Whenever someone mentions network infrastructure, most people would think of the many telecommunication towers that we see erected on roadside, in a neighbourhood mosque, on a school compound, or on billboards and rooftops. Apart from these towering structures, there are actually many other types of network infrastructure around us that are invisible to the eyes – especially the buried fibre optic cables and submarine cables.
Network infrastructure is among the most capital-intensive assets a business can own, yet they are extremely prone to damage. During the carrying out of construction work, it is possible that a contractor’s excavator accidentally severs a fibre optic cable, or that a heavy-duty ship’s anchor accidentally drops on top of a submarine cable, damaging it. In most of these scenarios, the owners of the damaged network infrastructure will have to undertake repair work almost immediately to resume network operation or otherwise risk having to face disgruntled or dissatisfied customers. Can the party that has caused the damage in the first place then get away scot-free without having to bear any of the responsibility?
In this article, we are going to lay down some of the key remedies that the owners of network infrastructure may have under Malaysian law against those who have damaged their infrastructure.
- 1. Criminal Offence
Damaging network infrastructure is a criminal offence under Malaysian law, specifically Section 235 of the Communications and Multimedia Act 1998 (“CMA”). A person who tampers with, adjusts, alters, removes, destroys or damages any network facilities or any part of them commits an offence under the CMA, and can be made liable to a fine not exceeding RM500,000.00 or to imprisonment for a term not exceeding five (5) years or to both. Critically, the CMA does not only criminalise intentional wrongdoing but also damage to network infrastructure caused by negligence. Essentially, a contractor or a vessel that causes damage to third-party network infrastructure can be liable under the CMA even if they do not have any intention to do so, as long as it is proven that an element of negligence exists. Additionally, a person who has damaged network infrastructure, intentionally, can also be charged under Section 425 of the Malaysian Penal Code for mischief.
Given the criminal nature of these offences, it is to be noted that prosecution of the wrongdoers will have to be brought by the Public Prosecutor. Any fine or compound flowing from such prosecution is paid to the State and not to the owner of the damaged infrastructure. These offences therefore do not actually compensate the owner and only work as a deterrent against wrongdoing. Crucially, the owner of damaged network infrastructure will have to lodge a police report with the enforcement authority and a complaint to the Malaysian Communications and Multimedia Commission to set the wheels of criminal enforcement in motion.
- 2. Statutory Right of Private Action
While we did say that Section 235 of the CMA is criminal in nature in that its enforcement will have to be through the authorities, since 2025 it has been possible for owners of damaged network infrastructure to enforce Section 235 of the CMA privately – by virtue of Section 236A of the CMA that came into effect that year.
Section 236A of the CMA allows a person who suffers loss or damage directly as a result of a contravention of Section 235 of the CMA by another person to seek relief in civil proceedings in a court. What makes Section 236A of the CMA a powerful tool in the arsenal of network infrastructure owners is its complete independence from the criminal enforcement of Section 235 of the CMA. An owner can rely on Section 236A to initiate legal proceedings regardless of whether the wrongdoer has been charged under Section 235, and regardless of whether any contravention of Section 235 has been proven in a criminal prosecution. Essentially, the civil claim element is decoupled entirely from the criminal process and can proceed in parallel with, or entirely independently of, any criminal enforcement.
If Section 235 of the CMA acts as a deterrent against wrongdoing, then it can be said that Section 236A of the CMA exists to potentially put funds back in the hands of the owners of damaged network infrastructure.
- 3. The Common Law Tort
Before the coming into force of Section 236A of the CMA, owners of damaged network infrastructure have traditionally relied on the law of tort for their remedies, particularly negligence. To succeed, the owners of the damaged network infrastructure will have to prove that the contractors (and/or principals who have engaged them) owe a duty of care to the owners in carrying out their work; that the duty was breached; and that the breach resulted in damage to the owners’ property.
As far as network infrastructure is concerned, it is generally accepted that contractors, and in some limited circumstances, the principals, do owe a duty of care to the owners of network infrastructure who have installed, laid, constructed and/or set up network facilities in the vicinity of the contractors’ or principals’ work area. This can be seen from the fact that as part of the process in applying for the relevant approval for the commencement of work, contractors are typically required to conduct utility tracing or mapping to identify whether there are any network facilities in the planned construction area and to ascertain their exact location. To demonstrate that there has been a breach of the duty of care, the owners will usually have to prove that the contractors have failed to undertake utility mapping or tracing, which resulted in the failure to identify the location of the network facilities at the work area, and eventually led to the damage to the network infrastructure concerned.
Conclusion
An owner of network infrastructure that is damaged by a third party is certainly not without remedies. As discussed in this article, it has several avenues to seek remedies and redress against wrongdoers, ranging from criminal complaints to civil enforcement of statutory rights and common law claims in tort. In most cases, these remedies are commonly used in combination to create better leverage against the wrongdoer. Where a claim succeeds, the owner of damaged network infrastructure is typically entitled to recover damages covering the costs expended to fully rectify and recover from the damage caused.
Our Technology Practice Group, led by partners Lo Khai Yi and Ong Johnson, have assisted and advised clients on a wide range of telco-related matters, including licensing applications, development approvals, submarine cable operation, and MVNO investment. If you have any questions or wish to find out more about potential engagement with the Technology Practice Group, please feel free to reach out to the partners.
The Technology Practice Group of Halim Hong & Quek continues to be recognised by leading legal directories and industry benchmarks. Recent accolades include FinTech Law Firm of the Year at the ALB Malaysia Law Awards (2024, 2025 and 2026), Law Firm of the Year for Technology, Media and Telecommunications by the In-House Community, FinTech Law Firm of the Year by the Asia Business Law Journal, a Band 2 ranking for FinTech by Chambers and Partners, and a Tier 3 ranking by Legal 500.
About the authors
Lo Khai Yi
Partner
Co-Head of Technology Practice Group
Technology, Media & Telecommunications (“TMT”), Technology
Acquisition and Outsourcing, Telecommunication Licensing and
Acquisition, Cybersecurity
ky.lo@hhq.com.my.
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Ong Johnson
Partner
Head of Technology Practice Group
Fintech, Data Protection,
Technology, Media & Telecommunications (“TMT”),
IP and Competition Law
johnson.ong@hhq.com.my
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