December 7, 2020 | News | No Comments
During the boom of the Internet in the late 1990s, we were promised freedom of expression in this unregulated virtual space.Fast forward more than two decades later, many countries’ laws have caught up with the Internet and many court cases have set a precedent in prosecuting cybercrimes.
With that said, online sexual harassment remains one of the most rampant offences committed on a daily basis and it often goes unreported.
The recent V2K Telegram group in Malaysia with 35,000 predominantly male members is a case in point.
At the time, several of the victims, whose photos had been distributed without their consent, took to social media to speak up against members of the group, which was used to trade non-consensual nude photos and child pornography.
SAYS was involved in breaking the story and we have heard victims say their faces were edited onto photos of naked bodies, received calls from strangers asking for sexual services, and received direct messages (DMs) from strangers who said they masturbated to their photos. One father even reportedly filmed his own daughter and sent it to the group.
Of course, the Telegram group was not an isolated incident
WeChat was once a social messaging platform where users solicited sexual services in Malaysia, reported TODAY Online.
According to Free Malaysia Today, Tumblr was another platform that gave the Malaysian Communications and Multimedia Commission (MCMC) a headache as non-consensual sharing of intimate content of local men and women were often circulated there.
Seeing that this issue will not go away soon, SAYS decided to interview a group of lawyers as well as non-governmental organisation All Women’s Action Society (AWAM) on questions about the legality of sharing nudes, making lewd comments online, and how the Malaysian laws protect us, among other things.
The story aims to help sexual harassment victims understand what laws can be used to charge perpetrators, as well as inform general citizens on what is illegal when they decide to engage in consensual sexting — a conversation between two individuals where explicit messages and photographs are exchanged in a chatroom.
1. What is the definition of ‘obscene’?
This question is important because many provisions under Malaysian laws use the word ‘obscene’ to point towards an offence.
Speaking to AWAM‘s programme and operations manager Nisha Sabanayagam, she said there is no one size fits all answer as the matter is dependant on what laws are used in the case.
Drawing an example from the Indecent Advertisement Act 1953, Nisha said any advertising material related to venereal disease — also known as sexually transmitted disease (STD) — is considered indecent, adding that the word ‘indecent’ is interchangeable with the word ‘obscene’ in some translations.
Meanwhile, senior associate at Chooi & Co + Cheang & Ariff, Dennis Yuean Jin Han, is of the opinion that obscene can simply mean “something explicit or offensive in imagery or in words that are used not for apparent medical, scientific, or educational purposes”.
He noted that there is no single definitive statutory definition for the word ‘obscene’ in any statutes in Malaysia, hence it is up to the judges of the case to decide whether obscenity in the case is an offence.
Yuean also contended that it is a good decision to omit the definition of obscene in Malaysian laws because it can provide broader protection to victims, as a categorical definition may limit the scope of what is deemed obscene or not.
“Society over the decades (dictates) what is moral and what is immoral. It changes. The definition of obscene always evolves to reflect the actual changes in society. So, I can’t give you a straightforward legal definition for the word ‘obscene’,” Yuean added in a video interview.
However, on the flip side, AWAM thinks that without a clear definition, it opens up possibilities for authorities to abuse laws for the purpose of suppressing Malaysians, possibly even making sharing a bikini photo online a crime.
“For example, those who want to control and suppress women can then take advantage of the fact that anything a woman does, even if she wears a bikini online, can be seen as obscene,” said Nisha.
“It gives a certain amount of control to patriarchal society to actually control women. So there are two sides to it. The positive (of not having a clear definition) is that great, we can fight for it. […] But at the same time, we open the doors for patriarchal men to say that, ‘In my opinion, that is obscene’.”
2. Is taking a nude photo of myself illegal?
AWAM takes the position that taking a nude photo of oneself is not an illegal act, citing Article 10 of the Federal Constitution that Malaysians are entitled to freedom of expression.
“But you cannot send it out to a third party,” said Nisha, “There is no legal law against taking nude photos, but it is not a practical thing to do in this country.”
“It’s okay to take a nude picture of yourself for personal consumption, but there is always the risk of someone else [retrieving] the pictures from your handphones.”
As for Yuean, based on Malaysian laws, he concurred that it’s not exactly illegal to take a nude photo of oneself.
