In response to this, 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”).
“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”.
“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”.
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.
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”.
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”.
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:
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.