Added: Salley Hassell - Date: 26.09.2021 08:46 - Views: 44278 - Clicks: 5640
In this story, we aim to help sexual harassment victims understand what laws can be used to charge perpetrators, as well as explore what is illegal when engaging in consensual sexting. During the boom of the Internet in the late s, 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, 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. One father even reportedly filmed his own daughter and sent it to the group. 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.
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 , 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.
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.
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.
So there are two sides to it. The positive of not having a clear definition is that great, we can fight for it. 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. 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 [ Before answering the question, Yuean made clear that taking nude photos of others without their consent is illegal under Section of the Penal Code for insulting the modesty and invading the privacy of the person.
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 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. 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.
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. Yes, it is illegal. Of the four, only the first three statutes are of relevance. 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. 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 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. However, he said the person can found guilty under Section of the Communications and Multimedia Act 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 [ But you will have a lot of explaining to do after that on why you are keeping it. 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 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. Of course, subject to what Yuean has said, if you use it as a matter of evidence, there is a legal justification to that. 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'. Apparently, yes, it is," answered Nisha. 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'. 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. Meanwhile, Chu thinks that there are cases where asking for a nude photo may not be illegal.
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. 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 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.
Perpetrators can be charged under these laws: - Section of the Penal Code - Section of the Penal Code - Section of the Penal Code - Section of the Communications and Multimedia Act - Section of the Communications and Multimedia Act - Section 5 of the Film Censorship Act 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. As long as you have possession, you will be running afoul of all those Acts. According to Chu, it is illegal under Section of the Communications and Multimedia Act , 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. 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 question. He and AWAM both said that victims can also always take private action against the perpetrators who made those defaming remarks about them. 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.
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 for child grooming. 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. 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.
Other than that, Lum said Section 81 B in the Employment Act 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, fine for not investigating a sexual harassment complaint in the company is too lenient. He suggests the fine should increase to RM, so that it can act as a deterrent. The views presented by Yuean, Chu, and Lum are their personal legal opinions and does not necessarily represent their respective firm's views. A landmark case in set a precedent for Malaysians to sue perpetrators of sexual harassment.
Learn more about it here:. Of course, the Telegram group was not an isolated incident. So here are 14 questions on the subject:. What is the definition of 'obscene'? Is taking a nude photo of myself illegal? Is taking a nude photo of others illegal in Malaysia — even with consent? Is sending nudes illegal? Is receiving nudes illegal?
Is asking for nudes illegal? Is sharing nudes illegal? What laws protect me once my nudes leaked? Is making lewd comments on my non-nude photos illegal? Is spreading my non-nude public photos taken from my social media illegal? Is consensual sexting illegal? 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?
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? These Malaysian organisations aim to help survivors of rape and sexual assault:. Read the full story. Don't miss out on Malaysia's top stories! We'll send a list to your inbox, once a day.Malaysia nudes
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Is Sending Nudes Illegal In Malaysia? We Spoke To Lawyers & NGO To Find Out