- The poison ink letters and the unreliability of metadata
- Beware use of the hands up and other such emoticons
In their lawful training, some attorneys began to experiment with ChatGPT in 2023. In fact, some elements of this article were drafted with the assistance of ChatGPT where I had used it to summarise my situations above. However, some pieces were inaccurate and needed to be altered.
These cases are additions to the new edition ( 2nd edition ) of my upcoming textbook, Foong’s Malaysia Cyber, Electronic Evidence and Information Technology. The case summaries were previously written in detail for the text, but ChatGPT helped to reduce the length and make them simpler for laypeople to read.
The use of ChatGPT by doctors but had not attracted good usage.
In Mata v. Avianca, Inc.  , ( 1: 22-cv-01461 ), the case was decided in America. The United States District Court found that the solicitor in command and his laws firm had “abandoned their responsibilities when they submitted non-existent criminal opinions with false quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the false opinions after criminal orders called their existence into question”.
In essence, the lawyer had submitted a document containing allegedly administrative cases that had been created using ChatGPT, but these criminal cases did not exist. The Court issued a show cause notice to him. He and his company, among other things, received sanctions from the court and fines of US$ 5, 000 ( RM21, 892 ).
This eventually led to some US Courts imposing limits on the use of relational artificial intelligence. With the exception of artificial intelligence embedded in the typical on-line legitimate research resources, among others, the United States District Court for the Eastern District of North Carolina required filing a document with any small or memo memo submitted to the Court.
Anti-stalking rules wounds
The first instance of the anti-stalking law, which was introduced last year under section 507A of the Penal Code, came from Mohamad Safiq bin Rosli ( Shah Alam Magistrate Criminal Case No. BA-83-1937-08/2023 ) ) was charged with allegedly stalking one Acacia Diana who had highlighted her ordeal on the social media platform X. Her tale went popular, which led to the arrest and prosecution of the accused. He was afterwards found to be of erroneous thinking and acquitted and discharged and placed and detained at the delight of the Sultan of Selangor under area 348 of the Criminal Procedure Code.
[Ed: A prison sentence that is freely imposed upon the Sultan and allows the prisoner to be released at the Sultan’s choice.
Defamation
Based on the number of cases filed in the Court assigned code for defamation cases ( i. e. 23CY and B53CY), there were at least 103 defamation cases filed in the Klang Valley. However, there should be more situations because some of these cases were not filed under the appropriate Judge assigned codes.
]Ed: Cases are focused on those filed in the Klang Valley as it is not easy to trace the figures for other courts. ]
In Leaderonomics Sdn. v. Sundra Rajoo Nadarajah Bhd. The plaintiff, a renowned arbitrator and former director of the Asian International Arbitration Centre ( AIAC ), filed a lawsuit against the defendants for defamation after an anonymous” Poison Pen Letter” was published, which went viral and seriously harmed his reputation and career. The claimant alleged that the accused were liable for the article’s release.
The plaintiff used IT forensic experts to examine the metadata of the Microsoft Word document ( “MACC” ) to identify the author of the Poison Pen Letter. docx” ) version of the poison pen letter. They discovered that the document’s account was” Leaderonomics,” the first defendant’s brand. However, the accused contested this proof, arguing that data may be edited and manipulated, and therefore, it was unsatisfactory for proving authorship.
The second accused, who allegedly participated in the release, had passed away before the test, so the event against him was dropped. The plaintiff also invoked section 114A ( 3 ) of the Evidence Act 1950, which presumes that whoever has control of a computer from which defamatory content originates is considered the publisher, unless proven otherwise.
The High Court upheld the High Court’s ruling that, even though the information indicated” Leaderonomics” as the artist, this alone was insufficient evidence to support author. The defendant’s individual professional witness admitted that the poison pen letter itself may create or show which computer, server, account or IP address that the file originated from. The metadata does not establish the identity of the person behind the username” Leaderonomics” in the metadata.
