s233 Communications and Multimedia Act 1998

Bread & Kaya: The law and the Sweet Young Malaysian Girls blog

The law and the Sweet Young Malaysian Girls blog
Nov 29, 2013

– Netizens are riled up over the blog that posted pictures of young Malaysian girls, many of them minors
– Determining which laws could be applied against the blogger in question is however a challenge

Bread & Kaya by Foong Cheng Leong

I AM sure many of you have read of the recent ruckus over the Sweet Young Malaysian Girls blog. It’s a blog which featured a compilation of pictures of young Malaysian girls that has now been deleted.

Fellow netizen Harinder Singh had exposed the person allegedly behind the blog (let’s call him the SYMG Blogger). You can read all about it at Harinder’s blog.

I must highlight that a person should not accuse someone of a crime or a wrongdoing without evidence, as it is defamatory. Such a person may claim that someone else has proven the crime or wrongdoing, but in the event that such person is sued in court, he will need to prove the crime or wrongdoing (i.e. to prove that it is true).

In the event that the person who exposed the crime or wrongdoing refuses or fails to attend court, the defendant may not be able to sustain his defence.

Furthermore, the law on electronic evidence in Malaysia is still developing. Many types of electronic evidence (such as emails or printouts) are ruled inadmissible by our courts. In this regard, to be on the safe side, if you can’t prove it, don’t repeat it.

Many people have asked me what the victims can do, in particular the girls who had had their pictures posted on the blog. Some are of the view that no crime had been committed and that the girls can only sue the person behind the blog for copyright infringement (i.e. a civil wrong).

Some proposed invasion of privacy. However, if the pictures were taken from blogs or social media accounts of the victims and were easily accessible, there may not be an action for invasion of privacy.

It also may not be an offence under Section 233 of the Communications and Multimedia Act 1998, which provides that a person commits an offence if he or she posts any content that is either indecent, obscene, false, menacing, or offensive in character with the intention to annoy, abuse, threaten or harass any person.

In this present case, the contents of the blog do not seem to indicate such an intention.

If the images were taken and posted on the blog without permission, the person would be infringing the right of a copyright owner. But note that copyright generally belongs to the photographer and not the person(s) featured in a picture unless the person(s) in the picture had commissioned the photographer.

Therefore, the victims may not have the right to sue the owner of the blog … unless it is a selfie!

Nevertheless, the Copyright Act 1987 provides for criminal sanctions against copyright infringers. Section 41(1)(c) of the Copyright Act 1987 makes it an offence to infringe a person’s copyright. This provision is normally used against people who sell pirated movie and music and recently, website owners who host pirated movies and songs.

However, this provision is wide enough to cover pictures. It is possible to prosecute a person for distributing pictures of others without permission, especially when it involves a massive number of pictures. Any person convicted under this provision is liable to fine of no less than RM2,000 and no more than RM20,000 for each infringing copy, or imprisonment not exceeding five years.

The SYMG Blogger may be possibly be charged under s. 41(1)(c) of the Copyright Act 1987 (and if so, he could have set a new legal precedent in Malaysia!)

Nevertheless, SYMG Blogger may claim a defence of fair dealing under the Copyright Act 1987. He may claim that the blog was created for the purpose of research. Thus, this probably explains the ‘social experiment’ explanation he has been trying to pull.

Whether he will succeed in this defence would depend on whether it is genuine research or merely an afterthought.

Notwithstanding the above, there were naked pictures of young girls in the blog. It is certainly an offence to post obscene pictures online (Section 292 of the Penal Code).

Then there is a question on whether reproducing an image which had already been reproduced in another page (e.g. by way of re-blogging) amounts to publication. If we follow Malaysian laws, reproducing an image through re-blogging is a publication of the image by the person who re-blogged it.

Unfortunately, I have been informed that none of the victims have made a police report. I am told that some girls do not want their parents to know. Unless a police report is made, the police will not start investigations.

Without a complainant, it will be very difficult for the Attorney-General’s Chambers to prosecute the case.



First published on Digital News Asia on 29 November 2013.

