Lack of online privacy laws to protect social media users

THERE appears little that the Malaysian legal framework can do to protect you if the photos or information you post on social media get stolen.

Sinar Project digital rights activist Tan Sze Ming said that unfortunately, there is no comprehensive law protecting the online privacy of social media users and the content they post.

So far, the only protection social media users have is the privacy policy set by the social media platforms themselves, she said.

But even with social media posts set to private, your postings can be easily used by third parties for other purposes, without your consent.

“The privacy setting helps to minimise the vulnerability but if your friends share your image and their setting is set to public, your content is still vulnerable to being stolen either by your friend or your friend’s friend.”

In an interview, Tan emphasised the need to have a legal framework where people have the legal right to reclaim their privacy when they discover that their photos have been used without consent.

“I think domestic law is important to protect social media users. So far, our Communications and Multimedia Act and Computer Crimes Act mostly protect against scams and criminal cases,” she said.

Civil and criminal litigation lawyer Lee Shee Pin, who has experience in cybercrime prosecution, agreed that Malaysia’s laws are lacking when it comes to social media and cybercrime.

He described the Computer Crimes Act as “ancient”, lacking in adequate protection for social media users.

“There isn’t any domestic legal protection for social media users at all, besides a guideline provided by the Malaysian Communi­cations and Multimedia Commission (MCMC) that merely gives a slap on the wrist against the offending uploader,” Lee claimed.

“So far, the most effective recourse for users is to request that the social media platform remove the offending content but there is no guarantee that the platform will comply as it is entirely up to their discretion,” he said.

Social media giants – Facebook, Twitter and Instagram – allow users to report and request the removal of abusive content.

They also have a platform for international law enforcement to submit a legal request to disclose user information and remove content.

However, their respective privacy policies state that they will act “solely in accordance with (their) terms of service and applicable law.”

As these social media companies are based overseas, Lee said they follow their own local laws and are not bound to Malaysian jurisdiction, thus making law enforcement difficult.

Furthermore, he said social media companies are often compelled to cooperate in criminal cases but might not do so in civil cases.

According to Bar Council cyberlaw and information technology committee co-chairman Foong Cheng Leong, this lack of legal protection is a global problem.

“We have to look into a more comprehensive legal protection for social media users.

“However, it has to be done on a global scale and not just locally,” he said, stressing that it is a cross-border issue.

Foong said a regulatory body is needed to monitor all social media platforms, citing as an example the World Intellectual Property Organisation that has created a streamlined process to settle cross-border domain name disputes under the Uniform Domain-Name Dispute-Resolution Policy.

“If I want to file an injunction, I should not need to go to the United States where Facebook is based, to demand it remove a posting.

“Instead, I should be able to file an injunction to an international regulatory body which will serve as a mediator,” Foong said.

However, he warned that this move could be potentially damaging to freedom of speech, thus creating a dilemma in balancing the uploader’s right to freedom of expression and the victim’s right to privacy.

“Cybercrime is evolving faster than the law,” Foong said.

Not all hope is lost as victims can file a civil claim based on defamation or copyright infringement laws.

“Our cybercrime laws may not be comprehensive but our existing laws can still be used as a recourse in certain cases,” he said.

As an example, he said the Penal Code has a provision for obscene material that covers online offences such as “revenge porn” – where jilted people post nude pictures of their former lovers to shame them.

Both Foong and Lee agreed that the onus is on users to be careful of the information they share.

“By posting online, you are agreeing to the platform’s terms and conditions which state that there should not be any expectation of privacy, so you cannot plead that there is an invasion of your private content,” said Foong.

As Lee put it: “In the digital world, there is nothing to stop users from accessing and uploading any content.”