What If

• Defamation – harm done to a person’s reputation, and slander (spoken) versus libel (written)

Gatley on Libel and Slander defines the term as follows:

"Defamation is committed when the defendant publishes to a third person words or matter containing an untrue imputation against the reputation of the claimant.

"Broadly speaking, if the publication is made in a permanent form or is broadcast or is part of a theatrical performance, it is libel; if it is in some transient form, it is slander."

Libel worse than slander – there forever, more can see it

• Whether a statement is seen or heard by a third party or parties

This is an essential requirement for defamation. Something is only defamation if there is a publication to a third party. If injurious words are spoken only to the person concerned, there is no defamation because there is no injury to his reputation. That can only happen if someone else hears the words. The defamation action is based on injury to a person's reputation not for hurt feelings. 

Worse because (more humiliation?)

• Whether the identity of the target is clear

The words must refer to the claimant and be clearly understood to refer to him. Again this is because the defamation action is based on injury to a person's reputation. If the words are not understood as clearly referring to the claimant his reputation cannot be injured or lowered.

• Anonymity – does it make the perpetrator more or less responsible?

If the defamer is anonymous, then who do you sue? Clearly for there to be an action, you must be able to show that the defamatory statement was uttered by someone and you must be able to prove that he was the maker of the statement.

(Doesn’t change responsibility but is worse because concealing (your) identity makes you seem afraid to say it and therefore more guilty) -  this may be true morally or ethically but it is legally incorrect.

• Harassment – what does it involve?

The standard definition for harassment is unwanted conduct on the grounds of race, gender, sexual orientation etc. which has the purpose or effect of either violating the claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The following are some examples of specific types of harassment:

Bullying

Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient

Sexual Harassment

Sexual harassment may be homosexual or heterosexual. It may be defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that creates an intimidating, hostile, degrading or offensive environment.

Racial Harassment

Racial harassment is any behaviour, deliberate or otherwise pertaining to race, colour, nationality - including citizenship, or ethnic or national origins, which is directed at an individual or group and which is found to be offensive or objectionable to recipients and which creates an intimidating, hostile or offensive environment.

Harassment on Grounds of Religion

Religious Harassment is any behaviour deliberate or otherwise, pertaining to religion, religious belief or other similar philosophical belief and it is behaviour which can be defined as unwanted conduct violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment

• Duty to provide a safe work or study environment – what roles do schools and teachers play?

I suppose that teachers have to instill in students good values and make them aware that it is not acceptable for students to gossip about one another or make false accusations or insinuations. The school authorities should also ensure that the rules are followed and provide proper enforcement and punishment where appropriate. 

• Right to freedom of expression – what limits should be placed on it?

Right to security of person – should people be protected from written or verbal attacks?

The law of defamation has to be balanced with the right of freedom of speech. It is an exception to this right on the basis that a person should not have the freedom to lie about another person with a view to damaging that person's reputation. It is therefore an acceptable limitation to the freedom of speech since if you are telling the truth you can say whatever you want.

• Truth – when the statement is accurate

Truth is an absolute defence to any defamation action – when the statement is accurate and true there is no defamation.

• Fair comment - a legitimate journalistic intent

Any statement of opinion that has a fair basis on a matter of public interest will not lead to liability for defamation. This is the type of defense that journalists normally rely on.

• “The reasonable person” - how offensive does something have to be before it becomes libellous?

The statement must be one that a reasonable person would regard as defamatory. If the claimant is unusually sensitive or thin skinned and is offended by a statement that no reasonable person would be offended by, there is no defamation action.

Preceptions

"The eye sees only what the mind is prepared to comprehend" - Robertson Davies

Different people perceive things in different ways. It is not because we are seeing different things but rather how we interpret them. 

Sensory perception is the sensation of the simuli as it is and nothing more.

Interpretation is the understanding of the sensation. It is how the information given is regarded.

A tree will as seen by a biologist, a logger, an environmentalist and a native from Sarawak will be completely different. A biologist might see a collection of cells, an organism that photosynthesize and lock up carbon. A logger would see money and a job. An environmentalist  doubtless would see a tree as something to be preserved and saved. A native from Sarawak could see home, spirituality or herbal remedies.

