision to make Malaysia the hub of
Internet.
 CMA 1998……………………………………cont’d
▪ The Internet is not above the law and the users are
free to do write or utter whatever they wish.
▪ Section 263(2) of CMA allows blocking of a site if it is
reasonably necessary in preventing the commission or
attempted commission of an offence.
▪ Section 211 of the CMA on “Prohibition on Provision of
Offensive Content” - requires the “mens rea” (intention
to annoy, abuse, threaten or harass any person.
▪ Section 233 on “Improper Use of Network Facilities or
Network Service, etc.” - provide that a person commits
an offence if he or she posts any content deemed
obscene, indecent, false, menacing or offensive in
character with the intention to annoy, abuse, threaten
or harass another person.
CMA 1998……………………………………cont’d
▪ It is argued that Sections 211 and 233 CMA are very
broad to describe the offensive content on the
internet. But it is subject to the court’s assessment
whether the content falls under the types of
offensive content on the internet under these
sections.
▪ Creating a false or misleading impression on the
internet is also an offence under s 211 CMA.
▪ False content has been described as content that
contains dishonest material which may mislead; this
might be because of incomplete information.
▪ Exceptions - (1) satire and parody; and (2) where it is
clear to an ordinary user that the content is fiction
Mohd Fahmi Reza bin Mohd Zarin v. Pendakwa Raya
[2020] 7 MLJ 399 
• The Appellant was charged under Section 233(1)(a)
of the CMA 1998 for sending false communications
with intent to injure others by way of uploading a
caricature image of the former prime minister,
Datuk Seri Najib Razak on his Facebook account.
• The Sessions Court sentenced the appellant to 1
month jail and a fine of RM30,000.00.
• He appealed to the High Court and argued that the
caricature was uploaded as a form of a joke without
any intention to annoy.
 MOHD FAHMI REZA’S CASE…………cont’d
Held:
• There is no need for the Prosecution to prove that the accused annoyed
the complainant but whether he intended to annoy him.
• The notice is a fine and creative artistic work created by the accused to
criticise the authorities.
• However it is false in nature and was created with an intention to annoy a
person. Therefore, it has no right to be displayed by the accused and is
not protected by freedom of speech.
• The High Court replaced the Sessions Court’s sentence with a fine of
RM10,000 in lieu of 6 months imprisonment.
THANK YOU!
SPEECH LAW – Part 2

DEFAMATION
 BURDEN OF PROOF
 In an action for defamation, the burden of proof lies on the Plaintiff to
show:-
(1) the words are defamatory i.e.false
(2) the statements or words referred to the Plaintiff; and
(3) the statements or words which formed the subject matter of the
action has been published.
 (1) Whether the words are defamatory?

Case Law - Syed Husin Ali v Syarikat Perchetakan Utusan Melayu Bhd &
Anor (1973) 2 MLJ 56:
 The test of defamatory nature of a statement is its tendency to excite
against the Plaintiff the adverse opinion of others, although no one
believes the statement to be true.
 Would the words tend to lower the plaintiff in the estimation of right
thinking members of society generally?
 The typical type of defamation is an attack upon the moral character
of the plaintiff attributing crimes, dishonesty, untruthfulness, ingratitude
or cruelty.
 Whether the words are defamatory?

Case law - Dato’ Seri Anwar bin Ibrahim v The New Straits Times Press (M)
Sdn. Bhd. & Anor [2010] 2 MLJ 492:

Harmindar Singh JC accordingly observed that:

“In my assessment, therefore, an imputation would be defamatory if its
effect is to expose the plaintiff, in the eyes of community, to hatred,
ridicule or contempt or to lower him or her in their estimation or to cause
him or her to be shunned and avoided by them. This is to be judged by
ordinary, right-thinking members of the community or an appreciable and
reputable section of the community”
(2) The statements or words referred to the
Plaintiff
 The Plaintiff must then proceed to establish that the defamatory
statements or remarks in question were published of and concerning
him. The statements must be capable of referring to the Plaintiff or of
identifying him.
 Case law - Institute of Commercial Management, United Kingdom v.
New Straits Times Press (Malaysia) Bhd.[1993] 1 MLJ 408:
“The test which the Plaintiff has to furnish an answer to satisfy the Court
is whether the words would reasonably in the circumstances lead
persons acquainted with the Plaintiff to believe that he was the person
referred to.”
 (3) The defamatory statements or words has
been published
Case law : YB Hj Khalid bin Abdul Samad v Datuk Aziz bin Isham & Anor [2012] 7
MLJ 301
 The plaintiff, an opposition MP for Shah Alam, sued the defendants (chief editor
and a national daily newspaper) for libels arising out of their republication of an
article defamatory of him which originally appeared on the official blog of
another MP.
 Issue - Whether the defendants could be held liable for an article which was
already posted by another MP on his blog.
 Held by the Court - The defendants liable for defamation as they made no
attempts to verify the veracity of the article and they failed to publish any
disclaimer indicating that the views expressed in the article were those of the MP
and not of the defendants.
DEFENCES FOR DEFAMATION
 DEFENCES FOR DEFAMATION

If someone sues for defamation, the most common defences

are:
(1) Justification by Truth
(2) Privilege – Qualified and Absolute (Section 12)
(3) Statement of Opinion/Fair comment (Section 9)
(4) Consent
(5) Apology
 (1) JUSTIFICATION OR TRUTH

 If the publication complained about is true, entirely or even

substantially - a solid defence to defamation.

 But the onus is on the defendant who pleads justification to

prove that the publication is true.

 Case law – Voon Lee Shan v. Sarawak Press (2004) 5 MLJ 530
 (2) STATEMENT OF OPINION/FAIR
COMMENTS
 A defence against defamation if the defendant can prove that the
publication complained about is a fair comment made in the interest of
the public.
 For a comment to be “fair comment”, it must satisfy the following
conditions:-
(a) The matter commented on must be of public interest
(b) The matter commented on must be an expression of opinion by
the defendant and not an assertion of fact by him.
(c) The comment on the plaintiff must be fair.
(d) Defence will fail if there is actual malice.
 GLOCO MALAYSIA SDN. BHD. v. LAM
MING YUET (2012)
Facts:
 The plaintiff brings this action against the defendant for libel in
connection with certain postings that the defendant had made
against the plaintiff in an online social media network called
“forum.lowyat.net.”
 The plaintiff seeks general, aggravated and exemplary damages
against the defendant, interest and costs.
 The plaintiff also seeks an injunction restraining the defendant from
publishing the defamatory statements, and for an order compelling
the defendant to remove the entire thread containing the
defamatory statements from the”forum.lowyat.net.”
 GLOCO MALAYSIA SDN BHD’S case...cont’d

Decision:
 The words complained of were not capable of being defamatory of
the plaintiff - are merely respond of the defendant to certain queries
made by some members in the forum when she was asked on her
working experience with the plaintiff.
 The impugned statements cannot be said as have been false and are
defamatory of the plaintiff and published maliciously.
 The complaint words are of fair comment of the defendant on the
plaintiff and with no malice.
 3) PRIVILEGE

 Means a benefit or immunity enjoyed by someone or a class of people

which does not apply to the general public.

 In communication, privilege is the freedom enjoyed in certain circumstances

whereby statements can be made without the fear of being sued for
defamation.

 2 types of privilege :
(i) absolute; and
(ii) qualified.
 (i) ABSOLUTE PRIVILEGE

 No action lies for the defamatory statement even though the

statement is false or has been made maliciously.

