Reports by MARTIN CARVALHO, RAHIMY RAHIM, JUNAID IBRAHIM and TARRENCE TAN
KUALA LUMPUR: Being “grossly offensive” with online content targeting minors could result in a fine of up to RM500,000 or five years in prison.
This is part of the sweeping revisions to the nation’s 26-year-old cyberlaws, which the government says are aimed at strengthening protections for Malaysians, especially children, against online sexual crimes and other cyberthreats.
This follows Communications Minister Fahmi Fadzil’s introduction of the Communications and Multimedia (Amendments) Bill 2024 (CMA) and the Malaysian Communications and Multimedia Commission (Amendments) Bill 2024 (MCMC) in Parliament yesterday.
The Bills propose amendments to 118 existing sections and the creation of 15 new ones, to better combat the growing threat of online criminal activities, including online sexual offences and the spread of false information.
The amendments are expected to be passed by the Dewan Rakyat before it adjourns on Dec 12.
One of the key amendments redefines the term “offensive” when committed through a content or network service provider, to “grossly offensive”.
Additionally, the term “harass another person” has been expanded to include “harass or commit an offence involving fraud or dishonesty against any person”.
Penalties for those convicted under this provision have been significantly increased, with the maximum fine rising from RM50,000 to RM500,000, and the maximum jail term extended from one year to two years.
A convicted offender faces a maximum fine of RM500,000 or a jail term of up to five years if the offence involves a child under 18.
According to the explanatory notes in the Bill, content is considered obscene if it offends a person’s sense of decency and modesty.
When it concerns a child, this includes actions such as sexual grooming, degradation, sexual objectification, exploitation, and discrimination through portrayals of sex or pornography, whether consensual or not.
Indecent content is defined as material that is profane, improper, and contrary to accepted behaviour, customary laws, and cultural norms.
When involving a child, indecent content refers to material that is profane, improper, or inappropriate for a child as judged by a reasonable adult.
However, content depicting private parts for purposes of art, education, or science – such as sex education or anatomy – is not considered obscene or indecent.
False content is defined as information that is untrue, misleading, incomplete, or fabricated about non-existent matters.
However, satire, parody, or clearly fictional content is not categorised as false.
Menacing content, on the other hand, constitutes an offence if it causes annoyance, harm, or malicious threats, incites criminal acts, or disrupts public order.
When it involves a child, menacing content includes material that causes emotional distress, such as depictions of gruesome deaths or domestic violence.
It also covers content that might encourage imitation, such as acts related to suicide, dangerous physical stunts, street crimes, or drug use.
Grossly offensive content is defined as material that may include expletives, crude references, hate speech, or depictions of violence.
Hate speech encompasses words, visuals, audio, or gestures that insult or demean an individual.
However, portrayals of violence in news reporting, provided they adhere to journalistic ethics or communications made in good faith, are not considered grossly offensive.
The amendments also prohibit knowingly providing obscene content for commercial purposes through a service provider or application.
Offenders convicted under this provision face a maximum fine of RM1mil, up to 10 years’ imprisonment, or both.
Significant changes have also been made to prohibit content applications service providers or individuals using such services from distributing “indecent” or “grossly offensive” material.
Penalties for these offences have been increased from a maximum fine of RM50,000 or one year in prison to a maximum fine of RM1mil or 10 years in prison, or both.
The MCMC also has the authority to suspend content applications service providers for “a specific period” if they fail to comply with content requirements.
The new section also allows suspension if they fail to comply with instructions from the Communications Minister or the MCMC related to content.
Section 232 has also been amended to impose stricter penalties for fraudulent use of network facilities to dishonestly transmit, receive, or facilitate such transmissions.
The punishment has been increased from a maximum fine of RM300,000 or a three-year jail term to a maximum fine of RM1mil or imprisonment of up to 10 years, or both.
A new Section 233A has been introduced to prohibit commercial “spamming,” which includes sending or causing the sending of unsolicited commercial electronic messages.
Under the new Section 236A, victims of online scams or fraud can sue perpetrators for damages or losses through civil action, regardless of whether the perpetrators have been charged with a criminal offence.
Amendments to Section 240 have also increased penalties for distributing or advertising communication equipment or devices intended for the interception of communications.
The maximum fine has been raised from RM100,000 to RM200,000, and the jail term from one year to two years, or both, upon conviction.
Amendments to Section 241 now address individuals who provide false or misleading statements during investigations to authorised officers.
The penalties under this provision have been significantly increased, with the maximum fine raised from RM20,000 to RM500,000 and the jail term extended from six months to five years, or both, upon conviction.
Section 230A empowers the MCMC to register both local and foreign certifying agencies, ensuring their compliance with regulations and standards under existing laws.
Section 230B allows the MCMC to issue written instructions requiring individuals or entities to take measures to prevent, detect, or counter network security risks.
Failure to comply without reasonable excuse may result in a maximum fine of RM1mil, imprisonment of up to 10 years, or both upon conviction.
The amendments also give MCMC the power to publish information on criminal or civil cases, and redefine the role of the MCMC’s “chief executive”.
Previously, the chief executive also served as the commission’s chairman. Under Section 20, this role will be separated, with a “chief executive officer” (CEO) appointed instead.
The CEO, employed by the commission, cannot be a member of any legislature, will hold office for three years, and is eligible for reappointment.
