Written by: Averroes
Facts don't lie
Simply enough, there is no express or direct law which prohibits people from watching porn. Accessing pornography is easier in the 21st century, which the introduction of the internet and smartphones, through a few swipes and tap of our fingers. The numbers rapidly increased during the pandemic. Masturbation is also a hot topic.
In January 2021, data by PornHub revealed that Malaysia was in fourth place after Slovakia, Bulgaria and Ireland and among the top in the world for browsing pornographic materials and content online. The government went on a crackdown and shut 3000 websites since September 2018.
Earlier in 2022, an office secretary was fined RM4,500 in the Magistrate Court for possessing images, videos and PDF files of pronographic materials. He kept 80 pictures, 163 videos and a PDF file in his Samsung Galaxy A50. He was convicted under section 292 of the Penal Code (PC).
The accused pleaded for a lighter sentence, since he had a family to take care since he was a breadwinner. He only made around RM1000 a month and was recently married. The Prosecution team urged for a higher fine, but the court only fined him the RM4,500.
A week before, there was also a case where the accused, a restaurant assistant pleaded guilty in the Magistrate's Court for possessing 53 pornographic materials in his memory card and the same 61 content in his Vivo smartphone. He was also convicted under section 292 of PC, but was given a higher sentence of RMRM7,000.
He wanted a lighter sentence, since it was his first offence, apologised and promised not to be a repeat offender. However, in Malaysia it is not wrong to watch porn. If we possess them in our phones or laptop such as the men above, then yes it is a crime.
If we watched a pornographic live stream or video from a website, that does not amount to possession, since it has to be in our phone or laptop storage.
Is pornography really wrong?
One were to argue that watching pornography is no one's business. In 1957, Hart-Devlin debated in the Wolfenden Report, as to whether homosexuality should be decriminalised. The report found that homosexual practices were between consenting adults in private and should not be a crime.
Hart said that an act is only an offence if it causes harm to others and should not be intervened by the State, even it is immoral. The argument is consonant with John Stuart's Mill view. However, Devlin said that morality and religion is deeply rooted within the public and that the will of majority prevails.
Based on the above, pornography is not wrong since people are only indulging it within the confines of their homes and not engaging in any physical harm to others. The sin that they commit is only between them and god. Some say that it is healthy, since it stimulates our mind and relaxes us physically.
They also claim that as long as the actresses or actors consent and that the films does not involve coercion or children or other unnatural sexual behaviours such as incest, bestiality and dangerous fetishes. There is also a tendency to encourage sexual exploitation and oppression.
For those opposing pornography, they say that it encourages rape, it is unnatural and develops perverted mental processes. Speaking of health, it impairs our dopamine, makes us anxious, shameful, guilty and timid around people, while also wasting our time that should be spent with other beneficial activities.
They also believe that watchers tend to imitate unrealistic sexual acts from porn, thus affect their relationships with their partners in the future. Thus, results in a sequelae.
Related Laws
The related law would section 292 of PC that could sentence the offender for a maximum of 3 years imprisonment, or a fine or both. Hypothetically, if our courts did not change the legal precedent, possessing porn in digital or intangible form is not wrong.
In the case of Lim Hock Thai v Public Prosecutor [1981] 2 MLJ 212, the defendant argued that based on ejusdem generis rule, obscene publication was only representations or figures are those which are printed. They argued that video tapes were not as under section 292 of PC which was a law related to the English Obscenity Act 1959.
The court held that, video cassettes were not part of section 292 of the PC, which must be obscene to sight, reading or hearing on face of it. If so, every possession of video cassettes were wrong, even if innocent or substance contained obscene materials. This was a strict interpretation of the law and mischief rule was not applied.
The above case referred to Public Prosecutor v Tee Tean Siong & 8 Ors [1963] MLJ 201 that 'blue films' or film material was not covered under section 292 of the PC. Also, those attending the film exhibition were not considered as abetting the crime. Being spectators or watching obscene materials is not a crime in Malaysia, unless we support it by actually paying or encouraging it.
Mohd Rizal bin Mat Yusuf v Public Prosecutor [2009] 8 MLJ 856, a case involving a MAS steward selling lewd VCD of his wife and other stewardess at the night market, overruled certain legal aspects in Lim Hock Thai and Tee Tean cases, which saw legal developments that possession or sale of intangible pornographic materials were also an offence.
The judge relied the pari materia law in India of their section 292(a) of PC in the case of Raj Kapoor v Laxman (1980) SC 175 which is legislated based on article 1 of International Convention for the Suppression of Circulation of Traffic In Obscene Publications.
The case said that under section 292(a), the words 'any object whatsoever' includes video tapes, cassettes and video compact discs or anything. Today, we could also argue the same logic with smartphones and laptops, even if they are not printed materials, they still contain obscene materials and capable of visually displaying them.
However, watching porn is still not a crime, due to the Tee Tean case.
Another law is under section 233 of the Communications and Multimedia Act 1998, a broad and expansive law that may be used to charge any forms of acts online as long as it irritates others. A written article regarding this law could be read here.
Conclusion
Clearly, while watching porn online is not illegal, but the possession, distribution, selling, hiring, publicly exhibiting, put in circulation and production under section 292 of PC is still an offence.
As a person who is addicted to pornography, they should not be punished or ostracised by society. Rather than charging them for crime, we should encourage them to participate in other activities and help, such as recommending regular exercises, adequate sleep, learning new skills to cope with depression or stress and hang out with friends.
Perhaps even go out and find a girlfriend, talk to one, go on a date, a real girl for god sakes, not anime girls or a waifu.
References;
'leave Me Alone!': Syariah V Civil Law [2007] 6 MLJ xcix
Aliffitri Ali Zohor Ali, Noor Azimah Muhammad, Teh Rohaila Jamil, et. al. (2021) Internet pornography exposures amongst young people in Malaysia: A cross-sectional study looking into the role of gender and perceived realism versus the actual sexual activities. Addictive Behaviors Reports. 14. Retrieved from, https://doi.org/10.1016/j.abrep.2021.100350
Nur Nazlina Nadzari. (January, 2022) Kerani didenda RM4,500 miliki gambar, video dan fail PDF lucah. Retrieved from, https://www.utusan.com.my/terkini/2022/01/kerani-didenda-rm4500-miliki-gambar-video-dan-fail-pdf-lucah/
Mahaizura Abd Malik. (2021) MCMC: Almost 3,000 pornographic sites blocked since Sept 2018. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/01/660369/mcmc-almost-3000-pornographic-sites-blocked-sept-2018
Nuzulsham Shamsuddin. (January, 2022) Didenda RM7,000 miliki gambar, video lucah. Retrieved from, https://www.kosmo.com.my/2022/01/13/didenda-rm7000-miliki-gambar-video-lucah/
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