 Occasions of Absolute Privilege:

1) Statements made in Parliament;
2) Judicial proceedings;
3) Communication between client and lawyer;
4) Communication between officers of State to another.

 Reason - The common convenience and welfare of society or the

general interest of society give way to freedom of speech
 DEFAMATORY STATEMENT IN A POLICE
REPORT
 In 2012, another type of proceedings is added, i.e. statements
made in a police report (First Information Report under
Section 107 of the Criminal Procedure Code (“CPC”).

 Case law - Lee Yoke Yam v Chin Keat Seng (2013) 1 MLJ 145
 Lee Yoke Yam v Chin Keat Seng (2013) 1 MLJ 145

Facts:
 The dispute between the parties arose out of a police report made by the
Respondent against the Appellant on 19 June 2008.
 In the police report, the Respondent alleged that the Appellant had
misappropriated a sum of RM200,000.00 from a company in which the
Appellant and Respondent were both shareholders and directors at the
material time.
 The Appellant filed a suit against the Respondent, claiming that the
Respondent had defamed him whereby the police report was made with
malice and intended to coerce the Appellant into settling a separate suit
involving both the Appellant and Respondent.
 DECISION BY HIGH COURT

 If actions can be brought against complainants who lodge police reports:-

 it would discourage the reporting of crimes to the police.
 it will make the detection and punishment of crime at serious risk.
 The criminal law readily provides for a remedy against persons who make
false police reports.
 Reference made to the case of Abdul Manaf Ahmad v Mohd Kamil Datuk Hj
Kassim [2011] 4 MLJ 346 -  statements made in a police report must attract the
defence of absolute privilege for reasons of public policy.
 High Court struck out the Appellant’s summons & statement of claim.
 DECISION BY COURT OF APPEAL

 The Appellant, being dissatisfied with the High Court’s decision,

appealed to the Court of Appeal.

 The Court of Appeal agreed with the High Court and the statement of
law in the Abdul Manaf’s case.

 Court of Appeal reinforced the High Court’s decision and the

Appellant’s appeal is dismissed.
 DECISION BY FEDERAL COURT

 The Appellant proceeded to appeal on question of law:-

“Whether statements in a police report are protected by the defence
of absolute privilege and therefore no party can file a defamation suit
against the maker of the police report in the Malaysian context?

 The Federal Court agreed with the decision in Abdul Manaf that on a

public policy consideration, absolute privilege should be extended to a
statement contained in a police report made under Section 107 Criminal
Procedure Code.
 (ii) QUALIFIED PRIVILEGE

 Qualified privilege is an immunity from lawsuit, usually a lawsuit for

defamation, for acts committed in the performance of a legal or moral
duty and acts properly exercised.

 Examples:-
1) Proceedings of regulatory agencies, sessions of legislatures &
governmental bodies
2) Fair criticism in a review
3) Statements made in self-defense or to warn others of a harm or
danger
 CASE LAW ON QUALIFIED PRIVILEGE

Rajagopal v Rajan [1972] 1 MLJ 45

To succeed on defence of qualified privilege to succeed, 2 elements to

be proved:-

(1) there is a legal, moral or social duty to make the statement on one
side; and
(2)There is a corresponding interest to receive it. However, if it is spiked
with malice, this defence will not be available.
 (4) CONSENT

CONSENT/VOLENTI NON FIT INJURIA:

 If a person (plaintiff) clearly gives his consent for any words/statements

to be published, then the defendant may raise this defence.

 Volenti Non Fit Injuria – Latin words for the meaning of:
“ To a willing person, injury is not done”
 (5) APOLOGY

 Where the maker of the defamatory seek an apology from the Plaintiff.

 Apology can be made personally or publicly, e.g. newspaper.

 The publication of a prompt apology should reduce any damages

eventually awarded.

 Apology may be an effective defence although the Court will look at

the facts of the case to determine whether it is genuine or otherwise.

 Refer to Section 7 of Defamation Act, 1957

 Normala Shamsuddin vs. Keluarga Communications (1999) 2 MLJ 654

Facts:
P is a famous television personality & prime time newscaster with TV3. D is
the publisher of Mingguan Wanita (MW). D published an article mention a
third person in P’s married life & payment of RM3 Million to her husband to
release her ( by tebus talak). P sued D for defamation. D contended that P
gave her consent to publish the article & D had apologised in the next
magazine for publishing the article.
Issues in question-
(1) Whether the article had brought defamatory to the Plaintiff ?
(2) Whether the Plaintiff authorized the Defendant to publish the article?
 Normala Shamsuddin’s case……cont’d

Judgement : –
• The Court award a sum of RM100,000 as general damages for the libel
and RM100,000 as aggravated damages.
• The words were indeed expose the plaintiff to hatred, ridicule or
contempt in the mind of a reasonable man or to lower her in the esteem
of right thinking members of the public generally.
• The defendant’s half hearted attempt at an apology was an other factor
to consider in awarding aggravated damages.
 APPEAL BY THE DEFENDANT

 The Defendant appeals against the award of aggravated damages.

 The Court of Appeal (COA) held that, the learned trial judge had
overlooked the article.
 The article was actually a complimentary of the Plaintiff.
 On the half-hearted apology, the COA considered that the apology
had met the criteria of a full and frank withdrawal of the charges
regarding the Plaintiff.
 HATE SPEECH

 Insults and characterizations that are directed against an individual’s

or group’s race, religion, ethnic origin, or gender, which may incite
violence, hatred or discrimination. 
 Hate speech is deliberately hurtful, morally similar to physical
aggression, and should not be permitted in civilized societies.
 Federal Constitution of Malaysia forbids hate speech against any
ethnic, race, gender and religion.
 CASES ON HATE SPEECH
PP vs. Alvin Tan & Vivian Lee:
 They were charged under the Sedition Act for displaying a picture
with the caption “Selamat Berbuka Puasa (with Bak Kut Teh... fragrant,
delicious and appetising)” on Facebook in July 2013.

 The two pleaded not guilty to 3 charges of violating the Sedition Act,
the Film Censorship Act and the Penal Code.
 CASES ON HATE SPEECH

 Utusan Malaysia’s case:

Utusan Malaysia, carried a front-page article on 7 May 2011, headlined “Kristian

agama rasmi?” (Christianity the official religion?), claiming that the opposition
Democratic Action Party (DAP) was conspiring with Christian leaders to take over
Putrajaya and abolish Islam as the religion of the federation.

~ Minister of Home Affairs issued a warning

letter to Utusan Malaysia.
CONCLUSION ON HATE SPEECH

Hate speech is unacceptable and should not be part of free

speech practiced by anybody and any institution, either
government or non-government.

