(Originally published Nov 29, 2013)
In my last gig at Star Publications, overseeing its digital initiatives, my team and I were bemused at how the top five most-read stories on The Star Online every day usually had something to do with sex, rape or violent crimes. One day however, No 3 was an environmental story. We were ready to break out the champagne until we realised that readers were clicking on the headline The rape of Janda Baik, expecting a completely different type of story.
I’m certain that there may have been a few similarly hapless readers who clicked on DNA columnist Foong Cheng Leong’s otherwise sober and analytical look at online privacy and the law, which is No 3 on our most-read stories of 2013. Foong, who was one of DNA’s earliest contributors, has certainly also established himself as one of the foremost cyberlaw experts and civil rights advocates in the country, and we’re honoured to be able to run his articles on our portal. – A. Asohan
Netizens are riled up over the blog that posted pictures of young Malaysian girls, many of them minors
Determining which laws could be applied against the blogger in question is however a challenge
Bread & Kaya by Foong Cheng Leong
I AM sure many of you have read of the recent ruckus over the Sweet Young Malaysian Girls blog. It’s a blog which featured a compilation of pictures of young Malaysian girls that has now been deleted.
Fellow netizen Harinder Singh had exposed the person allegedly behind the blog (let’s call him the SYMG Blogger). You can read all about it at Harinder's blog.
I must highlight that a person should not accuse someone of a crime or a wrongdoing without evidence, as it is defamatory. Such a person may claim that someone else has proven the crime or wrongdoing, but in the event that such person is sued in court, he will need to prove the crime or wrongdoing (i.e. to prove that it is true).
In the event that the person who exposed the crime or wrongdoing refuses or fails to attend court, the defendant may not be able to sustain his defence.
Furthermore, the law on electronic evidence in Malaysia is still developing. Many types of electronic evidence (such as emails or printouts) are ruled inadmissible by our courts. In this regard, to be on the safe side, if you can’t prove it, don’t repeat it.
Many people have asked me what the victims can do, in particular the girls who had had their pictures posted on the blog. Some are of the view that no crime had been committed and that the girls can only sue the person behind the blog for copyright infringement (i.e. a civil wrong).
Some proposed invasion of privacy. However, if the pictures were taken from blogs or social media accounts of the victims and were easily accessible, there may not be an action for invasion of privacy.
It also may not be an offence under Section 233 of the Communications and Multimedia Act 1998, which provides that a person commits an offence if he or she posts any content that is either indecent, obscene, false, menacing, or offensive in character with the intention to annoy, abuse, threaten or harass any person.
In this present case, the contents of the blog do not seem to indicate such an intention.
If the images were taken and posted on the blog without permission, the person would be infringing the right of a copyright owner. But note that copyright generally belongs to the photographer and not the person(s) featured in a picture unless the person(s) in the picture had commissioned the photographer.
Therefore, the victims may not have the right to sue the owner of the blog … unless it is a selfie!
Nevertheless, the Copyright Act 1987 provides for criminal sanctions against copyright infringers. Section 41(1)(c) of the Copyright Act 1987 makes it an offence to infringe a person's copyright. This provision is normally used against people who sell pirated movie and music and recently, website owners who host pirated movies and songs.
However, this provision is wide enough to cover pictures. It is possible to prosecute a person for distributing pictures of others without permission, especially when it involves a massive number of pictures. Any person convicted under this provision is liable to fine of no less than RM2,000 and no more than RM20,000 for each infringing copy, or imprisonment not exceeding five years.
The SYMG Blogger may be possibly be charged under s. 41(1)(c) of the Copyright Act 1987 (and if so, he could have set a new legal precedent in Malaysia!)
Nevertheless, SYMG Blogger may claim a defence of fair dealing under the Copyright Act 1987. He may claim that the blog was created for the purpose of research. Thus, this probably explains the ‘social experiment’ explanation he has been trying to pull.
Whether he will succeed in this defence would depend on whether it is genuine research or merely an afterthought.
Notwithstanding the above, there were naked pictures of young girls in the blog. It is certainly an offence to post obscene pictures online (Section 292 of the Penal Code).
Then there is a question on whether reproducing an image which had already been reproduced in another page (e.g. by way of re-blogging) amounts to publication. If we follow Malaysian laws, reproducing an image through re-blogging is a publication of the image by the person who re-blogged it.
Unfortunately, I have been informed that none of the victims have made a police report. I am told that some girls do not want their parents to know. Unless a police report is made, the police will not start investigations.
Without a complainant, it will be very difficult for the Attorney-General's Chambers to prosecute the case.
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:
Bread & Kaya: Sharing images of crime victims
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
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