OFFENCES UNDER COMMUNICATION

AND MULTIMEDIA ACT 1998 CHAPTER 3

CONTENTS
Definition
UK & US on obscenity
Malaysia on obscenity
and/or other offences
Communication and
Multimedia Act 1998
Penal Code
DEFINITION

•Indecent
•Obscene
•Pornography
DEFINITION
• Indecent materials: intolerable but not harmful
• Obscene: something that has tendency to deprave and corrupt a persons moral.
• Porn: some people are actually physically harmed

• Five possible classes of victims of obscenity:

•Minors
•Unsuspecting viewers
•Women put at risk of violence or discrimination
•Pornography users
•All of us
UNITED KINGDOM
Obscene Publications Acts 1959 and 1964
•Section 2 OPA makes it an offence:
to publish an obscene article or
to have an obscene article for publication for gain.
Mere possession is not an offence.
An “article” is any description of article containing or embodying
matter to be read or looked at both, any sound record, and any
film or other matter of a picture or pictures. (OPA section 1(2))
UNITED KINGDOM
R v Hicklin
•Whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such
influences, and into whose hands a publication of this sort may fall.
UNITED STATES
R v Hicklin
•A standard definition for quite some time-so is this the perfect test?
•Hicklin test and “the morality of the present time”

Roth v. United States

•Whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as
a whole appeals to prurient interest.
•In line with “freedom of expression”. But how far its too much?
UNITED STATES
Miller v California
•Whether "the average person, applying contemporary community
standards", would find that the work, taken as a whole, appeals to
the prurient interest,
•Whether the work depicts or describes, in a patently offensive
way, sexual conduct or excretory functions specifically defined by
applicable state law, and
•Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
MALAYSIA
•Applied Hicklin Test up until today.
•In Malaysia, Indecency, Obscenity,
Adult Porn and Child Porn are all
lumped together.
•Statute(s):
•Communication and Multimedia Act
1998
•Penal Code
COMMUNICATION AND MULTIMEDIA ACT 1998
Section 3(1)-(3) of CMA1998
•Main objectives of the act.
•In general: to provide regulations to network service and activities.
COMMUNICATION AND MULTIMEDIA ACT 1998
Section 6 of CMA1998
•Definition of “content”.
COMMUNICATION AND MULTIMEDIA ACT 1998
Section 6 of CMA1998
•Definitions on ISP:
Application Service Provider
Content Application Service
Network Facilities Provider
Network Service Provider
COMMUNICATION AND MULTIMEDIA ACT 1998
Network Facilities Providers –owners of facilities such as satellite earth stations,
broadcasting transmission towers and equipment. They are the fundamental
building block of the convergence model upon which network, applications and
content services are provided.
Network Services Providers – who provide the basic connectivity and bandwidth
to support a variety of applications. Network services enable connectivity or
transport between different networks. A network service provider is typically also
the owner of the network facilities.
Applications Service Providers – who provide particular functions such as voice
services, data services, content-based services, electronic commerce and other
transmission services.
Content Applications Service Providers – who are special subset of applications
service providers including traditional broadcast services and newer services such
as online publishing and information services.
COMMUNICATION AND MULTIMEDIA ACT 1998
Section 211 of CMA1998
•Prohibits offensive contents.
•Not only pornography but also deal with other offensive offences
as well.
COMMUNICATION AND MULTIMEDIA ACT 1998
Section 233 of CMA1998
•Improper use of network facilities/services
•Mainly for ISP
•MR: Knowingly (knowledge/intention)
COMMUNICATION AND MULTIMEDIA ACT 1998
Cases
•Mohd Fahmi Redza Mohd Zarin v PP & Anor [2017] 1 LNS 683
•Syarul Ema Rena Abu Samah v PP [2018] 1 LNS 1141
•Nik Adib bin Nik Mat v Public Prosecutor [2017] MLJU 1831
•Ahmad Abd Jalil v PP [2015] 5 CLJ 480
•PP v Muslim Ahmad [2013] 5 CLJ 822/ [2012] 1 LNS 1040
•Nor Hisham bin Osman v PP [2010] MLJU 1249
•Rutinin bin Suhaimin v Public Prosecutor [2014] MLJU 576
LIST OF CASES FOR READING PURPOSES
1. Email Violation
(2011) 11 LNS 466
(2011) 4 MLJ 224
2.Offences on FB
a) (2014) 1 LNS 1384
b) (2014) 1 LNS 1196
c) (2013) 9 MLJ 410
d) (2014) 1 LNS 1611
3. Messages involving twitter
(a) (2013) 4 MLJ 448
(b) (2013) 1 LNS 592
4. Online forums
(a) (2008) MLJU 354 7. Offences related to s211 CMA
(b) (2013) 6 CLJ 904 (a) (2013) 5 CLJ 822
(b) (2013) 2 CLJ 427
5. Offences on blogs (c) (2015) 3 CLJ 838
(a) (2009) 4 MLJ 103 (d) (2015) 5 CLJ 480
(b) (2014) 6 CLJ 904 (e) (2017) MLJU 516
(f) (2017) MLJU 1831
6. Using hyperlinks
(a) (2008) 1 MLJ 814
PENAL CODE
Section 292 of Penal Code
•Deals with obscene documents etc.

Section 293 of Penal Code

•Deals with obscene documents etc.
to young person.
PENAL CODE
Cases
•Mohamed Ibrahim v. P.P (1963) 1 MLJ 289
•Sim Poh Ho & Ors v. Public Prosecutor [1966]1 MLJ 275
•Tan Khing Hung v. Public Prosecutor [1996] 4 MLJ 316
•Mohamed Yusoff v. Public Prosecutor [1956] 1 MLJ 87
•Mohd Rizal bin Mat Yusuf v. Public Prosecutor [2009] 8 MLJ 856
•K.S. Roberts v. Public Prosecutor [1970] 2 MLJ 137