Based on the Malaysia’s cases and laws, there are concerns that
hate speech could be detrimental to the society. Hence, it should
be restricted by the existing laws for the common good.
 CASE LAW ON SEDITION ACT 1948

 Public Prosecutor v Oh Keng Seng (1978)

 PP v Ooi Kee Saik and Ors (1971)
 PP v Azmi Sharom (2015)
 Public Prosecutor v. Oh Keng Seng (1978)

4 main issues are:

i. Whether the accused speech uttered in Mandarin was bona fide and
fair criticism of the government.
ii. That the intention of the accused is irrelevant if in fact of the words have
a seditious tendency which is provided for under Section 3(3) of the
Sedition Act.
iii. That the prosecution was not obliged to prove that the speech uttered
by the accused contained anything that was true or false.
iv. Whether the accused had succeeded in proving on a balance of
probabilities that the speech delivered by the accused came within any
of the permissible limits set out in Section (2) of Sedition Act.
 Decision in Oh Keng Seng’s case

 Although  freedom  of  speech  is  one  of  the hallmarks of a

democratic right, utmost care must be taken to ensure that it does not
have any seditious tendency as defined under the Sedition Act.
 If the speaker is unaware of the content of his speech he could still be
charged with sedition because the intention of the speaker is not taken
into account.
 It has been established in the case that the prosecution is not obliged to
prove that anything said in his speech was true or false or that it caused
any disturbance or a breach of the peace.
 The accused was fined RM2000 in default of 6 months imprisonment.
  PP v Ooi Kee Saik and Others (1971)

Facts:
 The defendant, Ooi Kee Saik and others were charged of the offence
of sedition under S4(1) (b) of the Sedition Act 1948.
 The defendant was found to have uttered seditious words in his
speech, in which he accused the Alliance Government of practicing
on the ethnic-based policies.
 The other defendants, Fan Yew Teng are charged with publishing
them in the Rocket news magazine whilst Kok San and Lee Teck Chee
were charged with printing the speech in the Rocket magazine.
 DECISION BY COURT
 

 Defendant 1 - Guilty of having uttered seditious words challenging the

special position and privilege of the Malays (Muslims) under Article 152
and 153/181 of Federal Constitution - came within the Sedition Act 1948
Section 4(1), Section 2 and Section 3 (1).
 Other Defendants who were charged for sedition in publishing offensive
material - Guilty based on evidence of knowledge and awareness of
the alleged incident.
 Each of the accused was fined RM2,000 in default of 6 months
imprisonment.
  PP v. AZMI SHAROM (2015)

Facts:
 A Law Professor has been charged under Sedition Act 1948 for
“seditious comments” that he made in an interview to the Malay Mail
Online regarding a political crisis in the state of Selangor.

 He challenged that the Sedition Act 1948 is unconstitutional and infringe

the rights under the Federal Constitution.
  DECISION BY FEDERAL COURT

 Sedition Act 1948 is constitutional. Sedition Act 1948 is compatible with

Article 10 of the Federal Constitution, which guarantees the right to
freedom of speech and expression.
 Article 10(2)(a) of the Federal Constitution permits Parliament by law to
impose restrictions on the right to freedom of expression “as it deems
necessary or expedient in the interest of the security of the Federation.”
 The assessment of what is “necessary or expedient” in balancing
fundamental rights with security interests lies with Parliament, and not
with the Courts.
THE END.......

THANK YOU
ETHICS AND NETIQUETTE

TOPIC 5

MLL2013
 DEFINITION OF ETHICS
 Ethics is a system of moral principles. They affect how
people make decisions and lead their lives.
 Concerning on what is good for individuals and society and is
also described as moral philosophy.
 The term is derived from the Greek word ”ethos” which can
mean custom, habit, character or disposition.
 Concepts of ethics are derived from religions, philosophies
and cultures. E.g. debates on topics like abortion, human
rights and professional conduct.
 DILEMMAS OF ETHICS
How to live a
good life?

Moral decisions Our rights and

- what is good ETHICS responsibilities?
and bad?

The language of
right and wrong?
 DEFINITION OF NETIQUETTE
• Means network etiquette, i.e. that is, the etiquette of
cyberspace.
• Netiquette covers both common courtesy online and the
informal "rules of the road" of cyberspace.”
• “Etiquette” means “the forms required by good breeding
or prescribed by authority to be required in social or official
life.”
• In other words, Netiquette is a set of rules for behaving
properly online.
• There are 10 list of netiquette rules to help one from
making mistakes.
 COMPARISON BETWEEN
ETHICS
• Ethics - concept of what is
good, bad, right and
wrong.
• The right ethics = acting
the right way.
• Therefore, the right ethic
= the right perspective and
the right thinking on how
to engage people in the
right manner.
NETIQUETTE
• Netiquette is a code of
online behavior within
the context of our society.
• There definitely is a right
way and a wrong way to
use social media.
• Example: Spamming or
cyberstalking
 DIFFERENCE BETWEEN
ETHICS AND NETIQUETTE

ETHICS NETIQUETTE
Set of moral principles Set of rules that dictate
that dictate the decision the conduct of netizens.
making of people Manners, courtesy
Unethical behaviour but Breach of Netiquette –
is it illegal? rude, impolite….but is it
illegal?
 DEFINITION OF MEDIA ETHICS
• A code of conduct prescribed by the press to guard
and protect professionals and the profession
entirely.

• Media practitioners had to establish their own

code of conduct in order to safeguard themselves
from committing any offence against the society
and in situations where such offence is committed,
what are the defenses available to them under the
law?

• Media ethics helps the media professionals to set

standards of moral context, what is avertable and
unacceptable in the performance of their duties of
gathering, processing, and dissemination of a wide
varieties of message designed for enlightenment
and entertainments.
 BASIC FOR LAW ETHICS
COMPARISON

Meaning The law refers to a systematic Ethics is a branch of moral

body of rules that governs philosophy that guides
the whole society and the people about the basic
actions of its individual human conduct.
members.

What is it? Set of rules and regulations Set of guidelines

Governed By Government which may be Individual, Legal and

local, regional, national or Professional norms i.e.
international. workplace ethics,
environmental ethics and
so on.

Expression Expressed and published in They are abstract.

writing.
 BASIC FOR LAW ETHICS
COMPARISON

Violation Violation of law is not There is punishment such as

permissible which may result warning, suspension or
in punishment like termination of practicing
imprisonment or fine or certificate or license in
both. violation of ethics.

Objective Law is created with an intent Ethics are made to help

to maintain social order and people to decide what is
peace in the society and right or wrong and how to
provide protection to all act.
citizens.

Binding Law has a legal binding. Ethics do not have a binding

nature but is binding to its
members.
 WHY NETIQUETTE?
 Everything from business transactions,
buying, selling, socialising or blogging your
thoughts are conducted over the internet

 People are not communicating with

computers but with human

 There are copyright materials and

confidential files

 Online mistake may cost one’s future such

as difficulties in finding a job

 To avoid social blunders and offending

people without the intention to do so.
10 RULES OF GOOD NETIQUETTE
 10 CORE RULES OF NETIQUETTE
5. Make yourself look
good online
1. Remember the
Human

4. Respect other
2. Adhere to the same people's time and
standards of
bandwidth
behaviour online
that you follow in
real life
3. Know where you
are in cyberspace.
10 CORE RULES OF NETIQUETTE…cont’d

6. Share expert 10. Be forgiving of

knowledge other people's
mistakes

7. Help keep flame

wars under control 9. Don't abuse your
power

8. Respect other people's privacy.

RULE 1: REMEMBER THE HUMAN
 The Golden Rule: “Do unto others as you'd have others do
unto you.” Imagine how you'd feel if you were in the other
person's shoes. Stand up for yourself, but try not to hurt
people's feelings.

 Electronic communication lacks the facial expression,

gestures and tone of voice to convey your meaning. It’s easy
to misinterpret meaning of words.
 WOULD YOU SAY IT TO THE PERSON'S FACE?
 If the answer is no, rewrite and reread. Repeat the process until you
feel sure that you would feel as comfortable saying these words to the
live person as you do sending them through cyberspace.

