Can the Peeping Tom be brought to court?

By the Reading Guppy - Tuesday, April 20, 2021

Can the peeping tom be brought to court?

Peeping toms are people who commit voyeurism. Voyeurism is an umbrella term for the occasional hidden spy-cams in toilets, upskirt incidents or the “confused gender” incidents at public toilets. The proper definition of voyeurism according to Oxford Languages is “the practice of gaining sexual pleasure from watching others when they are naked or engaged in sexual activity.” Basically, those who commit voyeurism takes watching porn to a whole new level.

Technically, Malaysia does not have specific laws to curb voyeuristic behaviours. However, it does not necessarily imply that Malaysian law provides no legal retribution for voyeurs. If ever you find yourself being a victim of voyeurism such as finding a hidden camera at home, catching somebody taking photos from underneath your skirt or finding somebody spying on you in a public toilet, you CAN take action against the person.

You may press charges against a voyeur through Section 509 of the Penal Code for insulting the modesty of a person or section 14 of the Minor Offences Act for insulting behaviour. There are many precedents where victims were successful in seeking a legal remedy against the offenders through either a fine, imprisonment, or both, depending on the severity of the facts.

Section 509 of the Penal Code carries a punishment of either a term of imprisonment of not more than five years, a fine or both, for anybody who insults the modesty of a person by word, through sound, gesture or exhibits any object intentionally, or anyone who intrudes upon the privacy of another. Whereas section 14 of the Minor Offenses Act prohibits a person from using any indecent, threatening, abusive or insulting words, or behaving in a threatening or insulting manner, or posts up or affixes or exhibits any indecent, threatening, abusive or insulting written paper or drawing. Furthermore, distribution of voyeuristic materials will also be penalised under section 292(a) of the Penal Code.

Just recently, a man had been fined RM7,000 in lieu of 2 months imprisonment under section 509 of the Penal Code for taking upskirt photos in an apartment elevator of a lady who also happens to be an occupant[1]. Section 509 also brought justice to the victim of a voyeur who was caught spying on his neighbour taking a shower in which he was slapped a RM2000 fine by the magistrate court[2]. Another case is Pendakwa Raya V Nor Hanizam bin Mohd Noor[3] where the victim was being filmed while she was showering in the premise of her own home by the voyeur, who is also a distant relative. The plaintiff had won an appeal for a stricter sentencing against the voyeur, extending it from a 2-months imprisonment to a time period between 2 to 6 months.

It is encouraging to see that Malaysian courts do recognised the trauma and woes that victims of voyeurism had to face. Then, do we need to reform our laws on voyeurism when there had been exemplary models of how the existing laws should be implemented?

https://imgflip.com/i/195fs9

The peeping tom in the room.

A driving force in reinforcing laws on voyeurism is the recognition of problems caused due to the advancement of technology, rendering adverse effects deriving from such offenses to be even more damaging to the victim.

Unlike the olden days where voyeurism activities are probably limited to observing a person in their vulnerable states, nowadays, there are many portable devices with cameras, enabling photographs to be taken at the instant. Captured photographs are usually a permanent record as once an image had been released into the realm of the internet of things, it is almost impossible to delete an image and its traces completely from the internet. Photographs can be conveniently disseminated to a wider and presumably, a primary audience made up of creepy individuals who enjoys sexual gratification from those photographs[4].

It is now extremely convenient for people with voyeuristic tendencies to act on their impulse. Purchasing a spy-cam is as easy as doing any online shopping. By typing “spy-cam” in the google search bar, immediately, I got a ton of spy-cam purchasing options from many online stores such as Lazada and Shopee and surprisingly, many of them came in very affordable prices, with various models to choose from. Alarmingly, one even had promotional pictures suggesting purchasers of its function as a hidden camera for voyeuristic activities. The fact that such spy cams are so easily obtainable suggested that acts of voyeurism, can be committed by anyone, at any time and at any place. Not to mention that our smart phones made it convenient enough for the casual voyeur to execute their voyeurism activities.

Voyeurs are also constantly levelling up their game and getting even more creative in committing their acts. In a Canadian case, R v Jarvais[5], a teacher took photos of his students using a camera pen, taking surreptitious recordings of his students with many of them taken at a closeup angle focusing on the female students’ cleavage. Another case happened in a shopping mall, involving the classic upskirt incident where the voyeur took upskirt photos of women from a camera hidden in a black paper bag, with the lens filming through a small hole poked through the bag[6]. Furthermore, spy cameras are getting increasingly tinier with some being shaped like a normal looking screw head.

Is Section 509 all-mighty?

Section 509 has its merits compared to some faulty laws in other jurisdictions. For example, Singapore’s previous applicable law on voyeurism merely protects female victims only[7] whereas the law in UK prior to the enactment of the Voyeurism (Offenses) Act 2019 does not ensure protection of privacy of a person in an area that is neither private nor public area such as schools and offices[8].

