Non-Criminalisation of Cyberstalking and Its Impact on Justice for Victims: Some Evidence from Malaysia

Abstract

In the digital era, some real-world crimes have now transcended into cyberspace. Cybercrime such as cyberstalking is one of them and is considered as an emerging threat in Malaysia. Its prevalence in the reported statistics is merely a tip of an iceberg as many cases may not be reported. Cyberstalking may lead to a chain of psychological trauma and more severe crimes such as identity theft, rape, and even murder. However, despite its serious ramifications, the absence of any specific law to curb such criminality is regrettable and glaring in the Malaysian legal landscape. Hence, this paper aims at examining the technological and social factors contributing to such illegality, the rationales for the non-criminalisation and its implication for the victim's sense of justice. This paper adopts a qualitative methodology, of which the primary data is generated from semi-structured interviews with relevant respondents. The data triangulation is obtained from experts at two relevant ministries. The secondary data are the relevant cyber law, the Penal Code, books, academic journals, online databases and library-based sources. The findings revealed that the catalysts for cyberstalking are varied and that such crime has not been specifically criminalised in the Malaysian cyber laws or traditional legal framework. Such a legal lacuna calls into question not only the adequacy of the current law in dealing with such crime but also the availability of legal protection and nondenial of justice for cyberstalking victims as envisaged by the National Cyber Security Policy 2006 and the Sustainable Development Goals No.16.

Recent Development in Sexual Harassment Law in Malaysia: Whither the Victim's Protection?

“…In general, harassment, which is a contested concept, has different meanings in different contexts and countries (Fitzgerald & Ormerod, 1991;Rosli et al, 2021). Sexual harassment has been defined as any form of unwanted sexual conduct, be it verbal, non-verbal, visual, psychological or physical harassment that the recipients might reasonably perceive as putting a condition of sexual nature, an offence or humiliation, or a threat to their well-being (Mohamed, 2011).…”

“…Harassment, particularly sexual harassment, is a worldwide phenomenon, and with the advent of information and communication technology (ICT) and advances in the #MeToo movement, such behaviour has attracted more attention. Harassment is defined as offensive, abusive, insulting, belittling, humiliating, threatening or intimidating behaviour directed at a person or group (Stevens et al, 2021;Rosli et al, 2021). Furthermore, given the technological advancement in modern times, recent literature has expanded its meaning to include impersonation, making physical threats, asking the third party to attack the victim, and spreading false stories about the victim (Basu et al, 2021).…”