 Remember - When you communicate through cyberspace, your words

are written. Chances are they're stored somewhere. They can come
back and haunt you.

 Any message you send could be saved or forwarded by its recipient. You
have no control over where it goes.
RULE 2: ADHERE TO REAL-LIFE STANDARDS OF BEHAVIOR

 Standards of behavior may be different in some areas of

cyberspace, but they are not lower than in real life.
 Be ethical - If you encounter an ethical dilemma in
cyberspace, consult the code you follow in real life.
RULE 2…………….cont’d
 If you use shareware, pay for it.
Paying for shareware encourages more people to
write shareware. The few dollars probably won't
mean much to you, but they benefit all of
cyberspace in the long run.

 Breaking the law is bad Netiquette.

If you're tempted to do something that's illegal,
chances are it's also bad Netiquette.
RULE 3: KNOW WHERE YOU ARE IN CYBERSPACE

• Netiquette varies from domain to domain. What is

perfectly acceptable in one area may be dreadfully
rude in another.

• Netiquette is different in different places, so it is

important to know where you are.
RULE NO.3 …………….…cont’d

“Lurk before you leap”

 When you enter a domain of cyberspace that's new
to you, take a look around.
 Spend a while listening to the chat or reading the
archives.
 Get a sense of how the people who are already there
act. Then go ahead and participate.
RULE 4: RESPECT OTHER PEOPLE'S TIME AND
BANDWIDTH
 Bandwidth is the information-carrying
capacity of the wires and channels that
connect everyone in cyberspace.

 It also refers to the storage capacity of a

host system.

 If you accidentally post the same note to

the same newsgroup 5 times, you are
wasting both time (of the people who
check each copy) and bandwidth (by
sending repetitive information over the
wires and requiring it to be stored
somewhere).
RULE NO.4 ………………………….…cont’d

 Don’t spam!

 It is normal to want to be noticed in the crowd of

people on social media – but spamming (another
word for sending the same or similar messages
lots of times) can be annoying and may have the
opposite effect!
RULE NO.4 ………………………….…cont’d

 You are not the centre of cyberspace. Don’t expect

instant responses to all your questions, and don't
assume that all readers will agree with or care about
your passionate arguments.

 Before you copy people on your messages, ask

yourself whether they really need to know.

 If the answer is no, don't waste their time. If the

answer is maybe, think twice before you hit the send
key.
RULE 5: MAKE YOURSELF LOOK GOOD ONLINE

• Take advantage of your anonymity.

• You won't be judged by color, weight, age or dress
sense.
• You will, however, be judged by the quality of your
writing. So, spelling and grammar do count.
• Know what you're talking about and make sense.
• Pay attention to the content of your writing.
• Ensure your notes are clear and logical.
RULE 5…………………………..….cont’d
 Be pleasant and polite. Avoid offensive language, and
don't be confrontational for the sake of confrontation.
 If you must swear, think up creative alternatives.
 Check grammar and spelling before you post. Most
people judge others’ intelligence based on the use of
grammar and spelling.
RULE 6: SHARE EXPERT KNOWLEDGE
 The strength of cyberspace is in its numbers.

 The Internet itself was founded and grew because

academics wanted to share information.

 Don't be afraid to share what you know.

RULE 6: SHARE EXPERT KNOWLEDGE
 If you ask a question and anticipate a lot of answers, it’s
customary to request replies by email instead of to the
group.

 Share the results of your questions with others, so

everyone benefits from the experts who took the time to
write to you.

 If you’re an expert, or you have researched a topic that you

think would be of interest to others, write it up and post it.

 Sharing your knowledge is fun. And it makes the world a

better place.
RULE 7: HELP KEEP FLAME WARS UNDER
CONTROL
 "Flaming" is what people do when they express a strongly
held opinion without holding back any emotion.

 Netiquette does not forbid flaming.

 Flaming is a long-standing network tradition (and Netiquette

never messes with tradition).
RULE 7 ………………………………..cont’d
 Netiquette does forbid the perpetuation of flame wars
that can dominate the tone and destroy the camaraderie
of a discussion group.

 Avoid conflict. Trading insults and abuse are not good

netiquette. It is pointless and negative and could get you
banned from the site.

 Avoid being drawn into fights and never post abuse on

someone’s message board.
RULE 8: RESPECT OTHER PEOPLE'S PRIVACY

 Don’t pass on another person’s private

information or photos unless you have
their permission. Not only is this bad
netiquette but you may also be accused
of cyberbullying or online harassment.
 You would never snoop through your
colleagues' desk drawers, so naturally
you would not read their email either.
 Failing to respect other people's privacy
is not just bad Netiquette. It could also
cost you your job.
RULE 9: DON'T ABUSE YOUR POWER

• Some people in cyberspace have more power than others.

• There are wizards, experts in every office, and system

administrators in every system.

• Knowing more than others, or having more power than they

do, does not give you the right to take advantage of them.

• For example, system administrator should never read private

email.
RULE 10: BE FORGIVING OF OTHER PEOPLE’S
MISTAKES
• Everyone was a newbie once. When someone makes a
mistake -- be kind about it.

• If it is a minor error, you may not need to say anything. Even

if you feel strongly about it, think twice before reacting.

• Having good manners yourself doesn't give you license to

correct everyone else.

• If you inform someone of a mistake, point it out politely, and

preferably by private email rather than in public.

• Give people the benefit of a doubt.

COMPUTER ETHICS
 COMPUTER ETHICS
 Extending that concept into
cyberspace, computer
ethics encompasses
standards and rules that
regulate online conduct of
netizens.

 These values carry a lot of

weight and are far more
significant than etiquette.
 10 RULES OF COMPUTER ETHICS
5.You shalt not
use a computer
1. You shalt not
to bear false
use a computer
witness.
to harm other
people.

2. You shalt not

interfere with other 4. You shalt not
people's computer use a computer
work. to steal.

3. You shalt not

snoop around in
other people's files.
10 RULES OF COMPUTER ETHICS (cont’d)

10.You shalt use a

6. You shalt not use computer in
or copy software for ways that show
which you have not consideration
paid. and respect.

9. You shalt think

7. You shalt not use about the
other people's social
computer resources 8. You shalt not consequences
without appropriate other of the
authorization. people's program you
intellectual write.
output.
Thank you!
 TOPIC 6

PART 1- LICENSING
 TABLE OF CONTENT

 Licensing in Malaysia - Nature of Licensing

& Types of License Agreement
 Moral rights; music royalties,
synchronisation rights; performance rights
 Single Licensing Body for collection of
music royalties - Music Rights Malaysia Bhd
(MRM)
 Roles of PPM and MACP
 WHAT IS A LICENSE?
 According to the Oxford Advanced Learner’s dictionary -
the noun “license” means an official document that shows
that permission has been given to do, own or use
something.
 The definition of the verb “license” is to give somebody
official permission to do, own, or use something.
 in the context of Intellectual Property (IP), license means a
right or an authorisation given by the owner of an IP to
someone else to use its IP, which would without a license
be unlawful.
 The rights under a license are usually granted for a specific
purpose and under certain agreed terms and conditions.
WHAT IS A LICENSING AGREEMENT?
• A license agreement is a contract under which the
LICENSOR grants permission for the use of its intellectual
property to the LICENSEE, within the limits set by the
provisions of the contract.

• What may be licensed? Anything that one owns or has

rights to may be licensed.

