harassment

BFM Podcast: CYBERSTALKING

I was interviewed by BFM Radio to talk about stalking and harassment laws in Malaysia in general on 10 January 2017.


Japan just recently introduced laws to ban cyberstalking after a musical artist there was stabbed by a fan. Malaysia, while having laws that deal with harassment, has yet to introduce laws on stalking. We hear from blogger Cindy on her experience with being stalked and lawyer Foong Cheng Leong on what laws we presently have to deal with it

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Bread & Kaya: Cyberbullying, stalking and sexual harassment

Bread & Kaya: Cyberbullying, stalking and sexual harassment
By Foong Cheng Leong | Jun 28, 2016

– Current laws narrowly and vaguely defines harassment
– It is high time Malaysia legislates against it

In Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Kuala Lumpur Civil Suit No. 23NCVC-102-12/2011), the Defendant alleged that the Plaintiff had sexually harassed her at their workplace.

The Defendant alleged that numerous vulgar and harassing words were uttered to her and they included the following:

– kalau nak cari jodoh cari yang beriman, solat, you kena solat istikarah .. . bila you solat istikarah, you akan mimpi you berjimak dengan orang tu! (If you’re looking for a partner, look for someone pious. You will need to pray. When you pray, you will dream of having sex with that person!)
– you ni asyik sakit kepala saja, you ni kena kahwin tau … you nak laki orang tak? (You’re always having a headache. You need to get married, you want someone’s husband?)
– you nak jadi wife I tak? I banyak duit tau. (You want to be my wife? I have a lot of money).

The Defendant filed a complaint against the Plaintiff to the company and a committee of inquiry was set up to investigate the complaint.

The committee found that there was insufficient evidence to warrant disciplinary action to be taken against the Plaintiff, but a strong administrative reprimand was given.

Aggrieved, the Plaintiff sued the Defendant for defamation and the Defendant counterclaimed for tort of sexual harassment.

The High Court dismissed the Plaintiff’s claim and allowed the Defendant’s counterclaim. She was awarded with RM100,000 in general damages and RM20,000 in aggravated and exemplary damages.

The Plaintiff appealed against the judgment to the Court of Appeal (Court of Appeal Civil Appeal No. W-02(NCVC)(W)-2524-10-2012).

The Court of Appeal dismissed the appeal and held that what the Plaintiff did amounts to the tort of intentionally causing nervous shock.

The Court of Appeal however fell short of declaring that there is tort of harassment in Malaysia.

Dissatisfied again, the Plaintiff filed an appeal with the Federal Court. Unfortunately for the Plaintiff again, the Federal Court (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)) dismissed the appeal.

The Federal Court added:

[39] After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it.

The introduction of the tort of harassment is a significant improvement to our laws. Victims of harassment and cyberbullying now have an easier avenue to obtain redress from our Courts.

In my earlier article Bread & Kaya: Cyberstalking, harassment … and road rage, published in July 2014, I said that we do not have specific laws to govern harassment, and hence it is difficult to determine whether an act amounts to harassment without a legal definition.

Section 233 of the Communications and Multimedia Act 1998 criminalises certain forms of harassment, but it must be an electronic communication which is obscene, indecent, false, menacing or offensive in character.

But as we can see, harassment comes in all sorts of forms.

Furthermore, there had have been complaints that industry regulator the Malaysian Communications and Multimedia Commission (MCMC) is selective in prosecuting cases. Not all complaints are acted upon.

Before the Federal Court decision, it was tougher to seek legal redress as there were no reported case laws holding that there is tort of harassment in Malaysia. When the Court of Appeal delivered the decision of Ridzwan, it equated an action for tort of harassment as tort of intentionally inflicting nervous shock.

Such equation is significant because the threshold to succeed in an action for nervous shock is high. A victim needs to prove that he or she suffered some form of psychiatric illness or injury. Normally, this would need to be proven by a doctor, and a victim may not see a doctor immediately.

Further, a victim of harassment does not necessarily suffer such a medical condition. Harassment normally causes distress, annoyance, humiliation or annoyance.

In Malcomson Nicholas Hugh Bertram v Mehta Naresh Kumar (2001] 3 SLR 379, the Singapore High Court defined harassment as the following:

For the purposes of this application I shall take the term harassment to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.

This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

It would be interesting to see how far the tort of harassment could help victims of stalking, harassment and cyberbullying.

The common form of online harassment and cyberbullying nowadays is to set a mob of netizens against a person, or what is known as cyber-lynching.

Many have become victims of such cyber-lynching, and they may not have a legal redress as the attacks are not done by a single person – they could be shared by thousands of people and acted upon by numerous vigilante netizens independently.

