Written by Richard Wee and Low May Ping

Identifying the rules & laws of Malaysia, dealing with offensive posts on the internet

Introduction

In today’s digital world, every single person can post anything on the Internet. While the freedom to express ourselves on the Internet is akin to freedom of speech and expression enshrined under our Federal Constitution, it should be noted that it is not an absolute right. Certainly, there are restrictions imposed by law in order to protect morality, public order and national security. This article addresses the laws that deal with contents published on the Internet.

The Communications and Multimedia Act (CMA) 1998 has provisions that enable legal actions to be taken against issues related to offensive content on the Internet. The relevant provisions are Section 211 and Section 233 of the CMA. Generally, the Malaysian Communications and Multimedia Commission (MCMC) have applied these two Sections to investigate and prosecute those who post offensive remarks on social media.

 

 

Section 211: Prohibition on provision of offensive content

(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 (RM 50,000) or to imprisonment for a term not exceeding one (1) year or to both and shall also be liable to a further fine of one thousand ringgit (RM 1,000) for every day or part of a day during which the offence is continued after conviction.

 

Section 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—

(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; 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.

 

(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.

 

Below are some cases where the said S233 was referred to.  

 

In Nik Adib bin Nik Mat v Public Prosecutor [2017] MLJU 1831, the accused was charged under Section 233(1)(a) of the CMA 1998 and punishable under Section 233(3) of the same Act for an offence of posting pictures and comments regarding certain leaders on the website which were offensive and false. The accused was sentenced with 1 week imprisonment and a fine of RM 3,000.

 Similarly, in Mohd Fahmi Reza bin Mohd Zarin v Pendakwa Raya [2020] 7 MLJ 399, the accused was charged under Section 233(1)(a) of the Act for using his Facebook page and sending false communications of its nature with an intent to injure others. The accused was convicted and sentenced with a fine of RM10,000.

 

Likewise, in July, a retiree, Abdullah Sani was fined RM2,000 for posting insulting remarks against the Health Minister, Datuk Seri Dr Adham Baba via his Facebook Account. At the same juncture, the director of the non-governmental organisation Refuge for the Refugees, Heidy Quah is being investigated for defamation and violation of Section 233 of the CMA and was required to surrender her phone to the police, concerning a social media post alleging mistreatment of refugees at immigration detention centres.

  1.   Indecent content refers to material that is offensive, morally improper, and against current standards of acceptable behaviour.
  2.   Obscene content such as pornography, or sexual degradation whereby portrayal of women, men, or children as mere sexual objects or to demean them in such a manner.
  3.   Menacing content refers to content that causes annoyance, threatens harm or evil, encourages or incites crime, or leads to public disorder. Menacing content also include hate propaganda, which advocates or promotes genocide or hatred against an identifiable group.
  4.   Information that may form a threat to national security or public health and safety.
  5.   Content, which consists of false material and is likely to mislead others.

 

The above list is sourced from this link :-

https://www.mcmc.gov.my/skmmgovmy/files/attachments/ContentCode.pdf

.

  1. Lodge complaint(s) directly to the content creator. In the event that the content creator remains unknown, use the ‘report abuse’ service if it is published on the website.

 

2. Lodge complaint(s) to MCMC Consumer Complaints Bureau if the published content is false, consists of offensive or indecent statements about you. 

Generally, within 15 days from the date of complaint received, you will be given answers concerning the result of MCMC’s investigation. 

 

3. Lodge report(s) to other relevant enforcement agencies or authorities such as PDRM, if the matter falls within their jurisdiction.

 

4. Lodge complaint(s) to the Communications and Multimedia Content Forum of Malaysia. However, there is limitation as it can only take action against the content creator who is a member of the Forum or parties who have agreed or been directed to abide by the Content Code.

 

The above list is sourced from this link :-

https://www.mcmc.gov.my/en/faqs/online-content-problems/what-are-the-steps-required-for-me-to-lodge-compla

 

Examples:

Type of OffenceNational LawsEnforcement Agencies
SeditionSedition Act 1948Royal Malaysian Police (PDRM)
Threats to National SecurityPenal CodeRoyal Malaysian Police (PDRM)
Threats to Life/PropertyPenal CodeRoyal Malaysian Police (PDRM)
Defamation

Penal Code

Defamation Act 1957

Royal Malaysian Police (PDRM) or

Civil Litigation

 

More often than not, the repercussions in spamming cases may be that the recipients are annoyed, abused or harassed. However, it may not be easy to argue that this was the sender’s intention. 

Despite the fact that Section 233 may be appropriate to deal with issues of spamming, enforcement problems may still arise. This is because the burden of proof is on the prosecution that the sender has the “intention of annoying, abusing, threatening or harassing a person. 

Indeed, existing laws such as the Communications and Multimedia Act and the Penal Code may be inadequate to regulate the issue of cyberbullying. Cyberbullying may result in a significant impact on society, to the extent that some victims are driven to end their life. In May 2020, a 20-year-old girl committed suicide after fake information was spread about her on Facebook and went viral.

It has been suggested that Section 233 of the Communications and Multimedia Act can be used as a starting point for the drafting of an anti-cyberbullying law. In addition, the new law should also cater for children and teenagers in terms of regulations governing their Internet usage. At the same time, the Ministry of Communications and Multimedia and CyberSecurity Malaysia should also monitor social media use among teenagers.

Conclusion

Within seconds at a touch of a button, the offensive materials could be easily disseminated to the public. As there are laws regulating contents posted on the Internet, please think twice before you post anything on the Internet or social media. Ensure that your post does not include anything which is offensive, abusive or threatening in nature.

 

Published on 12 August 2020

Photo by Oleg Magni on Unsplash

 

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