THE term “cyberbullying” is not defined under Malaysian law. Cyberbullying is generally understood to mean bullying with the use of or through the use of digital technologies.
What constitutes bullying for the purpose of cyberbullying is often not clearly defined in most jurisdictions that seek to prohibit, regulate or sanction such behaviour. It shares common elements though the precise components differ.
Cyberbullying involves repeated behaviour online or using network facilities or digital communication intended to scare, intimidate, shame, cause mental distress or psychologically hurt a person who is targeted.
This is usually done through a combination of true or fake information that is abusive, degrading, offensive, hurtful or threatening using social media, video or messaging platforms.
The effect is often amplified by sharing such messages or video to as wide an audience as possible including close relatives, friends or the general public either through a group with a common aim and intent to bully or intimidate or using real or orchestrated comments and repostings generated by bots or real individuals.
The Malaysian Communications and Multimedia Commission (MCMC) presently deals with cyberbullying using Section 233 of the Communications and Multimedia Act 1998 (CMA), which makes it an offence to knowingly make, create, solicit or transmit any communication which is obscene, indecent, false, menacing or offensive in character with the intent to annoy, abuse, threaten or harass another person.
Like many online offences, the ease of appearing anonymous and hiding or masking one’s identity makes it a challenge for law enforcement and the victim to seek redress and justice against these cyberbullies.
Furthermore the use of deepfakes, AI and easy access to targeting information and profiling technology has enabled and emboldened cyberbullies to carry on with online bullying with little fear of consequence.
These individuals often hide behind unregulated social media platforms who, while claiming to have rules against cyberbullying, are under no legal obligation to act promptly or take effective, prompt and pre-emptive measures to protect victims.
To make matters worse there is little legal protection against the use or sale of a person’s personal and behavioural data as a precondition to use a digital service, which enables bullies to specifically mould their attack for maximum impact on the victim.
The MCMC does have a unit that monitors not only cyberbullying but other forms of online harm such as child sexual abuse material, scams, incitement to violence and many others.
But because of the millions of data communications a day it is impossible to adequately monitor all online harms.
The use of encrypted social media and messaging platforms makes it very difficult for the regulator to proactively identify these online harms itself unless complaints are made to it by the public or other entities.
Presently, the MCMC has online complaint facilities which the public can use.
To get a sense of the volume involved, the MCMC requested the removal of 128,133 offensive or illegal content which it flagged between January 1 and July 2024. A huge number of them – about 5% or over 6,300 pieces of content – involved harassment.
The situation is far more difficult where cyberbullying is concerned because unless a victim complains to the MCMC, it is difficult to determine if a posting has the effect of the victim feeling bullied as different people respond differently to such content.
So, it is critical that the platforms that profit from hosting social media content like OTT platforms immediately respond to user complaints that they are being bullied or emotionally attacked by cyberbullies.
We have seen how in extreme cases cyberbullying can cause self-harm, death or mental and physical injury.
It is essential that all OTT platforms must be legally regulated so that they are under a legal obligation to take action promptly and effectively against persons whom they allow on their platforms, through whom they profit from the monetisation of their data, from harming, bullying and cheating other users of the platform and members of the public.
This is especially so when public complaints to them about someone feeling bullied are ignored or dismissed or not attended to promptly.
Moreover efforts are needed by platforms to identify and ban cyberbullies from opening fresh accounts and continuing to carry on bullying after being blocked or removed. The same applies to online scams, gambling and child sexual abuse material.
Regulating these platforms through legal licensing or clear laws and legal liability will ensure Malaysian online users have the same legal protection as those in the European Union, the United States and several other countries.
This in turn will lead to more resources by those who profit the most from these platforms being invested in to seriously combat cyberbullying and other online harms.
Sadly the present penalties under the CMA do not reflect the seriousness of the human pain and suffering caused by cyberbullying and these sanctions must be substantially enhanced.
In addition, amendments need to be made to the Penal Code to treat those relevant offences if done online the same as they are treated when perpetrated in real life.
This will reduce the gap between offences being committed in the virtual world from those committed in the non-virtual one.
The relatively new Section 507A of the Penal Code now makes online stalking an offence as did Section 507 covering criminal intimidation.
So, a general amendment can also be made to include online conduct that causes an offence under the Penal Code where such conduct can be committed through a digital communication.
This can be done together with the much-needed amendments to the CMA to provide a measure of regulatory protection against such serious threats and abuse of online facilities.
At a later time, a specific cyberbullying act or online harms act can be considered if there are gaps.
There is also a need for law enforcement to be equipped with more advanced tools to be able to help monitor compliance with Malaysian laws online and fight cyberbullying or online crime. – July 15, 2024
Derek Fernandez is a cybersecurity law expert and also an MCMC commissioner