“Every Breath You Take I’ll be Watching You”: Governing

Cyberstalking in Malaysia

Zaiton Hamin and Wan Rosalili Wan Rosli

Faculty of Law, Universiti Teknologi MARA, Malaysia

Keywords: Anti-Stalking Law, Cybercrime, Cyberstalking, Criminalisation, Motivation.

Abstract: Since the past decade, cyberstalking has been on the rise worldwide. The prevalence of such crime is much

higher than its real-world counterpart due to the fact that computer users have unlimited connectivity to the

Internet. Cyberstalking acts as a conduit to the commission of other illegalities such as identity theft, cyber

fraud and physical danger such as rape and even murder. However, the nature of the crime and the perception

on the adequacy of the law remains ambiguous in the current Malaysian legal landscape. Hence, this paper

aims at examining the various motives of the cyberstalkers in committing such crime and the perception of

the criminalisation of cyberstalking in Malaysia. This paper adopts a qualitative methodology, of which the

primary data is generated from semi-structured interviews and secondary data from library-based sources.

The preliminary findings revealed that several motivations of cyberstalkers were evident, including revenge

and obsession. Significantly, there were paradoxical views on the adequacy of the current legal position for

cyberstalking. The evidence from the findings illustrates the need for a review of the existing legal position,

which does not adequately address the criminalisation of cyberstalking and the victims’ protection within the

Malaysian criminal justice system.

1 INTRODUCTION

In the last two decades, with the advent of

information and communication technology (ICT),

cybercrime has been on the rise worldwide.

Cybercriminals are using such technology as a tool to

commit cybercrimes that may transcend geographical

boundaries. According to the recent Europol’s

Organized Crime Threat Assessment 2017, the

Internet is the key facilitator for a majority of offline

organised crime activities; for instance, criminals can

quickly leverage the Internet to carry out traditional

crimes such as distributing illicit drugs, sex

trafficking and even stalking. Dolliver and Poorman

(2018) suggests that cybercrime is a borderless

problem where cybercriminals utilise anonymising

technologies to commit Internet-facilitated crimes.

Within the global context, many jurisdictions

have criminalised stalking not only in the real world

but also in cyberspace, by amending their traditional

laws. For instance, California became the first state in

the USA to enact an anti-stalking law (Reyns, 2015).

According to Vasiu and Vasiu (2013), the USA

enacted its cyberstalking laws that explicitly include

electronic forms of communications within the more

traditional stalking laws. In 1997, the United

Kingdom enacted its Protection from Harassment Act

1997 and New Zealand created the New Zealand

Harassment Act in 1997 that covers both civil and

criminal harassment (CCPL, 2013). Later in 2014,

Singapore enacted its Protection from Harassment

Act, which mirrors the UK 1997 Act (CCPL, 2013).

In January 2017, Japan amended its anti-stalking

legislation to include cyberstalking given that such

crime is seen to be more dangerous than its real-world

counterpart (Kyodo, 2017).

The Malaysian literature on stalking and

cyberstalking is somewhat scarce. However, the early

available literature appears to be focused on the

unwillingness of female victims of cyberstalking to

report such crime to the police (Haron, 2010).

According to Cybersecurity Malaysia (2010), the

actual number of cyberstalking victims is much

higher because not all victims are willing to come

forward with their reports. Cyberstalking has also

been reported to be a severe threat, particularly to

women and should not to be taken lightly (The Star,

2010). The recent local literature generally discussed

the profile of stalkers and the victimisation of

cyberstalking, rather than the legal aspects of

Hamin, Z. and Wan Rosli, W.

“Every Breath You Take I’ll be Watching You”: Governing Cyberstalking in Malaysia.

