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JILT 2004 (3) - Ida Madieha Azmi

Content Regulation in Malaysia:Unleashing Missiles on Dangerous Web Sites

 

 
Ida Madieha Azmi
Associate Professor, Private Law Department, International Islamic University
imadieha@iiu.edu.my

 

Abstract

The open and democratic nature of the internet facilitates all kinds of abuses. Obscenity, hatred speech, defamatory messages, indecent content and other type of harmful content flourish in the Internet. For this reason, many countries are now regulating speech on the Internet, just like what they have traditionally done for all other types of mass media. To claim that the Internet must be left free from the shackles of law and regulation would not just create a lawless wild-wild-west but also would channel all forms of illegal conduct and speech to migrate to the ‘unregulated’ Internet.

Reflecting these concerns, many countries and regions are now re-examining their stand on the Internet. The European Parliament Council has set an important precedent by publishing a report on ‘illegal and harmful content on the Internet’ [1]. One of the report's most important suggestions with regards to illegal content is to maintain consistency. What is illegal offline must remain illegal online. As the report clearly advocates, the presence of illegal and harmful content on the Internet has direct repercussions on the workings of the Internal Market. The report has further identified types of harmful content according to their effect: those that affect national security, the safety of minors, the protection of human dignity, economic security, information security, protection of reputation and intellectual property.

The same trend is now seen in Malaysia. Despite all the assurances that the government would not censor the Internet, it is beginning to be accepted that leaving the Internet absolutely free from the dictates of state control would not only be undesirable but would frustrate national information policy. Noting the the increase of ‘hate messages, seditious writings and e-mail advocating religious dissent' on the Internet, Dato’ Seri Utama Dr. Rais Yatim famously warned a few years ago that certain quarters were clearly taking advantage of the government’s no censorship policy. And for those Internet publications that in his words threatened the country's national security this was too generous a policy. The Malaysian government, he said, should no longer be afraid of unleashing a few missiles on such sites. [2].

With related worries and concerns in mind, a content Code was recently drafted in Malaysia which sets out guidelines, good practice procedures and standards for content disseminated to audiences by service providers in the communications and multimedia industry in Malaysia [3]. This comprehensive Code was drafted by the Communications and Multimedia Content Forum under sections 212 and 213 of the Communications and Multimedia Act 1998, an industry body representing relevant sectors of the industry to ensure that the Code reflects the views of the community at large . The Code seeks to identify what is regarded as offensive and objectionable while spelling out the obligations of content providers within the context of social values in this country. The code, which is a blueprint of self regulation, is drafted purely by an industry society with no interference from the government, enables the government to keep up with its promises to steer away from intruding into the Internet.

This paper will examine the content of the Code vis a vis other types of legislative forms of control such as the Printing, Presses and Publications Act 1984 and the Sedition Act 1948 (Revised 1969). The Code effectiveness in ironing out all the abuses mentioned in it also leaves a lot to be desired. This can be seen from the previous events whereby several persons have been taken in under the Internal Security Act for alleged circulation of e-mails of terrorist attack on some popular shopping malls in Malaysia [4]. The paper will also examine the scheme of control in other relevant countries, in particular Australia, as it has been quoted as a potential ‘example’ for Malaysia to emulate. The Singapore Code of Conduct for the Internet is also an interesting example of a stricter regime. Thus it will also be highlighted for purposes of comparison [5].

Whatever the method of control, the most important thing is that it must reach its target. The arrest of Internet rumour mongers under the draconian Internal Security Act 1960 pose a challenge to the idea of adopting a self-regulation regime. If the idea was to create certainty, stability and responsibility in the industry, they must be allowed to control the game with their own referees. Perhaps, when the security of the nation is at stake, it is a different ball game altogether and the policemen have to come in.

Keywords: Content regulation, content code, Communication and Multimedia Act 1998, self-regulation, prohibited content, link providers.


This is a refereed article published on: 15 December 2004.

Citation: Azmi, 'Content Regulation in Malaysia:Unleashing Missiles on Dangerous Web Sites’, 2004 (3)The Journal of Information, Law and Technology (JILT).<http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_3/azmi/>.


1. Introduction: Self Regulation Malaysian Style

It has to be acknowledged that the rigid system of censorship that is practised in the case of broadcasting and the printed press is not suitable in the cyber-world [6]. The Internet is a pull medium and not a push medium. Online users largely choose what they want to see, read and hear on the Internet. And to a certain extent they do contribute to online content in their own personal capacity. However, responsibility for the content lies primarily with the creator of the content.

