Do Normal Content Laws Apply to the Internet?
Indecency Laws
Liability
Since the Malaysian Communications and Multimedia Act 1998 took effect on April 1 1999, the internet industry has applauded its stance against censoring the Internet. Section 3(3) reads: "Nothing in this act shall be construed as permitting censorship of the Internet."
This unique and liberal provision has its origins in the Bill of Guarantees drawn up by the government for the Multimedia Super Corridor (MSC).(1) The MSC is designated for high-technology companies and its Bill of Guarantees assures investors that no censorship of the Internet shall occur.
But how does a 'no censorship' rule stand in the face of long-entrenched laws which specify what content can and cannot be disseminated? While the Internet cannot be censored as such, the individuals responsible for placing illegal content on the Internet remain liable.
Do Normal Content Laws Apply to the Internet?
The short answer is yes. Despite the 'no internet censorship' rule, there has been little change to the laws that govern content. Laws governing defamation, sedition and intellectual property apply irrespective of the medium of transmission.
For example, defamation law in Malaysia is based on a wealth of case law from both Malaysia and the common law jurisdictions. Criminal defamation is an offence under Section 499 of the Penal Code and applies to internet content. Unlike the UK Defamation Act 1996, which clearly spells out an internet service provider's exemption from liability, no equivalent exemption exists in Malaysian law. Thus, the operator of a website can be liable for defamatory content even if he or she has no knowledge of or control over it.
Generally, television and cinema content has been treated strictly by the authorities. In the past television content had to be approved by both the Ministry of Information, which applied its broadcasting guidelines,(2) and the Home Ministry's Censorship Board.(3) The broadcasting guidelines (which still apply to the government owned television network) and the Censorship Board are concerned primarily with indecent content, which can encompass even kissing scenes.
Although internet content is not subject to such scrutiny, it is still governed by the Communications and Multimedia Act. Section 211(1) states that no providers or users of content applications services "shall provide content which is indecent, obscene, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass any person". Offenders can be fined up to M$50,000 (approximately $13,160) or imprisoned for up to one year.
Section 211 applies to content transmitted via a communications network, which encompasses:
- the Internet;
- terrestrial and satellite television;
- radio; and
- premium-rate telephone services.
Print media, cinema screenings, video and audio tapes, and CDs are not covered as they are not networked content.
Potentially, everyone involved in making available content to the user is liable. The word 'provide' under Section 211 is not defined and has not yet been subject to interpretation by the courts. It remains to be seen whether the offence of providing prohibited content under Section 211 is restricted to the originator of the content or extends to the content aggregator, content host and internet access provider.
Another fear of the Malaysian internet industry relates to the fact that no express law addresses internet service provider (ISP) exemption from liability in relation to content beyond their control.
The industry is taking no chances and has formed the Malaysian Content Forum with the aim of drafting a Content Code, which is one of the voluntary industry codes recognized by the Communications and Multimedia Act. Registration of (and compliance with) a voluntary industry code provides a defence against any legal action taken against an individual who is subject to it.(4)
The Content Code is expected to provide more certainty to content providers in terms of the type of content that is prohibited under Section 211 and the measures to be taken by the various ISPs in relation to prohibited content.
The code is still being drafted and is expected to be published for public comment by the end of 2001. Until then web hosts, content aggregators, and internet access and content providers must exercise caution as to internet content provided to Malaysian users.
For further information on this topic please contact Sharon Suyin Tan at Zaid Ibrahim & Co by telephone (+603 257 9999) or by fax (+603 254 4888) or by email ([email protected]).
Endnotes
(1) The corridor is an area 15 kilometres wide and 50 kilometres long stretching from Kuala Lumpur city centre southwards to Kuala Lumpur International Airport.
(2) Under the Broadcasting Act 1998, which was replaced by the Communications and Multimedia Act.
(3) Under the Films (Censorship) Act 1952 (revised 1971), which is still in force.
(4) Section 98(2) of the Communications and Multimedia Act 1998.