• In terms of technology licensing, the IP rights protecting

the technology, e.g. patents, industrial designs, know-how,
trade secrets etc. would typically be the subject matter of a
license.
CONTENT OF A LICENSING AGREEMENT
• A Licensee Agreement will essentially set out, amongst
other:
1) the rights and obligations of the Licensor and the
Licensee,
2) the terms of the grant of the License
3) the type of License granted to the Licensee.

• In consideration of the grant of the License to the Licensee,

a license fee is imposed on the Licensee, which will also be
set out in the License Agreement.

• The license fee is typically calculated based on a percentage

of sales or profits made by the Licensee.
 LICENSING IN MALAYSIA
• Licensing is one of many form of means to commercialize
an intangible asset namely Intellectual Property (IP).

• In Malaysia, there is no one specific legislation which

governs or prescribes how the licensor-licensee
relationship should be.

• The licensing model is largely governed by the actual

contract freely negotiated between the licensor and the
licensee.
 NATURE OF LICENSING
• The IP owner retains the ownership of the IP protected
materials.

• Only the technical/product knowledge training will be

given at the beginning by the licensor and then it is up to
the licensee to run the business on his own.
 ADVANTAGES OF LICENSING

 Revenue generation - Licensing often serves as a revenue

generation tool for the licensor
 Risk minimization - The burden of the risk involved in
commercialization through a licensing arrangement is shared by
both parties, and thus, minimized
 Reduction in costs – Licensor is able to expand its business and
generate income while saving on capital expenditure as it need not
invest in any equipment or machinery to carry out the
commercialization aspect. As for the licensee, its R&D costs may be
reduced by licensing in new innovative technologies, which are
often accessible at a lower cost as compared to developing them
in-house
 Retain control of IP - Licensor is also able to retain some control of
its IP
ADVANTAGES OF LICENSING……….cont’d

 Means of avoiding costly legal action - Licensor, through

licensing to a potential infringer, may avoid a costly legal
action while at the same time also profiting from its
licensing revenue.
 Broad field of contacts - A licensor may also benefit from
the broad field of contacts and networks of the licensee
to find new markets, either for commercial exploitation
of its other technologies or other collaborative
opportunities.
 Access to new markets - Licensing is one effective way to
gain access to new markets, which would otherwise be
inaccessible to the licensor.
 Collaboration opportunities - Licensing also helps initiate
and establish new relationships and creates collaboration
opportunities for companies or individuals, to work
together.
TYPES OF LICENSING AGREEMENT
SOLE LICENSE

EXCLUSIVE LICENSE

NON - EXCLUSIVE LICENSE

C0 - EXCLUSIVE LICENSE
 EXAMPLES OF LICENSING SITUATIONS
 The owner of a trade mark grants a licence to a licensee to use
the trade mark in relation to certain goods and services

 The owner of a patent grants to a licensee the right to use his

patented invention in commercial exploitation or research and
development

 The owner of a software grants a licence to a user to use his

proprietary software for private or commercial purposes

 The author of a book grants to a publisher the right to exploit

copyright in the book by publishing and selling the book

 The owner of certain registered design rights grants to a licensee

the right to use the design on certain products.
 SOLE LICENSE
• A Sole Licence allows only the Licensor and the named
Licensee to use and operate under the relevant
intellectual property rights.
• A sole license is the same as an exclusive licence with the
exception that the licensor retains its rights to use the IP.
• Both the sole licensee and the licensor have the rights to
use the IP.
• The Licensor does not have the right to grant the same
Licence to other interested Licensees, and the named
Licensee does not have the right to grant the same
Licence to other interested sub-Licensees.
 EXCLUSIVE LICENSE

• An exclusive licensee is one where the licensee is the only

one that is granted rights by the licensor

• An exclusive licence not only disallows the licensor to

license the same rights to any other party, it also excludes
the licensor from using its rights

• Essentially, an exclusive licence allows only one party to

exploit the IP, namely the exclusive licensee
 NON - EXCLUSIVE LICENSE
• A non-exclusive licence means that the rights granted by
the licensor to the licensee may also be granted to other
parties.
• A non-exclusive licence does not exclude the possibility of
the licensor granting further licenses to other parties, i.e.
the licensor may license the same rights to more than
one party.
• This type of licence is appropriate in situations where the
licensor intends to offer licenses to multiple parties.
• One common example of a non-exclusive licence is a
computer software license where numerous users are
granted licenses for use of the software.
 CO - EXCLUSIVE LICENSE

• A Co-Exclusive License allows a Licensor to grant the

Licence to more than one Licensee, but agrees to only
grant the same Licence to a limited group of other
Licensees

• This type of licence is commonly regarded as a hybrid of

an Exclusive Licence and a Non-Exclusive Licence.
exclusive licensee is one where the licensee is the only
one that is granted rights by the licensor
 USAGE OF IP ASSETS FOR LICENSING ROYALTIES
– UPIN & IPIN
• Les Copaque Productions is a Malaysian home grown
company which produces the famous cartoon character
movie and TV series Upin & Ipin.

• Usamah Zaid, the Creator of Upin & Ipin and Ejen Ali is
MMU alumni.

• Besides their branding and trademarks, the company is

a proud copyright owner of all their cartoon characters
and stories produced.

• The Company owns 11 trademark registration in

various classes including trademark for “Upin & Ipin”,
the logo of the studio’s merchandising store and the
studio name itself.
 USAGE OF IP ASSETS FOR LICENSING ROYALTIES – UPIN &
IPIN…………………………cont’d
• All these partnerships have helped
propel the brand and the company to
the international stage in just a few
years.

• From merely a studio production

business, the company now has
multiple businesses and various
streams of income purely from
leveraging on its Intellectual Property
rights.
 MUSIC ROYALTIES
 Section 13 of CA 1987 provides
protection to any work produced by an
artist (including songs and music) by
providing exclusive rights of control
against reproduction, performance,
distribution and commercial rental to
the public.
 Hence, any reproduction of a song or
music composition would need
permission from the copyright owner.
 This is to avoid the issue of plagiarism
and non-payment of royalties to
artists.
 SYNCHRONISATION RIGHTS
 The use of music in film, TV, video and web
cast production involves synchronization
rights.
 Synchronization rights refer to the right to
use a piece of music as soundtrack with
visual images.
 It is the right to use music in timed
relations with other visual elements in a
film, video, television show, commercial, or
other audio visual production.
 In Malaysia, the synchronization rights are
managed by the licensing bodies under
Copyright Act 1987 and the Copyright
(Licensing Body) Regulations 2012.
 LICENSING BODIES IN MUSIC INDUSTRY
 Licensing Body or Collective Management
Organization is an agency authorized by copyright
right holders to do collection of royalties on behalf
of them.
 Licensing bodies are under the control of MyIPO,
and where they fail to comply with the requisite
code of conduct or the rules established by MyIPO,
or fail to act in their agent’s best interest, the
declaration given to declare the agency as a
licensing body can be revoked as a result.
 Collection of royalty is derived from the used of
copyright works by users in commercial sectors. All
the collections will be distributed to the members
after deduction of certain administrative cost.
 MUSIC RIGHTS MALAYSIA BERHAD - MRM
§ Music Rights Malaysia Berhad is a non-profit organisation and the sole
licensing designated by (MyIPO), an agency under the Ministry of
Domestic Trade and Consumer Affairs, Co-operative and Consumerism
(MTDCC) to carry out collective music licence issuance and fee collection
activities in Malaysia from 1 January 2017.
§ MUSIC
It was created to ensure that the collection and disbursement of music
RIGHTS
royalties were carried out in a fair and transparent manner.
MALAYSIA
§ All public performances, airing and commercial rentals, and reissue of
(BERHAD) - must be licensed by MRM.
music works
§ MRM
Exclusions to this provision are performances or screenings by non-profit
institutions, performances or screenings for the purpose of charity or
education and performances for free events.
MUSIC RIGHTS MALAYSIA BERHAD - MRM
§ MRM's primary objective is to provide centralised
and one-stop collective copyright licensing
convenience to both music rights holders and
commercial music users in Malaysia
§ Unfortunately, MRM was unable to function
effectively as a collective music licensing body due
to the insurmountable challenges in getting a
consensus between the Licensing Bodies on
material operational matters resulting in MRM not
being able to move forward. Its dissolution was
announced in 10 July 2020 by its constituent
Licensing Bodies (MACP, PPM and RPM).
§ As a result of this dissolution, MRM has terminated
its operations and returned its licensing mandate
back to its constituent Licensing Bodies.
 LICENSING BODIES…………cont’d
 Currently there are four licensing bodies which manage the collection
and distribution of royalties to individual rights owners as below:-

