Gobind, Communication Minister, MCMC Commissioners and anti- freedom of expression/press laws must go NOW?

Violation of Freedom of Expression and Media Freedom by not even telling the 'victims' the alleged wrongs that they did that has resulted in blocking of access to websites, blogs, FB, etc - A great injustice committed by the Malaysian Communications and Multimedia Commission (MCMC)... more so since thereafter the MCMC failed to charge and prosecute said 'victims'.

And guess what, the victims may also not really know WHO caused the blocking of access to these sites - they would most likely blame TM and other internet service providers(ISPs) ...or even wrongly think that this was an action committed by some 'hacker'... All MCMC really needs to do is to 'request'/tell the TM or other internet service provider to 'block access' to websites - or even block a particular individual access to the internet... 

So, was your website or computer hacked by someone - or was it really the government or in particular possibly the Malaysian Communications and Multimedia Commission (MCMC)?

RULE OF LAW -  Well, penalizing anyone just because of some reports and complaint, without even informing the victim is so wrong and unjust. Without even telling the victim the right to be heard - sometimes even a chance to say that he/she was not even guilty of the said allegations is again totally wrong.

In the past, when the government is of the opinion(or suspects) that the publication of a news article is breaking the law, they inform the relevant media, and then the newspaper still gets published with the said news item maybe 'blacked out' - but not a total blockage of access to the Media(especially an Online Media)...affecting employees and the business. 

What happened to Malaysian Insider was shocking . it may have also happened to many other blogs and websites like Malaysian Chronicle, etc...It also prevented our access to foreign news sites...
 

Section 263(2) Communications and Multimedia Act 1998 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.’ 

What this law says that what is required is merely a 'written request by the Commission or any other authority' to a licensee, which reasonably means TM or other internet service provider(ISP)...and the ISP seem to have no choice but to block the access of the public and maybe even the affected user to the internet...to the website, blog, etc.

In the case of the Malaysian Insider, at least the Commission came out publicly to state that it was responsible BUT even then the  statement on the MCMC website in Bahasa Melayu which was most vague  - 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) [See below the Malaysian Bar Resolutions that have more details]

What exactly was the wrong that Malaysian Insider did ....which finally ended with the closing down of Malaysian Insider and the loss of employment of its many staff.

Subsequently, there was no charge or prosecution of Malaysian Insider by the MCMC...was there? 

Now, such laws really must be speedily abolished. Rule of Law requires the party to be penalised to be informed first of complaint...accorded the right to be heard. If there was one article that was 'criminally wrong', then that article could be ordered to be immediately taken down. It is best that a court order be obtained first.

Now, we hear about how MCMC caused the blocking the Malaysiakini websites from about 9.15pm on 9/5/2018(The date in which the GE14 results were being announced) - and then, this was later removed by about...

According to Malay Mail, the emails were sent at 9.13pm on May 9 to ISPs including TM (and its subsidiary Webe), Maxis, Celcom, Digi, YTL, Time, Mykris, Redtone, Aries Telecoms, and Extreme Broadband....The directive was then reportedly revoked in another email sent at 11.15pm the same night.

Why? Remove the blocking because Pakatan Harapan was winning? In any event, was the Commission sitting and deciding on that day ...Maybe the Chairman and the entire Commission should  be terminated. 

ELECTION RESULTS - for after all, if we were to only rely on TV1, TV2, TV3, Bernama TV and Astro Awani - the results were really flowing in very very slow that night..Malaysiakini was providing the best service on that day - and MCMC 'blocked' it?

NEW MINISTER - Listen to the Malaysian Bar - 'Malaysian Bar calls for the repeal of section 263, section 233 and such vague provisions in the Communications and Multimedia Act 1998.' 

Section 263 is, amongst others,  concerning '...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; - so was it Najib who felt 'angry"? Now when people fight for rights, including workers,...naturally employers and alleged violators of rights may get 'annoyed', feel 'threatened' and/or even 'harrased' and this is one tactic commonly used to end human rights violations and injustice...

