Recording Police Arrests or Raids is not an Offence

Hamzah Zainuddin, the Home Minister, was reported to have said that recording or live streaming the police carrying out arrests or raids was an offence pursuant to section 186 Penal Code (PC). Anyone that videoed and shared it committed an offence under section 233 of the Communications and Multimedia Act 1998 (CMA). He said some other crap too but I just want to address those bits.

First, let’s look at 186 PC:

Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand ringgit or with both.

Section 186, Penal Code

The crucial word in that provision is ‘obstructs‘. That act of obstruction is what earns you the fine or prison time. Merriam-Webster Online defines ‘obstruct’ as:

  1. to block or close up by an obstacle
  2. to hinder from passage, action, or operation
  3. to cut off from sight

To obstruct, therefore, means there needs to be physical intervention by the accused between a person and what they intend to reach or do.

Let’s take an example. X puts up posters about a live concert on a public wall. Sitting 10 feet away is Y who is filming X putting up the posters. Local authority officers see X. They move to arrest him and take down the posters. Y films the entire incident from 10 feet away.

In such an example, Y did not obstruct the local authority officers. He cannot be charged with an offence under section 186 PC.

So long as there is no obstruction caused to any public officer in carrying out their duties, no offence is committed. The prosecution must prove the obstruction as well as the intention to obstruct. It would be difficult for the prosecution to prove videoing the police in public doing their work from a reasonable distance is an offence under section 186 PC.

Second, let’s look at the latter provision. I consider only section 233(1)(a) CMA98 because that is the one that people are commonly charged with by the authorities for uploading stuff on the internet or sending messages over messengers.

A person who (a) by means of any network facilities or network service or applications service knowingly – (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; … commits an offence

233(1)(a) Communication and Multimedia Act 1998

So long as we get on the internet, whether it is by fibre or by mobile phone, we would have fulfilled criteria (a) i.e., using a network service.

If we make a comment, request, suggestion or any other communication that is obscene, indecent, false, menacing or offensive in character, then it is potentially an offence. The other element to be proved before a person is convicted for the offence is an intention to annoy, abuse, threaten or harass in sending the offensive communication.

A video of someone being arrested is not obscene, not false, not indecent, not menacing or offensive in character. A clip of someone arrested possesses none of those qualities. It is hard to understand how sharing a video clip of the police arresting someone bears the intention to annoy, abuse, threaten or harass someone.

Without any more or without the context of a unique fact pattern, simply sharing a factual event is not an offence.

It is highly undesirable for the Home Minister to speak about those provisions misleadingly. It is dishonest to use those provisions to threaten the general public with penal sanctions for videoing the police arresting or raiding.

It also sounds illogical when, in the same report, Hamzah Zainuddin confirmed the purchase of body cameras for on-duty police officers. I thought he should be thanking the public for doing their civic duty before the Home Ministry gets the police-body-cameras-act together.

The Minister’s view is clearly not in the public interest. If anything, it is in the police’s interest. On this matter, Hamzah Zainuddin serves the police’s interest over the public interest. To warn the public from videoing the police in a public place carrying out their work is to create conditions for moral hazard with the police.

A mobile phone with video and microphone capabilities with internet access attached to a social media account is an important citizen tool. It is a powerful tool keep our public authorities in check and to ensure government transparency and from that, accountability. The public effort complements the government’s efforts.

If the government were serious about keeping the police and any public authority in check, it should encourage the recording of police and public authorities carrying out their work in public places.

Not scare and threaten the public with criminal and civil charges.

1 thought on “Recording Police Arrests or Raids is not an Offence”

  1. This is a very important clarification. I for one took the statement of it being an offence on face value. I think many did and were prepared to relinquish this very important right in times of poor transparency and ill practice.

    Reply

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