Thus, it is not surprising that some countries opt both for self-regulation and Industry Codes as means of regulating content. The advantage of such an approach is that there is no single authority that is entrusted with the task of screening the Internet of any possible harmful, illegal and unlawful content. Such an approach dispels the possibility that individuals, governments or organisations will then seek to obtain too strong an influence on either the control or the provision of information services [7].

In Australia, for example, with the amendment of the Broadcasting Act [8], the government has set up a Complaints Bureau under the aegis of the Australian Broadcasting Authority (ABA) that determines complaints on prohibited content [9]. Based on this model, the Communications and Multimedia Content Forum of Malaysia recommended the establishment of a similar set-up: a Malaysian Complaints Bureau. This Bureau comprises of an appointed Chairman and six members of the Forum, one each representing Advertisers, Audiotext Service Providers, Broadcasters, Civic Groups, Content Creators/Distributors and Internet Access Service Providers. Detailed guidelines on the complaint procedures are laid down in the Code. The most important is that all complaints received from the public must be made in writing. If possible, the part of the Content Code that has been breached together with supporting documents or details of the alleged misconduct should be made clear to the Bureau. In exercising its duty, the Complaints Bureau may also hold an inquiry to determine the merit and legitimacy of a complaint. In such inquiry, the Bureau has power to request not only documentary evidence but also witnesses to support the complaint [10].

In comparison, the particulars that are needed to support a complaint in Australia [11], is by far more detailed. They include:

(a) identification of the Internet content; and

(b) set out how to access the Internet content (for example: set out a URL, a password, or the name of a newsgroup); and

(c) if the complainant knows the country or countries in which the Internet content is hosted, to set out the name of that country or those countries; and

(d) set out the complainant’s reasons for believing that the Internet content is prohibited content or potential prohibited content; and

(e) set out such other information (if any) as the ABA requires.

The Australian Broadcasting Authority is empowered to investigate matters on its own initiative. On the same plane, the Malaysian Complaints Bureau may also investigate any Content which is considered to be in breach of the Code without there necessarily having been a complaint. [12]

2. The Malaysian Style of Content Regulation

The Content Code is a model of self-regulation among industry and is drafted by members representing all the key industries. Although compliance is voluntary, as it is the industry’s own regulation, there is no perceived problem of lack of bindingness. Compliance with the Code brings a number of benefits. For instance, it is a defense against any prosecution, action or proceeding of any nature, whether in court or otherwise [13]. As the likelihood of industry players being sued or charged for hosting illegal or unlawful content is clear, taking note of their obligation under the Code will prove to be a wise choice.

The Code sets out guidelines on approved and prohibited content in Malaysia, especially with respect to broadcasting, online content, audiotext hosting services and limited content guidelines. As far as printed materials are concerned, the present guidelines under the Printing Presses and Publications Act 1984 will still be applicable.

Under the Code, the term content is defined as 'any sound, text, still picture, moving picture or other audio-visual representation, tactile representation or any combination of the preceding which is capable of being created, manipulated, stored, retrieved or communicated electronically [14].' The definition draws its origin from the definition of the term ‘cyberspace message’ in the Communication and Multimedia Act 1998 [15]. The term ‘online’ meanwhile has been defined as a networked environment available via a connection to a network service whereby Content is accessible to or by the public whether for a fee or otherwise and which originated from Malaysia. [16]

However, not all content will be subjected to the Industry Code. With respect to online content, the following is excluded:

(a) Ordinary private and/or personal electronic mail other than bulk or spammed electronic mail;

(b) Content transmitted solely by facsimile, voice telephony, VOIP and which is intended for private consumption; or

(c) Content that is not accessible to the public whether freely, by payment of a fee or by registration, including (but not limited to) content made available content applications serviceable by way of a closed content application service or a limited content applications [17].

From the above provision, it is evident that bulk e-mail will also be subjected to the Code, in particular with respect to guidelines for advertisement. Arguably, bulk e-mails may be classified as private communication. As a result, direct marketers would have to be bound by industry guidelines on advertisement regardless of the format they use. In contrast, under the Australian Broadcasting Act, the term ‘Internet content is defined to mean:

Information that:

(a) is kept on a data storage device; and

(b) is accessed, or available for access, using an Internet carriage service; but does not include:

(c) ordinary electronic mail; or

(d) information that is transmitted in the form of a broadcasting service [18].