However, considering the pressing need to keep up with the latest technology developments, it is equally important for law makers to enact laws with consistency and precision to not leave any “grey areas” that can be manipulated.

Several uncertainties are still present is the current section 509. Definition of what amounts to “insult the modesty” or “intrude upon the privacy” may still be under the sole discretion of the presiding judge. For instances, can section 509 apply if damages had not actualised from the voyeurism acts? Not to mention that privacy rights is never a strong legal right in Malaysia and our law on privacy is still stuck in the stone age as compared to other countries, common and civil legal system alike.

Moreover, neither does section 15 of the Minor Offenses Act provide any significant punishment against voyeurs, considering the penalty for any offenders is merely a meagre amount within RM100.

A specific statute on voyeurism should be created by codifying the piecemeal developments on voyeurism till date. Not only should voyeurism offenses be stipulated under the specific act, but distribution of voyeuristic materials should also be addressed. Furthermore, lawmakers should also consider the preventive aspects of the law and the focal point of any future developments on voyeurism law should be on deterrent and rehabilitation of those with voyeuristic tendencies. Clinical professionals should be consulted to understand the root cause of voyeuristic behaviour to create effective assessments and to plan efficient interventions as voyeuristic behaviours may sometimes stem from a psychological problem or a mental disorder.

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Increase public awareness on voyeurism.

Many cases of voyeurism might go unnoticed, especially if the victim was unaware of their legal rights to press charges. Voyeurism cases can be brought forward if only the victim is aware of their rights and are willing to step out and make a report. It had been reported that victims of voyeurism still had to endure the fear of coming across their photos online. They will have to endure the fear of photographs that will “truly destroys me,[9]” resurfacing in the future. Despite the absence of any physical assault, victims of voyeurism still feel “intimidated, ashamed, angry or powerless at the unwanted exposure.[10]”

Having laws with greater clarity and certainty on the repercussions could present as an affirmation of the stance of the law against voyeurism and could possibly induce a deterrent effect to keep people from committing the crime. Anyone who falls victim to voyeurism acts should have the confidence to report their offenders to the authorities with assurance that their offenders will be reprimanded and be given the proper punishment by the law.

It is important for voyeurism victims to take actions against their offenders and to file a report with the authorities to stop the offender from carrying on with their voyeurism activities. There had been many cases of voyeurs who had managed to amass an astounding number of illicit photographs and videos before finally being caught, with a reported case of a voyeurs having amassed nearly 1400 videos of women in various states of undressed[11].

If ever a victim of voyeurism found their voyeurism incidents being brushed off as a minor issue, they have the right to stand their ground and push for the offender to be charged in court.

Everyone should be given the guarantee of protection by the law against voyeurism and ease of mind while in public places that certain aspects of their privacy can be firmly locked away from the public eye.

[1] the Sun daily, “Food delivery man fined RM7,000 for taking upskirt video of woman,” (the Sun daily, 25 February 2021) <Food delivery man fined RM7,000 for taking upskirt video of woman (thesundaily.my)> accessed on 2^nd April 2021.

[2] Yee Xiang Yun, “Peeping Tom slapped with RM2k fine for spying on showering neighbour,” (The Star, 3^rd December 2020) <Peeping Tom slapped with RM2k fine for spying on showering neighbour | The Star> accessed on 2^nd April 2021.

[3] [2019] 1 LNS 944.

[4] Burton, Kelly, “Erosion at the beach: privacy rights not just sand,” [2006] PrivLawPRpr 3, http://www.austlii.edu.au/au/journals/PLPR/2006/3.html accessed on 20th April 2021.

[5] [2019] 1 SCR 488.

[6] Hafidzul Hilmi Mohd Noor, “Suspected upskirt snapper at Subang Mall detained,” (the New Straits Time, 5^th January 2021) https://www.nst.com.my/news/crime-courts/2021/01/654829/suspected-upskirt-snapper-subang-mall-detained accessed on 2nd April 2021.

[7] Rennie Whang YiXuan, “Protection from the peeping tom: interpreting the new offense of voyeurism,” (Lexicon, 31^st January 2020) < PROTECTION FROM THE PEEPING TOM: Interpreting the New Offence of Voyeurism (smulexicon.com)> accessed on 5^th April 2021.

[8] Ministry of Justice, Voyeurism (Offenses) Act 2019: Implementation of the voyeurism (offenses) act 2019, Circular No 2019/01 <Dear Chief Officer (publishing.service.gov.uk)> accessed on 5^th April 2021.

