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SEXTING is becoming the norm in intimate relationships. Many are willing to send, receive or exchange explicit pictures through social media. It is all fun and games until the relationship ends. Things get complicated when the partner who has the nude pictures blackmails the other or leaks them without the owner’s consent. What is even worse, the person who posed for the photos and then sent them to the partner is blamed! Is that fair and just in the eyes of jurisprudence?
In Malaysia, the penal code is the law that outlines a strict concept of legal positivism. The code has effective and fair justice systems to ensure that laws are respected, legal needs are met, and appropriate sanctions are taken when they are violated. In accordance with John Austin’s theory, he explained that he viewed the law as commands from a sovereign that are backed by a threat of sanction.
Offences laid in the penal code acts as if a threat or prohibition to the society, that increases their obedience to comply with the laws. This is especially vital in this modern technological era when it is almost impossible to regulate what individuals may share on social media. For instance, sending nude pictures to a spouse or romantic partner is an offence under sections 211 and 233 of the Communications and Multimedia Act 1998. However, this section does not legitimise the sharing of pictures he or she received.
Anyone who is proven guilty can be charged under section 292 of the penal code, for having obscene materials in possession, plus sharing or leaking them to the public. In the case of Mohamed Ibrahim v PP (1963), the appellant was fined RM200 for having 65 copies of obscene books in his possession for sale purposes. The object of this section in this case is to protect the public who may be tempted to buy and expose themselves to the influence of obscene books. This clearly forbids anyone to keep or share obscene materials.
Malaysian law on this matter is related to Austin’s legal positivism theory. It indicates that any breach of the ultimate political superior’s or the sovereign’s command might get the person to be punished. This means that the person who sends nudes can be charged too; however, it applies the same to the person who keeps and threatens to share the nude pictures to the public. Both of the acts have their own charges in law. Thus, there should not be any victim blaming mindset on this issue in the first place.
Malaysians who understand the law will obey the law and avoid being penalised from violating it. Through this, we can strive together for a society with a better mindset. – December 4, 2021.
* Nur Amira Natasha Antari and Associate Prof Dr Shahrul Mizan Ismail are in the Faculty of Law of Universiti Kebangsaan Malaysia.