KUALA LUMPUR, Nov 19 — Being on the receiving end of unsolicited calls and messages from real estate negotiators, telemarketers to persons unknown, it has gotten to a point where people start wondering whether spamming is against the law.

Here’s a quick look at the laws in Malaysia that may apply to such situations and whether sending spam for the purpose of selling products and services is illegal.

Communications and Multimedia Act (Act 588)

Unfortunately, there are no specific provisions on the illegality of spam in Malaysia.

However, Section 233(1)(b) of Act 588 provides that a person who initiates a communication using any application service, repeatedly or otherwise with or without disclosing their identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address commits an offence.

According to an FAQ published by the Malaysian Communications and Multimedia Commission (MCMC), the intent underlying Section 233(1)(b) may be appropriately utilised to deal with unsolicited communications faced by spamming activities.

To fall within the scope of the provision, the communication must have been initiated with the intent to annoy, abuse, threaten or harass a person.

In cases of spamming, the consequences or effects of such communication may be that the recipients are annoyed, harassed or abused, but it may be difficult to argue that this was the intention of the sender.

Such intent may not exist as marketers are unlikely to target potential clients with malicious intent.

In fact, Bar Council Cyber and Privacy Laws Committee chairperson Sarah Yong Li Hsien explained the potential difficulties in enforcement and possible prosecutorial action for spamming.

"The difficulty of using Section 233(1)(b) for spam is that the content also has to be ‘obscene, false, menacing or offensive,’ which may not capture spam that is commercial in nature.

"On the same note, merely causing annoyance may not be an offence if the content is not obscene, false, menacing or offensive,” she told Malay Mail.

At present, Act 588 also does not provide civil sanctions for unlawful conduct, including financial penalties, enforceable undertakings and injunctions to minimise the proliferation of spamming.

Those charged with committing an offence can be punished with jail up to a year or a fine not exceeding RM50,000 or both.

TLDR: Spamming is not illegal but you could be charged with ‘harassment.’

Personal Data Protection Act (Act 709)

Under the PDPA, it is an offence to process personal data, which includes contact numbers and addresses, without consent of a person.

"This includes collecting, holding, storing, transferring or using any personal data without consent.

"In this situation, both the seller and the buyer of unlawfully obtained personal data would commit an offence under the PDPA,” Yong explained when asked about real estate negotiators and agents engaged in spamming activities from ‘leakages’ of personal data.

Under Section 130(1) of the PDPA, it is an offence to knowingly or recklessly collect, disclose or procure the disclosure (whether by buying it or otherwise) of personal data without the consent of the person.

It is also an offence to sell, advertise or offer for sale the personal data under these circumstances.

Those charged with unlawfully collecting and procuring personal data can be punished with a fine of up to RM500,000 or imprisonment of up to three years or both.

As per the latest amendments, those charged with improper processing of personal data can be punished with a fine of up to RM1 million or imprisonment of up to three years or both.

TLDR: Improper processing, buying and selling of personal data is illegal.

Section 507A of the Penal Code (Stalking)

Stalking, whether in person or online, was criminalised in May 2023.

The new anti-stalking law applies if there is more than one instance of physical or online tracking, attempting to communicate, or loitering near the victim’s home or workplace.

Yong said if the unsolicited calls or messages cause distress, fear or alarm of the person’s safety, it can amount to a criminal offence under Section 507A.

"In such a situation, the person should lodge a police report. A complaint can also be lodged with the MCMC,” she said.

Those convicted under Section 507A can be sentenced to jail for a maximum of three years, a fine or both.

TLDR: Repeated instances of unsolicited calls or messages by the same person can amount to stalking which is illegal.