“But it will be illegal if you are found to keep a picture of your nude self in your own possession,” he explained, citing Section 292 of the Penal Code for the offence.
Under the provision:
“Whoever sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces, or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure, or any other obscene object whatsoever […] shall be punished with imprisonment for a term which may extend to three years or with fine or with both.”
In Section 294 of the same act, Yuean added that whilst the act of taking a nude photo is not illegal per se, it will be illegal if it’s committed in public places.
3. Is taking a nude photo of others illegal in Malaysia — even with consent?
Before answering the question, Yuean made clear that taking nude photos of others without their consent is illegal under Section 509 of the Penal Code for insulting the modesty and invading the privacy of the person.
“If with consent, it’s another story. I would say that it’s not illegal because there’s no element of intrusion of privacy,” Yuean said.
But it goes back to the same problem once the photos are in possession by an individual as mentioned above. They are liable to Section 292 of the Penal Code for having those photos.
AWAM — who prepared for the interview with SAYS after consulting its lawyer members, which include three state executive council members (excos) and its president — said the answer is debatable as consent can always be abused with the other party later taking advantage of the situation.
Nisha said AWAM often teaches young Malaysians about consent and they wish more people can understand that consent is something that can always be taken back.
“For example, I give you consent to take my photo. But maybe halfway through, I feel very uncomfortable. I have the right to take my consent back and the person whom I first gave consent to has to respect my decision to take my consent back,” said the NGO representative.
“With women, young girls especially, they always give consent because they love (the person). They don’t realise they are probably giving it to somebody they cannot trust. They give it in trust. But the person who received it may not be somebody worthy of that trust.”
4. Is sending nudes illegal?
Yes, it is illegal.
“Currently, there are at least four pieces of legislation which deal with the dissemination of obscene material in Malaysia, namely the Penal Code, the Printing Presses and Publications Act 1984, the Film Censorship Act 2002, and the Broadcasting Act 1988,” said AWAM.
“These laws are targeted at the dissemination of specific subject matter, the contents of which are considered to be obscene, immoral, or against the public interest. Of the four, only the first three statutes are of relevance.”
Meanwhile, senior lawyer Yuean also said the same, adding that a person who sends nudes can be charged under Section 211 and Section 233 of the Communications and Multimedia Act 1998 as well.
When asked if the perpetrator may face heftier punishment for not only possessing obscene photos but also taking an extra step to disseminate them, Yuean said yes.
It’s also possible that the perpetrator may face more than one charge for sharing nude photos even if the act is only committed once. It is up to the court to decide if the perpetrator will serve the sentence for each charge concurrently or consecutively.
The other lawyer SAYS spoke to also agreed that it’s illegal to send nudes even if the recipient is your spouse or romantic partner.
Their consensus is that it is better to avoid such an act.
5. Is receiving nudes illegal?
SAYS brought up a scenario of a woman who regularly receives unsolicited nude photos from strangers — such as through Facebook or Instagram direct messages — and asked if the sexually harassed victim is now in contravention of Section 292 of the Penal Code for possessing obscene material.
To that, Yuean said he doesn’t think the victim will become liable for an offence in return.
“Like you said, it’s quite ridiculous if you out of nowhere you were sent a nude, not that you want to receive it, you can’t be committing an offence, right?” Yuean said.
However, he said the person can found guilty under Section 233 of the Communications and Multimedia Act 1998 if he or she deliberately solicited the nude photo.
Under the provision:
“A person who by means of any network facilities or network service or applications service knowingly makes, creates, or solicits; and initiates the transmission of any comment, request, suggestion, or other communication which is obscene, indecent, false, menacing, or offensive in character with intent to annoy, abuse, threaten, or harass another person […] commits an offence.”
Yuean said the keyword here is ‘solicits’, saying, “If it’s proven that he or she asks for (the nude photo), initiates the transmission, and also has the intention to abuse or harass the other person, then it’ll be illegal.”
“But if you received it and didn’t want it — unsolicited, unprovoked, someone sent you this nude — reasonably speaking, you won’t want to keep it,” he continued.
“If you keep it under your possession and the police found out, again, under Section 292 of the Penal Code, it could be deemed as an offence. But you will have a lot of explaining to do after that on why you are keeping it.”
“So the reason better be you’re keeping it because you want to use it as evidence prosecute this person.”