1) MPLC (Malaysia) Sdn. Bhd.; representing

copyright owners for film works,
2) Music Authors’ Copyright Protection Berhad
(MACP); representing composers & lyricists,
3) Public Performance Malaysia Sdn Bhd (PPM);
representing recording companies,
4) Recording Performers Malaysia Berhad
(RPM); representing singers and musicians of
sound recording
FUNCTIONS OF THE LICENSING BODIES
The collecting societies collect royalties on
behalf of their members and manage the
following rights:
i. reproducing the work;
ii. performing, showing or playing the work in
public;
iii. communicating the work to the public;
iv. rebroadcasting the work;
v. the commercial rental of the work to the
public; or
vi. making adaptation of the work.
 COLLECTION OF FILM ROYALTIES
1 January 2019:
The Controller and MDTCA appointed MPLC (Malaysia) Sdn. Bhd. as the
licensing body to undertake film license issuance and film royalty collection
activities in Malaysia on behalf of copyright owners for film works.
COLLECTION OF MUSIC ROYALTIES
ROLES OF PPM AND MACP
 PUBLIC PERFORMANCE MALAYSIA (PPM) BERHAD

 Public Performance (Malaysia) or PPM was established in

1988 and is a licensing body whose functions are recognized
under the Copyright Act of 1987.
 Representing Recording Industry Association of Malaysia’s
(RIM) members in respect of the collection of royalties on
behalf of recording companies of the public performance,
broadcast, reproduction and commercial rental of their
copyrighted sound, music video and karaoke recordings in
Malaysia.
 Examples of businesses that may require a public
performance licence for the use of sound recordings include
cinemas, auditoriums and theatres, shopping complexes,
retail shops and department stores, beauty centers and hair
dressing salons, social and sport clubs, bowling centers, health
and fitness centers, public halls, sales promotions and any
other commercial or government office premises where
sound recordings are played to the public.
 MUSIC AUTHOR’S COPYRIGHT PROTECTION
BHD (MACP)
 MACP is a non-profit organization and was incorporated as a public
company limited by guarantee in September 1989.
 Main function - To pay the songwriters and publishers when their
works are broadcast and publicly performed.
 Its membership consisted of over 2,500 authors, composers and
publishers of music, it has in control and ownership in excess of
50,000 pieces of local musical works.
 Money is due to MACP for any public performance of music whether
live or recorded, from radio and television stations and mobile and
online service providers.
 MACP distributes the monies collected from MRM to their authors,
composers and music publisher members.
 DIFFERENCE BETWEEN PPM & MACP

 MACP collects royalties for song writers and lyricist whose

copyrighted compositions are used in sound recordings.
 PPM collects royalties for the sound recordings which are
the copyright property of recording companies.
MUSIC PUBLISHING

&
z

MUSIC COPYRIGHT
 z
MUSIC PUBLISHING

 What it means – how to make money out of

music.
 Music publishing relates to songwriters and
copyrights.
 Music publishing is the business of promotion
and monetization of musical compositions
whereby music publishers:
(i) ensure that songwriters receive royalties for
their compositions; and
(ii) work to generate opportunities for those
compositions to be performed and
reproduced.
 z
MUSIC PUBLISHING COMPANIES IN
MALAYSIA

 EMI Music Publishing Sdn

Bhd
 Warner-Chapell Music
Publishing Sdn Bhd
 Universal Music Malaysia
 z
SERVICES OF MUSIC PUBLISHING COMPANY

(i) As a ‘publishing administrator’ - Music publisher

administers the copyright in protecting the use of
songs & collecting royalties owed from use.
(ii) On the creative side, some music publishers focus
on the use and exploitation of the copyrights they
administer by securing opportunities in the form of
‘synchronization licenses’ for film, TV, ads, video
games, etc.
A synchronization license is an agreement between a
music user and the owner of a copyrighted composition
(song), that grants permission to release the song in a
video format (YouTube, DVDs, Blue-ray discs).
 z
SERVICES OF MUSIC PUBLISHING COMPANY

(iii) Play an active role in setting up co-writes and

pitching songs to artists and labels to be
recorded for the first time.
(iv) This permission is also called synchronization
rights, synch rights, and sync rights.
z
COPYRIGHT WORKS IN A SONG
 A song is the combination of
melody and words.
 Each is protected
by copyright: the melody as
a musical work and the lyrics
as a literary work.
 The song is protected
by copyright once it has
been 'fixed' in a form that can
be copied, such as being
written down or recorded.
 z
COPYRIGHT PROTECTION FOR
SONG & MUSIC

 Copyright law does not protect facts,

ideas, systems, or methods of
operation.
 A copyright also does not protect song
titles, band names, or slogans. An artist
cannot copyright their band name or
their song titles.
 However, an individual may apply for
trademark protection in a particular
artist, band or song name. 
z
TYPES OF COPYRIGHT IN MUSIC

Music is unique in that every track has

two copyrights:-
(i) The composition copyright which
protects the melody and lyrics of a
song and belongs to composers,
lyricists and publishers. 
(ii) The sound recording copyright - This
protects the recording itself that has
been made of a piece of music and
usually belongs to the performers
and maker of a recording.
z

PRACTICAL WAYS TO
PROTECT AUTHOR’S
MUSIC IN MALAYSIA
 z
1. COPYRIGHT PROTECTION

 Notify MyIPO via Voluntary Registration of Copyright

– Form CR, a statutory declaration of that ownership
and/or author of the work and details of the work
and deposit of a copy of the work with MyIPO; or
 The poor man’s copyright approach – Place a
sample of the work into an envelope, sealing it, and
mailing it to the creator/author himself using
registered mail. Important - Do not to open the mail
upon receipt and to keep the proof of postage.
 In advancement of technology, creator/owner
normally upload their work to a online medium such
as Facebook, YouTube, etc – the upload comes with
the date-stamps.
 z 2. TRADE MARK PROTECTION
 Trade mark protection refers to the protection of a sign,
word or phrase which helps to distinguish one product
from another.
 Branding of music artists - band names, logos and
merchandise rights if the artist wishes to expand into
merchandise.
 However, trade mark registration such as logos or names
can be expensive and more complicated than copyright
 Therefore, it is best to consult IP lawyer or legal
practitioner for advice on the best option to the music
artist.
 z
3. BECOME A MEMBER OF MUSIC
LICENSING BODY 

