The Online Social Network Era: Are The Children Protected In Malaysia?

Online Social Network

The emergence of the social network sites caters for different interests, needs and practices of users (Livingstone & Brake, 2010; Boyd and Ellison, 2010). The online social network such as Facebook and Twitter makes ‘socializing’ easier and instantaneous (Internet Society, 2014). While online social network sites aid social development among the young (Livingstone & Brake, 2010), they also provide users with the sharing of links, photos and stories which help people to remain close and “to remain intimately connected with friends regardless of spatial distance” (Hinduja and Patchin, 2008). The first online social network site was launched in 1997, known as SixDegrees.com (Boyd & Ellison, 2010), although the report from Department for Communities and Local Government suggested that the trend began with the green and ecological network in 1987 which led to the formation of the Association of Progressive Communication in 1990 (Department for Communities and Local Government, 2008). SixDegrees.com was later closed in 2000 as it was regarded as an unsustainable business by its founder, although it attracted millions of users. Other social network sites were Live Journal, Asian Avenue, BlackPlanet, LunarStorm and MiGente. The next wave of social networks sites began in 2001 with the launching of Ryze.com, and Friendster being the most prominent which was launched in 2002. After this, Orkut, Bebo, Hi5, Facebook, Xanga, Yahoo!360, MySpace, and Twitter appeared (Boyd and Ellison, 2010). ComScore reported there was a global growth of online social networks in 2007 (Nicole, 2007). The online social networks such as MySpace, Facebook, Bebo, Hi5, Friendster, Orkut and Tagged attracted nearly 250 million users worldwide. These, however, do not include other online social networks like Flickr, Twitter, WAYN, YouTube and their like. Arrington (2008) informed that the users of online social networks, namely Facebook and MySpace, escalated to 115 million each month. Facebook in particular, is growing at a rate of 600,000 users each day and the company also reported that, as of December 2008, they had reached 140 million active users (Statista, 2018) and 1.86 billion active users in 2016 (Ingram, 2017). In Malaysia, there are currently almost 10 million users of Facebook, representing 37% of the entire population (Aruna, 2011). Consequently, this has led to the growth of online societies, to the extent where the online societies begin to require their own sets of legal systems (Linke & Zerfass, 2013; Lock, Cooke, Jackson, 2013).

The increase of the use of the Internet and online social networks is not without its drawbacks. As remarked by a judge in the US case of Fair Housing Council of San Fernando Valley; The Fair Housing Council of San Diego v Roommates.com, LLC (2007) 89 F.3d 921 “...the Internet has opened new channels of communication and self-expression...Countless individuals use message boards, date matching sites, interactive social networks, blog hosting services and video sharing websites to make themselves and their ideas visible to the world. While such intermediaries enable the user-driven digital age, they also create new legal problems.” Globally, social networking sites also acted as infection hotbeds used to distribute malware (Illmer, 2016). According to a report from MessageLabs Intelligence, cyber criminals created fictitious accounts on social networking sites which were then used to post malicious links. These malicious links led to a phishing site which would be visited by legitimate users. According to a Symantec report, until January 2009, the social networking sites continue to be popular premises for cyber criminals with a view to luring potential victims (Asyraf, 2016). Undoubtedly, the popularity of the OSN helps to integrate borderless social interaction to the online community, but it also becomes the hotbed for cybercriminals to use it to commit various types of cybercrimes.

Types of Cybercrimes

Briefly, the types of cybercrimes are highlighted. Wall, (2007) classified cybercrime into computer integrity crimes, computer content crimes and computer assisted crimes. Most of the crimes and sexual offences against children online involve the computer content crimes category, for instance, child pornography. It was revealed that 95 countries around the world do not have laws addressing child pornography and in those which have the laws, many of them are inadequate. The US is said to have a comprehensive law on the matter, and the UK is considered substantially in compliance with international law criteria (International Centre for Missing & Exploited Children, 2006). The US and UK are among the 30 signatories to the Council of Europe’s ‘Convention on Cybercrime’ in 2001 in Budapest (Edgar-Neville, 2007). However, Malaysia is one of the countries which do not have specific laws to govern child pornography (International Centre for Missing & Exploited Children, 2006). In Malaysia, sexually explicit material, pornography and child pornography are dealt with under the Penal Code and the Communications and Multimedia Act 1998 and the Sexual Offences Against Children Act 2017 is still in its infancy.

