Regulating Contents on the Internet. The Law Behind It And Our Opinion.

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On 8 March 2014, a Malaysia Airlines plane, MH 370, bound for Beijing, went missing after departing from Kuala Lumpur International Airport. Even after 5 years, MH 370 has yet to be found, despite the authorities and the international search and rescue teams working round the clock, trying to find the whereabouts of MH 370.

From day 1, when MH 370 had gone missing, newspapers, news channels on radio and TV, and social networking sites like Facebook and Twitter have been flooded with news, comments and rumours on everything about MH 370. Some of this involved false news and rumours which have not been verified by the authorities.

Regulating Contents on the Internet in Malaysia

In response to this Malaysian at large wonders how the Malaysian government is regulating contents on the Internet. The Malaysian Communications and Multimedia Commission (“MCMC”) has warned the public, particularly the online users, not to spread and disseminate false and unverified news and rumours as it will make it more difficult for the investigation teams to carry out their tasks. The MCMC further said that those who did so may be investigated under Sections 211 and/or 233 of the Communications and Multimedia Act 1998 (“CMA”).

Sections 211 and 233 of the CMA basically deal with contents published electronically.

Section 211 of the CMA provides that:

“No content applications service provider, or other person using a content application service, shall provide content which is indecent, obscene, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass any person”.

Any person who contravenes this Section will be fined up to RM50,000 or jailed up to 1 year, or both.

Section 233 of the CMA states that:

“A person who by means of any network facilities or network service or applications service knowingly 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; or initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, will be fined up to RM50,000 or jailed up to 1 year, or both”.

These two sections under the CMA have been used by the MCMC to investigate and prosecute those who misuse social media.

If you could recall, back in 2009, several individuals were charged for posting comments insulting the Sultan of Perak under these two sections. There have also been instances where the MCMC requested news portal and websites to remove certain contents on their websites on the ground that the contents were indecent or offensive which may cause social disharmony and racial tension.

The question is, is the Internet censored in Malaysia?

The Government has pledged no Internet censorship under the MSC Malaysia’s 10-Point Bill of Guarantees. Section 3(3) of the CMA also expressly states that “nothing in this Act shall be construed as permitting the censorship of the Internet”.

Many have questioned whether Sections 211 and 233 of the CMA, which empower the MCMC to take action against those who make or post indecent, obscene, false, menacing or offensive content on the Internet or other electronic means, contravene the very objective of the CMA and the Government’s promise of “no Internet censorship”.

My personal view on this is, Sections 211 and 233 of the CMA are not the tools that allow the Government to do Internet censorship.

In fact, in today’s technology, no Government in the world can effectively censor the Internet since there are many ways to bypass restrictions for accessing websites. Furthermore, any attempt to censor the Internet is likely to attract public outcry which will do more harm than good to the Government. So then how governments go about regulating contents on the Internet?

Freedom to say anything on the Internet is akin to freedom of speech and expression. While we have the freedom of speech and expression expressly enshrined under our Federal Constitution, this is not an absolute right. Parliament may by law impose restrictions to protect national security, public order or morality, and such right is subject to the law governing contempt of court, defamation, or incitement to any offence.

The intention of having Sections 211 and 233 is noble: to protect people from being subjected to any forms of abuse on the Internet, such as pornographic materials on the Internet, annoying emails or SMSes with intent to harass others and hatred or offensive statements that will cause racial tension. Anyone who suffers from online abuse may lodge a complaint to the MCMC Complaints Bureau on http://aduan.skmm.gov.my/.

In addition to the CMA, online users should also be aware that there are also other laws that deal with online contents, such as the Sedition Act 1948, the Defamation Act 1957, Indecent Advertisements Act 1953, Film Censorship Act 2002, Penal Code, etc. As draconian as these laws may sound, they are still laws that remain valid until they are repealed or amended. The online environment is not a legal vacuum. If something is illegal “offline”, it will also be illegal “online”.

My advice to online users is to always think twice before posting anything on the Internet or social networking sites as there are laws regulating contents on the Internet.

What about the rights of the consumer who receives, acquires, uses, or subscribes to services relating to communications and multimedia under the CMA?

All content applications service providers (“CASPs”) in Malaysia are subject to the Content Code drawn up by the MCMC. The consumer may complain to the MCMC if the CASP does not follow the Content Code in delivering contents through TV, radios and other electronic means.

All CASPs must ensure that material disseminated to the consumers does not include anything which:

  • Offends good taste or decency;
  • Is offensive to public feeling;
  • Is likely to encourage crime or lead to disorder; or
  • Abusive or threatening in nature.

Indecent content refers to material which is offensive, morally improper and against current standards of accepted behaviour, which includes nudity and sex. Obscene content such as explicit sex acts, child pornography, or portrayal of women, men or children as mere sexual objects or to demean them in such manner, are prohibited.

Violence, psychological but especially physical or incitement to violence should be portrayed responsibly, and not exploitatively. Presentation of violence must avoid the excessive, the gratuitous, the humiliating, and the instructional. Content that causes annoyance, threatens harm or evil, encourages or incites crime, or leads to public disorder is considered menacing and is prohibited.

Hate propaganda, which advocates or promotes genocide or hatred against an identifiable group, must not be portrayed. Such material is considered menacing in nature and is not permitted. Information which may be a threat to national security or public health and safety is also not to be presented.

Content, which contains false material and is likely to mislead, due amongst others to incomplete information is to be avoided. Content is false where prior to communications reasonable measures to verify its truth have not been adopted or taken. Content which is false is expressly prohibited except in any of the following circumstances: (a) satire and parody; or (b) where it is clear to an ordinary user that the content is fiction.

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About the author:
This article was written by Edwin Lee Yong Cieh, Partner of GLT Law – law firm in Kuala Lumpur, Malaysia.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.

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