[9] Wong Pei Ting, “The Big Read: Singapore’s voyeurism problem-what’s wrong with men, or the world?” (today, 27^th April 2019) <The Big Read: Singapore’s voyeurism problem – what’s wrong with men, or the world? - TODAY (todayonline.com)> accessed on 5^th April 2021.

[10] Ibid.

[11] Lydia Lam, “Man who illicitly firmed 1391 clips of women over 13 years in most prolific case gets jail,” (Channel News Asia, 4^th June 2020) < https://www.channelnewsasia.com/news/singapore/man-film-1391-clips-photos-women-13-years-jail-12804242> accessed on 4^th April 2021.

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Legal things

Camera Flashes, Beware!

By the Reading Guppy - Wednesday, March 03, 2021

Just the other day, I was scrolling through tiktok, and I came across this video of a user who caught the security guard of her condominium and another resident with their handphones in hand, poised at an angle that seemingly suggested that they were taking snapshots of her while she was swimming in her condominium pool.

Her video received many encouragements and support by most fellow internet users. However, amidst the words of encouragement, there is a number of commentators who took the side of her uncalled mini film crew. One particular comment raised the argument that the taking of photos of others in public raises no illegality issues in Malaysian law and as a law student, this stirred my interest and I was stoked to find out the answer to it.

The issue revolves around the right to privacy of a person. Infringement of privacy was first taken seriously as an offence in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009]. The courts held the defendant guilty of taking unconsented photos of the claimant urinating and the defendant was subsequently charged under the Penal Code Section 509: Word of Gesture Intended to Insult the Modesty of a Person.[1]. However, the infringement of privacy of the claimant was never a paramount issue here and despite the case being submitted for appeal, charges under the Penal Code Section 509 were never contended.

It was not until the subsequent case of Lee Ewe Poh v. Dr. Lim Teik Man & Anor [2010] where invasion of privacy was officially endorsed as an actionable tort[2], thus effectively departing from the old English law. Right to privacy was meticulously dwelled on in this case. The claimant sued her doctor for taking photos of her private parts during surgery which was brought on the basis of a violation of her privacy rights as she was not asked beforehand and thus never consented to the photo shots. Furthermore, in the following case, Toh See Wei v. Teddric Jon Mohr & Alfred Charles Poey, the judge conceded and elaborate on the decision in Maslinda; due to the defendant’s act, the claimant had suffered humiliation and mental trauma arising from such invasion of her privacy[3].

The victorious outcomes for the claimants present itself as a huge step forwards towards the protection of privacy rights of individuals, most notably, women, in Malaysia’s legal arena. Previously, violation of privacy rights was never recognised as an actionable tort, as per the case of Ultra Dimension Sdn Bhd v. Kook Wei Kuan [2004], and Lew Cher Phow @ Lew Cha Paw & Ors lwn. Pua Yong Yong & Satu Lagi [2009]. In both cases, courts took the position that individuals would have zero rights to start an action against the violation of privacy rights.

It was a huge leap of faith by the Malaysian law from the old English law which is extensively followed by the judiciary system in Malaysia. Malaysian judiciary is taking a stance to serve protection on a person’s right to maintain their modesty and decency in public, especially when it concerns a lady’s modesty and dignity as evident from Lee Ewe Poh[4]. Malaysian courts are starting to endorse the need to be sensitive to issues pertaining a women’s modestly, decency and dignity as her fundamental right in sustaining the high moral standards as socially required of women[5]. It seems like the Malaysian courts had set sail on a voyage through uncharted waters, what is known as invasion of privacy as an actionable tort.

Nonetheless, it was not expected for the reformation of privacy rights to be a bed of roses for anyone who wishes to bring a claim on infringement of their privacy rights in court. Prospects of an individual’s protection against their violation of privacy rights may seem to have improved however much of it is still in murky waters.

From the outlook of it, public violation of privacy rights all predominantly come under the Penal Code Section 509: Word of Gesture Intended to Insult the Modesty of a Person, which states that:

“whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.”

Similarly, this was the approach taken in a recent case concerning the suicide of a girl after her ex-boyfriend threatened to leak her private photos onto social media[6].

Notice that the current governing legislation places the focus on the presence of an insult of a person’s modesty rather than an upfront confrontation of the legality of taking photos of another in a public setting without the person’s consent. This implies that despite Malaysian laws having evolved to recognise a person’s right to privacy, one still has many hurdles to cross as it would normally take additional elements such as humiliation, harassment or damage to one’s reputation for it to be an actionable tort[7].

