CYBER LAW

INTRODUCTION

In response to the absolutely complex and newly

emerging legal issues relating to cyberspace,
CYBER LAW or the Law of Internet came into
being.

In other words, the growth of cyberspace has

resulted in the development of a new and highly
specialized branch of law called cyber law -laws
of the Internet- and the world wide web.

WHAT IS CYBER LAW?

It is a generic term which refers to all the legal and

regulatory aspects of Internet and the World Wide Web.

In other words, it is a term used to describe the legal

issues related to the use of communications technology,
particularly cyberspace, i.e. the Internet.

In essence, cyber law is an attempt to integrate the

challenges presented by human activity on the Internet
with legacy system of laws applicable to the physical
world.

CONT

All in all, it is the law governing the use of

computers and the Internet, and focuses on a
combination of statutory, decisional and
administrative laws arising out of the use of the
Internet as any other law.
Note: Cyber law can be in a category of
criminal or civil, because crimes and civil
wrongs can take place in the cyberspace.

CONT.

It is important to note that since computers provide

an ideal base for cyberspace, it becomes inevitable to
define the nature of a computer from a legal point of
view.

(See the Malaysian Computer Crimes Act 1997- where

a computer is defined as an electronic, magnetic,
optical, electrochemical, or other data processing
device, or a group of such interconnected etc)
Note: Cyberspace in simple term means Internet. The
Internet is the name of a group of worldwide
information resources. It is a collection of all connected
networks in the world.

WHAT IS COPYRIGHT?

It is a legal concept enacted by most national

governments that gives the creator of an original work
exclusive rights to it, usually for a limited period of
time.

In other words, copyright is a form of protection provided

by the laws of most national governments to the authors of
original works of authorship including literary, dramatic,
musical, artistic, and certain other intellectual works.

Copyright law, simply stated, means that legally one is not

allowed to take someone else words, graphics, video, or
any other type of media and use it for their own purposes.

WHAT ARE THE RIGHTS OF A COPYRIGHT OWNER?

Simply stated, this means that the copyright

owner has the exclusive right to decide who
may use the work. Thus, if you want to use
someone elses work, you must first gain
permission from the copy right owner.
Example:
The copyright to a Mickey Mouse cartoon
restricts others from making copies of the cartoon
or creating derivative works based on Disneys
particular anthropomorphic mouse.

CONT

Although copyright owner has some rights, there

are some few exceptions on the issue of
copyright.

For example, the educational fair use which

implies that it is permissible to use portions of
copyrighted work for educational purposes in a
self-contained classroom.

However, when material is available on the

Internet, it is no longer in a self-contained
classroom.

BREACH OF COPYRIGHT OCCUR IN CYBERSPACE

A copyright breach may if someone exercises

the copyright owners exclusive right to
reproduction,
modification,
distribution,
public performance and public display right in
his copyrighted work.

In other words, copyright breach occurs the

moment there is illegal duplication of software.

(See the case of Playboy Enterprises v Russ

Hardenburg- where a computer b

CONT

It is important to note that linking to another site

without consent, using hypertext links, framing,
and caching, may constitute copyright breach.

For example, web site links permit web users to

click their way from one web to another.

Framing permits the viewer of the framing site to

view the framed site while content from the
framing site (such as advertising banners) is still on
the viewers computer screen. Caching is the
creation of a copy of a web site by storing data on a
computer.

COMPUTER CRIME

It is a crime in which computer plays an essential

part. In other words, it is an illegal act that
involves a computer, its systems, or its
applications.

Computer crime may include fraud achieved by the

manipulation of computer records; deliberate
circumvention of computer security systems;
unauthorized access to or modification of programs
(hacking of data); identity theft; writing or spreading
computer viruses or worms; cyber stalking;
password sniffing , computer sabotage , etc.

CONT

It is important to note that under the Malaysian

Computer Crimes Act 1997, the term computer crime
is not defined.

