Background and issues to be addressed

The growing use of information and communication technologies (ICT) has become a double-edged sword – on one hand, ICT significantly increased access to information and opportunities and has made communication faster and easier. On the other hand, ICT has brought about unfavourable consequences – it has been used as a tool to inflict harm on others; harm in this instance refers to cyber communications that are abusive, threatening or invasive of privacy.[1]

More and more reports of threats of violence, rape and killing have emerged in Malaysia – for example, a young woman (who was caught on video hitting the car of an elderly man after a motor vehicle accident) had her car registration number and other private information exposed and it went viral within 24 hours; a radio presenter received rape and death threats (when she asked on a YouTube video whether hudud law would be able to address the socio-economic issues in Kelantan); and a young man received thousands of death threats and other hateful messages when he organised a dog familiarisation event. This problem is not exclusive to Malaysia – according to the United Nations, 73 percent of women and girls have been exposed or have experienced some form of online violence.[2] In most of these cases, perpetrators of cyber threats/harassment are rarely held accountable for their behaviour and the possibility of being anonymous in cyber space exacerbates this problem.

Threats of rape, death and exposure of private data, information and photographs are emotionally stressful and the damage they inflict on their victims can sometimes extend to physical trauma. In turn, this results in a direct and indirect cost to society and the economy – the need for health care increases and resort to judicial and social services rises, in turn driving up financial resources and productivity decreases once peace and personal security of a person is threatened.[3]

Rationale for the campaign

Malaysia has the fourth highest proportion of youth Internet usage worldwide,[4] and the use of ICT, including the Internet, will continue to grow exponentially, particularly, amongst the younger generation. As such, it is important that the Internet is made a safer, respectful and empowering space, for current and future generations.

To ensure this, the government, law makers, industry players and the general public must demand and act against the violence perpetrated in cyber space. As there are currently no specific laws that tackle cyber threats/harassment and other harmful cyber behaviour in Malaysia, it is therefore necessary to ascertain whether there is a need for relevant legal provisions to tackle this growing problem.

Legal reform on its own is insufficient – there must be public awareness on the problem to ensure that not only harmful cyber behaviour is called out but that cyber users are able to ensure that they behave in a respectful manner when using cyber technologies. Increased public awareness will also ensure that legal reform will have a wider impact.

Commitment to participatory democracy

With a firm commitment to the principle of participatory democracy, including an increase in effective participation of Malaysians in the legislative process, the PeopleACT believes that law reform could and should include meaningful consultation with stakeholders. As such, the PeopleACT would like to start the law reform portion of the PeopleACT campaign with this Issues Paper, which serves as a consultation document to obtain views and opinions from stakeholders on whether the current law in Malaysia is sufficient to tackle the problem of cyberharassment and other harmful cyber behaviour.

This Issues Papers reviews Malaysian legislation that is relevant to cyberharassment and other harmful cyber behaviour, in particular the Communications and Multimedia Act 1998, the Penal Code, and civil action such as, privacy and harassment. The Issues Paper also looks at laws in other jurisdictions, such as the United Kingdom (UK), Australia, Hong Kong, Ireland and the European Union (EU), to see how the laws in these jurisdictions deal with cyberharassment and other harmful cyber behaviour.

In addition, the Issues Paper draws upon a quantitative survey carried out by the PeopleACT from 8 June 2016 to 31 December 2016 (the “Survey”). The Survey conducted received 522 responses, of which 336 (64.4 percent) identified themselves as women; 183 (35.1 percent) identified themselves as men; and three respondents identified themselves as from the ‘other’ category.[5] Majority of respondents (52.1 percent) were 17 to 24 years of age and most respondents were from Selangor (52.7 percent) or Kuala Lumpur (23.8 percent). The Survey was targeted at Malaysians where 97.1 percent (i.e. 507 responses) identified themselves as Malaysian. See Annex 1 for the report of the Survey.

Apart from the Survey, the Issues Paper will also refer to excerpts from 35 incidents conducted with victims/survivors of cyberharassment and other harmful cyber behaviour and incidents reported in the media. All interviews are anonymised to protect the confidentiality, safety, and security of the interviewees. Where possible, any reference to gender has been omitted/randomised.

At this juncture, the PeopleACT would like to state at the outset that it is committed to freedom of expression in accordance with international human rights standards i.e. that freedom of expression is the general rule. As it is not an absolute right, restrictions are permissible so far as it is provided by law (and interpreted narrowly); proportionate; and are necessary for the respect of the rights and reputations of others, or for the protection of national security, or public order, or public health or morals.

