Journal: Malaysian Law Journal Articles (MLJ)
Title of the Article: Freedom of Speech and the Internet - A Case
Study of Malaysia
Citation: [2009] 3 MLJ xxxiv
Written by: Ahmad
Masum, Lecturer Faculty of Business and Law, Multimedia University, Malaysia.
1.0 INTRODUCTION
The Internet is a global network
connecting millions of computers. More than 100 countries are linked into
exchanges of data, news and opinions. Meanwhile freedom of speech refers to
political right to communicate one's opinions and ideas using one's body and
property to anyone who is willing to receive them[1].
Freedom of speech has been guaranteed under Article 10 of Federal Constitution. However, it is not an absolute
right and has become controvercial issue for a long time. The ability to go
‘undercover’ by writing anonymously in an online environment and the advent of
blogging have been catalysts for individuals to express their grievances more
openly. Ideas and information flow freely and can be transmitted much faster
than ever before. Certain provisions has been made to restrict this rights.
It must be recognised that this new found
freedom does not mean the absence of rule of law. Article 10 of the Federal Constitution which guarantees the right
to freedom of speech and expression recognises that Parliament may enact laws
to restrict this freedom in the interest of security, public order, morality
and to prevent defamation. Even the UDHR[2]
itself allows goverment to give restriction to freedom of speech in the name of
social order. Articles 29(2) and 30 of the UDHR stated that rights
and freedoms may be limited by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and the
rights and freedoms may be limited by law solely to meet the just
requirements of morality, public order and the general welfare in a democratic
society.
Therefore,
from a practical point of view, no community's standards can govern the type of
speech permissible on the Internet. The Internet is a powerful and positive
forum for free expression. It is the first medium that distributes information
globally at almost no marginal cost and introduced a new form of speech in the
form of electronic speech, but whatever phrase used in the context of freedom
of speech, this right is not absolute.
The Internet not only provides
universal access to free speech, but it also promotes the basic concept of
freedom of speech. Hence, in Malaysia some forms of speech are thoroughly
outlawed. Because of this scenario, governmental censorship would primarily
attempt to stop the unintentional effect of certain types of speech or
expression on the Internet. This article aims to look into the limitations that
the government might impose on free speech in the cyberspace and examine
whether such limitations are justified in a democratic environment.
2.0 ISSUES IN THE ARTICLE
The main issue in this article
is to determine the scope of freedom of speech given in Malaysia through the
internet. There is also an issue whether laws that restricting freedom of
speech would be applicable in term of ‘electronic speech’ since there is no
restricting laws mentioned about freedom of speech through the internet since
this kind of issue is becoming controversial recently.
3.0 LAWS APPLICABLE IN
THIS ARTICLE
The author referred to Article
10(1)(a), 10(2)(a) and 10(4) of Federal Constitution that provide
the freedom of speech and expression.
Article 10(1)(a) every citizen has the right to freedom of
speech and expression;
Article 10(2)(a) parliament may by law impose on the rights
conferred by paragraph (a) of the Clause (1), such restrictions as it deems
necessary or expedient in the interest of the security of the security of the
Federation or any part thereof, friendly relations with other countries, public
or morality and restrictions designed to protect the privileges of Parliament
or of any Legislative Assembly or to provide against contempt of court,
defamation, or incitement to any offence;
Article 10(4) In imposing restrictions in the interest of
the security of the Federation or any part thereof or public order under Clause
(2)(a), Parliament may pass law prohibiting the questioning of any matter,
right, status, position, privilege, sovereignty or prerogative established or
protected by the provisions of Part III, Article 152, 153, or 181 otherwise
than in relation to the implementation thereof as may be specified in such law.
We are referring to Article
149(1) of the Federal Constitution which stated about legislation
against subversion and action prejudicial to public order.
Article 149(1) If
an act of Parliament recites that action has been taken or threatened by any
substantial body of persons, whether inside or outside federation
(a) To cause, or to cause a substantial number of
citizens to fear, organized violence against persons or property; or
(b) To excite disaffection against the Yang
di-Pertuan Agong or any government in the federation; or
(c) To promote feelings of ill-will and
hostility between different races or other classes of the population likely to
cause violence; or
(d) To procure the alteration, otherwise than by
lawful means, or anything by law established; or
(e) Which is prejudicial to the maintenance or
the functioning of any supply or service to the public or any class of the
public in the Federation or any part thereof; or
(f) Which is prejudicial to public order in, or
the security of, the Federation or any part thereof,
any provision of
that law designed to stop or prevent that action is valid notwithstanding that
it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or
would apart from this Article be outside the legislative power of Parliament;
and Article 79 shall not apply to a Bill for such an Act or any amendment to
such a Bill.