Till date, there is not yet a legislation tailored made for the violation of a person’s right to privacy. The closest Malaysia has to a law on protection of privacy rights is Article 5 of the Federal Constitution,[8] and even that does not provide a private individual the right to bring a legal claim against another private individual as mentioned in Beartice a/p AT Fernandez v. Sistem Penerbangan Malaysia & Ors [2005].[9]

Much is yet to be seen for scenarios which does not involves the filming of women in their most vulnerable states. For example, what if the unwarranted photos are virtually harmless, such as taking covert snapshots of a cute guy sitting opposite you in the MRT? It was suggested that the circumstances in Ultra Dimension Sdn Bhd, can also be distinguished from the circumstances in Maslinda and Lee Ewe Poh. A photo of you with a group of kindergarten children is not as highly offensive as having photos of your private parts taken[10].

Furthermore, the ruling in Lee Ewe Poh cannot be taken as a full-blown endorsement of a total protection of one’s privacy rights. The presiding judge in the case had cautioned that a distinction must be drawn between taking photographs of extremely private parts of a female’s body and the more “normal parts” of her body such as her hands or feet[11].

The judge in Toh See Wei had cautioned the rippling effects of the recognition of privacy rights in Malaysia. If privacy laws were not properly construed, admissibility issues of illegally obtained evidence might be hampered over concerns of privacy rights which may obstruct the execution of justice[12]. Arguably, if excessive or exclusive consideration was placed on privacy rights, there could be a danger of disregarding general interest objectives such as fighting of crime and terrorism[13].

Overprotection of privacy rights would also greatly reduce the right of the media to report on individuals[14]. The press and media were usually given a broad scope of protection in respect of their roles as the “public watchdog” and their democracy-fostering functions.[15]The media had been widely recognised as a medium to help mould an informed public opinion and induce critical debates on issues concerning public interest.[16] As the old adage goes, “knowledge is power,” and privacy rights could possibly be used as an excuse to rob the public off the power they wield over public figures. It is In the public’s interest to be informed and to determine whether impugned conduct oversteps permitted boundaries[17].

Now, back to the tik tok incident which inspire me down the road of research, some of the commentators are actually voicing out their despair and agony for being wrongly called out for filming another member of public due to some unwitting position they are in with their handphones at the time. Naturally, such arguments would stand.

However, it cannot be denied that there is a number of commentators who hid their true misogynistic views behind the strong walls of a valid argument. The law seems to recognise this as evidently most cases that see a successful claimant on their rights to privacy involves ladies who had their modesty infringed. Therefore, if Malaysia were to draft a legislation specialising on privacy rights, it should come at a mid-point where both arguments can be consolidated and a balance between one’s right to privacy and a person’s freedom of expression could be struck. As mentioned by Lord Hoffmann in the English landmark case of Campbell v Mirror Group Newspapers,[18] who referenced Gleeson CJ words,

”part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people.”[19]

In conclusion, the law as of now would not prosecute anyone who decides to take some secret snapshots of you while you are in public. Basically, once you are out in the eyes of the public, you could potentially be a candid model for any members of public so long as no modesty or dignity of a person is harmed. Your consent is given once you step out of the comforts of your home.

[1] Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653-664, [5]

[2] Lee Ewe Poh v. Dr. Lim Teik Man & Anor [2011] 4 CLJ 397-415 [8]

[3] Toh See Wei v. Teddric Jon Mohr & Alfred Charles Poey [2017] 1 LNS 445, [58]

[4] Ibid 2.

[5] Ibid 2.

accessed 23rd January 2021.

[7] JS Lim, “Can you legally stop someone from taking photos of you in Malaysia?” Ask Legal, (April 24 2018) < https://asklegal.my/p/taking-photos-of-other-people-malaysia-legal> accessed 23^rd January 2021.

[8] Federal Constitution Article 5, “no person shall be deprived of his life or personal liberty save in accordance with the law.”

[9] Beartice a/p AT Fernandez v. Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 68 [13].

[10] Ultra Dimension Sdn Bhd v. Kook Wei Kuan [2004] 5 CLJ 285-295 [2a]

[11] Ibid 2, [13]

[12] Ibid 3, [60].

[13] Siofra O'Leary, “Balancing rights in a digital age,” (2018) Irish Jurist, 59, 59-92.

[14] Ibid 3, [60].

[15] Ibid 16.

[16] Ibid.

[17] Aubry v Éditions Vice-Versa Inc [1998] 1 S.C.R. 591.

[18] Ibid, [72]

[19] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001), [41]

This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever.

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the Legal Guppy

Can the Peeping Tom be brought to court?

Camera Flashes, Beware!

[6] Mohamed Basyir, “Penang teen leaps to death after 'boyfriend' threatens to viral private photos” The Straits Times, (August 11 2020) <https://www.nst.com.my/news/nation/2020/08/615846/penang-teen-leaps-death-after-boyfriend-threatens-viral-private-photos> accessed 23rd January 2021.

[13] Siofra O'Leary, “Balancing rights in a digital age,” (2018) Irish Jurist, 59, 59-92.

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