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.
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