Online Social Network – Malaysia vs. Other Countries

In Malaysia, Facebook and other similar social networking sites has become the target of criminals (Saieed, 2017; Azhar, 2009). CyberSecurity Malaysia, a public agency created to look after Malaysian cyberspace, warns of the risk of using online social networks such as Friendster and Facebook (Devi, 2009). Cyber-stalking cases in Malaysia are on the rise, with 68 cases reported in 2007, 72 reported cases in 2008 and 151 reported cases in 2009 where online social networks were used to attack the victims (Mokhtar, 2009). In one of the reports, a woman in Malaysia fall prey to a cyber-stalker from India (Vijian, 2011). The OSN has also been used to recruit Malaysians as drug mules (Bernama, 2011a). Other similar abuses of the medium were perpetrated to commit crime, such as fraud (Bernama, 2011b), the operation of fake online stores, the impersonation of a prince, stealing the identity of users, blackmailing and death threats, harassment and even the theft of money from users (Aruna, 2011) and making racial and religiously sensitive remarks (Abas and Majawat, 2010).

In other countries, the online social networks are also notorious places for sexual predators (William-Thomas, 2009). Federal Bureau of Investigation (FBI) reported that Internet is a place of child predators and paedophiles and the threat is growing (FBI, 2011). In the 2000 report by the Crimes Against Children Research Centre, it showed that 65% of sexual solicitations of youths occurred in chatrooms. Underage persons are the vulnerable victims to the sexual predators who always portray themselves as ‘friends’. This is due to the fact that online social networks are forums where complete strangers are able to meet (Fire et al., 2014; Heidemann et al., 2012). For example, in Malaysia, most victims of sexual harassment and sexual violence are women (The Star, 2018). It was also reported in Malaysia that a serial rapist, a taxi driver aged 54 years old, created a false Facebook account under a woman’s name to identify, contact and lure his victims. In another case, a boy was charged for raping a girl whom he met through Facebook (Aruna, 2011).

Online social networks have also established their notoriety in the UK. In Glasgow, a man aged 31 befriended a 13 year old girl in an Internet chat room, after telling her that he was 19. He pleaded guilty to lewd and libidinous behaviour with the girl (BBC, 2014). On Merseyside, a man met a girl using a fake Facebook identity, and raped and murdered her (Yardley & Wilson, 2015; Carron, 2015; Robbins, 2012). In the USA, Facebook “stalkers” murdered model (Duthiers, 2012), while many others like Nikki Rasmussen, Nicole Cable, Phoebe Prince, Maxine Nunez, to name a few, were “murdered” via Facebook (Yardley & Wilson, 2015; Carangelo, 2015).

An online social network hoax led to the suicide of a teenage girl in 2006 (El Asam & Samara, 2016; Kowalski et al., 2012). A thirteen year old called Megan Meir met a teenage boy “Josh” through the online social network MySpace, who later turned out to be the collective creation of 47 year old Lori Drew, her teenage daughter and her employee Ashley Grills. Megan committed suicide after an exchange of hostile messages with “Josh”. The statement “the world would be a better place without you” was the last message sent before Megan was later found hanged in her closet (El Asam & Samara, 2016). It is also admitted that online social networks are tools for cyber-bullying and harassment (Tomczyk, 2017; Kowalski et al., 2012). In Malaysia, a 17 year old school girl committed suicide after lamenting on her Facebook page of a failed relationship and broken promises. Her remarks drew taunts and provocations from her online friends. Her online friends even asked her to go ahead with the suicide plan (Carvalho et.al, 2011). In the US, Ryan Patrick Halligan committed suicide after being cyber-bullied by his peers over a period of months (Kowalski et al., 2012; Grant, 2012).