"What the caterpillar calls the end, the rest of the world calls a butterfly" - Lao Tzu

The Death Penalty

“Capital punishment would be more effective as a preventive measure if it were administered prior to the crime.” - Woody Allen

Capital punishment is the lawful infliction of death as a punishment and since ancient times it has been used for a wide variety of offences. The Bible prescribes death for murder and many other crimes including kidnapping and witchcraft. By 1500 in England, only major felonies carried the death penalty - treason, murder, larceny, burglary, rape, and arson. From 1723, under the “Waltham Black Acts”, Parliament enacted many new capital offences and this led to an increase in the number of people being put to death each year. In the 100 years from 1740 - 1839 there were a total of up to 8753 civilian executions in England & Wales, the peak year was 1785 with 307 as transportation was not an option due to the American War of Independence.

1750's Europe was championed by academics such as the Italian jurist, Cesare Beccaria, the French philosopher, Voltaire, and the English law reformers, Jeremy Bentham and Samuel Romilly. They argued that the death penalty was needlessly cruel, over-rated as a deterrent and occasionally imposed in fatal error. Along with Quaker leaders and other social reformers, they defended life imprisonment as a more rational alternative.

By the 1850’s, these reform efforts began to bear fruit. Venezuela (1853) and Portugal (1867) were the first nations to abolish the death penalty altogether. In the United States, Michigan was the first state to abolish it for murder in 1847. Today, it is virtually abolished in all of Western Europe and most of Latin America. The USA, together with China, Japan and many Asian and Middle Eastern countries, plus some African states still retain the death penalty for certain crimes and impose it with varying frequency.

Amnesty International has been campaigning strongly against the death penalty. They argue that the death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. They view it as a cruel, inhuman and degrading punishment that is done in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights.

Amnesty International opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.

"I think people would be alive today if there were a death penalty." - Nancy Davis Reagan

Incapacitation of the criminal - Capital punishment permanently removes the worst criminals from society and should prove much safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals cannot commit any further crimes, either within prison or after escaping or after being released from it.

Cost - Money is not an inexhaustible commodity and the government may very well better spend our (limited) resources on the old, the young and the sick etc., rather than on the long term imprisonment of murderers, rapists, etc.
 Anti-capital punishment campaigners in the U.S. cite the higher cost of executing someone over life in prison, but this, whilst true for America, has to do with the endless appeals and delays in carrying out death sentences that are allowed under the U.S. legal system where the average time spent on death row is over 12 years. In Britain in the 20th century, the average time in the condemned cell was from 3 to 8 weeks and only one appeal was permitted.

Retribution - Execution is a very real punishment rather than some form of "rehabilitative" treatment, the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of "lex talens" (an eye for an eye), is a matter of personal opinion. Retribution is seen by many as an acceptable reason for the death penalty.

Deterrence - Does the death penalty deter? It is hard to prove one way or the other because in most retentionist countries the number of people actually executed per year compared to those sentenced to death is usually a very small proportion. It would, however, seem that in those countries (e.g. Singapore) which almost always carry out death sentences, there is far less serious crime. This tends to indicate that the death penalty is a deterrent, but only where execution is a virtual certainty. The death penalty is much more likely to be a deterrent where the crime requires planning and the potential criminal has time to think about the possible consequences. Where the crime is committed in the heat of the moment there is no likelihood that any punishment will act as a deterrent. There is a strong argument here for making murder committed in these circumstances not punishable by death or for having degrees of murder as in the USA.

Stops Vigilantes - In movies, it is common to find the hero who is a vigilant. Yet, it is not only illegal but dangerous. If the public feels that justice is being served, then they are less likely to take matters into their own hands.

"Government ... can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill" - Helen Prejean, Dead Man Walking

False accusation - The most important one is the virtual certainty that genuinely innocent people will be executed and that there is no possible way of compensating them for this miscarriage of justice. There is also another significant but much less realised danger here. The person convicted of the murder may have actually killed the victim and may even admit having done so but does not agree that the killing was murder. Often the only people who know what really happened are the accused and the deceased. It then comes down to the skill of the prosecution and defence lawyers as to whether there will be a conviction for murder or for manslaughter. It is thus highly probable that people are convicted of murder when they should really have only been convicted of manslaughter.