As there is no specific exclusion for bulk e-mails, which are essentially online advertisements, they will be left out from the dictates of control.

3. Prohibited Content

The Code has classified ‘prohibited content’ into 9 categories; they are

1. Indecent Content

2. Obscene Content

3. Violence

4. Menacing Content

5. Bad language

6. False Content

7. Children’s Content

8. Family Values

9. People with Disabilities [19]

From a careful reading of these various categories of content, several observations can be made. Firstly, they all relate to three categories of content: content that affects human dignity, the protection of minors and content that falls within the wide rubric of morality and ethical values [20]. In comparison, the European Union through its report, ‘Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions’, identifies a wide range of illegal, unlawful and harmful content which includes:

national security (instruction on bomb-making, illegal drug production, terrorist activities);

protection or minors (abusive forms of marketing, violence, pornography);

protection of human dignity (incitement to racial hatred or racial discrimination);

economic security (malicious hacking);

protection of privacy (uauthorised communication of personal data, electronic harassment);

protection of reputation (libel, unlawful comparative advertising);

intellectual property (unauthorized distribution of copyrighted works, e.g. software or music) [21].

Although they were not specifically mentined in the code, the various Malaysian laws related to sedition, pornography, defamation and protection of intellectual property must also be complied with. [22] This is unfortunate to the extent that their related take down procedures are a potentially effective means of policing the Internet. In fact, none of the notice and take down procedures related to these laws have not been adopted for any of the types of content mentioned above. This limits the types of remedies available to aggrieved parties, which in each case only have at their disposal the traditional remedies outlined in the legislation relating to each matter.

Indecent Content

Indecent Content is material which is offensive, improper and against current standards of accepted behaviour. This category is divided into two further groupings:

(i) Nudity and

(ii) Sex and nudity. [23]

In a country where nudity is not something which is tolerated by the public, it is not surprising that nudity comes first in the list of prohibited content. As explained in the Code itself, nudity and sex cannot be shown under any circumstances, unless approved by the Film Censorship Board.

Obscene Content

Obscene content has been described as content that gives rise to a feeling of disgust because of its lewd portrayal and is essentially offensive to one’s prevailing notion of decency and modesty. The test of obscenity is whether the content has the tendency to deprave and corrupt those whose minds are open to such communication. Among the classes of content that falls within this category are:

(i) Explicit sex acts/pornography.

(ii) Child pornography, and

(iii) Sexual degradation [24].

As the Code reports, any portrayal of sexual activity that a reasonable adult considers explicit and pornography is prohibited. One may wonder then if the two - explicit and pornography - are synonymous. With the current broadcasting and mass communication standards practised in Malaysia, no amount of explicit sexual content would be tolerated, even short of pornographic. However, combinations of sexual content and crimes such as rape, statutory rape, and bestiality are strictly prohibited. The portrayal of such scenes through animation is equally prohibited.

Another major no-no is child pornography. The prohibition would include any form of sexual exploitation of children including ‘the depiction of any part of the body of a minor in what might be reasonably considered a sexual context, and any written material or visual and/or audio representation that reflects sexual activity, whether explicit or not, with a minor.'

The Code goes further and prohibits the portrayal of anybody as a mere sexual object. Nor can anyone be demeaned in such a manner.

These prohibitions, as strict as they may be, have to be seen in the context of the role they play in preserving Malaysia's social and ethical values. Eastern values are far more conservative and value laden that their Western counterparts.

Violence

Depictions of violence are common in popular culture. To prohibit violence totally would be out of touch with reality. Thus, the Code allows the portrayal of violence as long as it is portrayed responsibly, and not exploitatively. However, certain violent content is prohibited:

(i) Offensive violence,

(ii) Imitable violence,

(iii) Sexual violence, and

(iv) Violence that can be viewed by young vulnerable audiences [25].

The portrayal of violence(whether physical, verbal or psychological) is considered to be offensive when it upsets, alarms or offends viewers. However, the portrayal of violence in the context of news reporting, discussion or analysis and in the context of recognized sports events is justifiable, as these are depictions of the truth and are not done for the sake of entertainment.

Imitable violence, meanwhile, refers to acts of violence that are imitated in real life. It is hard to distinguish this category from the others that fall within the classification of violent content, as surely, most depictions of violence are culpable to imitation.

