The New Age Of Harassment
With the growing use of the internet and social networking platforms in today’s society, the number of incidents related to online or cyber harassment has also tremendously increased in Malaysia. Cyber harassment occurs where the attacker harasses a victim using electronic communication, such as e-mails or text messages, or even messages posted to a website. Although cyber harassment does not necessarily involve physical violence, the harasser participates in abusive online behaviour which may include: –
- Constant messaging, e-mailing or texting the victim in a way that makes him/her feel intimidated or scared
- Verbally abusing or making threats to the victim
- Embarrassing or humiliating the victim by posting intimate videos or photos of the victim without consent
- Posting and spreading false rumours about the victim on social media
Often times, cyber harassment is carried out by a person the victim knows personally and is especially rife between spouses/ ex spouses/ intimate partners.
The laws on cyber harassment
In Malaysia, the laws on cyber harassment are scattered and there is currently no specific legislation governing cyber harassment. The current legislative landscape in Malaysia offers the victims some form of protection against cyber harassment under a few key legislations, including:-
- Penal Code
Section 503 of the Penal Code provides for criminal intimidation and may include cyber harassment if the perpetrator threatens to cause any injury to the victim, with an intention to cause alarm. The Penal Code defines “injury” widely, which includes any harm illegally caused to a person’s body, mind, reputation or property. Section 506 of the Penal Code provides that whoever commits the offence of criminal intimidation shall be imprisoned for a term which may extend to 2 years, or a fine, or both (extendable to seven years imprisonment if the threat is to cause death or grievous hurt).
Section 509 of the Penal Code provides that it is a criminal offence to do anything to insult the modesty of another and/or intrude upon the privacy of another. An example of this would be where the perpetrator harasses his victim by posting intimate videos or photos of the victim on social networking sites. However, this section is rather limited in its application as the provision only penalises an act of insult to the modesty of a woman. All other forms of threats or insults would not be covered under this provision. A person charged under this section shall face imprisonment for a term which may extend to 5 years, or a fine, or both.
- Communication and Multimedia Act (“CMA”) 1998
The CMA 1998 was enacted by the Parliament to provide for and to regulate the converging communications and multimedia industries. Section 233 (1) of the CMA 1998 criminalises the use of network facilities or network services by a person to transmit any communication that is either indecent, obscene, false, menacing or offensive in character with the intention to annoy, abuse, threaten or harass any person. However, Section 233 (1) is so widely drafted and lack the necessary legal definition of the terms. As such, it is unclear what sort of communications would constitute “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass” and would be up to the interpretation of the Court.
- Domestic Violence Act (“DVA”) 1994
Cyber harassment is also a form of domestic violence, which is governed under the DVA 1994. Previously, the scope of domestic violence was confined to physical violence and did not include psychological or emotional abuse as an act of domestic violence. The Domestic Violence (Amendment) Act 2017 has expanded the definition of “domestic violence” in Section 2 of the DVA 1994 to include communicating with the victim with intent to insult the modesty of the victim, whether through electronic means or otherwise. A harasser who threatens a victim with intent to cause the victim to fear for his/her safety, or to suffer distress would also constitute as domestic violence under the new amendments. Spouses and/or former spouses, who are victims of cyber harassment would now be afforded protection under the amended DVA 1994.
The DVA 1994 also includes added protection for spouses and former spouses in the form of a protection order against their perpetrators. An Interim Protection Order (“IPO”), which is a Court order, can be obtained to prohibit the perpetrators from harassing the victim and is valid throughout the police investigation. It may be noted, however, that the IPO is merely temporary and would cease upon the completion of the police investigations, or once the harasser is charged in Court. The victim may then apply for a Protection Order (“PO”) during criminal proceedings i.e. once the harasser is charged. The PO provides a longer period of protection, and may last for 12 months, with an extension of another 12 months.
If the circumstances warrant an immediate protection to victims, an Emergency Protection Order (“EPO”) may also be obtained. A police report is not needed for an EPO, as the order is issued by a social welfare officer instructing the perpetrator to stop harassing the victim.
However, it may be noted that the DVA 1994 only offers protection to spouses and former spouses and would not apply if the perpetrator is not married to the victim.
Inadequate laws – the need for specific legislation
Although legislations such as the CMA 1998 and the Penal Code criminalise cyber harassment, these existing laws may not be sufficient or specific enough in providing effective protection for victims against cyber harassment. For example, there are no provisions under the Penal Code for the protection of victims while the police investigation is ongoing. Further, Section 233(1) of the CMA 1998 has also often been criticised for its vague and overly broad wording, leaving the provision open to a wide range of interpretation and application.
The need for effective protection against cyber harassment is necessary. The laws must be specific to address cyber harassment as well as other forms of harmful cyber behaviour such as cyber stalking, in which Malaysia still does not have a law to criminalise the same.
Many countries such as Australia, the United Kingdom and Singapore have enacted specific laws to combat cyber stalking or cyber harassment. For example, Singapore’s Protection from Harassment Act (“POHA”) 2014 was designed specifically to make acts of cyber stalking and online harassment a criminal offence. Under the POHA 2014, victims can apply for a protection order in which the acts of harassment covered under the protection order are wide-ranging. This includes prohibiting the perpetrator from doing any harassing acts towards the victim, or requiring the perpetrator to stop publishing the harassing communications.
Our Parliament is therefore urged to enact a new legislation akin to Singapore’s POHA 2014 in providing adequate legal protection against harmful cyber behaviours through a range of civil remedies and criminal sanctions.
By: Jaclyn Chang
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
议会通过了《1998年通讯与多媒体法令》，以规定和管理融合的通信和多媒体行业。《1998年通讯与多媒体法令》第233 (1)条规定，任何人利用网络设施或网络服务传送任何猥亵、淫秽、虚假、威胁或冒犯性质的信息，意图骚扰、虐待、威胁或骚扰任何人，均属犯罪。然而，第233 (1)条起草得太广泛，缺乏必要的术语法律定义。因此，不清楚什么样的通信会构成“意图骚扰、滥用、威胁或骚扰的猥亵、淫秽、虚假、威胁或冒犯性质的信息”，并取决于法院的解读。
文章来自于：张美琪律师 (Jaclyn Chang Mei Qi)
文章翻译：李淑婷律师 (Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。