MALAYSIA
Since 2013
Pillar Technical standards applied to ICT goods and online services |
Sub-pillar Self-certification for product safety
Lack of self-certification
SIRIM QAS International is the sole certifying agency appointed by Malaysia authority. Type Approval is a mandatory requirement for a communications product before it is allowed to be sold in Malaysia. Among the products that need to be certified there are: netbook, tablet PC, mobile phone, security devices, smart TV, WiFi/3G/Bluetooth module and broadcasting equipment. Foreign applicants shall appoint a local management representative in Malaysia to be responsible for Type Approval application. As a member of the Asia Pacific Economic Cooperation Mutual Recognition Arrangement (APEC-MRA), Malaysia accepts product approvals from APEC members.
Coverage Electronic products, including netbook, tablet PC, mobile phone, security devices, smart TV, WiFi/3G/Bluetooth module and broadcasting equipment
Sources
- https://members.wto.org/crnattachments/2013/tbt/MYS/13_1791_00_e.pdf
- https://www.sirim-qas.com.my/wp-content/uploads/2012/04/TAC_DOC_01-1-1-Issue-1-Rev-0-CERTIFICATION-REQUIREMENTS-As-registered-with-TECS.pdf
- http://www.sirim-qas.com.my/our-services/product-certification/product-certification-scheme
- http://www.qman-consulting.com/MALAYSIA-SIRIM.html
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MALAYSIA
Since October 2015
Pillar Quantitative trade restrictions for ICT goods and online services |
Sub-pillar Other import restrictions, including non-transparent/discriminatory import procedures
Certification Requirements for Compliance Approval on Communication, Multimedia and Hybrid Equipment
According to the Certification Requirements for Compliance Approval on Communication, Multimedia, and Hybrid Equipment, import licenses are required for hybrid ICT products. These include those devices with multiple features including toys, medical devices, and computer products.
Coverage Hybrid ICT products
Sources
- http://www.globaltradealert.org/intervention/20588
- https://www.sirim-qas.com.my/wp-content/uploads/2012/04/TAC_DOC_01-1-1-Issue-1-Rev-0-CERTIFICATION-REQUIREMENTS-As-registered-with-TECS.pdf
- https://webcache.googleusercontent.com/search?q=cache:2lcZ-bCPuzgJ:https://www.lexology.com/library/detail.aspx%3Fg%3D2969bb1e-2102-42eb-993a-1ce46ca9db38+&cd=2&hl=en&ct=clnk&gl=az
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MALAYSIA
Since September 1998, entry into force in April 1999
Pillar Content access |
Sub-pillar Licensing schemes for digital services and applications
Guidelines of the Malaysian Communications and Multimedia Commission (MCM)
According to the Malaysian Communications and Multimedia Commission (MCMC) guidelines, there is a licence requirement for Content Applications Service Provider (CASP) and Applications Service Provider (ASP). In assessing the shareholding structure of an applicant, the MCMC takes into account the need to encourage more local small and medium size industries of Malaysian origin in the local information and communications technology industry.
Coverage Content Applications Service Provider, Applications Service Provider
MALAYSIA
N/A
Pillar Intermediary liability |
Sub-pillar Safe harbour for intermediaries for any activity other than copyright infringement
Lack of intermediary liability framework in place beyond copyright infringement
A basic legal framework on intermediary liability beyond copyright infringement is absent in Malaysia's law and jurisprudence.
Coverage Internet intermediaries
MALAYSIA
Reported in 2021
Pillar Intermediary liability |
Sub-pillar User identity requirement
Mandatory SIM card registration
It is reported that Malaysia imposes an identity requirement for SIM registration. Anyone wanting to purchase a SIM card has to provide their national ID card, or a passport in case of foreigners, to activate a new prepaid SIM card.
Coverage Telecommunications sector
MALAYSIA
Since July 1936, last amended in March 2017
Pillar Domestic data policies |
Sub-pillar Requirement to allow the government to access personal data collected
Criminal Procedure Code
Section 116B of the Criminal Procedure Code provides that a police officer conducting a search under the Code must be given access to computerised data whether stored in a computer or otherwise. For the purpose of this section, 'access' includes being provided with the necessary password, encryption code, decryption code, software, or hardware and any other means required to enable comprehension of the computerised data. It is not clear whether a court order is needed to access the information.