Sexual violence is covered earlier under the category of obscene content and its recurrence within this category shows how offensive such material is in the eyes of the Malaysian public.

The last category does not seem to be an independent category. Instead it endorses a precautionary rationale: younger more vulnerable audiences should be protected from corrupting portrayals of violence.

Menacing Content

The type of content that falls within this category is content that causes annoyance, threatens harm or evil, encourages or incites crime, or leads to public disorder. This includes hate propaganda which advocates or promotes genocide or hatred against an identifiable group and information which may be a threat to national security or public health and safety [26].

A good case to illustrate on this point is Licra Et Uejf vs Yahoo! Inc and Yahoo France [27], a decision of the Superior Court of Paris, which was rendered on May 22, 2000. In this case, the French Court ordered a US site to remove a Nazi’s souvenir item from its auction site. In France, any kind of glorification of Nazism constitutes a crime or illegal nuisance within the meaning of articles 808 and 809 of the New Code of Civil Procedure. The Court was of the opinion that the US corporation was in a position to identify the geographical origin of the site based on the IP address of the caller. Further, it was the view of the Court that the US corporation could have prohibited surfers from France, by whatever means were appropriate, from accessing the services and sites in question.

Such content is comparable to that which is likely to ‘alarm public opinion’ or ‘is likely to be prejudicial to public interest or national interest under the Printing, Presses and Publication Act 1984. It will be interesting to see in the future how this provision will be invoked to control hate speech and anti government propaganda that is now flourishing on the Internet. Of particular interest will be whether or not the kind of control prescribed by the Code will be effective enough to iron out such content from the Internet.

Bad Language

The restriction against bad language includes expletives and profanity. Explicit within this category are:

(i) offensive language,

(ii) crude references,

(iii) hate speech, and

(iv) violence [28].

The worst of the three, especially in the Malaysian context of a multilateral society would be hate speech. In this instance, hate speech refers to any portrayal (words, speech, pictures, etc.) which denigrates, defames, or otherwise devalues a person or group on the basis of race, ethnicity, religion, nationality, gender, sexual orientation, or disability.

Violence occurs again within this section, , reflecting the overall concern over the excessive use of violent scenes and languages in popular entertainment.

False Content

This would definitely be the most difficult type of content to be contained in the Internet. Such content has been described as content which contains false material and islikely to mislead, possibly due sometimes to incomplete information [29]. The measures which the content providers would have to take to reduce false content are outlined in the code itself. Only two exceptions are drawn out of this category:

(a) satire and parody;

(b) where it is clear to an ordinary user that the content is fiction [30].

Children’s Content

Children here means those who are 14 years and below. Two important concerns are raised in respect to children’s content:

(a) violence, and

(b) safety, security and imitable acts [31].

Considering such rigourous standards for children, it is questionable how the industry players are complyingwith their part to ensure that such content is left out of children’s reach.

Social and Ethical Fabrics of the Society

The last two categories reflect that concern; i.e. the need to maintain and preserve family values; in particular with respect to gender issues. An explicit example is given with respect to women and men participating on equitable basis in the society [32]. The same concern applies with regard to persons with special needs It is pointed out in the Code that reference to disability should only be included where necessary in the context and patronising expressions should be replaced by neutral terms [33].

4. Specific Online Guidelines

The standards of liability depend on the degree of control one has over the complained online content. As made clear by the Code, a Content Subject is responsible when he/she has:

(a) full knowledge of the substance of the content; and

(b) control over the substance of such content [34].

The following activities are excluded from the ambit of ‘provide’:

(a) the enabling of access including (but not limited to) by way of providing connectivity or links to such Content;

(b) the aggregation of such Content; and

(c) the hosting of Content online.

The prohibition applies to those who ‘knowingly’ provide online prohibited content [35]. However, it is not immediately apparent what the standard of knowledge here means? Is it actual or constructive knowledge? What would the industry have to prove in order to dispel any allegation of knowledge or control?. Would the simple receipt of complaint on a certain content be indicative of knowledge? It would be interesting to see the approach taken by the Malaysian authorities in this issue.

To whom is the Code applicable to? Most of the industry players in the cyberspace would be subjected to the code, including but not limited to:

(a) Internet Access Service Providers

(b) Internet Content Hosts

(c) Online Content Aggregators

(d) Link Providers [36].