“Otherwise, I don’t think the act of receiving itself is illegal.”
AWAM also said possessing obscene photos may cause the person to be on the wrong side of the law after receiving them, as stipulated in Section 292 of the Penal Code and the Film Censorship Act 2002.
They advised it’s best to delete the photos right away.
Additionally, a lawyer and partner in Tuang, Chu and Co, Ryan Chu Soon Wei, contended that the person who received a nude photo ought to delete it due to how Section 5 of the Film Censorship Act 2002 is worded.
Under the provision:
“No person shall— (a) have or cause himself to have in his possession, custody, control, or ownership; or (b) circulate, exhibit, distribute, display, manufacture, produce, sell, or hire, any film or film-publicity material which is obscene or is otherwise against public decency.”
Chu contended, “With that said, it does seem like the Act implores […] a person, upon receiving (the nude photo), you must delete it.“
“I take the view that once you receive it, the person ought to delete it. Of course, subject to what Yuean has said, if you use it as a matter of evidence, there is a legal justification to that.”
6. Is asking for nudes illegal?
Both AWAM and lawyers SAYS interviewed said soliciting nude photos is illegal.
However, things can be tricky here because the perpetrators may use subtle means to get an individual to send them nude photos.
An example would be the popular online meme with a catchphrase that goes ‘send nudes please’.
“Is sending a meme like this to an individual an offence? Apparently, yes, it is,” answered Nisha.
“However, some people use other ways to solicit for nudes. Because the definition of obscene is so vague, there are various creative ways to get around to displaying obscenity. So instead of using the word ‘nude’, they will spell it as ‘newd’.”
Nisha said sending a misspelled ‘send nudes please’ meme might not necessarily be illegal because intent is very hard to prove in such a scenario.
On the flip side, understanding that Malaysians have freedom of expression and consensual sexting can help improve the intimacy of a relationship, AWAM suggests the public send sensual photos of a non-private body part rather than a full-on nude.
“It is not for us to tell you what you can or cannot send with your phone, but just remember that there are laws,” Nisha said.
Meanwhile, Chu thinks that there are cases where asking for a nude photo may not be illegal.
“One important point in Section 233 of the Communications and Multimedia Act 1998 is ‘[a] person who by means of any network facilities knowingly makes, creates, or solicits any comment which is obscene’. But it ends with an ‘intent to annoy, abuse, threaten or harass another person’,” Chu said.
He said that asking for a publicly available nude photo of a pornstar may not be caught under the specific provision because there is no intention to harass the individual.
“Where else, if I ask you for nudes […] and that sort of harass[es] you as a victim, so in that manner, (the perpetrator) will run afoul under Section 233 (of the Act).”
7. Is sharing nudes illegal?
Yes, it is illegal. Just like the answer to Question 4 above, sending a nude photo and sharing a nude photo fall under the same offence in multiple provisions.
Interestingly, Chu said that even if there is an imminent risk of a perpetrator sharing nude photos of an individual without consent, there is a possibility that they can be charged under Section 509 of the Penal Code.
Under the provision:
“Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”
Chu said if someone threatens to leak an individual’s nude photos, it is already an offence.
8. What laws protect me once my nudes leaked?
Perpetrators can be charged under these laws:
– Section 292 of the Penal Code
– Section 293 of the Penal Code
– Section 509 of the Penal Code
– Section 211 of the Communications and Multimedia Act 1998
– Section 233 of the Communications and Multimedia Act 1998
– Section 5 of the Film Censorship Act 2002
In respect of the discussion so far, Chu said, “Ultimately, a lot of actions, say soliciting for nudes, may end up in possessing of the nudes. Because it makes sense. The end result of soliciting is receiving.”
“The key point here is possession. As long as you have possession, you will be running afoul of all those Acts.”
9. Is making lewd comments on my non-nude photos illegal?
According to Chu, it is illegal under Section 233 of the Communications and Multimedia Act 1998, as it clearly states that a person commits an offence whenever he or she sends any obscene comment with an intent to harass another person.
Chu said victims can always take the matter to MCMC as they are the regulatory body that acts as the ‘police’ in such cases.
MCMC has the authoritative power to take down comments and circulation of content if needed.
10. Is spreading my non-nude public photos taken from my social media illegal?
Taking the V2K Telegram group incident as an example, many female victims had their Instagram profiles shared to the group after their nude photos were leaked.