 Music licensing bodies in Malaysia help to license the

use of music and provide royalties to their members
when their music is played, performed or broadcasted in
any way.
 Composers, lyricists and publishers can sign up for
membership with Music Copyright Protection Berhad
(MACP).
 Recording artists can sign up with Recording Performers
Malaysia Berhad (RPM).
 z
4. GET THE DOCUMENTS IN ORDER

 Where a piece of work is a group effort, have a talk

with co-authors to establish which part of it they own.
 Example – A lyricist and composer duo where the
lyricist owns the copyright in the lyrics written and the
composer owns the composition.
 If an artist is thinking of signing to a recording
company, make sure the rights are clearly spelt out -
to prevent future copyright squabbles.
End of Part 1

TOPIC 6
MALAYSIAN CODE OF ADVERTISING
PRACTICE (MCAP)
TOPIC 6 (PART 2)
 MALAYSIA CODE OF ADVERTISING PRACTICE

 Advertising is governed by Advertising Standards

Authority (ASA).
 Established in 1977, the ASA was set up to promote
and enforce high ethical standards in advertisements
used in Malaysia media.
 The Code was launched by Malaysia’s first Prime
Minister, the late Tunku Abdul Rahman Putra Al-Haj.
 Objective - to investigate complaints, identify and
resolve problems and any other issues that might arise
from advertisements and its standards.

https://www.youtube.com/watch?time_continue=23&v=f4p8u2pPkSA
 MALAYSIA CODE OF ADVERTISING PRACTICE
The constituent members of ASA are:

• Malaysian Advertisers Association

• Association of Accredited Advertising Agents, Malaysia
• Malaysian Newspaper Publishers Association
• Media Specialists Association
• Outdoor Advertising Association of Malaysia
 MALAYSIA CODE OF ADVERTISING PRACTICE
• The Code contains general guidelines relevant to all
advertisements as well as rules for specific sectors such as
medicinal and related products and advertisements containing
health claims, children and young people etc.
• The Code and the self regulatory procedure that exists to
administer it, are designed to work within to complement
existing regulations
• The broadcast media, online services and other
telecommunications and electronic media have their own Codes
which are administered by the Communication and Multimedia
Content Forum of Malaysia (CMCF).
• Responsibility for observing the Code rest primarily with the
advertiser. But it also applies to any advertising agency or
medium involved in publication of the advertiser’s message to
the public.
PRINCIPLES OF GOOD ADVERTISING
 All advertisements should be legal, decent,
honest and truthful.
 Advertisements must project the Malaysian
culture and identity, reflect the multi-racial
character of the population and advocate the
philosophy of RUKUN NEGARA.
 Advertisements must not identify or typecast
each particular racial group or sex with
vocations, traditional values and backgrounds.
 Advertisements must comply in every respect
with the Law, common or statute.
 Advertising should not propagate fraudulent
trade practices.
 PRINCIPLES OF GOOD ADVERTISING
 All advertisements should be prepared with a sense of
responsibility to consumers and to society.

 All advertisements should conform to the principles of fair

competition as generally accepted in business.

 No advertisements shall bring advertising into disrepute or

reduce confidence in advertising as a service to the industry
and to the public.

 Advertisements must be clearly distinguishable as such.

 THE ADMINISTRATION OF THE SYSTEM

 Advertisers and promoters bear principal responsibility for the

advertisements and promotions they produce and must be able to
prove the truth of their claims to ASA.
 They have a duty to make their claims fair and honest and to avoid
causing offence.
 Advertising agencies have an obligation to create advertisements that
are accurate, ethical and do not mislead or offend.
 Publishers and media owners recognize that they should disseminate
only those advertisements that conform to the Code.
 • Claims that are judged by the ASA Committee to
be offensive or that are not or cannot be verified,
DECISION will be deemed to be contrary to the Code.
BY • The decision of ASA Committee is binding.
• Everyone responsible for commissioning,
ASA preparing, placing and publishing an
COMMITTEE advertisement or promotion containing such
claims will be asked to act promptly to amend or
withdraw it.
 THE LAW

• The Code, and the self-regulatory framework that

exists to administer them, were designed and have
been developed to work within and to complement
these legal controls.
• They provide an alternative, and in some instances,
the only means of resolving disputes about
advertisements.
• The Code require advertisers to ensure that all their
advertisements are legal, but ASA is not a law
enforcement body.
 ETHICS
IN ADVERTISING
AND
PROMOTION
 ETHICS IN ADVERTISING AND PROMOTION

 What is ethics? Moral principles and values that

govern the action and decision.

 Not all issues can be regulated.

 A marketing and promotion action may be legal but

not ethical.

 Marketers must decide the appropriateness of their

actions.
 WHAT IS ETHICAL?
 The Golden Rule
Do unto others as you would have them
do unto you.
 Professional Ethics
Would this be viewed as proper by a
panel of advertising professionals?
 Personal Ethics
Would I be comfortable explaining this to
my mother?
 REASONS FOR ADVERTISING AND PROMOTIONS

• FOR:

 Provides information
 Encourage higher standard of living
 Promotes competition
 Helps new forms to enter market and
creates job
REASONS FOR ADVERTISING AND PROMOTIONS……..cont’d

• Against
 More propaganda (lies) than information
 Creates unnecessary needs and wants
 Promotes materialism, insecurity and greed

Question:
WHAT IS MATERIALISM?
 ADVERTISING AND CHILDREN

Children’s TV Watching Behaviors

Children ages 2-11 watch average 22 hours of TV per week and see
30,000 commercials per year

80% of all advertising targeted to children falls under 4 categories, i.e.

Toys, cereal, candy & fast food restaurant
ADVERTISING AS OFFENSIVE AND IN BAD FAITH

•Objectionable products
Can you sue for
a misleading
advertisement
in Malaysia?
FALSE AND MISLEADING ADVERTISING IN MALAYSIA
• According to Law of Contract, an advertisement is an
‘invitation to do business’ rather than an offer to sell
something at the price advertised.

• Advertisements in Malaysia generally don’t amount to

offers.  This means that you cannot sue a shop which
advertises goods at one price and then tells you that
the price is wrong or that the product is out of stock.

• Reputable stores of course, do not do this. They will say

in their advertisement ‘for as long as stocks last’ or give
the number of items the shop has for sale.
FALSE AND MISLEADING
ADVERTISING IN MALAYSIA
Example :-
• Advertisements to convince
women that products and
services
 can enhance their looks
 make them slim and
beautiful
 can make them fair and
youthful.
CONSUMER PROTECTION ACT 1999 (CPA)
• The Act makes false and misleading advertising a criminal
offence.
• A false advertisement is one that does not tell the truth. A
misleading advertisement is one that confuses or misleads
consumers into making a wrong decision with regard to the
purchase of goods and services.
• Consumers maybe able to sue for damages if they can
prove in court that the advertisement fraudulently made
them lose money.
• Consumers suing for misrepresentation must show that the
seller intentionally cheated them.
FALSE & MISLEADING ADVERTISING IN MALAYSIA
• Advertising of food for false health
benefits

• Certain categories of products, like food

and medicine have restrictions on the
descriptions that can be used on labels
and in advertisements.

• Such health conditions include kidney

disease, heart disease, and diabetes.
 FALSE & MISLEADING ADVERTISING IN MALAYSIA
• Advertising of medicine for false health benefits.