Inclusive in the list is a host of intermediaries that serve the Internet. Applying the policy that the degree of standard depends on the degree of control, it is evident that those who have little control over the content would have less stringent obligations under this Code, which includes Internet Access Service Providers, Online Content Aggregators and Link Providers.

(a) To this end, the Code acknowledges that some providers may be innocent parties [37]. These parties are not responsible for the content that they carry but they are still expected to adhere to the measures outlined in the Code.

Measures Expected of the Industry Players.

At the outset, the Code reflects the concern that the measures which are recommended should be:

(i) technologically neutral;

(ii) fair; and

(iii) widely affordable and not adversely affect the economic viability of the communications and multimedia industry [38].

Generally, two types of measures are expected of the Code subject, depending on their degree of control; i.e. general measures and specific measures.The general measures primarily revolve around the type of information that needs to be provided:

(a) The types of tools available to assist users in filtering or controlling Online content;

(b) User ethics in accessing and providing content over the Internet;

(c) Responsibilities of adult users over children under their care in relation to Internet use;

(d) Measures which can be taken by parents, guardians and teachers to control children’s access to Online content;

(e) Content provider ethics;

(f) This content code; and

(g) The appropriate channel to which a complaint regarding online content may be made, and the procedures by which such a complaint is to be made [39].

These general measures only outline the kind of information and notice that are expected from the Code subject. It is part of the educational role the industry players play in assisting Internet users in making their choice and selection in terms of content and the technological tools that are available to filter content.

The Specific measures meanwhile cover the duty of the Internet Access Service Provider (IASP) to impose conditions on their subscribers as to the suitability of their content; and their right to withdraw access, block or remove content in cases of violation of the Code. The latter right; i.e. block and removal can only be done in accordance with the procedures mentioned in the Code. This obligation is reflective of the notice and take down approach that has been adopted in the EU and the US.

Generally, the IASP will have to take down the prohibited content within a period of 2 working days from the time they receive notification from the Complaints Bureau [40].

5. Content Aggregators and Internet Content Host Providers

Content aggregators are also expected to incorporate the specific measures indicated above [41]. Content aggregators are those who aggregate and/or purchase content. However, if they have editorial rights over the substance of content, they will be personally liable over the content [42].

The same expectation is placed on the Internet Content Host Providers. Internet Content Hosting Provider means a provider in its capacity of merely providing access which is neither created nor aggregated by itself but which is hosted on its facilities [43].

Link Providers [44]

Link providers are expected to remove links to sites containing prohibited content within 24 hours of notification by the Complaint Bureau [45].

Measures Not Required

As made clear by the Code, certain measures are not required. These include:

(a) Provide rating systems for Online content;

(b) Block access by their users or subscribers to any material unless directed to do so by the Complaints Bureau,

(c) Monitor the activities of users and subscribers; or

(d) Retain data for investigation unless such data is rightfully requested by the relevant authorities in accordance with the Malaysian law [46].

The uniqueness of the Malaysian style is that the industry players are not expected to adopt some kind of rating system or similar technological measures to ensure compliance with the Code. Action is only taken based upon Complaint. This is a fairer system as it is not subjecting any industry players to any kind of active pre-screening that inhibits freedom of expression and hampers the speed in which message travels in the cyberspace.

Despite that, adopting a classification or a rating system would assist the authorities in policing the Internet. In Australia, a classification system, equivalent to that adopted to broadcasting is adopted. For content hosted in Australia, it is considered to be prohibited if:

(a) the content has been classified RC (Refused Classification i.e. material that is illegal in any medium) or X (Sexually explicit material) by the Classification Board;

(b) the content has been classified R (material considered unsuitable for people under 18 years of age because of violence, language, sexual content, adult themes or for some other reason) by the Classification Board and access to the Content is not subject to a restricted access system [47].

For content hosted outside Australia, the prohibited materials include RC (Refused Classification) and X (sexually explicit material) by the Classification Board. This difference takes into account the fact that if the content originates from Australia itself, there is a possibility of taking it down, while for foreign content, the best method to deal with it is either to block it or use filtering devices. If the material is sufficiently serious (for example, illegal material such as child pornography), the ABA will refer the material to the appropriate law enforcement agency.

The Australian Broadcasting Authority (ABA) is also considering to adopt an Internet content labeling schemes compatible with the Platform for Internet Content Selection (PICS). Developed by the World Wide Web Consortium, PICS is a platform that has been recommended by the European Union in their Communication Paper [48]. In this respect, it is wise that the Malaysian authorities emulate the same classification system as this would enable greater cooperation in content control across the region.