Coverage Horizontal
MALAYSIA
Since May 1987, as amended in July 2012
Pillar Intermediary liability |
Sub-pillar Safe harbour for intermediaries for copyright infringement
Copyright Act of 1987
The amendment of the Copyright Act of 2012 (Act 1420) establishes a safe harbour regime for intermediaries for copyright infringements. According to Art. 43F of the law, Internet Services Providers (ISPs) and content aggregators are provided immunity from liability for copyright infringement if they protect copyright owners by removing or disabling access to the infringing content.
Coverage Internet intermediaries
MALAYSIA
Since June 2012, last amended in June 2015
Pillar Domestic data policies |
Sub-pillar Requirement to allow the government to access personal data collected
Security Offences (Special Measures) Act 2012
Under Section 6(3) of the Security Offenses (Special Measures) Act 2012, a police officer with the rank of superintendent of police or above may intercept communications without the authorization of the public prosecutor in urgent cases.
Coverage Horizontal
MALAYSIA
Since March 2018
Pillar Cross-border data policies |
Sub-pillar Participation in trade agreements committing to open cross-border data flows
Comprehensive and Progressive Agreement for Trans-Pacific Partnership
Malaysia has joined an agreement with binding commitments to open transfers of data across borders: the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, Art. 14.11)
Coverage Horizontal
MALAYSIA
Since June 2010, entry into force in November 2013
Pillar Domestic data policies |
Sub-pillar Framework for data protection
Personal Data Protection Act 2010
Data protection is primarily governed by the Personal Data Protection Act 2010, Malaysia's first comprehensive personal data protection legislation. It purports to safeguard personal data by requiring data users to comply with certain obligations and conferring certain rights to the data subject in relation to their personal data.
Coverage Horizontal
Sources
- http://www.kkmm.gov.my/pdf/Personal%20Data%20Protection%20Act%202010.pdf
- https://www.dataguidance.com/notes/malaysia-data-protection-overview
- https://www.dlapiperdataprotection.com/index.html?t=law&c=MY
- https://formiti.com/the-malaysia-personal-data-protection-act-2010-all-you-need-to-know-part-1/
- https://www.lexology.com/library/detail.aspx?g=ee9444ef-e33e-4716-a920-17df5258267c
- https://www.lexology.com/library/detail.aspx?g=b4115b87-c73c-42ed-be24-c38a64109500
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MALAYSIA
Since June 2010, entry into force in November 2013
Pillar Cross-border data policies |
Sub-pillar Conditional flow regime
Personal Data Protection Act 2010
Section 129(1) of the Personal Data Protection Act (PDPA) prohibits a data user from transferring the personal data of a data subject to a place outside of Malaysia unless to places specified by the Minister, upon the recommendation of the Personal Data Protection Commissioner, by notification published in the Gazette. The Minister may specify such places that have any law in force which is substantially similar to the PDPA, serves the same purpose as the PDPA, or ensures an adequate level of protection in relation to the processing of personal data which is at least equivalent to the level of protection afforded by the PDPA. Section 129(3) of the PDPA provides exceptions whereby a data user may transfer any personal data to a place outside Malaysia if:
- the data subject has given their consent to the transfer;
- the transfer is necessary for the performance of a contract between the data subject and the data user;
- the transfer is necessary for the conclusion or performance of a contract between the data user and a third party which: is entered into at the request of the data subject; or is in the interests of the data subject;
- the transfer is for the purpose of any legal proceedings, obtaining legal advice or for establishing, exercising, or defending legal rights;
- the data user has reasonable grounds for believing that in all circumstances of the case: the transfer is for the avoidance or mitigation of adverse action against the data subject; it is not practicable to obtain the consent in writing of the data subject to that transfer; and where it is practicable to obtain consent, the data subject would have given their consent;
- the data user has taken all reasonable precautions and exercised all due diligence to ensure that personal data will not be processed in any manner which if that place were Malaysia, would be a contravention of the PDPA;
- the transfer is necessary in order to protect the vital interests of the data subject; or
- the transfer is necessary as being in the public interest in circumstances as determined by the Minister.
