There's a fine line between having a laugh with friends and perversion.
'Gadis Shell' or Nor Shafila in real-life, first rose to prominence after scaring the bejeezus out of Malaysians filling petrol in Malaysia. Her silhouette peeping out from the side of your eye at 12am was nothing short of heart-stopping.
Her cutout reappeared in May and was met with joy by Malaysians. Until a bunch of perverts decided to pose indecently with her cutout and post their pictures online.
The actions of the individuals have caused a great deal of anger on the net with Nor Shafila herself reacting to the photos by saying to the Malay Mail Online
: “They may just be joking, but I feel ashamed because that is still myself although it is just an image.”
Her husband was equally distressed by the photos.
In the same report, Nor Shafila has said she would not pursue legal action against the so-called 'molesters' of her standee. This got us thinking:
Is there any legal recourse for Nor Shafila if she decides to go to court?
For this, we relied on our contributing lawyer, Louis Liaw (louisliaw.wordpress.com) who says:
The Communications and Multimedia Act 1998 Section 233 states that it is an offence for improper use of network facilities or network service, etc including if a person who by means of any network facilities or network service or applications service knowingly—
(i) makes, creates or solicits; and
(ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.
So, if say, the person who harassed the poster, purposely took those photos of him harassing, and post it online, with the intention of harassing another person with his post (maybe the lady herself), then he can be caught under CMA. The person shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.
But of course the thing here is:
1) The one who posted the photo is liable (not the person who actually harassed the poster, although they can be the same person)
2) He must have posted the photo with the specific intention to annoy someone , i.e. purposely to annoy someone. If the person posts the picture just for his own fun, then it's not an offence.
The section is wide and vague and we as lawyers should not encourage the use of this law.
According to this section, it will be difficult for Nor Shafila to build a case. It's going to be difficult for her to prove that the photos were posted with the intention to harass her so Louis discourages this option. He does point out another way however:
Alternatively the men could be found guilty under s.268 of the Penal Code, which states that a person is guilty of a public nuisance if he does any act which causes any common injury, danger, or annoyance to the public, or s.294 (a) which provides that whoever, to the annoyance of others does any obscene act in any public place shall be punished with imprisonment for a term which may extend to three months or with fine or with both.
However, Louis mentioned that getting the 'suspects' punished under the Penal Code requires a lot of time and effort.
This reminds us of the case of the Australians who stripped at the F1 event, and the mountain climbers who stripped at Mount Kinabalu. They were charged under s.294(a). However, it will require the will of the police and the prosecution to search for members of the public who may have witnessed their actions on that day, to come forward to say they were annoyed by their actions, and also to convince the court tha their actions are obscene.
So, even if Nor Shafila wants to take action against the pervs, it's not a guarantee that she will succeed.
I am doubtful the police would spend their resources on matters as such, and perhaps public shaming of these individuals is sufficient in serving the public interest in discouraging these behaviours.
There you have it. There is some legal recourse for her but since she has stated she would not pursue action, it seems social justice is in order.
Keyboard warriors, do your thing.