Tort of Harassment

Harassment
Harassment in its Many Forms and Types

Harassment is a common term. Its definition as per the Oxford Dictionary means “Aggressive pressure or intimidation.” Law students that studied English Law or general public often than not thinks that there is actually a law protecting us from Harassment(at least that is what I thought). However, that is not the case in Malaysia.

 

ct-cta-anti-harassment-campaign-20151009

 

In United Kingdom, the Parliament has enacted the Protection from Harassment Act 1997 following the concern over the problem of ‘stalkers’, after several much-publicized cases in which individuals became obsessed with an ex-girlfriend or -boyfriend, a celebrity or even a mere acquaintance, and subjected them to constant and often long-term harassment. However, para material legislation does not exist in Malaysia. Thus, there is no ‘tort of harassment’ per se in Malaysia.

 

In Desiree Couture Sdn Bhd & Anor v Anne F Co. Ltd & Ors [2016] 10 MLJ 315, the High Court was invited to consider if Malaysia has a cause of action under the Tort of Harassment. Azizul Azmi Adnan JC, in his judgment at para [58] noted that:

I should however note that I found the arguments in support of the existence of the tort of harassment persuasive, and the time may well be upon us to follow the examples of Hong Kong and Singapore in recognising such a cause of action under the common law.

 

His lordship affirmed that there is no such cause of action known as ‘tort of harassment’ in Malaysia. However, he agreed that given the social changes, tort of harassment should be a valid cause of action in Malaysia. Nevertheless, his lordship did not rule on the matter and establish a new tort as it was not necessary to do so.

 

Harassment-Is-A-Crime_600

 

Following on in the Federal Court case of Mohd Ridzwan bin Abdul Razak v Azmah bt Hj Mohd Nor [2016] 4 MLJ 282, the Suriyadi Halim Omar FCJ made the following comment in his judgment under para [39]:

After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system with sexual harassment being part of it.

 

Under para [57], his lordship continues to explain principle for the ‘tort of harassment’:

For our purpose, before defining the tortious phrase of sexual harassment, we need to know what harassment is in the first place. For brevity, when identifying the harasser or the victim, the pronouns he, she and her, apply to both gender whenever appropriate. Putting aside the statutory definition provided in the Employment (Amendment) Act 2012 and in the Employment Act 1955 as discussed earlier, Lord Sumpton in Hayes v Willoughby [2013] 1 WLR 935 acknowledged that harassment is an ‘ordinary English word with a well understood meaning.’ Citing Thomas v News Group Newspaper Ltd [2002] EMLR 78, 30, Lord Sumpton stated that harassment is, ‘persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which calculated and does cause that person alarm, fear or distress.’ We certainly have no disagreement with such a definition.

 

Based on the underlined statement, it would seem that the elements of ‘tort of harassment’ is imported into Malaysia from the English case of Thomas v News Group Newspaper Ltd [2002] EMLR 78. However, as explain by his lordship, there is a distinction between ‘tort of harassment’ and ‘tort of sexual harassment’. In a general sense, the tort of harassment is a general heading, encompasses many type of harassment including sexual harassment. This case concerns sexual harassment. Thus, it may be argued that when Suriyadi Halim Omar FCJ says that ‘it is timely to import tort of harassment into our legal and judicial system’, it is essentially an obiter dicta. This is further supported by the fact other than the afore-quoted para, there are no other discussion on ‘tort of harassment’. Nevertheless, even though it is an obiter dicta, it is an obiter dicta from the Apex court of the land. Considering it together with Azizul Azmi Adnan JC’s judgment mentioned above, the statement that ‘tort of harassment exist in Malaysia’ may be highly persuasive.

 

In Conclusion, tort of harassment is currently, not an existing Malaysian Common Law right offered to an individual. However, pursuant to the aforementioned cases, the ‘tort of harassment’ will most likely be introduced if there is a relevant case on this issue that is in dispute in the court.

 

Edit: There is currently a global anti-harassment movement. Google ‘#MeToo’ to find out more.

Further Readings:

  1. Between Lex Lata And Lex Ferenda: An Evaluation Of The Extent Of The Right To Privacy In Malaysia [2017] 4 MLJ xxix

  2. https://canlawreport.com/metoo-movement-malaysian/

 

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