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.
Foong Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. He blogs at xes.cx and foongchengleong.com, and tweets at @xescx and @FCLCo.
Previous Instalments of Bread & Kaya:
Choosing a good trademark for your startup
Using Facebook's marks for your business
Limited Liability Partnership: An alternative business structure
Bread & Kaya: Start-ups, get your house in order
Bread & Kaya: Looks can be deceiving!
Attention e-commerce businesses: Fraud, the law and you
PDPA: Businesses have responsibilities and burdens
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