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Bread & Kaya: Sharing images of crime victims

Bread & Kaya: Sharing images of crime victims

Nov 01, 2013

– No doubt the dissemination of gruesome images is distasteful and disrespectful of victims and their families
– However, when the MCMC cited legislation against it, the industry regulator may have been stretching it

Bread & Kaya by Foong Cheng Leong

IT was with great interest that I read the following Facebook posting by industry regulator the Malaysian Communications and Multimedia Commission (MCMC):

Assalamu’alaikum dan Selamat Sejahtera,

Orang ramai dinasihatkan untuk tidak menyebarkan gambar dan rakaman CCTV pembunuhan kejam seorang pegawai bank atau gambar-gambar mangsa di mana-mana media sosial seperti Facebook dan Whatsapp .

Jika anda telah berbuat demikian sila padamkan post tersebut. Ini adalah untuk menghormati mangsa dan keluarga beliau. Ia mungkin juga mengakibatkan gangguan emosi kepada orang ramai terutamanya kanak-kanak.

Kami telah pun meminta kerjasama YouTube untuk mengeluarkan video berkenaan dengan seberapa segera.

Untuk makluman, penyebaran gambar dan video sebegini adalah suatu kesalahan di bawah Seksyen 211 dan 233 Akta Komunikasi dan Multimedia 1998. Jika didapati bersalah, denda yang dikenakan tidak melebihi RM50,000 dan satu tahun penjara atau kedua-duanya sekali.

Sekian, terima kasih

In brief, the MCMC stated that the dissemination of gruesome images or video recordings of crime victims is an offence under the ss. 211 and 233 of the Communications and Multimedia Act 1998 (CMA). Reference was made to the CCTV recording of the deadly shooting of Ambank officer Norazita Abu Talib.

There is no doubt that the dissemination of such gruesome recordings and images is distasteful and disrespectful of the victim and her family. But for the MCMC to state that it is an offence under ss.211 and 233 of the CMA is stretching the applicability of these laws too far.

For there to be an offence under s. 233 of the CMA, the case of PP v Rutinin Bin Suhaimin has clearly set out that the following ingredients must be proven:

– The accused person initiated the communication in question.
– The communication in question is either indecent, obscene, false, menacing, or offensive in character; and
– The accused had intention to annoy, abuse, threaten or harass any person.

Section 211 of the CMA is similar to s. 233 of the CMA.

A person who posted the offensive materials must have the intention to annoy, abuse, threaten or harass any person. I doubt the people who have shared such images or recording had such intentions. Perhaps bloggers or portals that had done so had the intention to gain more visitors. Or perhaps some netizens share them to satisfy the morbid curiosities of other netizens.

But certainly this is not an intention to annoy, abuse, threaten or harass any person.

In short, the dissemination of gruesome recording and images is not an offence under ss.211 and 233 of the CMA unless it was disseminated with an intention to annoy, abuse, threaten or harass any person.

No doubt it is a calamity to have images of your late loved ones being disseminated online; but there are other laws to govern the dissemination of such information. Section 292 of the Penal Code makes it an offence to disseminate obscene material. The person who caused the leak of gruesome image (e.g. autopsy pictures) could be subject to a civil suit for negligence.

Even the soon-to-be introduced law s. 203A of the Penal Code, which punishes, among others, a civil servant for disclosing information obtained by him in his performance of his functions with a fine of not more than RM1 million (US$317,000), or imprisonment for a term which may extend to one year, or both.

However, I do not think that Parliament should introduce a law to curb the dissemination of gruesome recording of victims, especially if there are benefits of doing so. For example, for education purposes (e.g. study of forensic science) or even to highlight the extent of injuries suffered by inmates due to alleged police brutality.

The purpose of this article is not to justify the dissemination of gruesome images or videos but to highlight the extent of our laws. The MCMC should ensure that its statement, in particular, the last paragraph, is accurate and not leave room for misinterpretation.


First published on Digital News Asia on 16 August 2013

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GE13: Online campaigns get nasty

I was quoted by The Star in their article “GE13: Online campaigns get nasty” on 12 April 2013.