• According to Malaysia's Health Ministry's (KKM)

Guide to Nutrition Labelling and Claims,
manufacturers must be aware of nutrient content
claims and the conditions for their use. Through the
Medicines Advertisement Board (MAB), KKM also
controls how any products and services related to
health can be advertised. 

• Only registered medicines are allowed to be

advertised with health benefits as they have been
assured for safe consumption by KKM as the
information provided in the ads are factually accurate
 Whom do we complaint to?
• For medicine, drugs or cosmetic – complaint can be made to the Ministry of
Health.

• The Ministry of Domestic Trade, Co-operatives and Consumerism (KPDNKK)

has a website that has good info for consumers that desire to educate
themselves on their rights.
 Whom do we complaint to?........cont’d
• For all sorts of products, from alcoholic drinks, to
slimming products and services, to vehicles –
Malaysian Code of Advertising Practice (MCAP)
ensures that all advertisement are lawful and
honest. 
• Unfortunately, the Code is designed for self-
regulation and it is not considered as an actual law.
There is no actual enforcement agency that goes
around to enforce this Code.
• MCAP relies on the goodwill of the advertisers to
follow the code and be decent persons and
companies.
 SANCTIONS

 Several sanctions exists to counteract advertisements that conflict with

the Code.

 The media may deny access to space or time; adverse publicity may
result; recognition may be revoked by the advertiser’s/agencies
professional association.
 HOW SELF REGULATION HELPS

 In an age where the focus is on development and promotion of the

industry, and less on control, self regulation in the advertising industry is
not only cost effective, fast and flexible but also keeps pace with new
developments.

 Compliance is assured through placing the onus on advertisers to

provide substantiation and through consensus seek to ensure continued
levels of consumer protection in spirit and the letter.
 HOW SELF REGULATION HELPS…….CONT’D

 As competitors in a free market are always alert, self-interest will

ensure the integrity of all advertising messages to meet the
confidence placed in them by consumers and in the process ensure a
high level of compliance.

 Public Participation - Public conscientiousness in making complaints

and following up as well as being involved in the complaint
administration procedure is an essential and indispensable
requirement.
LICENSING - MADE IN MALAYSIA CERTIFICATE
BY FILEM NASIONAL (FINAS)
NATIONAL FILM DEVELOPMENT CORPORATION MALAYSIA 
(FINAS)
• FINAS is a government agency and authority
entrusted in spearheading the development of
Malaysian film industry.
• Established under the National Film Development
Corporation Malaysia Act 1981 (Act 244).
• FINAS has been mandated as a federal agency under
the portfolio of Ministry of Communication and
Multimedia Malaysia (MCMM).
• Vital roles - To uplift, nurture and facilitate the
development of Malaysian film industry via its
strategies.
MADE IN MALAYSIA RULING BY
FINAS
Film in Malaysia incentives for overseas
production by FINAS:

• 30% cash rebate for production

expenses for Qualifying Malaysian
Production Expenditure (QPME)
• Activities of production of
postproduction activities of local and
foreign producers for the development
of content in television and other
screen production in Malaysia
 LICENSING: APPLICATION OF MADE IN MALAYSIA (MIM) CERTIFICATE
 
1. The film company has a valid production license from FINAS.

2. Each complete application shall be accompanied by the documents such as:-

(i) complete application
(ii) company confirmation letter
(iii) a letter of authorization if the location filming and post-production is abroad
(iv) Local employees of which were involved in the filming must be registered
with FINAS and are members of associations recognized by FINAS.
(v) To submit a copy of the ad in the VCD or DVD.
LICENSING: APPLICATION OF MADE IN MALAYSIA (MIM) CERTIFICATE………….CONT’D
 

3. Components evaluated in MIM application

• Local employees of which were involved in the filming must be registered with
FINAS and are members of associations recognized by FINAS. Permission must be
obtained from FINAS first if employing foreign employees.
• Shooting locations should be made in Malaysia by displaying the country’s
environment and culture. Permission must be obtained from FINAS first if
production company wants to make a photographer abroad.
• Post-production work should be made in Malaysia. Permission from FINAS must be
applied in advance if it is necessary to obtain post-production services abroad.
• Production costs should be spent in Malaysia at least 70% of the total production
cost.
• Only 30% of the foreign interest is allowed to be used in advertising
 LICENSING: APPLICATION OF MADE IN MALAYSIA (MIM)
CERTIFICATE………….CONT’D
 
3. A separate application is required if different
from the image or the period.

4. Only one application for the same

advertisement even there is a variety of
languages.

5. Certificates payment of RM100.00 for each

MIM issued.
 INTERNATIONAL FILMS MADE IN MALAYSIA
Don (2006)
• Main actor - Bollywood's famous
Shahrukh Khan.
• Shooting spots - in Kuala Lumpur
featuring the Petronas Towers.
• In Don 2, the shoot takes place in
Langkawi, featuring the two main actors
doing a heart-stopping fight scene atop
the famous skybridge.
 INTERNATIONAL FILMS MADE IN
MALAYSIA…cont’d
Entrapment (1999)

 Main actors - Hollywood's former Mr. Bond, Sean

Connery & Catherine Zeta Jones, featured the city of
Kuala Lumpur.
 Unfortunately, this movie received some some bad
reviews as the image of Petronas Towers was digitally
modified to tower over slums in the movie.
 In reality, the towers are surrounded by large
gardens, not slums.
 INTERNATIONAL FILMS
MADE IN MALAYSIA…cont’d
Roy (2015)
• A Bollywood drama and romantic
thriller shot entirely in Malaysia.

• From bustling Kuala Lumpur to major

portions of the movie being shot at
the beautiful virgin locations in
Langkawi.
 INTERNATIONAL FILMS MADE IN MALAYSIA…cont’d

(1) Don (2006)

• Main actor - Bollywood's famous
Shahrukh Khan.
• Shooting spots - in Kuala Lumpur
featuring the Petronas Towers.
• In Don 2, the shoot takes place in
Langkawi, featuring the two main actors
doing a heart-stopping fight scene atop
the famous skybridge.
 LATEST DEVELOPMENT ON CREATIVE INDUSTRY
• With the Covid 19, the creative industry was put to a halt due
to the MCO. However, on 9 February 2021, the National
Security Council (NSC) has decided to allow certain sectors in
the creative industry to recommence nationwide so long as
tighter standard operating procedures (SOP) under the MCO
are observed.
• Six sectors in the creative industry: animation and music
production, studio-based post-production, music
development via digital channels, studio-based song
recording; pre-production shooting and studio-based
shooting. 
• PRISMA - Ministry of Communications & Multimedia’s key
short-term initiative to support and encourage sustainability
of Malaysia’s creative industry practitioners in line with the
new normal following the COVID-19 pandemic and the MCO.
MALAYSIAN CREATIVE INDUSTRY STIMULUS PACKAGE
(PRISMA)
• Ministry of Communications & Multimedia’s key short-term initiative to support
and encourage sustainability of Malaysia’s creative industry practitioners in line
with the new normal following the COVID-19 pandemic and the Movement
Control Order.
• The packages are:
1) DIGITAL CREATIVE CONTENT MARKET ACCESS & BUSINESS MATCHING
PROGRAMME (2PS)
2) DIGITAL CONTENT ENTERPRISE DEVELOPMENT PROGRAMME (EDP)
Thank you!
Thank You!