As such, after a review of all relevant laws in Malaysia, it is observed that there are a number of laws that are not suitable (and therefore not considered in this Issues Paper) to be used to tackle cyber harassment and the like, as these laws, at its essence, unnecessarily restrict freedom of expression in Malaysia and could create additional barriers to freedom of expression in Malaysia.

• Firstly, criminal defamation set out in section 499 of the Penal Code. The PeopleACT is of the opinion that to couch defamation within the realm of criminal law, which attracts imprisonment and heavy fines, is disproportionate and is not a permissible restriction to freedom of expression. The United Nations Special Rapporteur on Freedom of Expression has continued its call for governments to repeal criminal defamation laws;[6]
• Secondly, the Sedition Act 1948 is unsuitable to be used to tackle the problem of cyberharassment as there is a lack of clarity with regard to fundamentals of the said legislation; this has the potential to leave a negative effect on freedom of expression in Malaysia. In addition, with Malaysia’s commitment to the Human Rights Council to address concerns regarding the Sedition Act 1948,[7] the PeopleACT feels that a separate exercise is required to deal with the Sedition Act 1948 to ensure the balance between freedom of expression and restrictions;
• Finally, section 298A of the Penal Code, which makes it an offence for any person who “by words, either spoken or written, or by signs, or by visible representations, or by any act, activity or conduct, or by organizing, promoting or arranging, or assisting in organizing, promoting or arranging, any activity, or otherwise in any other manner (a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill will; or (b) prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of harmony or unity, on grounds of religion, between persons or groups of persons professing the same or different religions”. For this provision, the PeopleACT would like to highlight that in the case of Mamat Daud & Ors v The Government of Malaysia,[8] the Supreme Court held that section 298A of the Penal Code is invalid and null and void. This was affirmed by the Court of Appeal in the case of Tan Jye Yee & Anor v PP.[9]

Issues to be considered

The People ACT seeks the views of interested parties on the following five issues:

• Issue 1: Whether the current provisions in the Communications and Multimedia Act 1998 should be amended to specifically address cyber-harassment and other forms of harmful cyber behaviour;
• Issue 2: Whether the current law is sufficient to address online sexual harassment;
• Issue 3: Whether current laws prohibiting obscene publications is sufficient to tackle cyberharassment and other harmful cyber behaviour;
• Issue 4: Whether current penal law adequately addresses threats of death and threats of rape and other abusive communications made using cyber technology;
• Issue 5: Whether the current law is sufficient to deal with the offence of using cyber technology to seriously interfere with another’s privacy.

We invite the public to submit comments on the issues paper by email at [email protected]. The deadline of submission is 7 October 2017. Mean time, PeopleACT will be organising a series of consultation with various groups to obtain their feedback. Thereafter,[10] the PeopleACT will publish a more authoritative report, which will contain the PeopleACT’s proposals to the government on the best legal solution to tackling the problem of cyberharassment and other harmful cyber behaviour in Malaysia.

[1] Issues Paper on Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying’ (LRC IP 6-2014, Law Reform Commission, http://www.lawreform.ie/_fileupload/Issues%20Papers/ip6Cybercrime.pdf accessed 24 March 2016.

[2] ‘Cyber Violence Against Women and Girls – A World-Wide Wake-up Call’, A Report by the UN Broadband Commission for Digital Development Working Group on Broadband and Gender, (2015), http://www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2015/cyber_violence_gender%20report.pdf accessed 24 March 2016.

[3] ‘Cyber Violence Against Women and Girls – A World-Wide Wake-up Call’, A Report by the UN Broadband Commission for Digital Development Working Group on Broadband and Gender, (2015), http://www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2015/cyber_violence_gender%20report.pdf accessed 24 March 2016.

[4] ‘Exploring the Digital Landscape in Malaysia’, UNICEF (November 2014), 41 http://www.unicef.org/malaysia/UNICEF_Digital_Landscape_in_Malaysia-FINAL-lowres.pdf accessed 4 Mar 2016.

[5] ‘Other’ was an option given to recognise the possibility of a third gender identified by the respondents themselves.

[6] Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 4 June 2012, A/HRC/20/17, Human Rights Council, Twentieth session, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G12/137/87/PDF/G1213787.pdf?OpenElement accessed 28 March 2017.

[7] UN Press Release, ‘Malaysia Sedition Act threatens freedom of expression by criminalising dissent’, 8 October 2014, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15144#sthash.ZRjfUJs1.dpuf accessed 28 March 2017.

[8] [1988] 1 CLJ 11.

[9] [2015] 2 CLJ 745.

[10] The consultation period will take approximately six months from the date of release of this Issues Paper.