Is it illegal to impersonate someone online in Malaysia?

You were busy doing whatever millennials do one day when your phone starts buzzing angrily. You pick it up and hear your friend worriedly asking you if you’re in trouble. You’re confused and he explains that “you” have been messaging friends, asking to borrow money.

You vehemently deny doing it but your friend sends you screenshots of messages from someone with your username, asking for money. But hang on...you noticed that whoever this is sneakily replaced a letter in your username with a number. It’s not you but...an imposter!

The scenario above has been going around on Instagram recently where an imposter creates an account with a very similar username as the person he is pretending to be. For example, smith_low has an imposter with the username smith_loww. smith_loww reposts smith_low’s pictures and tries to befriend smith_low’s followers.

Take a look at the conversation below. This is just an example of what imposters might have up their sleeves. (Can i just rewrite this whole line)

Clearly, this imposter didn’t set his story straight before embarking on this adventure. Basically, the next part is just asking, is it a crime to impersonate someone?

Many of us would definitely think that this imposter is setting out to do something insidious but the question is...is this actually wrong from the eyes of the law? Is the imposter committing a crime?

To answer this question, we will look into three different issues:

1. Identity theft
2. Cheating under Section 416 of the Penal Code
3. Copyright infringement under Section 10(1) of the Copyright Act 1987 (“CA 1987”)

Malaysia doesn’t really have laws on identity theft

In our rule books, we don’t have anything specific covering identity theft, whether online or In Real Life. But first, what exactly is identity theft?

The Cyberspace Identity Theft: The Conceptual Framework tells us that identity theft is the collection and fraudulent use of information belonging to another person. 

(Why go to the US???) In Australia and the United States, the definition of identity theft is a little bit different, with it being closely related to committing crimes with someone else’s identity as opposed to collecting and storing information belonging to another. 

It seems like until a specific law is passed regarding identity theft, we won’t be able to know which definition our lawmakers would choose to take. (This whole section  kinda goes round and round)

But just because there isn’t a specific law, that doesn’t mean we can’t deal with imposters. This is because...

If you cheat, you can go to jail

For starters, let’s look at Section 416 of the Penal Code.

“A person is said to “cheat by personation”’ if he cheats by pretending to be some other person.” 

But ‘cheat’ means more than just pretending to be someone else. According to Section 415,

“Whoever by deceiving any person, whether or not such deception was the sole or main inducement,—

(a)...induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property; or

(b) intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation, or property,

is said to “cheat”.”

So it’s cheating if the imposter, by pretending to be someone else, caused you to give them something you own. For example, let’s say you got a message on Instagram from your ‘friend’, JohnLim1. But it’s actually a scammer, pretending to be your friend. If you transfer money to him for whatever reason, because you thought he’s your friend, that is the definition of cheating. 

If the imposter is found guilty of cheating, they can be punished under Section 417 of the Penal Code. They can be jailed up to 7 years, fined, or both. However, do note that the Penal Code is not related specifically to cyber crimes. No one has been charged under this section yet for online crimes.

What about the copyright to your pictures?

But what about your pictures that the imposter is using? Wouldn’t that be an infringement of copyright? Lucky for you, Section 10(1) of Copyright Act 1987 got you covered.

“Copyright shall subsist in every work eligible for copyright of which the author or in the case of a joint authorship, any of the authors is, at the time when the work is made, a qualified person.”

Under this Act, a Malaysian (or permanent resident holder) would automatically have the copyright of their pictures. So when the imposter ‘reposts’ your pictures, he is actually infringing your copyright. 

FYI, there is now a minimum fine of RM2,000 per infringing copy. But to avoid having this problem in the first place...

Practice safe online habits

Merely creating an online account with a similar username is not wrong. However, if it’s done to cheat someone, or they start posting your pictures without permission, he may be committing an offence. For now, it is always important to take steps to protect yourself from imposters. Be wary of online communication and always remember to check before you give out personal information. 

Also, secure your social media accounts by utilising the ‘private’ function, and approve who follows you. Don’t let a fake account follow you, as you may just be their next victim. Should you spot an imposter, check out this informational post by MCMC on how to report those accounts. 

Stay safe on the Internet, peeps.