In these modern days in Malaysia, internet is needed for everybody when involve in commerce, in communicate, in socialize in the community and many other functions. Nevertheless, there are cases arise concerning the issues of cyber bullying . In Malaysia, there is no enactment of act related to the issues of the cyber bullying yet. However, there are a few acts of law which had been introduced and passed to govern the cyber-crimes. In fact, the act of cyberbullying is also able to be found and followed, if ones be found guilty on cyber bullies, he or she can be charged just like any other criminals. For example, under Malaysian laws, one can be charged under the acts governing cyber-crimes or charged under the other acts of law on criminal offences.
First, the Computer Crimes Act 1997. The act has been legislated for the purpose of overcome the misuse of as misuse of computer is amounted to an offence in Malaysia. For the act of cyber bullying, a person may broke the laws in Computer Crimes Act 1997 which is Section 3, 4 and 5. Section 3 of Computer Crimes Act 1997 discussed on unauthorised access to computer materials. If ones convicted this offence, the offender is liable to a fine of not more than RM50,000 or imprisonment for a term of not more than five years. Section 4 of Computer Crimes Act 1997 discussed on unauthorised access to computer materials with the intent to facilitate or commit an offence. Once a person convicted this section, the offender is liable to a fine of not more than RM150,000 or a prison term of not more than 10 years. Section 5 of Computer Crimes Act 1997 discussed on unauthorised modification to the contents. The offender convicted this is liable to a fine of not more than RM100,000 or imprisonment for a term of not more than seven years. The Section 3, 4 and 5 of the Computer Crimes Act 1997 mainly applies when an offender unlawfully accesses victim’s profile on the internet and simply change their information without getting permission from them.
Next, the Communications and Multimedia Act 1998. This act functions as the prime pillar for other cyber laws in Malaysia. The act will construe each roles and responsibilities of the Internet Service Providers. It also expressed that there will be no filtering in accessing the Internet in Malaysia. A particular government body in Information and Communication Technology (ICT) is also been set up by using this particular act, and the body is named Communication and Multimedia Commission. Based on the Section 233 of the Communications and Multimedia Act 1998, it is expressed about the use of network facilities or network services improperly. Based on this section, any comment, inquiry, suggestion or any other communication which sounds salacious, indecent, which is false, offensive or menacing in character with an intention to annoy, to irritate, to abuse, to threaten or to harass another person amounts a person committing an offence. If the offence being convicted, the offender shall on conviction be liable to a fine of not more than RM50,000 or a prison term of not more than one year . This section said that a person who conducted cyber bullying committed an offence as cyber bullying is an acting in terms of harassment.
In Malaysia, there are cases which applied and tried with Section 233 of the Communications and Multimedia Act 1998. The courts have held that online comments made against rulers of states is derisive amounted to offensive communication in the cases as followed.
In PP v Chan Hon Keong 2012 5 LNS 184 case, the judgement applied Section 233 of the Communications and Multimedia Act 1998. The fact of the case is that the accused was found to have the intention to annoy Sultan Perak by posting obscene or indecent comment about Sultan Perak through his Internet Protocol address on the internet. The court decided that the comments made on the internet were offensive as it insulted a reigning Sultan and could reasonably offend the Sultan and the accused is said to be convicted under Section 233 of the Communications and Multimedia Act 1998.
Also, in the case Ahmad Abd Jalil v PP 2015 5 CLJ 480 , the comment made by the appellant on the facebook, “Sultan Johor kulitnya putih seperti kulit babi…” were said to be offensive then the appellant convicted under Section 233(1)(a) and Section 233(3) of the Communications and Multimedia Act 1998. Later, the charge under Section 233(3) repealed and the appellant is liable for the fine of RM20,000, if failed to do so, imprisonment of 6 months under Section 233(1)(a) of the Communications and Multimedia Act 1998.
In the case of PP v Muslim Ahmad, 2013 5 CLJ 822 , it was said to be involved three offensive comments. The respondent was charged for the three offences he committed according to Section 233(1)(a) of the Communications and Multimedia Act 1998 when he conduct the posting of comments on the Perak State Government Official Portal. The comments posted which are “damn your sultan”; “your sultan kantoi”; and “what’s the kantoi with your sultan” are offensive under the particular section.
The case of Rutinin Suhaimin V PP 2015 3 CLJ 838 is that the appellant has committed an offence charged under Section 233 of the Communications and Multimedia Act 1998 as he posted an offensive remark as regard to Sultan of Perak on the online visitor book of His Royal Highness. The appellant appeals against his conviction denied posting those remarks. It was held that there was hardly that any consideration can be made by the trial judge of the appellant’s defence because of the undisputed fact that the computer and the internet account of the appellant might accessible by other third parties.