Revenge - A reason that is often overlooked, is the hell the innocent family and friends of criminals must also go through in the time leading up to and during the execution. It is often very difficult for people to come to terms with the fact that their loved one could be guilty of a serious crime and no doubt even more difficult to come to terms with their death in this form. One cannot and should not deny the suffering of the victim's family in a murder case but the suffering of the murderer's family is surely valid too.

State murder - It must be remembered that criminals are real people too who have life and with it the capacity to feel pain, fear and the loss of their loved ones, and all the other emotions that the rest of us are capable of feeling. It is easier to put this thought on one side when discussing the most awful multiple murderers but less so when discussing, say, an 18 year old girl convicted of drug trafficking.  (Singapore hanged two girls for this crime in 1995 who were both only 18 at the time of their offences and China shot an 18 year old girl for the same offence in 1998.)


Enforcement - The representative from Amnesty International mentioned, it was not the possibility of dying that was a deterrent but enforcement. She claimed that "in a state in America", the death penalty was abolished but crime rate went down because enforcement went up.

The death penalty is the bluntest of "blunt instruments," it removes the individual's humanity and with it any chance of rehabilitation and their giving something back to society. In the case of the worst criminals, this may be acceptable but is more questionable in the case of less awful crimes.

"If we are to abolish the death penalty, I should like to see the first step taken by my friends the murderers." - Alphonse Karr

A Criminal?

Financial And Cyber Crime Most Popular In Malaysia

I have been spending a great deal of time reading about crimes generally. The purpose of this write up is to consider what crimes are most popular or prevalent in Malaysia. If one relied on daily newspaper reports, one might conclude that the most popular crimes are snatch thefts or corruption. However, a closer investigation reveals that financial and cyber crimes are the most common crimes committed in Malaysia. Malaysia's leading news agency, Bernama, quoted Mr Tommy Seah, the Honorary Group Chairperson of the International Cybercrime and Forensics Examiner Group of Companies, as saying that the most widespread of financial crimes in Malaysia were financial statement frauds, procurement frauds and misappropriation of assets.

The cyber age has clearly given criminals a new modus operandi, the internet. Crime trends have changed over the years, from the more traditional crimes (like robbery and burglary) to syndicated crimes within national boundaries, to the present day where the internet has empowered individuals to commit borderless crimes.

Mr Seah added, “Malaysia is a pretty docile country but we are also not well equipped in preventing such crimes.....Skills and knowledge can be transferred and acquired and Malaysia has the ability, but the corporate will to put the house in order is more vital.”

He also said one of the reasons why people commit economic crimes is their desire for a better quality of life; when they cannot achieve that legitimately, they tend to adopt illegal ways of getting what they want.

To combat this problem Malaysia is considering establishing a "cyber court" to deal with the increasing number of crimes related to the Internet. Malaysia's Communications Minister, Shaziman Abu Mansor, said many Internet-linked cases had been submitted to the country's attorney general in the past three years.

"If in future if we cannot cope any more due to too many cases, we may need to have a cyber court," he said, according to Bernama. 

ARTICLE IN SIN CHIEW

Financial and cyber crime most prevalent economic crime in Malaysia

• News
 

 2010-04-13 17:52

KUALA LUMPUR, April 13 (Bernama) -- Financial and cyber crimes were among the most prevalent economic crimes commited in Malaysia, says Honorary Group Chairperson of International Cybercrime and Forensics Examiner (ICFE) Group of Companies, Tommy Seah.

Economic crimes constitute fraud, corruption and bribery, identity theft, money laundering, cyber crime, accounting and financial fraud.

He said the most widespread of financial crimes in Malaysia were financial statement frauds, procurement frauds and misappropriation of assets.

Explaining further, Seah said although economic crime in Malaysia was not at an alarming stage it was nevertheless increasing.

