The rapid Information and Communication Technologies (ICT) development in this digitalized era has created loopholes for cybercrimes. This has caused many challenges to the current Malaysian laws and social well-being.
As one of the leading website development and digital marketing companies in Malaysia, we always conscious of the importance of cyber law knowledge. This can ensure we understand our legal rights in the cyber world and not against any laws when we operate our businesses.
Thus, we invited our digital marketing consultant, Eloise Tan, to share about cyber law in Malaysia. Eloise has extensive knowledge and experience regarding cyber laws, intellectual property, and copyright, with the background of:
Certificate in Legal Practice (CLP) at Brickfields Asia College
Bachelor of Laws (LLB) at Reading University, England
Bachelor of Laws (LLB) at Taylor’s University Lakeside Campus
Is There a Complete Cyber Law System in Malaysia?
In fact, there is no specific cyber law in Malaysia that govern online activities. Also, there are no specific legal acts that lay down all regulations and legal requirements about cybercrime.
However, some ordinary acts that govern Internet activities which we can refer to, including:
- Computer Crime Act 1997
The Computer Crimes Act 1997 (“CCA”) criminalizes the abuse of computers. Criminal activities such as hacking, phishing, cracking, virus attack, to name a few, are governed under this act.
- Communications and Multimedia Act 1998
Based on The Malaysian Communications and Multimedia Commission (MCMC), this act and the subsidiary legislation apply both within and outside Malaysia. The act covers content protection, which prohibiting offensive and pornography contents.
- Intellectual Property Law
The Intellectual Property Law deals with intellectual property relating cases to protect and enforce the owners’ or creators’ rights. Areas of intellectual property include copyright, patent, and trademarks.
There are two main issues surrounding websites and the Internet that you should know, which are:
- Website’s domain name and how it relates to trademarks; and
- How we protect our published content on the Internet by using copyright law
About Domain Name & Trademark
Based on Wikipedia, a domain name identifies a network domain or represents an Internet Protocol (IP) resource. Domain names are used for addressing purposes and application-specific naming in various networking contexts.
The registration of domain names is usually administered by domain name registrars who sell their services to the public.
There are two options to acquire a domain name: registering a new one or purchasing an existing one. When you are registering or purchasing a domain name, be aware of these two elements, whether it is:
-Anyone owning the right for the domain name; Or
-Is the domain name a registered trademark?
Meanwhile, a trademark is a unique symbol or word that represents a product or a business.
The Relationship Between a Domain Name and Trademark
A domain name can be a trademark that all under your legal rights. Based on The Trademark Act 1976, any infringement of this act will amount to a cause of legal action.
In short, we can conclude that there is no cyber law that governs domain name disputes in Malaysia. Still, we are using Intellectual Property Law instead to manage domain name relating activities.
Fun Facts about Trademark
We often see two symbols, R® and TM™, representing a business’s trademark, are there any differences between these symbols?
As we can refer to the infographic above, TM™ is an identifier of the product or service source, pending registration. Meanwhile, the R® symbol represents a registered trademark that provides full protection.
Legal Dispute Over a Domain Name
The most common case that involves legal dispute over a domain name is cybersquatting.
Cybersquatting is registering, using, or selling a domain name with the intent of profiting from the goodwill of someone else’s trademark. It generally refers to the practice of buying up domain names that use the names of existing businesses with the intent to gain a profit.
Case Study on Cybersquatting in Malaysia
Back in 2008, there was one legal dispute over a domain name between Google Inc and Digiattack.
Digiattack was a company based in Ipoh, and the company registered www.google.my as its domain name. Google found out and filed a complaint against Digiattack.
The Court held that Google won the case. As Google managed to prove the domain name is identical to its trademark and was used in bad faith.
The arbitral tribunal has informed the disputed domain name to be transferred back to Google.
As a result, this case was an established principle that we recognized the Trademark Law could protect domain names.
Legal Options While Facing Legal Dispute Over Domain Name
If you are facing legal disputes such as cybersquatting that another party has used your domain name without your permission, you can always:
- File a complaint to relevant parties, or
- File a court action
For domain names that involve .com, .net, .org, you may file a complaint with the World Intellectual Property Organization (WIPO) under the UDRP Model Complaint and Filing Guidelines.
For domain names that involve .my, you can file complaints to MYNIC.
What Are the Remedies for a Legal Dispute that Recognised in Malaysia?
Like the Google vs Digiattack case mentioned above, judges held the rights to instruct transferring the domain name back to the owner.
An injunction is a relief in the form of a court order, which forbids or compels a specified party from doing a certain act. For example, this remedy is used to immediately stop the person from using the domain name if the plaintiff can prove his/her ownership over the domain name.
This remedy offers the option to claim the loss you have suffered from the infringer.
Accounts of Profit
This act is opposed to damages, which you can claim the profits that the infringer has gained.
Meanwhile, ‘damages’ and ‘accounts of profit’ cannot be claimed simultaneously.
Cyber Law in Malaysia Involves Content Copyright
Here comes the second important part of cyber law in Malaysia- the content copyright.
Copyright protects your content. Whether content is eligible for registration of copyright or entitled to copyright protection (in circumstances where there is no copyright registration) depends on the nature per se. Examples are music, written words, databases, advertisements.
All original contents created and published on your website are secured by the copyright law, which is the Copyright Act 1987 (“CA 1987”).
However, there is sufficient protection by placing a copyright notice on your website.
A valid copyright notice including:
- Copyright © symbol
- Year of publication
- Company name
There will be instant protection after placing the copyright notice on the website.
Domain Name and Trademark Legal Rights:
In short, registering a domain name does not mean that you have interests or legal rights to the domain name. You still need to prove that you are the owner if a legal dispute arises.
So, how to prove you have a legitimate interest in a particular domain name? There are two essential elements:
- The party used an identical or confusingly similar name with your business domain; and
- Able to prove the registered domain name was used in bad faith. For example, purchase and resell the domain name to gain profits.
Register for a trademark first does not mean you get a higher chance of winning a case dispute. However, domain name registration is on a first-come-first-serve basis. If you have the R® logo in hand, there will be a higher chance of winning.
Last but not least, register a trademark for your logo, products, and services is necessary. You might think there is no effect for not registering a trademark unless a legal dispute arises.
Disclaimer: This article does not constitute a legal advice. We recommend you consult a lawyer if you have any concerns