DOI: 10.5220/0010051803150320

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 315-320

ISBN: 978-989-758-482-4

315

governing the said crime (Indramalar, 2017). On such

matters, Hamin and Wan Rosli (2017) contended that

Section 233 of the Communications and Multimedia

Act (CMA) 1998 may be used to prosecute

cyberstalking and cyber harassment in Malaysia. The

gap in the literature is that there has been no

qualitative research undertaken to look into the

perception of Malaysians on the current legal

position, the motivations for cyberstalking and the

sufficiency of the Malaysian laws to protect the

victims. As such, this paper aims at examining the

existing legal position in Malaysia and the various

motives of cyberstalkers in committing such crime.

The first part of this article examines the literature

of cyberstalking, the victimisation and motivation of

the crime. While the second part reviews the legal

position of the traditional and cyber laws in Malaysia

on cyberstalking, the third part explains the

methodology adopted by the researchers in

conducting the research. The fourth part, which is the

crux of the study, explains the preliminary findings.

The discussion in the fifth section which discussed

the relationship between the findings and the

literature is next. The last section concludes the paper.

2 LITERATURE REVIEW

The literature suggested that stalking is an age-old

offence in many parts of the world. Early literature

defined stalking as a crime involving acts or

behaviours of pursuit which is done over time, that is

threatening and potentially dangerous towards the

victim (Meloy, 1998). Similarly, Thomas (1993)

argued that the main elements of stalking involved the

repetitive and threatening conduct of the offender.

Recent literature indicated that the crime appeared the

same. For example, Nobles (2014) argued that

stalking involved on-going harassment that is

unwanted and causes fear or safety concerns towards

the victim.

Cyberstalking is one of the types of cybercrime

that have morphed from the traditional stalking to that

in cyberspace, which may be committed through any

electronic devices that are connected to the Internet

(Leong, 2015). Recent literature indicated that

cyberstalking is a prevalent crime and is becoming

more dangerous than traditional stalking (Mutawa et

al., 2016) due to the various crime stimuli of the

Internet that provided tremendous opportunities to

utilise advanced computer programs (Aa, 2011). With

such technological development, the magnitudes of

cyber harassment and cyberstalking are getting more

prevalent and extensive (Leong, 2015).

On the issue of victimisation of such crime, more

than 38 percent of cyberstalking victims fear that the

offensive behaviour of cyberstalkers would develop

into a face-to-face confrontation (Al-Khateeb and

Epiphaniou, 2016). A recent US Bureau of Justice

Statistics (2017) reported that within a year, an

estimated 14 in every 1,000 persons aged 18 or older

might become victims of cyberstalking. In 2013, a

research conducted on the victimisation of stalking in

Malaysia found that 26 percent of women had been

stalked by their abusers (Indramalar, 2017).

The literature suggested that a wide range of

motivation is currently influencing stalkers to stalk

their victims in the real world and cyberspace. Bocij

and McFarlane (2002) asserted that stalking is usually

motivated by hate, revenge, power, and even racism.

However, Lowry (2012) argued that the motivation of

the offenders to commit cyberstalking ranged from

jealousy of ex-partners to delusional fixation on the

victims by stalkers. The literature, through mental

profiling of cyberstalkers or online criminals, has

identified not only the psychological factors that

motivate them, but also the social factors involved

(Jaishankar, 2011). The stalkers share traits such as

envy, pathological obsession, including professional

or sexual fixation, unemployment or failure with their

job or life, and a cruel intention to intimidate or cause

others to feel inferior (Mullen et al., 2000).

3 GOVERNING

CYBERSTALKING IN

MALAYSIA

In Malaysia, cyberstalking may be prosecuted under

the traditional criminal law, which is the Penal Code,

and the computer-specific law, which is the

Communications and Multimedia Act 1998 (CMA

1998). Section 503 which is punishable with Section

506 of the Penal Code may accommodate stalking

and cyberstalking as these sections cover criminal

intimidation. Under Section 503, criminal

intimidation is committed when a person threatens

another with an injury to his person or body, with the

intention of causing alarm to that person. The

punishment under Section 506 is incarceration for a

term that may extend to two years or a fine or both.