PETALING JAYA: Online campaigning has gone nasty in the run-up to the May 5 general election with cyber troopers from both sides of the political divide going beyond mudslinging at times.

The fight tends to get ugly with vulgar words used freely, sometimes crossing the boundary of racial and religious sensitivity as rival cyber troopers vie to influence public perception.

Both Barisan Nasional and Pakatan Rakyat have accused each other of paying cyber troopers to attack their opponents on social networks.

One example which a non-governmental organisation complained about was the case of pro-opposition cyber troopers uploading a photograph of a woman online last month accompanied by harsh and vulgar comments.

The woman, who is a committee member of the Malaysian Youth Rights Movement, was also threatened with gangrape and murder over her stand on some issues.

Deputy Higher Education Minister Datuk Saifuddin Abdullah condemned the strategies being employed by cyber troopers, saying “they put too much focus on attack”.

“In the long run, these strategies won’t work. The people will start reading these comments and say you are insulting my intelligence’,” said Saifuddin.

Outgoing Jelutong MP Jeff Ooi denies that there are cyber troopers on his party’s payroll, and called for politicians to make a stand against the current tactics employed by cyber activists.

“We (politicians) should not be seen to be condoning abusive commentaries. We have to call a spade a spade. If it were to come from my party, we would have to put them under restraint,” said Ooi.

Supt Ahmad Noordin Ismail from the cyber crime department of the police’s Commercial Crime Unit said nabbing cyber troopers and cyber bullies can be complicated due to a lack of evidence.

“People can make these comments and remove them easily,” he said.

Digital News Asia executive editor A. Asohan said he expected the mud-slinging, and warned that things would get worse as polling day nears.

“The real dirty play will come from the Internet. You will see a lot of accusations flying back and forth while paid bloggers will go on the warpath,” he added.

However, he believed people are smarter these days and would not be easily taken in by what was being posted on Websites.

MCA Youth new media bureau head Neil Foo agreed that it was not a healthy trend for both sides to have a go at each other in an unruly manner.

He said he always reminded the MCA cyber warriors and supporters to be polite, argue based on facts and not be too emotional.

He admitted that there are some who got carried away when egged on by other cyber troopers.

“I’ll ask them to watch the words they use. There should not be any vulgarity or personal attacks. They should stick to the facts,” he said.

Action can be taken against people who post offensive comments online, Kuala Lumpur Bar IT committee chairman Foong Cheng Leong said.

Under Section 233 of the Communications and Multimedia Act, those found guilty of harassing or being offensive online can be fined a maximum of RM50,000 or jailed up to a year or both, he noted.

The same clause also provides that a further fine of RM1,000 can be levied daily during which the offence is continued after conviction.

Foong strongly felt that “while people are free to express their opinions, they should not defame or attack others maliciously”.

Universiti Sains Malaysia psychologist Dr Geshina Ayu Mat Saat said cyber bullies, who preyed on their victims often perceived they had the right to bully.

“They have this sense of entitlement, whereby their way is the best and people should follow them. Their perception is also very lopsided based on their own personal experience and expectations,” she said yesterday.

Dr Geshina Ayu said these bullies were more daring online as they felt that they could get away with it.

“But they failed to realise they are bound by the law, even online,” she said.

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Bread & Kaya: Looks can be deceiving!

My 3rd issue of Bread and Kaya was published by Digital News Asia on 7 March 2013.

Bread & Kaya: Looks can be deceiving!

– Under Malaysian laws, what amounts to obscene, indecent, false, menacing or offensive in character is quite wide
– Sessions Court decisions perhaps the reasons why Section 114A of the Evidence Act 1950 was introduced

Bread & Kaya by Foong Cheng Leong

A COUPLE of weeks ago, I received a message with the title “Looks can be deceiving!” on my blog’s Facebook page, from an unknown user.

In the message, the user claimed that a certain celebrity was having an affair with another celebrity. Unknown to the user, I happen to know former and I alerted that celebrity.

A day after that, the user deleted her account! Fortunately, I saved a screenshot of the message.

