Freedom of Speech on the Net – An Illusion or Reality?

Joanna Loy shares her views

 

In an unprecedented development which occurred on 13 March 2009, six persons were charged under Section 233(1) of the Communications and Multimedia Act 1998 (“CMA”) and Section 34 of the Penal Code for posting various comments relating to the Sultan of Perak on various websites on the Internet.

 

One of the accused pleaded guilty and was fined RM10,000. The others, from various parts of the country, are claiming trial.

 

Malaysians will recall that barely 8 months ago, all 21 Internet Service Providers (ISPs) in the country were ordered by the Malaysian Communications and Multimedia Commission (“MCMC”) to block the controversial Malaysia Today website.

 

Approximately two weeks after the censorship and after much public outcry, the Cabinet ordered the MCMC to reinstate access to the blocked website.

 

These events indicate that recent political developments in Malaysia (in which the Internet has undoubtedly played a role) have brought a worldwide issue into sharp domestic focus: "Is a free Internet possible, or even desirable, in Malaysia?".

 

Internet censorship has been defined as the control or suppression of the publishing or accessing of information on the Internet. This must be contrasted with the application of offline laws to the online world. The online environment is not a legal vacuum. In general, if something is illegal “offline”, it will also be illegal “online”. In such cases, the relevant existing laws, such as the Sedition Act, the Defamation Act and the Penal Code would apply.

 

Added to the phalanx of offline laws is Section 233 of the CMA which attempts to bridge the 'digital divide' by rendering it an offence for any person to make or initiate the transmission of any obscene, indecent, false, menacing or offensive comment or communication with the intention to annoy, abuse, threaten or harass any person.

 

In addition to these laws, the role of the MCMC (which was created by the CMA) must be considered when dealing with statements made online.

 

THE ROLE OF THE MCMC

The MCMC is entrusted with the role of promoting and regulating the communications and multimedia industry and to enforce the communications and multimedia laws in Malaysia.

 

The MCMC’s website at www.skmm.gov.my declares that the primary role of the MCMC is to “implement and promote the Government's national policy objectives for the communications and multimedia sector. The MCMC also oversees the new regulatory framework for the converging industries of telecommunications, broadcasting and on-line activities, in accordance with the national policy objectives set out in the CMA …

 

The relevant portions of the national policy objectives under Section 3(2) of the CMA are:

 

(a) to establish Malaysia as a major global centre and hub for communications and multimedia information and content services;

(b) to promote a civil society where information-based services will provide the basis of continuing enhancements to quality of work and life;

(c) to grow and nurture local information resources and cultural representation that facilitate the national identity and global diversity;

(d) to regulate for the long-term benefit of the end user.

Netizens have questioned whether the MCMC has exceeded its statutory powers by ordering the blocking of the Malaysia Today website as Section 3(3) of the CMA expressly stipulates that "nothing in this Act shall be construed as permitting the censorship of the Internet".

 

Further, the MCMC's actions have cast doubts on the Government's promise in the MSC Malaysia 10-Point Bill of Guarantees to “ensure no Internet censorship”.

 

CENSORSHIP TOOLS

Malaysians are not alone in their struggle with Internet censorship. All around the world, countries and corporations are finding it to be an uphill task to monitor and restrict access to websites due to the many ways to bypass restrictions for accessing websites.

 

According to Dmitri Vitaliev of The Guardian, the modus operandi of many nations appears to be to ban access to websites by installing “blacklists” on the entry/exit point of the network i.e. the gateway. These lists contain the names of sites (their URL) and often the IP address of the webserver they are hosted on. Requests for blacklisted sites are processed by the gateway and rejected.

 

Vitaliev further noted that some countries have taken the extra step to introduce a list of words and phrases to the blacklists. This is how it works: when a blacklisted word or phrase is found on a website’s name or search query, the request to pass through the gateway will be denied. For instance, an Iranian blogger who researched on “annmarie, chandice, chastity, bath, belly, dita or ebony”, found that these terms were disallowed from passing through his internet connection.