To date, there are several cases of criminal

intimidation; however, none of these cases involved

stalking or cyberstalking. The existing cases

prosecuted under Section 503 are generally

concerned with inflicting physical violence on the

victims. An example of these cases is Zainuddin bin

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Mahmud v PP (2010) 7 MLJ 789, where the court

found the accused guilty, as he criminally intimidated

the complainant with injury when he threatened her

with a parang and was sentenced to a fine of RM7000,

which in default, would result in six months

imprisonment. In PP v Kenneth Francisco (2000)

MLJU 102, the defendant was charged with putting

the victim in fear of injury by threatening to stab the

latter. The court however acquitted and discharged

the accused without his defence being called, as the

prosecution had wrongly drafted the charge against

him.

Apart from Section 503 on criminal intimidation,

Section 351 on criminal assault and Section 354 on

assault or using criminal force to a person with intent

to outrage her modesty may also be applicable in

prosecuting stalkers and cyberstalkers. If found guilty

under Section 354, the offender shall be punished

with imprisonment for a term, which may extend to

ten years or fine or whipping or with any two such

punishments. To date, there are about forty-seven

cases reported under Section 354. An example of such

cases is Sha’Aribin A. Samat v PP (2017) MLJU 5

which is concerned with the outrage of modesty of a

schoolgirl by her teacher. The Sessions court found

the defendant guilty and sentenced the defendant to

three years of imprisonment. In another case of PP v

Mohd Rosli bin Ishak (2017) 1 LNS 1390, the

defendant was charged with Section 354 for outraging

the modesty of his daughter by putting his hands in

her underwear. The court sentenced the defendant for

nine years and eleven months imprisonment and

twenty-one strokes of rotan. However, there has been

no prosecution for stalking or cyberstalking in both

cases.

Section 233 of the CMA 1998 may be available to

prosecute cyberstalking cases. Such section is

concerned with acts and behaviours, whether

continuous or repeated or otherwise, which are

carried out through any network facilities, network

services or applications to make, solicit or initiate the

transmission of any comments, suggestions or other

communication, which is obscene, indecent, false,

menacing or offensive with the intent to annoy, abuse,

threaten or harass another person (233(1)(a) CMA

1998). Section 233(1) (b) further provided that a

person who initiates communication by using

application services whether continuously or

repeatedly, without disclosing his identity with the

intention to annoy, abuse, threaten and harass any

person at any number or electronic address may be

found guilty under the said section. The penalty

under Section 233 (3) of the CMA is a fine not

exceeding fifty thousand ringgit or imprisonment for

a term not exceeding one year or both. A person can

also be further fined for one thousand ringgit for

every day during which the offence continued after

the conviction (Section 233(3) CMA 1998).

Despite the availability of Section 233 to

prosecute the perpetrators of cyberstalking, up until

today, no prosecution has been brought before the

court for such cases. To date, there are only three

cases that have been prosecuted under the said

section. In the case of Rutinin b. Suhaimin v PP

(2014) 5 MLJ 282 the defendant was found guilty

after he had published a comment via his Internet

account that states, “Sultan Perak Sudah Gila.”

However, the decision was overturned as there was

evidence that anyone can access the defendant's

account as his computer and his Internet account was

accessible by other persons and on the day mentioned

in the charge. In a recent case of Nik Adib bin Nik Mat

v PP (2017) MLJU 1831, the accused was charged

under Section 233(1)(a) of the CMA 1998 for posting

pictures and comments regarding certain leaders on a

website, which were offensive and false. The judge

found the accused guilty and sentenced him to 1-week

imprisonment term and a fine of RM3000. Another

recent case is Mohd Fahmi Redza bin Mohd Zarin v

PP (2017) MLJU 516 where the accused was charged

for sending a false communication for the purpose of

annoying others by using his Instagram account.