"Malaysia is a pretty docile country but we are also not well equipped in preventing such crimes," he said, adding that many people, particularly organisations were not aware of the implications of economic crime.

"Skills and knowledge can be transferred and acquired and Malaysia has the ability but the corporate will to put the house in order is more vital," he said in an interview with Bernama today.

When asked why economic crimes occured, he said: " The desire for a better quality of life is a common denominator of a country.

"When economies grow along with a better quality of life desire also arises.

"And, when they cannot attain a better quality of life legitimately, they tend to achieve it by committing crime."

Seah also said if this crime was not addressed, it becomes a distressing issue for individuals.

"It is important to ensure greater enforcement by the authorities and organisations in order for Malaysia to remain attractive to foreign investors," he said, adding that ICFE and CSI World Headquarters would jointly organise a two-day International Cyber and Economic Crime Conference beginning June 15.

Seah said the conference was aimed at educating professionals and to provide Malaysians an opportunity to update skills, especially in digital forensics, in order to be on par with international standards.

"We are expecting professionals from both the public and private sectors who will gather insights about the field from esteemed local and international speakers," Seah added. (By By Santhia Panjanadan/ Bernama)

MySinchew 2010.04.13

ARTICLE IN STAR ONLINE

More than 4,000 cybercrime cases reported in Malaysia within two years

 JOHOR BARU: More than 4,000 cyber complaints, mostly concerning cyber crimes have been lodged with Cybersecurity Malaysia in the past two years.

Its chief executive officer Lieutenant-Colonel Husin Jazri said that the complaints, mostly consisted of hack threats, fraud, denial of services and other computer problems such files lost or corrupted by viruses.

“We have received about 2,000 complaints in 2007.

“Last year, a total of 2,123 cases were lodged with us,” he told pressmen after the presentation of five computers to a school in the Kampung Simpang Arang Orang Asli settlement.

Science, Technology and Innovation secretary-general Datuk Abdul Hanan Alang Endut presented the computers on Saturday.

Lt-Col Husin explained that the agency’s services catered for individuals, as well as companies, who faced computer related problems.

“Our consultation services are free but we will charge any work that needs to be done such as repairs.

“The charges varies on a case by case basis,” he said adding that the agency rarely charged students or those from the lower-income group.

He said that the agency’s 150-strong staff was dedicated to solving computer problems as they aimed to serve the needs of the public.

“We have an emergency response team that caters to the complaints.

“Among our other services are digital forensics, security assurance, security management and best practices,” he said.

He added that the agency’s main objective is to be a one-stop coordination centre for all national cyber security initiatives.

“Among the initiatives are reducing vulnerability of ICT systems and networks and nurture a culture of cyber security among users and critical sectors,” he said.

Lt-Col Husin said the public could contact the agency at 03-89926888, fax at 03-89453205 or email at info [at]cybersecurity.my.

“People can also contact our hotline at CYBER999 to report any problems.

“Our office in Seri Kembangan is open from Monday to Friday,” he said.

He said that the agency was also working closely with enforcement agencies such as the police in solving and curving cybercrimes in the country.

By FARIK ZOLKEPLI in Star online

OTHER NEWS ARTICLES YOU CAN CHECK OUT ARE:

http://www.malaysiainfocus.com/politics/malaysia-to-collaborate-in-fight-against-cyber-crime/3296/

http://www.sans.org/reading_room/whitepapers/legal/malaysian-law-computer-crime_670

http://www.thenewnewinternet.com/2010/04/15/cyber-crime-tops-list-of-most-common-crimes-in-malaysia/

http://www.malaysiandigest.com/news/17444-many-white-collar-cyber-crimes-go-unreported-says-salang.html

http://www.cybersecurity.my/en/media_centre/media_faqs/media_faqs/main/detail/1691/index.html?mytabsmenu=4

http://www.spamfighter.com/News-11776-Malaysia-Experiencing-Rise-in-Cyber-Crimes.htm

http://www.malaysianbar.org.my/information_technology_and_cyberlaws_2005_2007/cyber_crimes_the_net_is_not_in_a_legal_vacuum.html