Redefining Boundaries: The Intersection of Private Investigation Practice and Anti-Stalking Laws

 

Introduction

More often than not, when we think of “Private Investigators” (“PIs”), our minds conjure up an image of a shadowy figure in a trench coat, reminiscent of Sherlock Holmes. However, the reality of the profession is often more complex and multifaceted. 

Aside from their involvement in high-profile cases, PIs also undertake routine tasks such as surveillance, background checks, and evidence collection.  Nevertheless, their work is subject to strict regulations, ensuring that they operate within the confines of the law and adhere to ethical standards. As technology continues to evolve, PIs are increasingly utilising tools like drones, surveillance software, trackers and social media analysis to gather information and evidence. While these advancements offer new opportunities for the field, they also raise questions about privacy and ethical considerations.

In Malaysia, the dramatic portrayal of PIs is subject to the regulations outlined in the Private Agencies Act 1971, overseen by the Ministry of Home Affairs. However, the recent introduction of the Anti-Stalking Law under Section 507A of the Penal Code has significantly reshaped the legal landscape for PIs.

Given the nature of their work, which often involves surveillance and information gathering, PIs must now exercise extreme caution to ensure they do not inadvertently engage in activities that could be construed as stalking.

 

Legal Framework Regulating Private Investigation Practices in Malaysia

Section 2(b) of the Private Agencies Act 1971 defines “business of private agency” as business or activities which are carried on by a person for the purpose of obtaining and furnishing information as to the conduct, activities or affairs of another person. 

Many may not be aware that in Malaysia, private investigators are required to possess a licence issued by the Ministry of Home Affairs. To obtain a license, the PI Agency must fulfil specific criteria, including submission of a business plan and ensuring that at least 30% of the agency’s shares are held by a former police or army officer with the rank of Assistant Superintendent of Police or Captain or equivalent, and a paid-up capital of RM50,000. 

With the licence vested in the PIs, the PIs can conduct various investigative activities to gather information. However, these investigations must adhere to the boundaries set in Section 4(1) of the Private Agencies Act 1971. Failure to do so risks licence revocation or suspension. 

 

Impact of the Anti-Stalking Law on Private Investigation Practices in Malaysia

In May 2023, the Malaysia’s Anti-Stalking Law came into force. Under the newly introduced Section 507A of the Penal Code, stalking is defined as the repeated act of harassment with the intention to cause distress, fear, or alarm to an individual or any person’s safety. To clarify further, the provision outlines specific acts that constitute stalking or harassment, including:- 

1. following or tracking a person in any manner or by any means;

2. communicating or attempting to communicate with a person in any manner or by any means;

3. loitering at the place of residence or business of a person;

4. giving or sending anything to a person in any manner or by any means.

Although the Anti-Stalking Law is a significant step forward in addressing the prevalent issue of stalking, it poses potential issues for PIs. This is primarily due to their work, which often involves regular surveillance and social media monitoring — activities that could be misinterpreted as ‘stalking’.

Be that as it may, when tabling the Anti-Stalking Bill in the Parliament, the former Deputy Minister of Law, YB Ramkarpal Singh, clarified that since PIs hold licenses issued by the Ministry under the Private Agencies Act, Section 507A of the Penal Code should be read together with this specific legislation. The Deputy Ministry further emphasised the that the incriminating act must be accompanied with the intent to cause fear or distress to the victim.

Therefore, as long as a private investigator conducts his or her investigation without malicious intent to cause fear or distress to the victim, it can be considered a legitimate investigation under the law.

 

Key Recommendations

To ensure compliance with existing laws, PI Agencies should adopt the following best practices:- 

1. Regular Training

Regular training focusing on ethical private investigation practices. This includes avoiding interference with individuals’ personal lives and trespassing on private property.

2. Clear Ethical Guidelines

Establish a set of investigation policies and guidelines. These guidelines should address the challenges of the Anti-Stalking Law and provide clear do’s and don’ts for private investigations. For example, tracking (through devices such as a hidden camera or GPS tracker) is an offence under stalking in section 507A.

3. Collaboration with Law Enforcement

PI Agencies should establish a good rapport with enforcement authorities, especially the police. For example, it would be sensible to inform the police in advance of surveillance activities without disclosing specific details to prevent potential interference and misunderstanding.

4. Criminal Record Vetting

PI Agencies should conduct thorough background checks on employees (which may include police clearance) to mitigate the risk of misconduct.

 

Conclusion

While the introduction of the Anti-Stalking Law marks a significant milestone in protecting personal privacy and ensuring public safety, it also presents new challenges to the profession. In this regard, PIs should now navigate a thin line between conducting thorough investigations and ensuring that they do not inadvertently breach the Anti-Stalking Law. Perhaps, implementing a well-organised due diligence is essential to maintaining the integrity of the profession while adapting to the evolving legal landscape.