© The Star (Used by permission)
Putik LadaBy Roland Richard Kual
For some, Malaysia’s position on Internet censorship appears unclear, despite a law against such meddling.
“As to the evil which results from censorship, it is impossible to measure it, for it is impossible to tell where it ends.” — Jeremy Bentham (1748 – 1832).
In early August this year, the Malaysian public was alerted to the Government’s plan to introduce an Internet pornography filter similar to the “Green Dam” filter software in China.
Sources indicated that such news came from the Minister of Information, Communication and Culture, Datuk Seri Dr Rais Yatim. However, Prime Minister Datuk Seri Najib Tun Razak swiftly responded by assuring the public that the Government would not impose censorship of the Internet, which presumably does not include any such filter.
Such a plan, if there ever was one in the first place, would have been nothing new in the international arena. It would have just been the latest in a long line of controversial governmental initiatives in other countries which have sought to control and suppress publications and information on the Internet and, in every case, is met with stiff opposition and a public outcry.
To cite a few examples, the Australian government had been conducting trials for a mandatory Internet filter on several participating Internet Service Providers (ISPs) prior to implementation. ISPs in Singapore are subject to the regulation of the Media Development Authority which has, in previous years, banned a list of “mass impact objectionable” pornographic sites and other sites which contain offensive content.
Although ISPs are not legally required to block websites when requested by Thailand’s Ministry of Information and Communications Technology, not adhering to these requests may result in sanctions being imposed, resulting in bandwidth restriction and even operating licences being revoked.
In addition to Green Dam, China had since 1998 embarked on the Golden Shield Project which blocks content by preventing IP addresses from being routed through.
Critics of any governmental initiative to regulate Internet content in Malaysia often cite the promise of no censorship of the Internet given by an earlier Malaysian Government administration, under then prime minister Datuk Seri (now Tun) Dr Mahathir Mohamad.
This promise by the Government is enshrined in the Multimedia Super Corridor (MSC) Bill of guarantees and echoed in the Communications and Multimedia Act 1998 (CMA).
When MSC Malaysia (formerly known as Multimedia Super Corridor) was introduced, the 10–point MSC Bill of Guarantees was enacted as part of the Government’s commitment to ensure the success of MSC Malaysia–status companies. In addition to providing a comprehensive regulatory framework of intellectual property protection and “cyberlaws”, the Government had also promised to “ensure no Internet censorship” for MSC Malaysia–status companies.
It is interesting to note that the promise was not universal in nature, and appears limited to these MSC–status companies.
As one of the cyberlaws of Malaysia, the CMA’s preamble describes it as “an Act to provide for and to regulate the converging communications and multimedia industries, and for incidental matters.”
The “converging communications and multimedia industries,” in the context of the preamble, refers to the telecommunications, broadcasting and online activities which fall under the purview of the Malaysian Communications and Multimedia Commission (MCMC), the appointed regulator of all communications and multimedia activities.
The provision of the CMA states that nothing in the CMA shall be construed as permitting the censorship of the Internet (“no censorship of the Internet”).
It is also worth mentioning that under the CMA, a licensee is required to use its best endeavours to prevent the facilities it owns, services or provides from being used to commit any offence under Malaysian law.
A CMA licensee must, upon written request by the MCMC or any other authority, assist it as far as reasonably necessary to prevent the commission or attempted commission of an offence under Malaysian law or otherwise in enforcing the same, including, without limitation, the protection of public revenue and preservation of national security.
The regulation of a convergent communications and multimedia industry under the MCMC, pursuant to the CMA, has brought about CMA licensees with diverse business profiles including those engaged in public payphone facilities, radio and TV broadcasting, mobile content providers and even ISPs.
As has been noted, the MCMC is given rather broad powers over a wide range of CMA licensees when it comes to enforcing Malaysian laws, with particular emphasis on the protection of public revenue and the preservation of national security.
In a surprising move by the MCMC in August last year, ISPs in Malaysia were issued an order to block access to the controversial political news blog Malaysia Today, due to the allegedly seditious articles published in the blog. Under the Sedition Act 1948, it is an offence to, among other things, publish, distribute or reproduce any seditious publication.
As CMA licensees, the said ISPs are required to offer their assistance to the MCMC in preventing the commission or attempted commission of an offence under Malaysian law.
Critics, however, expressed their disagreement with the MCMC’s decision to issue the order, as they believed it contravened the provision of “no censorship of the Internet” under the CMA. Such an order may, after all, be construed and viewed as permitting censorship of the Internet.
The question becomes whether or not the MCMC’s actions run counter to the provision. Does the notion of “no censorship of the Internet” as prescribed in the CMA have the effect of absolutely preventing the filtering or blocking of access to any content or site on the Internet?
What if, instead of a seditious article, the relevant content had been related to child pornography or to a phishing or scam site? Would we be as apprehensive about being denied access to it?
So it appears that the Internet and governmental control make rather strange bedfellows. Nonetheless, Malaysia’s trials and tribulations in enforcing its own laws in the online environment are shared by so many other countries around the world.
