These days, it is not uncommon for everyone to have internet access on their phones. It has created a proliferation of sexting and what’s concerning is that it involves our youths. What was frown upon in the olden days has now gradually become a norm as the society’s values change. In this article, we are going to discover whether ‘sexting’ is legal and to what extent are social-media users protected by the law while using social media.
What is sexting?
Sexting is the act of sending provocative or sexual photos, such as nudes, or sending erotic messages or videos through social media. It may be done willingly, or it may be forced by a partner or peers[1]. While there is no doubt that the mutual flirting or intimate gesture can help improve relationships between couples, it may lead to some serious social and legal repercussions such as cyber bullying, harassment, blackmailing, or even defamation.
Is taking a nude photo of myself illegal?
According to Article 10 of the Federal Constitution of Malaysia, Malaysians are entitled to the freedom of expression[2]. That being said, taking nude photo of oneself is not illegal per se since one has the ultimate freedom to do so. However, it is illegal if one is found keeping nudes of oneself in his/her own possession as provided under Malaysian laws[3].
Is it illegal to take nude photos of other people even with consent?
If there is consent, the person has acknowledged and willingly accepted to be photographed, there will be no issue of intrusion of privacy arising. However, if the person withdraws his/her consent in the process, but one still carries on with the action, he/she could be charged under Section 509 of the Penal Code for insulting the modesty and invading the privacy of the person. Nevertheless, the perpetrator can still be liable for having those obscene photos in his/her possession[4].
Is it illegal to send nudes to others?
Yes, it is illegal. A person who sends nudes can be charged under Section 211 and Section 233 of the Communications and Multimedia Act 1998. It is an offence to send obscene or offensive content with the intention to annoy, abuse, threaten or harass the other person[5]. Where the victim is a minor, the perpetrator may be charged under Section 293 of the Penal Code which makes it illegal for the sale, let to hire, distribution, exhibition or circulation of obscene objects or documents to any person under the age of twenty years.
Is asking for nude photos illegal?
Yes, it is illegal to deliberately solicit nude photos. However, according to the wording of Section 233 of the CMA 1998, it is only illegal if the act of asking for nudes annoys, abuses, threatens or harass(es) the victim.
Is consensual sexting illegal?
While we cannot control people on what they can or cannot send, it is advisable that such conversation must be deleted immediately when it is done, else the parties involved may run afoul of Section 292 of the Penal Code for having in their possession the obscene comments and/or photos[6]. Where the sexting involves a minor, it will be an offence under the Sexual Offences Against Children Act 2017[7].
Conclusion
Online sexual harassment is one of the few cases which often goes unreported daily every year. This calls for the need for relevant authorities to implement effective policies and interventions in order to protect individuals from sexual predators and increase awareness on the prevalence and risks of “cybersexting” behaviour. In the event you discovered the circulation of your nudes on the internet, or somebody is threatening to leak your nudes, you should always appoint a lawyer and seek legal advice and/or take legal action against the perpetrator.
[1] MyHEALTH Kementerian Kesihatan Malaysia, ‘Sexting’, <http://www.myhealth.gov.my/en/sexting-2/> last accessed 22 March 2021 [2] Article 10(1)(a) Federal Constitution [3] Section 292 of Penal Code and Section 5 of the Film Censorship Act 2002 [4] Section 292 of Penal Code [5] Section 211 and Section 233 of the Communications and Multimedia Act 1998 [6] Section 292 of Penal Code [7] Section 12 Sexual Offences Against Children Act 2017
Authored by Tiffany Ding & Wendy Tan
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