Legal Basis For MCMC’s Censorship Of Sarawak Report (Updated!)

Late at night on the 19th of July 2015, the Malaysian Communications and Multimedia Commission (MCMC) issued an order to all Internet service providers in Malaysia to start blocking access to Sarawak Report. This isn’t the first time the MCMC has blocked access to websites. Many Malaysians argue that it’s illegal for the MCMC to block their access, which was supposedly enshrined by the Communications and Multimedia Act 1998.

Ironically, that is the same Act the MCMC is using to block access to Sarawak Report. Let’s examine the legal basis for MCMC’s censorship of Sarawak Report. You will see that it is the same for all other websites that the MCMC blocked in the past, and will block in the future.

If you are looking for ways to bypass such censorship, please take a look at How To Bypass The Censorship Of Sarawak Report.

 

Why Did They Block Sarawak Report?

MCMC Strategic Communications senior director Sheikh Raffie Abdul Rahman told the Malay Mail Online,

“Yes we have proceeded with limiting the access to the site. We have issued the instructions to all service providers”

According to the MCMC, they decided to block websites that “threaten the country’s stability” with contents that “cannot be verified and is being investigated”, after they received “information and complaints from the public”.

The MCMC blocked access to Sarawak Report until the 1MDB special task force concludes its investigations
The MCMC blocked access to Sarawak Report until the 1MDB special task force concludes its investigations

The MCMC said that the block is only temporary, and will end when the special task force ends its investigations. However, the following information page for Sarawak Report‘s censorship claims that it was blocked because it contravened Sections 211 and 233 of the Communications and Multimedia Act  1998 (Act 588).

The information page claims Sarawak Report infringed upon Sections 211 and 233 of the Communication and Multimedia Act 1998
The information page claims Sarawak Report infringed upon Sections 211 and 233 of the Communication and Multimedia Act 1998

 

What Does Section 211 Of Act 588 Say?

This is Section 211 of the Communications and Multimedia Act 1998 :

Prohibition on provision of offensive content

211. (1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

        (2) A person who contravenes subsection (1) commits an offence and 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 or part of a day during which the offence is continued after conviction.

Presumably, the MCMC believes that Sarawak Report has provided false content with the intent to annoy or harass someone. Of course, they would need to prove it and not just make the claim. Section 211 also provides sentencing limits, which notably do not include blocking access to the offending website.

I’m no lawyer, but from my reading of this section, the MCMC would have to take Sarawak Report to court and prove that they provided “content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person“.

Only when convicted will the person(s) charged 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 or part of a day during which the offence is continued after conviction“.

 

What Does Section 233 Of Act 588 Say?

This is Section 233 of the Communications and Multimedia Act 1998 :

Improper use of network facilities or network service, etc.

233. (1) A person who—

            (a) by means of any network facilities or network service or applications service knowingly—

                    (i) makes, creates or solicits; and 
                    (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;

             (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.

Presumably, the MCMC believes that Sarawak Report has knowingly created or solicited some form of false communication with the intent to annoy or harass someone. Again, they will need to prove their claim, and not just make one. Section 233 also provides sentencing limits, which also do not include blocking access to the offending website.

Again, based on my reading of this section as a layperson, the MCMC would have to take Sarawak Report to court and prove that they provided “knowingly” created / solicited / initiated “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“.

Only when convicted will the person(s) charged 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“.

 

Any Lawyers To Chip In Their 2 Sen?

Again, I’m no lawyer. I’m only reading the law and coming to my conclusions as a layperson. Perhaps I’m wrong. Perhaps there is another Section or Act that gives the MCMC the power to unilaterally block access to a website they consider offensive without a court order, much less a conviction of a crime in a court of law.

So if there are any lawyers who can help clarify the legal basis for MCMC’s censorship vis-à-vis the Communications and Multimedia Act 1998 (Act 588) or any other laws, please do let us know. We would be delighted to include your comments and/or opinions, with full credit, of course.

 

New @ 25/7/2015 : Their Likely Source Of Authority

After posting this article, I had an interesting discussion with Arnoud Zwemmer. He pointed out that Section 263 (2) of the Communications and Multimedia Act 1998 allows the MCMC to request that their licensees (read : ISPs) block websites in order to “prevent offences” and also “for the preservation of national security”. This is what Section 263 (2) says :

263. (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.

In other words, this Section 263 (2) empowers the Commission to issue such a request to prevent an offence from being committed, OR to enforce the laws of Malaysia, AS WELL AS the protection of government revenue and the preservation of national security.

Of course, this clause effectively makes the MCMC both the judge and the jury, because the written request is predicated upon their singular opinion that Sarawak Report had already broken, or intends to break a Malaysian law, specifically Sections 211 and 233 of the Communications and Multimedia Act 1998 (Act 588).

Arnoud is of the opinion that, as a regulatory authority, the MCMC has first privilege of acting without going through due process, just by evaluating the complaint against the The Malaysian  Communications and Multimedia Content Code. He suggest Menacing Content (Section 5.0) as the most likely violation :

5.0 Menacing Content

5.1 Content that causes annoyance, threatens harm or evil, encourages or incites crime, or leads to public disorder is considered menacing and is prohibited.

5.2 Hate propaganda, which advocates or promotes genocide or hatred against an identifiable group, must not be portrayed. Such material is considered menacing in nature and is not permitted.

5.3 Information which may be a threat to national security or public health and safety, is also not to be presented.

                                 Illustrations

i) Making available instructions and guidance on bomb-making, illegal drug production or counterfeit products;

ii) Disseminating false information with regards to outbreak of racial disturbances in a specific part of the country;

iii) Circulating information and statements with regards to possible terrorist attacks;

iv) Circulating or making available information with regards to the outbreak of a deadly or contagious diseases.

Then again, Section 6 refers to Bad Language, which is never censored; while Sections 8 and 9 refer to Children’s Content and Family Values, which are impossible to enforce. So at the very least, the MCMC appears to be very selective in its enforcement of the Content Code.

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