Malaysian Insider is the latest victim of the draconian Communications And Multimedia Act 1998
Access to this site has been denied under Section 263(2) Communications And Multimedia Act 1998 as it violates the following Malaysian law:
Reading on, we see the reason:-
Breached provision section 233 Communication and Multimedia Act 1998
So, there is an ALLEGATION that an offence has been committed under section 233 - but no details of what section, or what is the alleged offence. How can they say 'Breached'?
Has Malaysian Insider been charged in court? Well, apparently not yet..
Has the Malaysian government gone to court and obtained a court order that gives them the power to block access to the Malaysian Insider site? Apparently not..
Rightfully, the government should not act on their own - there must be a need for them to obtain a COURT ORDER, this is necessary to ensure Check and Balance, especially in a Democracy. For example a person arrested, can only be detained for 24 hours, for further detention, the police need to apply to court for a further remand order...
So, if the Malaysian government is going to block our access to Malaysian Insider and/or other websites, should they not be going to court and get an order - which rightly the court will grant or refuse after hearing both parties???
So, how is it that the Malaysian government is blocking our access to the Malaysian Insider website? They said they are relying on section 263(2) - which deals with licensees - what licensee? Well, it is the licensee Network Facilities Provider
"licensee" means a person who either holds an individual licence, or undertakes activities which are subject to a class licence, granted under this Act;
Well, TM is my internet service provider, and all that 263(2) requires is a 'written request by the Commission or any other authority' and they blocked access to Malaysian Insider. This is certainly not right, more so when it is stated 'Breached provision section 233 Communication and Multimedia Act 1998'
How can they say 'BREACHED' - when the most they can say is 'ALLEGEDLY BREACHED' - for after all Malaysian Insider has not yet been charged, tried or convicted yet by a Court of Law. Remember, the presumption of innocence until proven guilty.
Well section 263(2) states what the licensee need to do - "...as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.
Is what TM or other service providers doing considered 'as far as reasonably necessary' - I do not think so. Reasonably necessary may be mere blocking access to the one or two news reports, but certainly blocking access to the entire site is unreasonable. In fact, even if service providers like TM, were to tell Malaysian Insider to remove a certain reports, I believe that Malaysian Insider will do so ... Did TM ask Malaysian Insider to do so? Or did they just block complete access to the site, without even any reference to Malaysian Insider..
"preventing the commission or attempted commission" - this sounds like preventive detention...as this is talking about crimes that may be committed or tried to be committed in the future. It may be alright if it was talking about continuing to commit a crime, implying the crime has been already committed and is still continuing - so steps taken to stop this from happening.
'enforcing the laws of Malaysia' - that there has already been a trial and a conviction, and steps needed to stop continuing commissioning of the convicted offence. Or alternatively, a Court Order has been obtained - but site/report not removed and have to be removed or blocked.
'protection of the public revenue and preservation of national security' - this certainly is not something any enforcement body can decide - and certainly no service provider. This too is a matter for the Courts to decide.. Courts take time - they may say, but really Courts have the power to grant interim orders, and this can be done very fast...
Now, all that is needed is the request by a 'Commission or any other authority' - not even the Minister.
Malaysian Insider is a 'business', and it has many employees, and it has obligations to its advertisers, and its readers - it is, as such a GRAVE INJUSTICE, that the Service Provider blocks access to the site, on the request of a 'Commission' based on what really is an alleged wrongdoing.
Malaysians may need to re-consider their service providers - and TM, as service provider, must not so easily abdicate its duty to its consumers. Section 263(2) gives the internet service provider a wide discretion - they need not just listen and do as requested (not an order) - all they need do is assist as far as reasonable
Show us the request letter by the 'Commission...' - Yes, this should be placed on the blocked site.
In such case, reasonably they should just maybe at most block access to 'news report' in question - never the entire site.
233 Improper use of network facilities or network service, etc
(1) A person who-
(a) by means of any network facilities or network service or applications service knowingly-
(ii) 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
(b) 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,commits an offence.
(2) A person who knowingly-
(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or
(b) permits a network service or applications service under the person's control to be used for an activity described in paragraph (a),commits an offence.
(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.
263 General duty of licensees
(1) A licensee shall use his best endeavour to network that he owns or prevent the facilities provides or the network service , applications service or content applications service that he provides from being used in, or in relation to, the commission of any offence under any law of Malaysia.
(2) A licensee shall, upon written request by the Commission or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.
Gov't blocks The Malaysian Insider
Users of telco Celcom who tried to access the site were shown the official MCMC page for a blocked site, with the message saying the website was barred because "it violated national laws".
According to the notice, The Malaysian Insider had violated Section 233 of the Act, which deals with improper use of network facilities or network service.
The website is still accessible via other Internet Service Providers (ISP).
Malaysiakini discovered the block for Celcom users at around 4.45pm.
The Malaysian Insider, which turned eight today, said its readers who use the Unifi ISP also complained that they could not access the website.
“This is an unpleasant surprise. I've tried to contact MCMC but the officers are in a meeting," the editor and chief executive Jahabar Sadiq was quoted as saying.
When contacted, Jahabar said that MCMC told him it would be issuing a statement on the matter.
Malaysiakini is contacting Communications and Multimedia Minister Salleh Said Keruak for their response.
The MCMC in a statement later today confirmed the block for producing content that allegedly violated Section 233 of the Communications and Multimedia Act.
It also warned other news portals not to circulate what it described as "unverified" information.
The government last week said it plans to table amendments to the Communications and Multimedia Act to introduce heavier penalties for offences under the Act.
The government is also mulling mandatory registration for bloggers.