Stemming the outflow of ‘unsuitable content’ requires the cooperation of all parties. From the illustrations given on this, the Content Code requires that that all parties must do their part. No one can claim that it is not within his/her control to do so, he/she is expected to do whatever is possible within his/her control. The last example is illustrative of this point:

Scenario 3

If Z (an ISP) receives a notification from the Complaints Bureau, it must notify X (Content Host) to remove the content within a period ranging from 1 to 24 hours. The period prescribed is at Z’s discretion. In this instance, Z gives X 12 hours to remove the content. X may either remove the prohibited content itself or direct W (third party content providers) to remove the content.

If the prohibited content is not removed within 12 hours, Z can suspend or terminate X’s access to the Internet.

If X is not Z’s subscriber, Z will not be required to take any measures [49].

However, in all three examples given, all the parties involved are Malaysians. The main weakness of the Content Code is that it does not regulate foreign parties. The Code, unlike the Australian system, does not stipulate the event of foreign content hosted by Malaysian industry players, nor local content hosted in foreign lands. In this manner, the Code fails to take into account of the borderless nature of the Internet. Nor is the Code considering the fact that Net-proprietors often forum shop in the Internet and place their server in locations out of reach of local laws and regulation.

In that respect, the main Act, i.e. the Communications and Multimedia Act 1998 applies both within and outside Malaysia [50]. However, one main restriction imposed in the Act itself is that the Act shall only apply to ‘any person beyond the geographical limits of Malaysia and her territorial waters if such person-

(a) is a licensee under this Act; or

(b) provides or will provide relevant facilities or services under the Act in a place within Malaysia [51].

Thus, it would appear that the Act only reaches it arms to those licensees granted by the Act or those who provide relevant facilities or services under the Act. To that effect, foreign web proprietors would not be subjected to the Act. This would definitely constitute the major limitation of the Act and the Content Code as most materials would presumably be originating from foreign hosts and sites.

Powers of the Complaint Bureau

The Communications and Multimedia Content Forum of Malaysia is responsible for the administration of the Content Code and for sanctions in the case of breach. Under its set-up, any complaints on alleged breach of the Code will be brought before the Complaints Bureau. The Bureau comprises of an appointed Chairman, who shall either be a retired judge or judicial officer or anyone the Council deems fit and six other members. [52] Decisions of the Bureau is made from the majority of the votes of its members and are rendered in writing. [53] The legal basis for the decisions of the Bureau stems from the Communications and Multimedia Act 1998, and being decisions made under statutory powers, they are subjected to judicial review under Order 53 of the Rules of the High Court 1980 [54]. On the same token, it is unlikely that the decision of the Bureau will conflict with the Communication and Multimedia Commission in granting licences for content applications.

6. Conclusion

As promised by the government [55], the Code of Conduct consist of rules to regulate ‘offensive’ Internet content but it will not infringe on no-censorship policy. However, it remains to be seen whether these rules actually constitute those promised ‘unleashed missiles on dangerous web sites’ or not. Several reasons can be accounted for this. Firstly, unlike the Australian style, there is no mandatory reporting to the enforcement agencies and other regulatory bodies on illegal material (such as child pornography). In Australia, there are established procedures to report to the relevant authority in Australia and also overseas with the assistance of Australian police as a matter of urgency.

Secondly, the power of the Bureau is also very restrictive. In fact, in terms of sanction, the Bureau is empowered with the power to issue a reprimand, imposition of fines and removal of the Content or cessation of the offending act. The Bureau does not have power to decree imprisonment for any breach of the Code. Other than that, the Bureau may refer the offending party to the Communications and Multimedia Commission for further appropriate action. In that sense, the Bureau does not play a watchdog to the appropriate authorities for other types of illegal and harmful content besides those classified under the prohibited content, when they are in the position to do that. The need for intra agency cooperation to iron out all unsuitable content is crucial. The only solace is that as the Communications and Multimedia Content Forum is the appointed watchdog by the Malaysian Communications and Multimedia Commission (MCMC), a governmental body, the requisite intra agency cooperation can be easily met. In that sense, even though the Content Code is a form of self regulation and the Forum is an industry body, the Forum is answerable to the Commission in its administration of the Code. In fact, it has already been announced that the Ministry of Energy, Communications and Multimedia, through MCMC, would monitor the full implementation of the Code and would taken stern action against any breaches of the code. As made clear by the Minister, ‘breaching the Code means action would be taken against the industry player, while repeat offenders will definitely put their licence under jeopardy’ [56]. Whether this would amount to a co-regulatory approach is questionable.