However, the term probably would also refer to the some

of the examples given above i.e. hacking and many more.
(See sec 2 of the Computer Crimes Act 1997- where the
word computer is given a wide definition)

Many agree that cyber criminals have to be prosecuted.

However, securing conviction is not all that easy. The
main obstacle is the jurisdictional nature of computer
crime. Extra jurisdictional nature of computer crimes
always gives rise to difficult jurisdictional issues.

CONT

In the case of R v Governor of Brixton and another, ex

parte Levin- where Levin was arrested in the UK for
transferring $12M from customers accounts of Citibank
of US into his and his accomplices accounts.

In an action for extradition to the US, Levins counsel had

challenged the extradition, raising jurisdictional issue.
According to the counsel, the criminal act occurred in
Russia, therefore, the proper court is Russian court.

In brief, computer crime is any illegal act for which

knowledge of computer technology is essential for its
perpetration, investigation, or prosecution.

HOW CAN A COMPUTER CRIME BE COMMITTED?

A computer crime can be committed through

various method or modes i.e. unauthorised access
to computer network or unauthorised intrusion.

The following are some of the methods or modes:

CONT.
(a)Hacking :

It is one of the most common words used in the field of Cyber

Crimes.
Hacking in simple terms means an illegal intrusion into a
computer system or network. In other words, hacking refers
to the Unauthorized Access to a Computer Network which
may otherwise be called an Unauthorized Intrusion.
See sec 3 of the Computer Crimes Act 1997, which deals with
unauthorised access to computer material and makes it an
offence. The intent to commit the offence need not be direct.
The punishment is of a fine not exceeding RM50,000 or
imprisonment for a term not exceeding 5 years or to both.

b)

CONT

Cracking

In simple terms means an illegal intrusion into a

computer system or network with a criminal
intention of causing harm. (See sec 4 of the
Computer Crimes Act 1997 which deals with
unauthorised access to computer material with
intent to commit or facilitate commission of further
offence.
The punishment is of a fine not exceeding
RM150,000 or imprisonment not exceeding a term
of 10 years or to both)- See also sec 5 of the same
Act.

CONT

(c ) Cyber stalkingIt can defined as the repeated acts of harassment or

threatening behavior of the cyber criminal towards
the victim by using internet services.
Stalking in General terms can be referred to as the
repeated acts of harassment targeting the victim such
as following the victim, making harassing phone
calls, killing the victims pet, vandalizing victims
property, leaving written messages or objects.

LEGISLATION IN MALAYSIA DEALING WITH CYBER

LAW

The Digital Signature Act 1997-

It was enforced on the 1st of Oct 1998. It is an

enabling law that allows for the development of,
amongst others, e-commerce by providing an
avenue for secure on-line transactions through
the use of digital signatures.
In other words, the Act was enacted to provide
certain measure of security and assurance to
persons transacting electronically.

CONT

The Telemedicine Act 1997-

The Act is intended to provide a framework to

enable licensed medical practitioners to practice
medicine using audio, visual and data
communications.

Under this Act, any locally registered medical

practitioner may practise telemedicine with the
consent of the patient. (See sec 5 of the Act on the
requirement of consent from the patient)

CONT..
The Copyright (Amendment) Act 1997
which amended the Copyright Act 1987 came into
force on the 1st of April 1999, to make unauthorised
transmission of copyright works over the Internet
an infringement of copyright.
These provisions are aimed at ensuring adequate
protection of intellectual property rights for
companies involved in content creation in the ICT
and multimedia environment.

CONT

The Computer Crimes Act 1997The Act effective as of 1st of June 2000, created
several offences relating to the misuse of
computers.
Among others, it deals with unauthorised access to
computer material (sec 3), unauthorised access with
intent to commit other offences (sec 4) and
unauthorised modification of computer contents
(sec 5).
It also makes provisions to facilitate investigations
for the enforcement of the Act.

CONT

e)

The Communications and Multimedia

Act 1998-

The Act came into effect on the 1st of April 1999.