In a situation like this, legal associate at Felix Raj Chambers Joseph Lum Weng Leong said it’s not illegal to share a person’s non-nude photo because once a photo is shared publicly, the person loses the right to privacy in that particular photo.
However, Lum said the lewd comments that come after it is prosecutable as discussed in the previous question.
He and AWAM both said that victims can also always take private action against the perpetrators who made those defaming remarks about them.
11. Is consensual sexting illegal?
Lum is of the opinion that consensual sexting is not illegal, but the parties who engage in such a conversation must delete the conversation when it is done.
“Because keeping (the conversation) means it’s in your possession,” he said, adding that even explicit text messages can be considered as obscene comments as well, hence, prosecutable.
AWAM added that it is illegal if consensual sexting occurs between children and adults as it’s an offence under the Sexual Offences Against Children Act 2017 for child grooming.
12. By when must I lodge a police report or sue the perpetrator for his or her crime before the laws stop protecting me? Is there a time limit that I must lodge a police report on such matters?
Lum explained that there are two ways to take legal action against the perpetrator in the case of nude photos being leaked.
One method is through a civil action, which has a window of six years after the date of the act was committed.
Civil action can mean suing the perpetrator for an injunction to stop the perpetrator from distributing the photographs rather than using the provisions mentioned above.
This method does not necessarily need the victim to go through the authorities and often ends with monetary compensation, rather than a sentence that would land the perpetrator in jail or be fined.
But if it’s a criminal action, there is no expiration date of when a police report must be lodged.
“With that being said, if assuming the (criminal case) goes to court, the defence lawyer will naturally ask ‘why you took so long to lodge a police report?’,” Lum said.
“That is normally the first angle the defence will attack. But there is no time limit for criminal offences. Maybe it’s advisable for the victims to collect all the evidence as soon as possible and lodge a police report as soon as possible.“
13. In your opinion, what are the legal loopholes or places that need strengthening to protect Malaysians who wish to engage in sexting and to prevent leaking of nudes?
Both Lum and AWAM told SAYS that the first legal loophole that needs work is getting the Sexual Harassment Bill to be passed in Parliament.
“The reason why we want the Sexual Harassment Bill to be tabled and passed as an Act is because it will make it clear that we have to take into consideration the feelings of the receiver,” Nisha said, referring to the victim who is sexually harassed.
“If the receiver feels humiliated, offended, or threatened, then the person who committed the act can be seen as sexually harassing the receiver.”
She said the Act will take away the burden to prove the perpetrator’s intent from the victim, especially when intent is hard to prove during a trial.
Other than that, Lum said Section 81(B) in the Employment Act 1955 needs to be reviewed as it currently does not provide a guideline on how an employer should investigate a sexual harassment case in the company.
According to him, the law currently allows employers to set up a sexual harassment investigation while permitting the employers to have the power to dismiss the complaint following the investigation.
He said this opens up leeway for misconduct and not taking a sexual harassment complaint seriously.
As for Section 81(F) of the same Act, Lum said that the RM10,000 fine for not investigating a sexual harassment complaint in the company is too lenient.
He suggests the fine should increase to RM100,000 so that it can act as a deterrent.
These Malaysian organisations aim to help survivors of rape and sexual assault:
1. WOMEN’S AID ORGANISATION (WAO)
Operating hours: 24-hour
Website | Facebook | Twitter
2. ALL WOMEN’S ACTION SOCIETY (AWAM)
Operating hours: Weekdays (9.30am – 4.30pm)
WhatsApp: +6016-2284221 | +6016-2374221
Website | Facebook | Twitter
3. WOMEN’S CENTRE FOR CHANGE PENANG (WCC PENANG)
Operating hours: Weekdays (9am – 5pm)
Contact: +604-2280342 | +604-3988340
WhatsApp: +6011-31084001 | +6016-4390698
Website | Facebook | Twitter
6. PROTECT AND SAVE THE CHILDREN (PS THE CHILDREN)
Operating hours: Monday to Friday (8.30am to 5.30pm)
Contact: +6016-2273065 | +6016-7213065
Website | Facebook | Twitter
7. INTERNET WATCH FOUNDATION (IWF)
Anonymously and confidentially report child sexual abuse content and non-photographic child sexual abuse images with IWF’s Reporting Portal.