Additionally, the court found that the 1st defendant, being a corporate entity, could only be held liable if it was proven that an authorized employee had published the letter, which was not adequately pleaded by the plaintiff.
Regarding section 114A ( 3 ), the court acknowledged that the presumption could apply to the first defendant if it had control over the computer used to publish the letter. However, the defendants successfully rebutted this presumption by demonstrating that the 2nd defendant had custody of the laptop from which the letter was published.
In consequence, the High Court dismissed the plaintiff’s legal action against the first defendant at cost.
Defamation suit by business against online users is a common occurrence these days. The parties were involved in a dispute over the defendant’s sale of frozen seafood in Loh Li Sze v. Eugene Chong Haou Inn &, Anor [2023] CLJU 1620. The defendant was dissatisfied with the weight and size of the seafood and the plaintiffs eventually refunded the money paid for the frozen seafood. The frozen seafood was never brought back, though.
This led to publication of 3 viral Facebook postings by the defendant that essentially said that the plaintiffs had cheated her. Additionally, the defendant urged her followers to go viral with one of the posts. The plaintiff filed the suit in the Sessions Court. The defendant argued that the defense was based on fair comments and justification.
The Sessions Court found that the postings to be defamatory and the publications were actuated by malice. US$ 11 425 ( RM$ 50, 000 ) damages were granted by the Sessions Court.
The High Court declined to interfere with the findings of the Sessions Court as it was not shown that the Sessions Court was plainly wrong in arriving at its decision. The fact that the appellate Court feels like it might have made a different decision is irrelevant as long as the Sessions Court’s conclusion can be supported on a rational basis in light of the relevant evidence.
In addition, the High Court said that reading the melodramatic postings and the defendant’s numerous urgings to her followers to viral her postings the defendant’s motive was clearly to solicit more followers through her postings and she was delighted in gloating on the plaintiffs ‘ predicament. The testimony of the witnesses and some of the defendant’s postings provide a basis for the Sessions Court judge to rule in favor of finding malice.
Further, the postings by the defendant that the plaintiffs are cheats are not comments on facts but a statement of fact. Therefore, the defendant is unable to use fair comment as a defense. In addition, the defendant failed to state which of her words are comments and which are facts as required under the law.
The plaintiffs claimed that they had no losses, as the defendant had argued. The High Court held that this is a frivolous defence. A party may be entitled to damages without the need of proof because of the express averment of cheating.
Can “emojis” be used to signify an agreement?
The Court addressed the issue of whether a thumbs-up emoji””” is valid in the Canadian case South West Terminal Ltd. v. Achter Land &, Cattle Ltd.  , ( 2023 SKKB 116 )..jpg "Bread & Kaya 2023 Pt1: Noteworthy cyberlaw cases include use of thumbs up emoji, defamation, anti-stalking law")
” by the defendant in response to the plaintiff’s request to confirm the terms of a contract sent by way of an electronic message. The plaintiff had signed the agreement and sent a copy of it via text to the defendant. The defendant argued that it was simply to confirm that he had received the contract. Later, the defendant was examined on the use of the thumbs-up emoji.
The Court referred to the dictionary meaning of a thumbs-up emoji which meant “it is used to express assent, approval or encouragement in digital communications, especially in western cultures” and took judicial notice of the same.
The Court determined that there was a contract between the parties. The Court looked into the circumstances leading to the conversation and those circumstances supported the plaintiff’s version. Additionally, the Court determined that a thumbs-up emoji is an electronic action that can be used to express consent as required by the Canadian Electronic Information and Documents Act, 2000, SS 2000, c E-7.22.
The defendant argued that a simple thumbs-up emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean. The Court ruled that the” Court cannot ( nor should it ) attempt to stem the tide of technology and common usage; this seems to be Canadian society’s new reality, and courts will have to be prepared to deal with the new difficulties that may arise from the use of emojis and the like.”