However, the accused challenged Section 233 as

unconstitutional, and the matter was postponed until

the constitutional question was settled in the Federal

Court

Despite the utility of Section 233 in governing

cyberstalking, it does not provide the necessary

protections for the victims such as the protection

order, restraining order, injunction, or any civil

remedies, which are currently provided by the

Protection from Harassment Act 1997 (PHA1997) in

England and Wales. Also, this section does not

identify or define the acts and behaviours that

constitute cyberstalking or provide any instances of

the impact of the stalkers’ behaviour on the victim

such as that provided under Sections 2A and 4A of

the PHA 1997. In a Singaporean case of PP v Colin

Mak Yew Loong (2013, Unreported), the defendant

who had been sending threatening e-mails and voice

messages for more than 6 years to the victim,

including threats of violence by using an Ak-47 rifle

and a lead pipe, was charged with criminal

intimidation under Section 503 of the Singapore

Penal Code and was sentenced to three years of

imprisonment and SGD5000 fine under Section 506

of the Penal Code. This case had happened before the

“Every Breath You Take I’ll be Watching You”: Governing Cyberstalking in Malaysia

317

creation of the Protection from Harassment Act 2014

(PHA 2014) in Singapore.

If a similar case were to be decided in Malaysia, a

similar decision may apply since criminal

intimidation in Singapore is in pari materia with

Section 503 of the Malaysian Penal Code. However,

if the case were decided in Singapore post-PHA 2014,

the defendant would be charged with cyberstalking

under Section 7 of the PHA 2014, where on

conviction the accused can be liable for a fine not

exceeding SGD$5,000 and imprisonment not

exceeding the term or twelve months or both. If the

harassment towards the victim continues after the

conviction, the accused may also be charged for a

subsequent offence with a maximum fine of SGD10,

000 or a maximum jail term of two years or both. A

recent case in 2013 involving cyberstalking by a

female perpetrator against her former boyfriend

indicates a missed opportunity for the Malaysian

court to decide on such crime as the victim brought

the case in the course of action for cyber defamation

(David Clayworth v Lee Chiang Yan, 2013

(Unreported)). Since 2010, after the break-up of her

relationship with her boyfriend, Lee Chiang Yan, a

Malaysian, relentlessly cyberstalked David

Clayworth, a Canadian teacher. The accused posted

numerous false posting on the Internet and some of

which contained nude pictures of him with a caption

‘Genital herpes’. The defendant also took over the

victim’s e-mail and Skype accounts and posted

messages that the victim was a child molester,

paedophile and preferred having sex with his

students. The victim sued the defendant for

defamation and won the case. The court ordered the

defendant to pay RM66, 000 for damages. However,

the online assault did not stop even after a contempt

of court order was issued against her. Had the case

been dealt with through the criminal law avenue and

on a charge of cyberstalking, perhaps the court would

have the opportunity to apply either the traditional

criminal law or the CMA 1998 to decide this case.

4 METHODOLOGY

This research adopts a qualitative research, which

would provide a deeper understanding of the social

phenomena and a comprehensive overview of the

subject matter under study (Silverman, 2013). Hence,

such a methodology would enable the researcher to

explore the views of the respondents on the

criminalisation of cyberstalking in Malaysia and the

motivations involved in such cybercrime. For the

purpose of this paper, the preliminary findings are

based on the data collection of both the primary and

secondary data, and this stage is divided into two

phases. The first phase is the library-based research

or the literature review stage (Bell, 1987) in which all

the relevant literature on cyberstalking, the legal

position and the motivations for the said crime were

examined. While the primary sources involve the

CMA 1998 and the Penal Code, the secondary

sources include textbooks, academic journal articles,

government reports, newspaper articles and online

databases and sources.