Coincidentally, I found that someone had searched for the celebrity’s name on the day the message was sent and landed on my blog. My blog captured the transaction, together with the Internet Protocol (IP) address, time-stamp and other details. It was the only transaction searching for the celebrity’s name.

There was also a record to show that the user clicked on the link to my blog’s Facebook page. From this, there is a possibility that the author had found my blog using the celebrity’s name (and my blog appears on the first page of search results) and decided to send me that message.

A query on the IP address shows that the user resides in Malaysia and is thus subject to the laws of Malaysia. The celebrity may file an action in court to obtain the user account details of the IP address if she wishes to. Alternatively, she may make a police report against that person.

The lesson of the story is: If you want to do naughty things online, remember to mask your tracks (e.g. by using proxies); otherwise the law will come knocking on your door. Internet trolls have been living amongst us and many still roam the streets of cyberspace.

This brings me to the topic of this article: Section 233 of the Communications and Multimedia Act 1998.

Section 233 makes it an offence to post any content which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

Anyone who does so is liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one year, or both, and shall also be liable to a further fine of RM1,000 for every day during which the offence is continued after conviction. It’s a widely used tool by law enforcers to nab Internet trolls.

[RM1 = US$0.32]

What amounts to obscene, indecent, false, menacing or offensive in character is quite wide. Making prank emergency calls (PP v Sow Kuen Chun; Criminal Case No. 63- 01- 2008); and insulting the Sultan (PP v Muslim bin Ahmad; [2013] 1 AMR 436); offensive comments (Nor Hisham Bin Osman v PP; Criminal Case No: MTJ(2)44-14-2010)), and (PP v Rutinin Bin Suhaimin (Criminal Case No. K42-60-2010)) are examples where people were charged under Section 233.

[Click links above to download case files]

PP v Muslim bin Ahmad and PP v Rutinin Bin Suhaimin are both recently decided cases and they relate to the Perak constitutional crisis. Both men had allegedly posted offensive comments towards the Sultan of Perak after Barisan Nasional took over the state of Perak. Both men alleged that they did not post the comments, notwithstanding that the IP addresses point to them.

Muslim bin Ahmad was acquitted by the Sessions Court and Rutinin bin Suhaimin was discharged by the Sessions Court without his defense being called. The prosecution had apparently failed to show that the persons who posted the offensive comments were the accused.

I am told that the impact of the said Sessions Court decisions was one of the reasons why Section 114A of the Evidence Act 1950 was introduced – that is, to facilitate the prosecution in proving the identity of the maker.

To recap, under Section 114A, a person is deemed to be a publisher of a content if it originates from his or her website, registered networks or data processing device of an Internet user unless he or she proves the contrary.

This new law sparked a massive online protest dubbed the Malaysia Internet Black Out Day or also the Stop114A.

However, the High Court subsequently overturned said Sessions Court decisions. Rutinin Bin Suhaimin’s defense was called. Interestingly, the learned High Court judge was of the view that calling the Sultan of Perak names has the tendency to cause annoyance or abuse to any person, thus falling within the ambit of Section 233.

Muslim Bin Ahmad was handed a fine of RM10,000 for each charge and six months’ imprisonment. He pleaded for a “binding over order” (released on probation).

However, the learned High Court Judge warned that a binding over order “would send the wrong message to would be offenders and the public at large that offensively uncontrolled and virulent comments can be indiscriminately posted on the Internet without any or serious repercussions. And that is not a message that this court would like to send out.”

Surprisingly, Section 114A of the Evidence Act 1950 was never relied on by the Courts. In fact, the High Court in PP v Rutinin Bin Suhaimin said that 114A is not applicable because the postings were made before the enforcement date of 114A (July 31, 2012).

This ruling is interesting as it may be a defense for website owners who can argue that 114A does not apply to posting made by their users prior to July 31, 2012.

Nevertheless, these laws and cases serve as a reminder that the Internet is not a ‘wild, wild west.’ Netizens need to be accountable for what they say. Further abuse by netizens attracts further legislations by Government.

Unfortunately, website owners now face the brunt of 114A due to the actions of their users. Their pleas for the repeal or amendment of 114A are still unanswered.

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