Law (Malaysian General Law)
In spite of that, some offences that take place and said to be offend and harass other people causing them to feel being abused and threatened on the internet or in the online environment are not being covered by the statutes in Malaysia regarding the Cyber law. There are many cyber crimes especially like cyber bullying which can cause physical and psychological consequences to the victims just by the responses or communications on the internet whereby the Penal Code provisions would apply to punish the offenders.
The Penal Code is established to govern on the criminal offences. It is a general law for criminal offences. According to Section 509 of The Penal Code, it is clearly states that “Whoever, intending to insult the modesty of any women, utters any words, makes any sound or gesture or exhibit any object, intending that such word or sound shall be heard, or such gesture or object shall be seen by such woman, shall be punished with imprisonment for a term which may extend to 5 years or with fine, or with both”.
According to Section 298A of the Penal Code, it is an offence that if anyone “by the 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 which causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill will; or causes 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”.
Hence, cyber bullying that might insult one’s self-esteem or modesty can be discussed and applied with The Penal Code in terms of harassment. In other words, we are be acquainted with that, not all of the cyber-crimes can be enforced using all the legislations regarding cyber activities. The cyber bullying issue is one of the instances as there is no cyber bullying act absolutely applicable to the offence of it. Therefore, Penal Code are here to be used as a backup to charge the criminal which convicted in cyber-crimes like cyber bullying.
There is a recent case happened last year in the effect of cyberbully. This case show that a student who studying in Penang commit suicide because of cyber bullying. The student was only 20 years old who studied in Tunku Abdul Rahman University College’s (TARUC) in Penang. It was first reported that the victim is said to have facing the condition of struggling with his studies and was under stress. Then, the victim’s friend asserted that the victim had the idea of killing himself as being hurt by anonymous posts online before he committed suicide. The constant cyber harassment was said learned to be the main reason that he decided to give up his life.
Indeed, Section 114A of the Evidence Act 1950 also give the protection for the victims of cyber bullying. This section has significantly impact the law which governs the internet publications by persons in Malaysia, including news reporting, blogging and interactions or communications in the social media. It will facilitate and assist offences to be proved under the Communications and Multimedia Act 1998 and the Computer Crimes Act 1997. It will also ease the proving of defamation claims on any internet publications.
The case of Tong Seak Kan ; Anor v Loke Ah Kin ; Anor 2014 6 CLJ 904 related to the cyber-crime but the Evidence Act 1950 was applied. In this case, the plaintiffs inducted the 1st defendant has done an action of cyberspace defamation. The plaintiffs brought his concern to the Superior Court about tracing a person online and the IP addresses found belonging to the 1st defendant revealed by Telekom Malaysia Berhad. According to Section 114A (2) of Evidence Act 1950, it provides that the burden of proof lies on the subscriber of an ISP (Internet service provider) to ascertain that a statement was not posted or published by him or her. The court decided that the case actually applied retrospectively the controversial Section 114A (2) of the Evidence Act 1950. It is because the statements which are defamatory were published on the Internet webs before the enforcement date of Section 114A (2). However, it was held that Section 114A (2) of Evidence Act 1950 does not apply retrospectively in the another case, PP v Rutinin Bin Suhaimin 2013 2 CLJ 427 .
Moreover, in the case Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd 2013 1 LNS 1446 , the court had held under the Section 114A of Evidence Act 1950 and stated that initiation of this section is the aim of Malaysian Legislature to address to others about the problem of anonymity on the Internet so that the users do not take advantage of the anonymity that the Internet can make them escape from the consequences of their actions.
In conclusion, there are organization which is People Against Cyber Threats and Harassment (People ACT) being set up to make the Cyber space more safer and more respect among each other, by empowering all Malaysians through legislative reform and public awareness. The victims of the issue of cyber bullying may report and consult to the Malaysian Communications and Multimedia Commission (MCMC). The objective of Malaysian Centre for Constitutionalism and Human Rights (MCCHR) being initiated is to provide the function of protection and promotion of human rights in Malaysia. Yet, even though Malaysia has several provisions which catered the issues of cyber bullying, the issue of cyber bullying always get away due to the lack of evidences. The Malaysian Communications and Multimedia Commission also mentioned that, it is almost legally impossible to take action if all that offenders deny any of their responsibilities. Moreover, it is recommended and suggested some ideas to the legislator to implement cyber laws on cyber bullying and legal protections for cyber bullying victims.