Ensuring severe punishments for cyberbullying in Malaysia – T. Harpal Singh

THE tragic death of a TikTok influencer after relentless cyberbullying has highlighted the urgent need for Malaysia to strengthen its legal framework against cyber harassment. 

As we look to ensure that perpetrators are punished severely, we can draw valuable lessons from the comprehensive cyberbullying laws of other jurisdictions such as the United Kingdom, United States, Canada, Australia and Singapore.

United Kingdom: The UK’s Communications Act 2003, which supersedes the Malicious Communications Act 1988, addresses offensive, indecent, obscene or menacing messages sent over public electronic communications networks. Penalties include up to six months’ imprisonment or a fine. The Protection from Harassment Act 1997 also applies to repeated behaviours causing distress, with offenders facing up to five years in prison. 

United States: In the US, while there is no specific federal law against cyberbullying, various laws such as the Computer Fraud and Abuse Act and state laws cover aspects of cyber harassment. For example, California’s AB 86 includes electronic harassment as a misdemeanour, with penalties varying by state and potentially including fines, imprisonment and community service. 

Canada: The Criminal Code of Canada applies to cyberbullying through sections on harassment (Section 264), defamatory libel (Sections 298-301), and the non-consensual distribution of intimate images (Section 162.1). Penalties can range up to 10 years in prison for harassment and five years for defamatory libel. 

Australia: Australia’s Criminal Code Act 1995 (Section 474.17) covers using a carriage service to menace, harass or cause offence, with penalties including up to three years in prison. State laws, such as Victoria’s Crimes Act 1958, further cover stalking and harassment. 

Singapore: The Protection from Harassment Act covers cyberbullying as a punishable violation, providing protection against harassment, stalking and other unpleasant behaviours, including internet harassment. Singapore Penal Code: Acts amounting to criminal intimidation, such as repeatedly harassing, stalking or spreading false rumours, can apply. 

Penalties in Singapore: First-time offenders: Fines up to S$5,000 (approximately RM17,000) and/or up to 12 months in jail. Repeat offenders: Fines up to S$10,000 and/or up to two years in jail. 

The current situation in Malaysia 

In Malaysia, the Malaysian Communications and Multimedia Commission (MCMC) is the primary body responsible for regulating online activities, including cyberbullying. The Communications and Multimedia Act 1998 includes provisions for improper use of network facilities or services (Section 233). 

However, the penalties, which include fines and imprisonment of up to one year, are often seen as insufficient deterrents. 

There are also weaknesses in the MCMC and the government’s actions to fight cyberbullying, such as limited enforcement power, an inadequate legal framework that does not address the complexities and severity of cyberbullying cases, punishments that are too lenient compared to the harm caused, and lack of awareness and reporting mechanisms.

A call for stronger measures 

To ensure justice for the deceased TikTok influencer and prevent future tragedies, the following steps should be considered: 

1. Enhanced legislation: Malaysia must strengthen its legal framework by incorporating comprehensive laws specifically targeting cyberbullying. Drawing from the UK’s Protection from Harassment Act and the extensive penalties seen in Canada, new legislation should impose severe penalties, including substantial prison terms and fines for offenders. 
2. Improved enforcement: The MCMC should be empowered with greater enforcement capabilities. This includes faster response times and more robust investigation procedures to track and apprehend cyberbullies. 
3. Public awareness campaigns: Launch nationwide campaigns to educate the public about the dangers of cyberbullying, the legal repercussions, and the proper channels for reporting incidents. Collaboration with social media platforms to implement stricter policies against harassment is also crucial. 
4. Support for victims: Establish support systems, including counselling services and legal aid, to assist victims of cyberbullying. Ensuring that victims have access to the necessary resources can help them cope with the emotional distress caused by cyber harassment. 
5. Section 304 of the Penal Code: In severe cases where cyberbullying leads to suicide, the prosecution should consider charges under Section 304 of the Penal Code, which deals with culpable homicide not amounting to murder. This would require establishing that the cyberbullying significantly contributed to the victim’s suicide, that the perpetrator had the intention to cause harm or knew their actions could have severe consequences, and that the cyberbullying was an unlawful act. 

Malaysia must strengthen its legal framework to ensure that perpetrators face stringent penalties. By invoking relevant sections of the law, Malaysia can create a landmark case that sets a strong precedent and deters future offences. 

1. Section 304 of the Penal Code (culpable homicide not amounting to murder) should be considered when cyberbullying significantly contributes to a victim’s suicide. The proconsequences and that the cyberbullying was a substantial factor leading to the victim’s suicide, demonstrate the perpetrator’s intent to cause harm or knowledge that their actions could lead to severe consequences, and establish that the cyberbullying was an unlawful act contributing to the victim’s death. Penalties under this section include imprisonment for up to 10 years, a fine, or both. 
2. In addition, Section 233 of the Communications and Multimedia Act 1998 (improper use of network facilities) should be invoked to address the misuse of network facilities to harass, threaten or offend others online. The prosecution needs to gather digital evidence of cyberbullying, such as social media posts and messages, and prove that the perpetrator used network services with the intent to harass, threaten or offend the victim. Penalties for this offence include a fine of up to RM50,000, imprisonment for up to one year, or both, with an additional fine of RM1,000 for every day the offence continues after conviction. 
3. Furthermore, Section 506 of the Penal Code (criminal intimidation) should be applied to address threats intended to cause harm, intimidate or cause alarm. The prosecution must provide evidence of threats made by the perpetrator that caused fear or alarm in the victim and show that the threats were made with the intent to intimidate or harm. Penalties for criminal intimidation include imprisonment for up to two years, a fine, or both. For threats of death or grievous hurt, imprisonment can extend up to seven years.

To set a strong precedent, the prosecution should charge the perpetrators under multiple sections, utilising Section 304 of the Penal Code for culpable homicide not amounting to murder, Section 233 of the Communications and Multimedia Act for improper use of network facilities, and Section 506 of the Penal Code for criminal intimidation. Comprehensive evidence collection is crucial, including digital evidence, such as social media posts, messages and witness testimonies, and documenting the psychological impact on the victim through medical reports and expert testimonies. 

By highlighting the severity of the case in court and emphasizing the severe consequences of cyberbullying, including the victim’s suicide, the prosecution can underline the need for stringent penalties. Engaging public and media attention will raise awareness and demonstrate the government’s commitment to combating cyberbullying. This case can promote new legislative measures and public education campaigns, creating a safer online environment for all. 

The death of the TikTok influencer must serve as a wake-up call for Malaysia. By learning from the robust legal frameworks of other jurisdictions and addressing the current weaknesses in our system, we can ensure that cyberbullies face the severe consequences of their actions. It is imperative that we act now to protect vulnerable individuals and uphold justice in our society. – July 9, 2024

T. Harpal Singh is a lawyer