The Code introduces the notice and take down procedure to stem out prohibited content. The list of prohibited content, however, is not as comprehensive as that recommended by the European Report. The EU approach is commendable in this instance for their horizontal approach, where all types of content will be subjected to the same notice and take down procedure.

Another major weakness of the Code is that there is no exemption for civil and criminal liability for anything done in compliance with the duties under Code unlike the stand taken by Australia. [57] In order to ensure that all parties exercise their duties without fear and favour, they should be exempted from any potential legal liability, especially in relation to anything done in compliance with the Code. The parties are also exposed to criminal liability, such as in relation to:

(a) the collection of information or material; or

(b) the possession of information or material; or

(c) the distribution of information or material; or

(d) the delivery of information or material; or

(e) the copying of information or material; or

(f) the doing of any other thing in relation to information or material; [58]

Thus, it is important that all parties involved in the procedure are exempted from criminal liability. In Australia, all parties related to ABA that are involved in the process enjoy such exemption [59].

Despite all the inherent weaknesses, the Code reflects a concerted effort towards making the Internet a better information engine than what it currently offers. For that, the Multimedia and Communication Forum deserves a hearty praise for its commendable role in this effort.

Notes and References

* The words used by the then Law Minister, Dato’ Rais Yatim.

[1][1] ‘Illegal and harmful content on the Internet, Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions’, available at http:// europa. eu.int.

[2][2] Malaysiakini.com; an online journal. Thursday July 5, 2001.

[3] [3] This Code was drafted under the aegis of the Communications and Multimedia Content Forum (CMCF). CMCF was established in February 2001, and was designated on 29 March 2001 by the Ministry of Communication and Multimedia Commission. The Code has been revised and approved by the Ministry of Energy, Water and Communications. This article will refer to Version 6 of the Code.

[4] [4] They were later released and some charged under the Penal Code.

[5][5] For a more detailed analysis on the Singapore Internet Code of Conduct, see Samtani Anil, legislation Comment, The Revised Internet Code of Practice, Asia Business Law Review, No. 20, April 1998, p.55.

[6][6]See the Printing Presses and Publications Act 1984, the repealed Broadcasting Act 1988. For an earlier writing on this see, Regulation of Malaysia’s Information Superhighway, Asia Business Law Review No 23 (1999), 48-56.

[7] [7] See Stephen Saxby, “A Jurisprudence For Information Technology Law”, 2 International Journal of Law and Information Technology, No. 1 (1994).

[8] [8]The Broadcasting Services Amendment (Online Services) Act 1999.

[9] [9] The ABA’s complaints online hotline has been operational since 1 January 2000, the date on which its power to investigate complaints commenced. For more detailed analysis, see Hojn Corker et al, Regulating Internet Content: A Co –Regulatory Approach, University of NSW Law Journal, austlii database.

[10][10] Item10.0 Part 8 of the Code.

[11] [11] S 21(3) of the 1999 Broadcasting Act..

[12] [12] see Item 3.1(b) Part 8 of the Code.

[13][13] Subject to s 98(2) and 99 of the Communication and Multimedia Act 1998; see Item 6.2 Part 1, of the Code explaining the legal status of the Code.

[14][14] Part 1, 5.0 of the Code.

[15][15] S 3 of the Communication and Multimedia Act 1998.

[16] [16] Item 1.3 Part 5 of the Code.

[17][17] As defined under Sections 207 and 209 of the Communication and Multimedia Act 1998; see Item 1.3 Part 5 of the Code.

[18][18] S 3 of the 99 (A) Broadcasting Act.

[19][19] Part 2 of the Code. The list of prohibited content in Malaysia is comparable to that of the Singapore Internet Code of Conduct. Section 28 enables the SBA to issue directions to Internet Service Providers and Internet Content Providers requiring them to take action to comply with the Internet Code of Practice. Clause 4(2) provides an array of prohibited materials. They are :

(a)  whether the material depicts nudity or genitalia in a manner calculated to titillate;

(b)  whether the material promotes sexual violence or sexual activity involving coercion or non-consent of any kind;

(c)  whether the material depicts a person or persons clearly engaged in explicit sexual activity;

(d)  whether the material depicts a person who is, or appears to be, under 16 years of age in sexual activity, in a sexually provocative manner or in any other offensive manner;

(e)  whether the material advocates homosexuality or lesbianism, or depicts detailed or relished acts of extreme violence or cruelty; or

(f)  whether the material glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance.