- the data subject has given their consent to the transfer;
- the transfer is necessary for the performance of a contract between the data subject and the data user;
- the transfer is necessary for the conclusion or performance of a contract between the data user and a third party which: is entered into at the request of the data subject; or is in the interests of the data subject;
- the transfer is for the purpose of any legal proceedings, obtaining legal advice or for establishing, exercising, or defending legal rights;
- the data user has reasonable grounds for believing that in all circumstances of the case: the transfer is for the avoidance or mitigation of adverse action against the data subject; it is not practicable to obtain the consent in writing of the data subject to that transfer; and where it is practicable to obtain consent, the data subject would have given their consent;
- the data user has taken all reasonable precautions and exercised all due diligence to ensure that personal data will not be processed in any manner which if that place were Malaysia, would be a contravention of the PDPA;
- the transfer is necessary in order to protect the vital interests of the data subject; or
- the transfer is necessary as being in the public interest in circumstances as determined by the Minister.
Coverage Horizontal
MALAYSIA
Since June 2014
Since October 2013
Since October 2013
Pillar Cross-border data policies |
Sub-pillar Local storage requirement
Goods and Services Tax Act 2014
Guide to Goods and Services Tax
Guide to Goods and Services Tax
Section 36(2)(c) of the Goods and Services Tax Act creates a duty to keep records described in Section 36(1) in Malaysia, except as otherwise approved by the Director-General of the Royal Malaysian Customs Department. These include all records of goods and services provided by a taxable person, all imports records by the same, and, as per paragraph 133(c) of the Guide to Goods and Services Tax, any other supporting documents such as contracts or price quotations that affect or may affect said person's liability under the Act. Paragraph 134(b) of the Guide states that the requirements cover documents in electronic form.
Section 36(6) of the Act extends the requirements to certain non-taxable persons. Paragraph 135 of the Guide specifies that these include:
- any person who has ceased to be a taxable person and has made or may make a bad debt relief claim;
- imported services supplied to a recipient who is a non-taxable person for the purposes of business;
- goods of a taxable person sold by a non-taxable person to recover any debt owed by the taxable person;
- supply by auctioneer, who is a non-taxable person, in his own name on behalf of the principal/owner of the goods who is a taxable person; and
- a non-taxable person in Malaysia who receives goods in the course or furtherance of business, from an approved toll manufacturer.
Section 36(6) of the Act extends the requirements to certain non-taxable persons. Paragraph 135 of the Guide specifies that these include:
- any person who has ceased to be a taxable person and has made or may make a bad debt relief claim;
- imported services supplied to a recipient who is a non-taxable person for the purposes of business;
- goods of a taxable person sold by a non-taxable person to recover any debt owed by the taxable person;
- supply by auctioneer, who is a non-taxable person, in his own name on behalf of the principal/owner of the goods who is a taxable person; and
- a non-taxable person in Malaysia who receives goods in the course or furtherance of business, from an approved toll manufacturer.
Coverage Horizontal
MALAYSIA
Since September 1967, last amended in December 2018
Pillar Cross-border data policies |
Sub-pillar Local storage requirement
Income Tax Act 1967
Section 82(8) of the Income Tax Act 1967 states that all records that relate to any business in Malaysia shall be kept and retained in Malaysia.
Coverage Horizontal
MALAYSIA
Since 1965, last amended in 2007
Pillar Cross-border data policies |
Sub-pillar Local storage requirement
Companies Act 1965
Under Section 167(3) of the Companies Act 1965, accounting and other such financial records pertaining to operations in Malaysia must be stored at the company's registered address or at any other such place in Malaysia. Section 167(5) of the Companies Act states that if records are kept at a place outside of Malaysia, pursuant to Section 167(4) regarding operations outside of Malaysia, these records must be made available in Malaysia if required by the Registrar.
Coverage Horizontal
MALAYSIA
N/A
Pillar Telecom infrastructure & competition |
Sub-pillar Signature of the WTO Telecom Reference Paper
Partial appendment of WTO Telecom Reference Paper to schedule of commitments
Malaysia has only partially appended the World Trade Organization (WTO) Telecom Reference Paper to its schedule of commitments.
Coverage Telecommunications sector