The second phase of the data collection is the

fieldwork, in which the primary data is mainly

generated from the face-to-face semi-structured

interviews with the sixteen respondents. Bertaux

(1981) and Guest, Bunce, and Johnson (2006)

suggested that fifteen respondents would be the

minimum sample size for qualitative research. The

respondents of this research comprised of officers

from the Royal Malaysian Police, CyberSecurity

Malaysia, the Malaysian Bar Council representative,

the Deputy Public Prosecutors from the Attorney

General Chambers, legal practitioners and an NGO

(Women Aid Organisation). Such interview method

was chosen as it gives the researcher the opportunity

to explore the respondents’ opinions of the said issues

in depth, rather than to test their knowledge or only to

categorize it (Matt, 2000).

The sampling method in this research is purposive

sampling, which means that the respondents were

selected because they are likely to generate the useful

data for the research (Crouch and McKenzie, 2006).

The qualitative data analysis was conducted through

thematic and content analysis, in which the

observations and the interview transcripts from the

semi-structured interviews were examined (Seidman,

2006). The process consisted of creating codes and

categories, considering the themes and then analysing

the respondents’ perceptions and experiences, along

with the literature review. The primary data were

triangulated with the semi-structured interview data

obtained from an officer from the Ministry of

Communication and Multimedia and another officer

from the Ministry of Women, Family and Community

Development respectively. The said interviews were

digitally recorded, and their contents were later

transcribed and analysed using the Atlas.ti qualitative

research software (Friese, 2014).

5 FINDINGS

The findings of this research on the motivations and

the legal position in Malaysia on such crime are

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explained below through the narratives of some of the

respondents.

5.1 The Motivation of Cyberstalkers

The research revealed that obsession and attraction

were believed to be the primary motivations of

stalkers in committing cyberstalking. Obsessive

stalkers are usually connected to a person who knows

their stalkers such as an ex-lover, employer or from

past relationships. Most of the respondents (10 out of

18) believed that cyberstalking was usually

associated with obsession and attraction. A

respondent stated that:

Cyberstalking happens when the stalker is a fan of

the victim, he is obsessed with the victim and he

thinks that he is in love with the victim.

The research also revealed that jealousy and

humiliation were the principal motivations for

stalkers, which confirmed the literature that such

crime would usually happen, particularly when the

stalkers know their victims or had past relationship

with them. Jealousy and humiliation are from two

different sides of the spectrum. The motivations

normally develop when a stalker feels that he is being

rejected by a victim. Some of the respondents (7 out

of 18) believed that the stalkers’ motivation to

commit cyberstalking involved jealousy and

humiliation. A respondent stated that:

Boyfriends and husbands who are overly jealous,

always messaging their wives or girlfriends asking

where they are and threatening them can turn into

cyberstalkers.

Apart from that, the findings revealed that revenge

may also be a motivating factor for stalkers. Similar

to jealousy, such motivation may also be associated

with the feelings of being rejected. The motivation for

revenge is not limited to past relationships; it can also

be for a current employer-employee relationship,

neighbours, and even family members. A few of the

respondents (4 out of 18) perceived that revenge may

also be a factor for cyberstalking. A respondent stated

that:

Sometimes, the motivation for cyberstalking is

revenge. This usually happens when a stalker has

information on a victim at their disposal. The stalker

may use the information to stalk the victim out of

revenge.

The findings also indicated that stalkers who

suffer from pathological criminality have stalker

traits build-in their genetic makeup, which motivated

them to stalk their victims. The findings revealed that

some of the respondents (8 out of 18) perceived that

individuals who have pathological traits of a stalker

mixed with criminogenic thinking were prone to

commit cyberstalking. A respondent stated that:

When a perpetrator cyberstalks a victim, he must

be mad. There must be something wrong with his

mind; their brain is not functioning well because they

are born that way.