 

How workable this is in reality is another question altogether. Blacklists are only effective when a website is requested directly. If a third party is called to fetch a page’s content, then these lists become irrelevant.

 

Netizens in censored internet environments cleverly resort to the use of online translations and caching services to access a website indirectly. Others have relied on anonymisers – to conceal your identity from a website – to hide your true destination through the censoring filters. Those who can afford it prefer to skip their country’s network altogether by installing a satellite internet connection. This enables them to circumvent the national gateway and gain entrance into the unrestricted territory.

 

Be that as it may, governments and corporations continue to play a cat-and-mouse game by blocking translation websites, anonymisers and other proxy servers. Filtering software manufacturers add a “circumvention tools” category to their blacklists, to reside beside pornography and extremism. Netizens continue to use RSS (a method used for the syndication of web content), traffic compression tools and chat rooms to continue the free flow of information. These are blocked by governments and corporations too.

 

Given the number of tools that can be utilized to circumvent these blockades, the MCMC’s efforts to censor the websites may be futile, not due to any deficiency in the available laws, but simply because the sheer diversity of the Internet makes enforcement of those laws impracticable.

 

FREE INTERNET - FREEDOM OF SPEECH

The ability to go “undercover” by writing anonymously in an online environment and the advent of blogging have been catalysts for individuals to express their grievances more openly. Ideas and information flow freely and can be transmitted much faster than ever before.

 

It must be recognised that this new found freedom does not mean the absence of rule of law. Article 10 of the Federal Constitution which guarantees the right to freedom of speech and expression recognises that Parliament may enact laws to restrict this freedom in the interest of security, public order, morality and to prevent defamation.

 

Likewise, Articles 29(2) and 30 of the Universal Declaration of Human Rights (UDHR) are also clear on this:

 

  • rights and freedoms may be limited by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others;

 

  • rights and freedoms may be limited by law solely to meet the just requirements of morality, public order and the general welfare in a democratic society;

 

  • no State, group or person has the right to engage in any activity or to perform any act aimed at the destruction of any rights and freedoms set forth in the UDHR.

 

Section 233(1) of the CMA may be an attempt to balance an individual's right to freedom of speech against the legitimate right of others, as recognised by the qualifications to Article 10 of the Federal Constitution and the UDHR.

 

In view of the qualifications embodied in Article 10 of the Federal Constitution, it would appear that arguments by bloggers that the charges filed against the 6 users of the Internet on 13 March 2009 erode the constitutional right to freedom of speech and expression may not be entirely justified.

 

Given the many challenges and difficulties with the abuse of the Internet, particularly by extremists and terrorists to further their propaganda and cause, the desire by governments to impose some form of control on the Internet is understandable and perhaps, justifiable.

 

Unfortunately, legislators are finding it a challenge to keep up. For instance, Section 58 of the Terrorism Act 2000 of the United Kingdom renders it an offence to download material which may be useful to a terrorist. This unfortunately led to the detention of a junior academic at Nottingham University who was legitimately researching terrorism.

 

Perhaps it is timely, as opined by Jonathan Heawood of The Guardian, for an international treaty on the Internet to underwrite freedom of speech. This may also require the creation of a new body, and an amendment to Article 19 of the International Covenant on Civil and Political Rights to spell out our right to use the Internet, and to expect that use to be as free as it appears to be.

 

In the absence of greater transparency and accountability on the part of governmental bodies, it remains to be seen how effective state censorship can be. The MCMC’s act of censorship only breeds public resentment and animosity against itself and ultimately the government of the day.

 

Perhaps the best method of censorship is social censorship as described by Digby Anderson of The Guardian, where it acts against the writers rather than their works and is as concerned with their behaviour as much as their views. In other words, censorship is done by way of social pressure as opposed to state coercion and law. Whether Malaysia, and indeed the world, is ready for it is another matter altogether.

 

JOANNA LOY ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 

 
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