[20] [20] Within the category of prohibited content under Section 7(1) and (2) of the Printing, Presses and Publication Act 1984 which reads:

(1)  If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound music, statement or any other thing which is in any manner prejudicial or is likely to be prejudicial to public order, morality, security, the relationship with any foreign country or government, or which is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned.

(2)  In the case of a publication originating in any country outside Malaysia, an order under subsection (1) may, of the order so prescribes:

(a)  prohibit the importation of any or all publications whether before or after the date of the order, subject to such conditions as may be prescribed therein;

(b)  in the case of a periodical publication, prohibit the importation of any past or future issues thereof;

(c)  in the case of a publication which has been issued or appears or purports to have been issued from any publishing house, agency or other source specified in the order, prohibit the importation of any other publication which may at any time whether before or after the date of the order has been, or appears or purports to have been, issued from the specified publishing house, agency or other source.

[21][21] Infra.

[22] [22] Item 6.4 Part 1 of the Code.

[23][23] Item 2.0 Part 2 of the Code.

[24][24] Item 3.0 Part 2 of the Code.

[25] [25] Item 4.0 Part 2 of the Code.

[26][26] Item 5.0 Part 2 of the Code.

[27] [27]available at http://www/eff.org/Net_culture/Global_village/LICRA_v_Yahoo.

[28][28] Item 6.0 Part 2 of the Code.

[29] [29]Content is false where prior to communications reasonable measures to verify its truth have not been adopted or taken.

[30] [30]Item 7.0 Part 2 of the Code.

[31] [31] Item 8.0 Part 2 of the Code.

[32][32] Item 9.0 Part 2 of the Code.

[33][33] Item 10.0 Part 2 of the Code.

[34] [34] The meaning of the term ‘provide’ under Item 12.0 Part 5 of the Code.

[35] [35] Item 5.0 Part 5 of the Code.

[36] [36] Item 1.2 Part 5 of the Code.

[37][37] Item 2.0 Part 5 of the Code.

[38] [39]Item 4.0(f) Part 5 of the Code.

[39] [40] Item 6.2 Part 5 of the Code.

[40] [41] Item 7.2 Part 5 of the Code.

[41] [42] Item 8.0 Part 5 of the Code.

[42] [44] Item 8.4 Part 5 of the Code.

[43] [43] Item 12.0 Part 5 of the Code/

[44] [45] Link Provider means a person who provides links to other sites; see item12.0 Part 5 of the Code.

[45][46] Item 9.0 Part 5 of the Code.

[46] [47] Item 11.0 Part 5 of the Code.

[47] [48] S 2 of the Broadcasting Services Act 1992, Schedule 5 on Online Services.

[48][49]PICS is supported by a wide coalition of hardware and software manufacturers, access providers and online commercial services, publishers and content providers. It is now included as a standard feature in the latest generation of Internet browsers such as Microsoft Explorer 3.0 and Netscape 3.0, and is supported by a number of filtering packages.

[49] [50] Item 10.3 Part 5 of the Code.

[50] [51] S 4(1) of the Communications and Multimedia Act 1998.

[51] [52] S 4(2) of the Communications and Multimedia Act 1998.

[52] [54] Each representing the critical industry; the Advertisers, Audiotext Service Providers, Broadcasters, Civic Groups, Content Creators/Distributors and Internet Access Service Providers.

[53] [55] Item 7.0 Part 8 of the Code.

[54] [56] Order 53 deals with application for order of mandamus, prohibition, certiorari, etc.

[55] [57] The statement by the executive chairman of the Malaysian Development Corporation, Dr Othman Yeop Abdullah, available at www.malaysiakini.com, Thurdsday June 28, 2001.

[56] Statement by te Minister of Energy, Water and Communications, Datuk Seri Lim Keng Yaik, July 27, 2004 (Bernama),at the launching of the Content Code, available at www.cmcf.org.my.

[57] [58] See s 88 of the Act

[58] [59] See section 89 of the 1999 Broadcasting (A) Act .

[59] [60] ibid.

 



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