Internet Pornography, Not Everything is Legal!

Contracts: Just Signing On The Dotted Line Isn’t Going To Cut It. So We Break It Down!
November 21, 2018
Broke And With A Business Idea, But Is Crowdfunding Really Worth It? We Break It Down.
November 21, 2018

A slew of nude photos of various celebrities such as Jennifer Lawrence, Kate Upton, Jessica Brown and many other A-list celebrities, have been leaked on the Internet.

HOLLYWOOD, CA - MARCH 04: Jennifer Lawrence attends the 90th Annual Academy Awards at Hollywood & Highland Center on March 4, 2018 in Hollywood, California. (Photo by Kevork Djansezian/Getty Images)

The photos were obtained from the online file storage offered by Apple’s iCloud platform. Apple later reported that the victims' iCloud account was hacked using "a very targeted attack on user names, passwords and security questions", such as phishing and brute-force guessing, rather than any specific vulnerability in the iCloud service itself.

Many have condemned such action as an act of invasion of privacy, with Jennifer Lawrence calling the leak a “sex crime” and saying that;
“anybody who looked at those pictures, you are perpetuating a sexual offence”.
Many of you would recall that back in 2008, a similar incident also took place in Hong Kong where hundreds of intimate and nude photos involving Hong Kong celebrities such as Edison Chen, Gillian Chung, Cecilia Cheung, and others were leaked and circulated all over the Internet.

In Malaysia, the most famous nude photo shared incident is none other than the controversial couple, Alvin Tan and Vivian Lee, who had deliberately uploaded nude photos and sex videos of themselves onto the Internet, which has landed them in hot soup.

This article sets out to examine the legal issues revolving around pornography, nude photos as well as obscene materials on the Internet.

Alvin Tan and Vivian Lee

Is hacking and circulating nude photos a sex crime, as described by Jennifer Lawrence?

Without a doubt, the act of hacking into someone’s computer is a computer crime, but it may not necessarily amount to a sex crime, which usually refers to sexual offenses such as rape, molest, sexual harassment, sexual assault etc. The advent of the World Wide Web has led to the growth of Internet pornography and has made it so easy for any Internet users to stumble upon, or accidentally or deliberately view explicit images while surfing the Internet. Pornography magazines and videos have always been banned from entering Malaysia.

Now with the Internet, these materials are easily accessible to anyone, without any form of restriction or censorship. The phenomenon of revenge porn i.e. an act where ex-partners post sexually explicit or indecent photos and videos of their former partners, and sexting i.e. an act of sending sexually explicit messages (which sometimes contain photos and videos) between mobile phone users are also getting popular worldwide.

It is no surprise when our current Prime Minister, Tun Dr. Mahathir Mohamad, who was once an advocate of non-censorship of the Internet (as evident by the spirit under the Communications and Multimedia Act 1998 and the MSC Bill of Guarantees, which approved by him when he was the Prime Minister), lamented that the easy access to sexually explicit websites and pornographic on the Internet has corrupted the minds of the young, and caused a decline in morality. He had called on the government to impose some form of censorship or filtering mechanism to block access to pornographic and obscene materials online, although such suggestion has been turned down by the government, not because the government is not serious about blocking access to pornographic materials, but because the government knows that no form of censorship can effectively wipe out all pornographic materials on the Internet.

What about the existing laws?

MCMC barring access to porn sites

For decades, the courts have been struggling with how the law should treat pornographic, indecent and obscene materials. In most of the western countries, porn is legal and is widely distributed. In fact, it is a multi-billion dollar industry.

According to the YouTube channel All Time 10s, every second, 30,000 people are watching porn, and a new porn video is produced every 39 minutes to meet the growing demand. It is legal for people to buy and own it, and consenting adults are free to participate in the making of pornographic materials in return for money. However, porn becomes illegal when it is obscene or it involves children.

In this part of the world, the possession of any form of pornographic material which is obscene or is otherwise against public decency is illegal.

Under Section 292 of the Penal Code, it is a criminal offence for anyone who sells, lets, distributes, publicly exhibits, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, and will be jailed up to 3 years and/or fined up to RM10,000. The court has confirmed that the word "object" is to be construed widely and to include all manner and variety of objects that are obscene, and that the words "any object whatsoever" are sufficiently wide to include visual recordings of any nature, such as VCD, DVD and even video clips on the phones, laptops or the Internet.

In one case, an accused person was convicted under Section 292 for uploading pornographic photos and disseminating them on several websites.

Merely visiting such websites or viewing pornographic materials is not a crime. However, making, downloading or storing such materials is a crime.

Film Censorship Rating

In addition to the above, Section 5 of the Film Censorship Act 2002 states that it is illegal for anyone who:

(a) has in his possession, custody, control or ownership; o
(b) circulates, exhibits, distributes, displays, manufactures, produces, sells or hires,any film or film-publicity material which is obscene or is otherwise against public decency.
A person who commits any of the offenses above will be jailed up to 5 years and/or fined up to RM50,000.

A recent example of this is the case involving three members of the Datuk “T” Trio, who publicly screened a sex video implicating the Opposition Leader Datuk Seri Anwar Ibrahim at Carcosa Seri Negara.

The three Datuks have since pleaded guilty to charges and was fined a few thousand ringgits under the Film Censorship Act 2002. Alvin Tan and Vivian Lee have also been charged under the same law for posting pornographic photos on their blogs. The Government has called for self-regulation and self-censorship by asking various stakeholders to take the necessary measures to combat all forms of pornography on the Internet. An example of this can be seen in the drafting of the Content Code.

The Content Code sets out guidelines on approved and prohibited content in Malaysia, especially in respect of broadcasting, online content as well as audio-text hosting services.

Compliance with the Content Code brings a number of benefits, such as it serves as a defense against any prosecution or civil proceeding. The Content Code states that any portrayal of sexual activity that a reasonable adult considers explicit and pornographic is prohibited. Child pornography is strictly prohibited. Advertisements for products or services with pornographic materials or sexually explicit scenes are also not allowed to be displayed. It goes further to state that advertisements must not project women as an object for sex or be shown to merely satisfy men’s desire and satisfaction.

Datuk 'T' Trio

The Malaysian Communications and Multimedia Commission also has the power to block access to certain websites that contain “indecent” and “obscene” content as such content is prohibited under the Communications and Multimedia Act 1998.

Many companies nowadays have also installed porn image filtering software on work computers, or put in place internal policies or a code of ethics to prevent employees from viewing or downloading pornographic materials at work.
As such, please do not be too quick to share those materials with your colleagues, as that may get you into trouble. Over-zealous parents who post and share nude photos of their children must also be careful that no moral lines are crossed.
*****
About the author:
This article was written by Edwin Lee Yong Cieh, Partner of this Firm (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.

Comments are closed.