Harassing Internet Service Providers to carry out the "request' or else you will be guilty of an offence is also wrong...

Internet Service Providers, are like those supplying water, electricity, telecommunication - they should not be 'requested' to stop the service because the MCMC or the police 'suspects' that someone is using the services provided to carry out a crime... That is certainly not right.  

Remember again the presumption of innocence until proven guilty in court...It is Not until proven guilty in the eyes of the MCMC, the police or even the Public Prosecutor...The Court must be satisfied that one is guilty .

The MINISTER must also tell Facebook and other Aps like Whats App not to censor or block communications of its users - because MALAYSIA NOW BELIEVES IN THE FREEDOM OF EXPRESSION, OPINION, MEDIA, ETC...Personally, before GE14, Facebook often blocked my posts to FB groups that I belonged to ...sometimes even for several days. Facebook is a means of communication between members...and it really must be committed to protecting freedom of expression and opinion...

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.

 

MCMC ordered at least 11 ISPs to block M'kini GE14 sites

Published on 19 May 2018, 7:02 pm  |  Modified on 19 May 2018, 7:32 pm

   

The Malaysian Communications and Multimedia Commission (MCMC) instructed at least 11 internet service providers (ISPs) to block Malaysiakini’s three election result websites on polling night.

This was according to copies of emails from MCMC’s Network Media Management Department under its Digital Surveillance Division, as reportedly sighted by online portal Malay Mail.

According to Malay Mail, the emails were sent at 9.13pm on May 9 to ISPs including TM (and its subsidiary Webe), Maxis, Celcom, Digi, YTL, Time, Mykris, Redtone, Aries Telecoms, and Extreme Broadband.

Other companies that received the email also included government IT services firm HeiTech Padu Bhd, data centres AIMS and Hitachi Sunway Information Systems, and network services firm Global Transit Communications Sdn Bhd.

The directive was then reportedly revoked in another email sent at 11.15pm the same night.

The three websites in question were live.malaysiakini.com, live.undi.info and undi.info.

The first two websites provided live updates of the 14th general election results, while the last website is a repository of voting data from the past four general elections.

All three websites are run by Malaysiakini.

A study by the digital transparency advocacy group Sinar Project had previously confirmed that one of the websites, live.undi.info, had been blocked by TMNet and Maxis on polling day.



‘Improper use of network services’

MCMC yesterday said it had ordered Malaysiakini’s “live updates” of the election results on polling night to be blocked out of fear it could affect “national stability, public order and harmony, and economic stability”.

This was also stated in a copy of its May 9 confidential request to various ISPs, as reportedly sighted by Malay Mail.

In its request, MCMC had asked for the three websites to be blocked or redirected to the IP address 175.139.142.25 — the address used to host a standard government legal notice that a site has been blocked.

“The commission hereby request you to undertake the actions under Section 263(2) of the Communications and Multimedia Act 1998 with respect to the following URL/web address,” said the letter signed by MCMC chief operating officer Datuk Mazlan Ismail, on behalf of its chairman Tan Sri Halim Shafie.

“Specific to this request, due to the nature of the offence that may affect national stability, public order and harmony, and economic stability, you are required to perform the redirection immediately.”

Additionally, MCMC stated in its May 9 order that the three sites had allegedly contravened Section 233 of the Communications and Multimedia Act with regards to “improper use of network facilities or network service”.

Section 233 deals with “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.”

If found guilty, one stands to be liable to a fine not more than RM50,000, or prison not more than one year, or both — and further fine of RM1,000 for every day the offences is continued.

The ISPs were told that failure to comply with MCMC’s request to block the three sites would be an offence under Section 242 of the same act.

Section 242 handles compliance to the Act, punishable with fine not exceeding RM100,000, or prison not exceeding two years, or both.- Malaysiakini, 19/5/2018