An Internet filter or filtration initiative as imposed by several jurisdictions appears to be an undesirable yet necessary, and perhaps inevitable, evil to block content and sites which are unequivocally accepted as being detrimental to the Malaysian public. If this is the case, should the moral guardian of the Internet in Malaysia be the MCMC?
More crucially, what would be the boundaries of such an Internet filter? Or as critics may argue, would any step in implementing an Internet filter lead towards a slippery slope from which there is no return?
> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column — a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my/nylc.
Such a plan, if there ever was one in the first place, would have been nothing new in the international arena. It would have just been the latest in a long line of controversial governmental initiatives in other countries which have sought to control and suppress publications and information on the Internet and, in every case, is met with stiff opposition and a public outcry.
To cite a few examples, the Australian government had been conducting trials for a mandatory Internet filter on several participating Internet Service Providers (ISPs) prior to implementation. ISPs in Singapore are subject to the regulation of the Media Development Authority which has, in previous years, banned a list of “mass impact objectionable” pornographic sites and other sites which contain offensive content.
Although ISPs are not legally required to block websites when requested by Thailand’s Ministry of Information and Communications Technology, not adhering to these requests may result in sanctions being imposed, resulting in bandwidth restriction and even operating licences being revoked.
In addition to Green Dam, China had since 1998 embarked on the Golden Shield Project which blocks content by preventing IP addresses from being routed through.
Critics of any governmental initiative to regulate Internet content in Malaysia often cite the promise of no censorship of the Internet given by an earlier Malaysian Government administration, under then prime minister Datuk Seri (now Tun) Dr Mahathir Mohamad.
This promise by the Government is enshrined in the Multimedia Super Corridor (MSC) Bill of guarantees and echoed in the Communications and Multimedia Act 1998 (CMA).
When MSC Malaysia (formerly known as Multimedia Super Corridor) was introduced, the 10–point MSC Bill of Guarantees was enacted as part of the Government’s commitment to ensure the success of MSC Malaysia–status companies. In addition to providing a comprehensive regulatory framework of intellectual property protection and “cyberlaws”, the Government had also promised to “ensure no Internet censorship” for MSC Malaysia–status companies.
It is interesting to note that the promise was not universal in nature, and appears limited to these MSC–status companies.
As one of the cyberlaws of Malaysia, the CMA’s preamble describes it as “an Act to provide for and to regulate the converging communications and multimedia industries, and for incidental matters.”
The “converging communications and multimedia industries,” in the context of the preamble, refers to the telecommunications, broadcasting and online activities which fall under the purview of the Malaysian Communications and Multimedia Commission (MCMC), the appointed regulator of all communications and multimedia activities.
The provision of the CMA states that nothing in the CMA shall be construed as permitting the censorship of the Internet (“no censorship of the Internet”).
It is also worth mentioning that under the CMA, a licensee is required to use its best endeavours to prevent the facilities it owns, services or provides from being used to commit any offence under Malaysian law.
A CMA licensee must, upon written request by the MCMC or any other authority, assist it as far as reasonably necessary to prevent the commission or attempted commission of an offence under Malaysian law or otherwise in enforcing the same, including, without limitation, the protection of public revenue and preservation of national security.
The regulation of a convergent communications and multimedia industry under the MCMC, pursuant to the CMA, has brought about CMA licensees with diverse business profiles including those engaged in public payphone facilities, radio and TV broadcasting, mobile content providers and even ISPs.
As has been noted, the MCMC is given rather broad powers over a wide range of CMA licensees when it comes to enforcing Malaysian laws, with particular emphasis on the protection of public revenue and the preservation of national security.
In a surprising move by the MCMC in August last year, ISPs in Malaysia were issued an order to block access to the controversial political news blog Malaysia Today, due to the allegedly seditious articles published in the blog. Under the Sedition Act 1948, it is an offence to, among other things, publish, distribute or reproduce any seditious publication.
As CMA licensees, the said ISPs are required to offer their assistance to the MCMC in preventing the commission or attempted commission of an offence under Malaysian law.
Critics, however, expressed their disagreement with the MCMC’s decision to issue the order, as they believed it contravened the provision of “no censorship of the Internet” under the CMA. Such an order may, after all, be construed and viewed as permitting censorship of the Internet.
The question becomes whether or not the MCMC’s actions run counter to the provision. Does the notion of “no censorship of the Internet” as prescribed in the CMA have the effect of absolutely preventing the filtering or blocking of access to any content or site on the Internet?
What if, instead of a seditious article, the relevant content had been related to child pornography or to a phishing or scam site? Would we be as apprehensive about being denied access to it?
So it appears that the Internet and governmental control make rather strange bedfellows. Nonetheless, Malaysia’s trials and tribulations in enforcing its own laws in the online environment are shared by so many other countries around the world.
An Internet filter or filtration initiative as imposed by several jurisdictions appears to be an undesirable yet necessary, and perhaps inevitable, evil to block content and sites which are unequivocally accepted as being detrimental to the Malaysian public. If this is the case, should the moral guardian of the Internet in Malaysia be the MCMC?
More crucially, what would be the boundaries of such an Internet filter? Or as critics may argue, would any step in implementing an Internet filter lead towards a slippery slope from which there is no return?
> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column — a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my/nylc.