In our local case of SG Home Style Sdn Bhd lwn. The Magistrate held that the OK gesture emoji”” is Ng Kim Lian [2023] SMCU 46.
” made by the defendant to the plaintiff in a WhatsApp conversation amounted to an agreement to an attendance fee. The learned magistrate took judicial notice of the Wikipedia post’s contents, stating that it denotes approval, agreement, agreement, and that everything is good or okay. The learned Magistrate also combed through the WhatsApp conversation between the defendant and plaintiff’s witness and found that defendant habitually reply to the plaintiff’s witness with the same emoji to answer the plaintiff’s messages.
However, the High Court ruled that an emoji sent via WhatsApp to the parties cannot constitute an explicit admission by the defendant in the High Court case CC Land Resources Sdn Bhd &, Anor v. Geo Win Sdn Bhd [2023] CLJU 1206. The emoji, as explained by the defendant’s witness, is merely to indicate that he has taken note of the request, and he still requires approvals from his other partners.
In light of the circumstances above, using an emoji to indicate an agreement does not render a transaction invalid. The Court must keep up with technology and the way our society does its business. It is an electronic message, falling under the definitions of “writing” in the Interpretation Acts of 1948 and 1967 and “electronic message” under the Electronic Commerce Act of 2006, and thus falling under the definition of “writing” in section 3 of the Interpretation Acts of 1948 and 1967.
It is submitted that in determining whether an emoji amount to an agreement to a certain term, the Court may look into the type of emoji that was being used ( e. g. a thumbs-up or an OK gesture ),  , history of how the sender uses the emoji in the same conversation and the surrounding circumstances.
Online proceedings
Many Courts are now calling back lawyers to attend Court physically especially for trials. The appellant courts converted many of their online hearings to physical hearings at the beginning of 2024. Online hearings are now things of the pandemic years. However, there are still court cases involving the effects of the pandemic to cases.
In Karen Yap Chew Ling v. Binary Group Services Bhd]2023] 7 CLJ 534, High Court dismissed the defendant’s application for the ongoing trial to be conducted via remote communication technology. The defendant sought numerous adjournments, which the Court granted because she was unable to travel to Malaysia from Cyprus due to health concerns amidst the Covid-19 pandemic.
On the final trial date, the defendant did not appear, and despite requesting another adjournment, her counsel eventually closed her defence. The defendant had already closed her case, so the court decided to reject the request for remote communication technology. Judgment was subsequently entered against the defendant.
The defendant argued a breach of natural justice on appeal. The Court of Appeal disagreed, emphasizing that sufficient time had been provided for the defendant to arrange her return and appear in court. The defendant had ample opportunity to present her evidence, go through cross-examination, and participate in the proceedings, according to the Court, who determined that natural justice had not been violated.
The Court also highlighted practical concerns with remote cross-examination, such as connectivity issues and potential prompting during breaks, which might compromise the effectiveness of the process. In the end, the Court ruled that the trial judge’s decision to use remote communication technology is ultimately determined based on factors like justice, efficiency, and cost, rather than the litigants ‘ preferences.
The Court of Appeal agreed with the plaintiff’s objection that a trial by way of remote communications technology is not suitable based on the following reasons-
The trial Judge’s ability to assess the appellant’s demeanor and credibility in this case without filtering ( a )  ,  ,  ,  ,  ,  ,  ,  ,  ,  ,  ,  ,
( b )  ,  ,  ,  ,  , the plaintiff’s counsel’s ability to cross examine the defendant without technical disruption,
( c ) the absence of party representatives, not only while the appellant is on camera, but also during the anticipated breaks, and  ,  ,  ,  ,  ,  ,  ,  ,  ,  , and ( c )  , &nbs
( d )  ,  ,  ,  ,  , the absence of the solemnity of oath taking in open Court in Malaysia and the general formality of such proceedings.