Victims would have a hard time finding the perpetrators, and the legal costs would be prohibitive.

It is high time for Malaysia to legislate against harassment.


First published on Digital News Asia on 28 June 2016.

Bread & Kaya: Cyberstalking, harassment … and road rage

Bread & Kaya: Cyberstalking, harassment … and road rage
Foong Cheng Leong
Jul 17, 2014

– No specific Malaysian law that criminalises stalking or harassment
– Singapore has enacted such laws, and Malaysia should follow suit

THE recent case of a blogger complaining that she had been harassed and stalked by a fan got me thinking about the law in Malaysia with regards to stalking and harassment.

I think this would depend on the acts of the stalker. There is no specific Malaysian law that criminalises stalking and harassment, but there are provisions of law that prohibit certain actions that border on stalking and harassment.

For example:

– Hacking into someone’s computer or mobile device or online account, or installing any trojan or tracking device is a crime under the Computer Crimes Act 1997;
– Sending messages threatening to harm a person – depending on the content, this may amount to a criminal offence under the Communications and Multimedia Act 1998 or Section 503 of the Penal Code (criminal intimidation); and
– Breaking into someone’s home amounts to trespass (installing a closed-circuit TV as in the Nasha Aziz case).

There are many forms of stalking and harassment. I’ve heard of cases where a person would call someone numerous times a day – and in some such cases, keeping silent or even make heavy breathing sounds.

Other cases include following a person from time to time; loitering outside a person’s home (which is a public venue, for example a road); downloading someone’s picture off Facebook and publishing it on blogs or online forums with degrading messages; and even frequently posting annoying or insulting comments on a person’s Facebook page, blog or Instagram account.

A police report would be useful to ward off these people but not all reports will be acted on. Sometimes no threat is made, and there’s ‘only’ persistent annoyance.

One blogger showed me some persistent emails from an alleged stalker, who also contacted the blogger through phone calls and SMS.

However, the nature of the contact was not a threat but merely invitations to go out, despite the fact that the blogger had expressly asked him to stop contacting her. Such contact would stop for a short period, but return thereafter.

One email from the alleged stalker was just a reproduction of chat messages between the alleged stalker and his friend.

A police report was made but the police could not take any action as there was no threat involved.

In such cases, I think that the police should take proactive action by contacting the alleged stalker and warning him against pursuing the matter further. A lawyer’s letter of demand may be useful too.

If all else fails, a restraining order may be obtained from the courts.

The victims are not only women. Vancouver teacher Lee David Clayworth was ‘cyberstalked’ by his Malaysian ex-girlfriend. She posted nude pictures of him and labelled him all sorts of names, according to a CNET report.

A warrant of arrest was issued in Malaysia against his ex-girlfriend but she had reportedly left the country.

Many victims suffer in silence. They try to ignore their stalkers and hope that they go away. Sometimes this works, sometimes it does not.

It is noted that s. 233 of the Communications and Multimedia Act 1998 criminalises harasses but such harassment must be in a form of electronic harassment which is obscene, indecent, false, menacing or offensive in character.

Our Parliament should introduce a new law to criminalise stalking and harassment. Singapore recently introduced the Protection from Harassment Bill 2014. This new law will provide protection from harassment and anti-social behaviour, such as stalking, through a range of civil remedies and criminal sanctions.

It’s time for our Parliament to look into this before it’s too late.

Regarding the recent Kuantan road rage case, I was asked whether doxing or document tracing by netizens amounts to harassment.

From what I read, some netizens had posted her name, company name and pictures on the Internet, created Facebook pages about her, and also created all sorts of memes featuring her. Some even started bombarding her mobile phone with SMSes and left numerous comments on her company’s Facebook page.

As mentioned, we have no specific law to govern harassment, thus it is difficult to determine whether such acts amount to harassment without a legal definition here.

In my personal opinion, I think there is nothing wrong in exposing the identity of the driver to the public. The lady had posted her own personal information online, thus there is no expectation of privacy with respect to that posted information.

The Personal Data Protection Act 2010 only applies to commercial transactions. But the extraction of her personal information through her licence plate number may be an issue if someone had unlawfully extracted it from a company’s database.

Some messages that were posted may also be subject to the Communications and Multimedia Act 1998 provisions on criminal defamation. Tracking her home address and taking photographs of it may be considered a form of harassment.

She also has rights (that is, copyright) to the pictures that she has taken (selfies especially), but she will not have rights to her modelling pictures if those were taken by a photographer – in that case, the photographer usually has rights to the photographs.



First published on Digital News Asia on 17 July 2014.

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