It provides a regulatory framework to cater for
convergence of telecommunications, broadcasting
and computing industries, with the objective of,
among others, making Malaysia a major global
centre and hub for communications and multimedia
information and content services.

JURISDICTIONAL ISSUE DEALT WITH IN CYBER

CRIMES?

First and foremost, the issue of territorial jurisdiction arises

in the situation where;
(i) the wrongdoer is within the country but the computer or
the program, server or data is outside the country,
(ii) the wrongdoer is outside the country but the computer
or program, server or data is within the country. (See the
US cases on this issue of jurisdiction i.e. Hall v LaRonde)
In Malaysia, some of our present statutes provide for extraterritorial jurisdiction in cases where the offence either
originates in this country or is directed against computers,
data or program in this country.

CONT

It is important to note that the Communications

and Multimedia Act 1998 (see sec 4) and
Computer Crimes Act 1997 (see sec 9) have
effect outside as well as within Malaysia.

Despite the fact that these Acts have extraterritorial effect, there may also be difficulties in
detecting the sources of the offence and
prosecuting the offender. For example, Brazilian
hacker known as Topeira who hacked
Parliaments website cannot be identified.

WHAT OTHER ISSUES ARE RELATED TO CYBER LAW?

a) Possible liabilities of an Internet Service Provider

Internet service providers (ISP) are organizations that have
permanent connection with the Internet and sell temporary
connections to others for a fee. Such local ISPs connect to
regional host computers operated by national service providers.

The

ISPs may be held liable for providing avenue for

breaching copyright, hosting pornographic materials and
defamation.

For

example, in a case of copyright infringement if the infringer

of the copyright is not readily identifiable, is insolvent or too
geographically remote, the ISP can be an alternative target for
copyright infringement.

CONT

Clear notice must be given to ISPs if any one wants

infringing materials to be taken down. A service
provider that removes materials claimed to be
infringing will not be liable, if the ISP took
reasonable steps promptly to notify the subscriber
that it has removed the material.
Note: In Malaysia, the issue of ISPs liability for
copyright infringement has not been addressed in
any of the legislation so far.

(B) WHETHER ACCESS TO PORNOGRAPHIC MATERIALS HOSTED BY FOREIGN ISPS IS

ALLOWED IN MALAYSIA-

It is important to note that under Malaysian Penal

Code distributing pornographic materials is a crime.
(See sections 292 and 293- the sections prohibit
selling,
letting, distributing or circulating
pornographic materials.

The Communications and Multimedia Act 1998 also

prohibits communications of pornographic materials
over the Internet. (See sections 211 and 233). Under
these two sections, not only the content providers
but also the service providers can be held liable for
allowing the transmission and the accessing of
obscene materials.

CONT

The Printing Press and Publication Act 1984 also

prohibits
pornographic
materials
under
undesirable publication. Undesirable publication
in sec 7 of the Act means publication consists of
articles, photographs, writing, sound, music and
statements in any manner which is prejudicial to
the
order
of
the
society.
Note: The problem in applying the provisions of
the Penal Code and the Printing Press and
Publication Act is that they do not directly cover
the activity of pornography on the Internet.

(C)

MEANING OF DOMAIN NAME-

It is an Internet Protocol address which consists of

series of numbers like 192.228.128.20.
It consists of two parts:
(i)
Top-level domain names e.g. .com (for
commercial users), .edu (educational institutions),
.gov (government entities), etc.
(ii) Second-level domain names, which are assigned
on a first-come-first serve basis. Hence, only one
person can have a particular second-level domain
under a particular top-level name .

CONT

The domain name owner may select any name as

he wishes. However, it will be advisable to select
the name very carefully.

The usage of the trademark conflict between

trademark and domain name may occur due to
cyber squatting (practice of registering trademarks
as domain name in order to extort payment for the
sale of domain name to the rightful owner),
typo squatting (registering domain names that are
nearly identical to the actual domain names used by
other organizations), etc.