Bar AGM - stop censorship of the internet - unblocking and restoring internet access to The Malaysian Insider, Malaysian Chronicle..

Malaysian Bar’s 70th Annual General Meeting (“AGM”), held on 19 Mar 2016 at Renaissance Kuala Lumpur Hotel, which saw the attendance of a  total of 1,110 Members, adopted the following Resolution 

Resolution on Internet Censorship, The Malaysian Insider, and Freedom of Expression and Opinion

Whereas:

1. The access to the website of alternative online media, The Malaysian Insider, have been denied to Malaysians by the Malaysian Communications and Multimedia Commission (“MCMC”).

2. A visit to the said website will disclose, amongst others, the following statement: “Access to this site has been denied under Section 263(2) Communications And Multimedia Act 1998 as it violates the following Malaysian law: … Breached provision section 233 Communications and Multimedia Act 1998.”

3. In the case of the Malaysian Chronicle website, another alternative media outlet, all that one sees is ‘This website is not available in Malaysia as it violate(s) the National law(s).’ – there is no mention of even what laws have been breached and under what provision is the site blocked.

4. A statement in Bahasa Malaysia dated 25/2/2016, which did not even indicate the name of the person who issued the statement, in the Malaysian Communications and Multimedia Commission (MCMC) website, confirms that it is the MCMC that blocked the The Malaysian Insider website.

MCMC SEKAT LAMAN THE MALAYSIAN INSIDER

CYBERJAYA, 25 Februari 2016 --- Suruhanjaya Komunikasi dan Multimedia Malaysia (MCMC) telah menyekat laman The Malaysian Insider ekoran tindakan portal berkenaan yang telah mengeluarkan kandungan-kandungan yang menjurus kepada kesalahan di bawah Seksyen 233, Akta Komunikasi dan Multimedia 1998.

Sekatan tersebut juga dilakukan oleh MCMC berdasarkan aduan-aduan dan maklumat yang diterima daripada orang ramai.

Sehubungan itu, MCMC memperingatkan portal-portal berita agar tidak menyebarkan atau menyiarkan artikel-artikel yang tidak ditentukan kesahihannya. Ini kerana, tindakan sedemikian boleh mengundang kekeliruan dan mencetuskan situasi yang tidak diingini.

SEKIAN

5. The reason seems that the said The Malaysian Insider had published contents that amount to a violation of Section 233 Communications and Multimedia Act 1998. There are, however, no details whatsoever, as to what the alleged violation was – no mention of date and time, no mention of which particular report, and no mention of the particulars of the statements that allegedly were in breach of section 233. Section 233(1) and (2), which contains the offence is as follows:

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.

6. A perusal of section 233(1) will see that it is just too broad and vague, and is open to abuse. For example, the highlighting of violation of human rights or laws, or facts connected to alleged violations of rights/laws, would likely ‘annoy’ or even ‘harass’ the wrongdoer, and for the alleged wrongdoer, it could also be said to be ‘menacing and offensive’. This should never be considered an offence.

7. As such, this section deters even the highlighting of human rights abuses, breaches of law and even possible government wrongdoing. This section even deters the sharing of such relevant and important facts, and/or opinions over the internet.

8. Section 233(1), together with section 263(2), violates even the very assurance provided for in Section 3(3), which states ‘Nothing in this Act shall be construed as permitting the censorship of the Internet.’ The blocking of access to websites like The Malaysian Insider, could hardly be said to be not ‘censoring the internet’.

9. Section 263(2) states, ‘(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.’ 

10. The wordings of section 263(2) suggest the ability to block website/s or website access (and/or ‘censor) for the purpose of preventing a possible offence or an attempt to commit an offence – as such, it is akin to a ‘preventive detention’ law like our former Internal Security Act (ISA). This means websites blogs and other social media can be pre-maturely blocked even before any crime has been committed. Was the The Malaysian Insider website access blocked because there was some ‘suspicion’ that The Malaysian Insider may breach some law in the future?

11. We remind ourselves of the legal principle that is the ‘presumption of innocence until proven guilty. No one can be said to have breached any law until the court, after a trial, determines whether one is guilty or not. No administrative authority and/or executive body can arbitrarily determine whether one has breached the law or not – all they can do is allege for it is the courts that determine whether a law is breached or not.