5.2 The Adequacy of the Current Legal

Framework

The findings revealed that there are paradoxical views

on the adequacy of the current legal framework. On

the one hand, most of the respondents (10 out of 18)

perceived that the current legal framework was

adequate to govern cyberstalking. A respondent from

the enforcement an agency argued that:

If the crime does not fall under section 233 CMA,

it can go under the Penal Code or the Sedition Act. If

somebody is threatening the victim, she can report to

the police.

Similarly, a respondent from a regulatory body

highlighted that the current law was sufficient due to

the availability of an existing legal framework

involving four legislations that could govern

cyberstalking. He commented that:

We have the Defamation Act, Sedition Act,

Section 233 of the CMA and the Penal Code. The

legal framework is there, and most of these Acts are

more than enough. The current laws are adequate. We

do not need more, as they can be abused. We need to

utilize the existing laws that we have now.

On the other hand, some of them (8 out of 18)

believed that the current law was inadequate. A

respondent from an NGO stated that:

Some actions, such as threatening gestures and

trespass, can be governed by the law. However, if

they are messaging a victim constantly, following her

around, causing her to fear for her safety, these

actions are not covered by the law.

6 DISCUSSION

The evidence shows that cyberstalking is founded

upon several motivations which may explain the

motivation for the stalkers to stalk their victims. The

findings suggested that obsession and attraction may

drive the motivational factors that push a cyberstalker

to stalk their victims. Interestingly, the findings also

indicated that there is a perception that cyberstalkers

may have pathological traits within their genetic

makeup, which mean they are born with stalker traits.

Such views are consistent with the literature, which

indicated that obsession, jealousy, revenge, and

“Every Breath You Take I’ll be Watching You”: Governing Cyberstalking in Malaysia

319

stalkers with pathological traits are the typical

motivation for stalking (Jaishankar, 2011; Bocij and

McFarlane, 2002; Mullen et al., 2000; Lowry, 2012)

The above findings also suggested that there are

paradoxical views on the adequacy of the current

legal framework in Malaysia. On the one hand, the

findings show that there is a perception of the law

being inadequate. Such a perception is in line with the

recent local literature on cyberstalking, which

suggested that such deficiency can be explained by

the lack of specific provisions to address

cyberstalking in the existing legislations. Also, it is

due to the absence of provisions in the current

legislations on any remedies or legal protection for

the victims such as that in England and Wales. On the

other hand, the findings indicated a perception that

the legal framework in Malaysia is adequate and the

futility of creating a new specific law to govern such

crime. Unfortunately, such a view is inconsistent with

the local literature that illustrated a significant rise of

cyber harassment cases in the past years and the calls

for a specific law to govern cyberstalking (Hamin and

Wan Rosli, 2017; Indramalar, 2018, Cybersecurity

Malaysia, 2010).

7 CONCLUSION

The findings indicated that various factors may

explain the motives of cyberstalkers in committing

the crime. In line with the extant literature,

cyberstalking may usually be committed when there

are elements of obsession, attraction, humiliation,

jealousy, revenge and pathological traits within the

stalkers. Also, contrary to local literature, the findings

showed that there exist paradoxical views on the

adequacy of the current legal framework. While some

are optimistic of the existing laws in governing such

crime, others are skeptical of such adequacy, which

illustrates the necessity for a specific law to govern

such crime.

The Malaysian legislations that may be utilised to

deal with cyberstalking is in dire need of an

immediate reform, which instrumentally may be in

the form of an amendment to the Penal Code to

include specific provisions for stalking and

cyberstalking. Another idealistic form would be a

stand-alone Act, which criminalises cyberstalking. In

the long run, the absence of such legislation may pose

severe mental and psychological impacts on the

victims and, their family directly and indirectly on the

nation. Malaysia should follow the footsteps of the

UK to continuously enhancing and reviewing their

anti-stalking legal framework to criminalise

cyberstalking and holistically to provide effective

legal protection for the victims.

ACKNOWLEDGEMENTS

This work was supported by the Law Faculty,

Universiti Teknologi MARA, Shah Alam, Selangor,

Malaysia.

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