The first defendant, a fugitive facing arrest warrants in Malaysia, sought to appear in court via Zoom, citing the risk of arrest and claiming entitlement to participate remotely in accordance with his civil rights, in Securities Commission Malaysia v. Wong Shee Kai &, Ors [2023] 7 CLJ 825. The High Court initially allowed his remote presence but later required a formal application for continued remote attendance. The plaintiff opposed, while the first defendant argued his right to participate remotely, highlighting the defendant’s non-compliance with court orders and the possibility of undermining justice.
The High Court dismissed the application, ruling that the 1st defendant had not disclosed a specific location for attendance as required under the Practice Direction for Remote Communication Technology i. e Practice Direction 1 of 2021: Management of Civil Case Proceedings Conducted by Long-distance Communications Technology for all Courts in Malaysia ( Pengendalian Prosiding Kes Sivil Melalui Teknologi Komunikasi Jarak Jauh Bagi Mahkamah Di Seluruh Malaysia ) ( “RCT Practice Direction” ).
The first defendant merely concealed his location in Papua New Guinea’s Port Moresby. The High Court ruled that a person attending the proceedings by means of remote communication technology has to disclose where he is logging in from. It cannot be said that there are sufficient administrative and technical facilities and arrangements at the place because this particular location is not disclosed. In the alternative, the 1st defendant could provide proof that sufficient administrative and technical facilities and arrangements are made at whichever place he wants to log in from but none was given.
It concluded that granting the application would set a dangerous precedent, allowing fugitives to avoid criminal charges while engaging in civil litigation, putting a strain on justice and public trust in the legal system. The Court prioritized the proper administration of justice over the 1st defendant’s assertion of rights to remote participation.
The Court exercised discretion in the course of the proceedings by using remote communication, rejecting the first defendant’s requests to continue the trial and interlocutory hearings remotely.
The Court of Appeal dismissed the 1st defendant’s appeal based on the plaintiff’s preliminary objection i. e. that the High Court’s order is a ruling under section 3 of the Courts of Judicature Act 1964 and thus not appealable.
The Federal Court’s request for leave of appeal was denied.  , It held that” The court dismissed Wong’s leave application as the question of whether the trial judge had erred in his decision is a matter that can be challenged by way of appeal at the end of the trial”. Wong’s right to appeal is reserved in this regard; it is not that the trial judge’s decision is non-appealable, but rather it can be appealed at the trial’s conclusion and not while it is ongoing. It would not be appropriate for the Federal Court to interfere with the trial court’s discretion at this juncture. Thus, there is no prejudice against Wong.
Do we need to check our spam emails?
Electronic service of documents eases the administration of justice and reduces costs for parties. However, this method may be disadvantageous to the intended recipient. For instance, emails that are sent via email may end up in the recipient’s spam folder or remain unsent in their inboxes. Additionally, the recipient’s email server may be unavailable while the service is being served.
The accused in the case of Mohd Ramadhan Bin Hussin v Pendakwa Raya ( Alor Setar High Court Criminal Application No. This issue was unfortunate to KA-44-5-02-2023. The accused applied for extension of time in the High Court to file his petition of appeal as required by section 307 ( 4 ) of the Criminal Procedure Code. The delay was caused by the fact that the grounds of judgment were sent to his lawyer’s email but ended up in the spam folder.  , The High Court dismissed the application and held that, among others, it is the responsibility of the accused’s lawyer to ensure that all emails received by their firm are carefully scrutinized and reviewed, this includes emails received in the’ spam’ folder.
The same responsibility should not be applied when it comes to a litigant’s email address as it is when regular email users do not regularly check their spam folder. In Patricia Sue Lin Knudsen v. Joey James Ghazlan]2019] CLJU 2037, the High Court held that cause papers in relation to the proceedings were not all served on the defendant as some of the documents were found in the spam folder of the defendant.  ,
Part 2 tomorrow looks at what the Syariah High Court had to say about cryptocurrencies. Online sexual grooming, as well as a software dispute case, were also heard in court.