12. The other use of section 263(2) is for the enforcing of the laws in Malaysia – and, the question is which law is it enforcing, and does the said law allow the blocking of access to the internet or any particular website, remembering the guarantee that there will be no ‘censoring of the internet’.

13. What makes it even more dangerous is that, unlike the draconian ISA and Detention Without Trial laws, which requires a Minister’s order, here all that is required is not even an order but merely a ‘written request by the Commission or any other authority’ – this is unacceptable.

14. An ISA detention order by a Minister could be subject to judicial review, but here under section 263(2), we only have a ‘written request’, that too directed to the licensee, which seems to be the internet service providers, not even the affected website like The Malaysian Insider, making it even more difficult to appeal. Hence, the victim may be deeply prejudiced – not having the ability to appeal to higher authorities, let alone proceed with a judicial review.

15. In Malaysia, when a person is deprived of his rights or freedoms, like in an arrest, the enforcement authority only can hold him/her for 24 hours, and for further detention a court remand order is required. 

16. However, in this case of ‘blocking access to internet websites’, which we now know can last indefinitely, there is no requirement for any court order, and as such this is grossly unjust. 

17. In the case of The Malaysian Insider, there were also no material particulars as to which the ‘offending’ article was, and what was wrong with it. 

18. Even if there was some offending report, reasonable would have been blocking access to the particular report/article – not the blocking of the entire media website.

19. In Parliament, the Deputy Communications and Multimedia Minister Datuk Jailani Johari ‘…said the government had on January 19 formed a special committee to monitor the use of the internet and social media platforms, with the panel chaired by minister Datuk Seri Salleh Said Keruak and comprising representatives from his ministry, the Malaysian Communications and Multimedia Commission (MCMC), the police and the Attorney-General Chambers….to ensure stern action on those using social media to plant hate against government institutions and prevent social media from becoming the cause of the incitement of discord through the propagation of lies, hatred and religious extremism…’(Malay Mail, 8/3/2016)

20. In the said report, it also disclosed that since January 19 until February, ‘the MCMC has probed 22 cases of internet misuse and blocked a total of 399 websites.’ The law does not give the MCMC the specific power to block access to websites. 

21. No material particulars were given as to which websites have been blocked and for what specific reason they were blocked. One could not find even on the Malaysian Communications and Multimedia Commission (MCMC) website a listing of the websites blocked, and the reasons for the blocking of access. Hence, not only are the owner/s of the said websites deeply prejudiced, but also we who do not want internet censorship.

22. Even if was a pornographic or gambling website, there must be a requirement for a court order for the blocking of access. It should be noted that now many local and foreign media websites, websites/blogs of individuals and civil society organisations are also being blocked arbitrarily. In all cases, the owners of the website must be given due notice and the opportunity to be heard.

23. The Malaysian Bar, in its 1/3/2016 statement, amongst others, said: ‘…The right to information, or the right to know, is implicit in the guarantee of freedom of speech and expression that belongs to every citizen, as enshrined in Article 10(1)(a) of the Federal Constitution. Indeed, a true democracy envisages a meaningful right to know…. The blocking of access to websites is a serious curtailment of the right to know, as it thwarts the flow or dissemination of information, thoughts and ideas.  This renders the constitutional guarantee in Article 10(1)(a) vacuous or meaningless… Further, a critical and complementary aspect of the fundamental right to freedom of speech and expression is contained in Article 19 of the Universal Declaration of Human Rights, which states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

 

THEREFORE, it is hereby resolved that:

A. That we, the Members of the Malaysian Bar, and the Malaysian Bar, call on the Malaysian government to stop censorship of the internet.

B. That we, the Members of the Malaysian Bar, and the Malaysian Bar, call for immediate unblocking and restoring internet access to The Malaysian Insider, Malaysian Chronicle and all such media sites and blogs that publish information, opinions and views. 

C. That we, the Malaysian Bar calls for the repeal of section 263, section 233 and such vague provisions in the Communications and Multimedia Act 1998.

D. That the Malaysian Bar calls for the repeal of all such laws that allow for the deprivation of human rights and freedoms by executive and/or administrative authorities, without the necessary requirement of a court order.

E. That the Malaysian Bar review Malaysian laws, and highlight laws and/or provisions therein that is contrary to international human rights standards. 

F. That the Malaysian Bar uphold the rule of law, including the right to be heard and a fair trial.