Wednesday, June 25, 2008

SPAM law in Malaysia


hi,

I was asked by one of public member and if I may the credit should go to Mr. Mohamad S.M who asked me the question. I find it is rather an interesting topic so that I am trying to put my personal comment on the issue. The comment here, is however may not be so detail due to limited time of research.

In Malaysia, the law governing SPAM is still (in my humble opinion) not yet comprehensive or to the extent having been really 'operative', when we talk about spamming activities, we are often advice to 'handle' the situation personally (in pain words) or practice a good 'spam management'. the job to restrain spamming as at now is more or less left to the Internet Service Providers (ISP).

Maybe because the level of urgency in taking this issue seriously is not that high yet in Malaysia or may be, as what been told by the Malaysian Communications and Multimedia Commission (MCMC ) the need to upgrade the existing law would only effective if such law is similar or standardize to all countries in order to become effective.

Now, don't get me wrong, I am not saying that the Malaysian government is not concern about this issue, they have in fact through MCMC continuously promoting and upgrading the level of awareness of the public, educating public, promoting 'spam management' and constant discussion with ISPs. For example of some article regarding SPAM and official statement from MCMC please visit http://www.skmm.gov.my/what_we_do/ins/regulatory.asp

So far to my limited knowledge, the only law specifically handling the SPAM is Communications and Multimedia Act 1988 CMA), section 233 where the section reads as follows;

'Section 233. Improper use of network facilities or network service, etc.

(1) A person who-

(a) by means of any network facilities or network service or applications service knowingly-

(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; or

(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,

commits an offence.

(2) A person who knowingly-

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person's control to be used for an activity described in paragraph (a),

commits an offence.

(3) A person who commits an offence under this section 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.'


As we can see, that is the closest law available in Malaysia that can be utilize to combat spam activities.

The law so far as at the date of this article, to my knowledge is yet to tested in any court of law, in other words the effectiveness of section 233. Have you ever heard someone or any company been charge under section 233 of CMA?


I do not have an opportunity yet to make a comparison study between our law and other countries for us to see how other countries tackle this issue.

The other issue asked was the penalty under law; if section 233 above is used then the punishment or penalty provided by the law is 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.

Frankly for me, the punishment is more than enough! At least enough to make spammer think thousand times before 'clicking' the 'send' buttom of their advertising campaign :) but that if they are aware... yes, true: 'ignorance is non-excuse'.

lastly, our friend also asked on whether mere advertising campaign emails having no seditious nature, non of political fanatic propaganda or nothing of sensitive issue will be considered as SPAM?

My opinion is simple, the issue on whether the email is SPAM or not is not actually on the content of the email very much (no doubt you might end up committing an offense and charged under different law) but rather on the act of transmitting or communicating certain prohibited nature ( that's including commercial ads) through an email for example resulting something that can be regarded as abusing, annoying, disturbing, harassing or threatening other people.

Think about it......

Regards,
Kamarul Irzuan

4 comments:

  1. Very enligthening and thought provoking. Best description of SPAM law in Malaysia, that I ever come across.

    Thanks.

    Mohammad S.M.

    ReplyDelete
  2. A friend sent spam emails after quarreling with a friend. Her friend lodged a police report, and she fears of being traced by the police. Is it possible for the police to find her, what's the charge then? And, how she should go about (e.g. gets a lawyer)? Thank you.

    ReplyDelete
  3. Dear anonymous,

    1.
    It depends on the seriousness of the effect of the spam. If the spam simply annoys him without causing any more trouble, the less likely the cop will chase after you.

    2.
    If the effect of the spam is serious, the chance is high that the cop will go after you.

    3.
    In the event there is a charge being framed against you, you need to get a lawyer

    Regards
    Khairul Aiman
    Messrs. Irzuan

    ReplyDelete
  4. Hi,
    I'm getting more than 10 spam calls from the same number for the past week even after midnight. The caller just ring for a few times then hung up (even if I manage to answer the caller just kept quiet). In this case, should I lodge a police report against the caller? I find this very annoying as I'm sometimes woken up by this call. Looking forward to your favorable reply. Thanks.

    ReplyDelete