As such, it can be seen from the above that that there is no report or cases on online sexual grooming in Malaysia yet, and the Sexual Offences Against Children Act 2017, though already been enforced, is yet to be tested. While the emergence of IT, the Internet and the use of networking has created the rise of new crimes and new avenues to commit crime, the law on the protection of child against the offence of online sexual grooming is still lacking before the introduction of the 2017 Act. For example, as mentioned at the cases above, all of the accused used OSN to contact and communicated with their victim prior to the offence of rape. The children/victims were lured by the accused by using Facebook or other social networking site (Cheng, 2015). Sadly, it is after the ‘physical contact’ that the offence committed, but not been criminalised at the earlier stage i.e. during the process of luring the children or the ‘grooming’ process. Besides, the paedophiles and online child pornography are dealt with the Penal Code, Communications and Multimedia Act 1998 and Child Act 2001 before the introduction of the 2017 Act.

England & Wales Legislation on Online Children Protection

In England and Wales, there is the Protection of Children Act 1978, an act to prevent the exploitation of children by making indecent photographs of them; and to penalise the distribution, showing and advertisement of such indecent photographs. It is the main piece of legislation governing the offences of child pornography. Although there is no definition of ‘child pornography’ per se in the Act, the ‘making’ of such pornographic images involving children has also been criminalized by virtue of section 46 of the Sexual Offences Act 2003 (Akdeniz, 2008), where ‘making’ includes not merely the display of image on the screen, but also the retention or storage of the image in store, on hard disk or any other storage devices (Sundt, 2006). In R v Bowden [1999] All ER (D) 1246, the appellant downloaded paedophilic pictures from the Internet, and either printed them out or stored them on disks. The pictures existed only as data for the appellant’s own use. The Court of Appeal held that to download or print out images from the Internet was sufficient ‘to make’ the images as required by the legislation. This is because downloading or printing the images within the jurisdiction is ‘creating’ new material. In R v Peter John Barber [2009] EWCA Crim 774 CA, the police seized from the accused and found in his computer, digital versatile disks and compact disks upon which were indecent photographs and pseudo photographs of a child. He was charged and found guilty of offences for distribution of an indecent photograph or pseudo-photograph of a child, nine offences of making an indecent photograph or pseudo-photograph of a child and one offence of possession of an indecent photograph or pseudo-photograph of a child. Although there is no direct harm to the children in the creation of pseudo-photographs, the criminalisation of the act was not for the photographs themselves, but the process of making them. The difficulties in distinguishing between real indecent photographs of children and pseudo-photographs added to the concern (Akdeniz, 2008).

Another piece of legislation which is intended for the prevention and the protection of children from harm from other sexual acts in England and Wales is the Sexual Offences Act 2003. Specifically, section 15 (1) of the Act provides for the offence of ‘sexual grooming’, whereby a person having met or communicated with a person under the age of 16 on at least two earlier occasions, he does intentionally meet the underage person; or travels with the intention of meeting the underage person in any part of the world. ‘Communicated’ with the underage may be by any means, which includes online communications such as email, Internet or social network sites such as Facebook. An example is the case of R v CB [2010] EWCA Crim 3009 (CA), where the accused was found guilty of sexual grooming, contrary to section 15 (1) of the Sexual Offences Act 2003. The accused began communication with girls aged 14 and 15 through social networking site Facebook, before he met the victims. In Malaysia, before the introduction of the 2017 Act, the online sexual grooming was not an offence.

With regards to online harassment and cyberstalking, these offences are governed by the Protection from Harassment Act 1997 in England and Wales. Again, although the Act does not specifically mention the ‘medium’ by which the offence is committed; it also covers online harassment and cyberstalking. Currently, there no specific provision for the protection from sexual harassment in Malaysia, but section 509 of the Penal Code is used to govern the offence, although the provision is more likely to deal with the physical aspects of sexual harassment.

Malaysian Legislation on Online Children Protection Prior 2017 Act