We are referring the Article 29(2) and 30 of Universal
Declaration of Human Rights which stated about the power of government
in restricting freedom of speech and expression.
Article 29(2) rights and freedoms may be limited by law
solely for the purpose of securing due recognition and respect for the rights
and freedoms of others;
Article 30 rights and freedoms may be limited by law
solely to meet the just requirements of morality, public order and the general
welfare in a democratic society.
We are also referring to Section
499 of the Penal Code which stated about defamation.
Section 499 Whoever, by words or either spoken or
intended to be read or by signs, or by visible representations, makes or
publishes any imputation concerning any person, intending to harm, or knowing
or having reason to believe that such imputation will harm of such person, is
said, except in the cases herein after excepted, to defame that person.
4.0 SUMMARY OF THE ARTICLE
The internet has introduced a new form of speech
known as ‘electronic speech’. Electronic speech is in the display of words or
images on a computer but also include new forms of speech such as internet
addresses or domain names. Millions of user can access one’s speech on a web
site or bulletin board. Internet fosters freedom of speech on a global scale.
It is first medium where information is distributed globally without cost.
Internet can raise the quality of political debate, the quality of education,
and also the quality of life. Internet is an important tool in disseminating
information by not only providing universal access to free speech but also
promoting the basic concept of freedom of speech. However, at the same time we
have to acknowledge that the internet has facilitated abuse of free speech
through electronic means. For example some internet sites contain sexually
explicit material, hate speech, libelous material and material advocating
illegal conduct.
Freedom of speech is part of fundamental liberties
under Article 10 in the Federal Constitution. Article 10(1)(a) of the Federal Constitution states that every
citizen has the right to freedom of speech and expression. These rights are
however, subject to any law passed by parliament. Based on the above statement,
article 10 is remarkable for what it takes away rather that for what it gives[3].
All this is due to the fact that parliament may under the Article 10(2) by law impose restrictions on these rights of freedom
of speech and expression, assembly and association. Freedom of speech and
expression includes the right to express or disseminate, information and ideas,
the right to seek information and ideas, the right to receive information and
ideas, and also the right to impart information and ideas. It also shares view
among scholars and judicial decisions by communication of signs, symbols and
gestures, freedom of the press and freedom to propagate ideas through
advertisement.
The right to freedom of speech and expression is
severely limited. This right is an acknowledged for ‘citizens’. The right
conferred by Article 10(1)(a) is
also made expressly subject to various limiting constitutional provisions,
which make vast inroads into the general principle. Parliament may by law
impose restriction of friendly relations with other countries, public order or
morality and restrictions designed to protect the privileges of Parliament or
any Legislative Assembly or provide against contempt of court, defamation or
incitement to any offence.
Apart from that, security of the federation is the
first restriction made by parliament. Many laws impose restrictions on free
speech but are legally justifiable by the security grounds in article 10(2). Among such laws under
this head are the Official Secrets Act 1972, Internal Security Act 1960,
Printing Presses and Publication Act 1984, Protected Areas and Protected Places
Act 1959, Public Order (Preservation) Act 1958, Sedition Act 1948 and the
Telecommunications Act 1950. It is clear that if someone uses the Internet
encouraging provocative discussions, the government or the authority would use
or resort to national security laws like the Internal Security Act 1960 or even
the Sedition Ac 1948 to press a charge on him.
The restriction impose by parliament is also related
to friendly relations with other countries. There is no specific law to
regulate free speech on this ground but administrative guidelines do exist.
Reference could be made to a situation where the internet is used as a tool of
communication to disseminate information about a neighboring country that might
create hinder bilateral relationship. Thus, it is possible for ‘electronic
speech’ to be controlled.
Restriction made by parliament can also be imposed
on the ground of public order. As Malaysian society is made up of many races it
becomes necessary to define public order in that context. It is inevitable to
make reference to the Sedition Act 1948 on
the issue of public order. Seditious tendency is defined as a tendency to bring
into hatred or contempt or to excite disaffection against any ruler, person or
against any government. Based on the ground of public order, the authority
would not allow the internet to be used as a tool of communication in
disturbing harmony. For example in the case of Dato’ Rais Yatim had once
announced that the government will unleash another set of missiles on internet
publications that threaten the country’s security. Citing the increase of hate
messages, seditious writings and e-mails advocating religious dissent and
others as examples of such publications, the Minister lamented that certain
quarters are taking advantage of the government’s no censorship policy. A
content Code was drafted which sets out guidelines and procedures for good
practice and standards of content disseminated to audiences by service
providers in the communication and multimedia industry in Malaysia to identify
what is regarded as offensive and objectionable.
Apart from that, morality values have to be assured
so that it can be used as an argument to give limitation to the freedom of
speech. In this context, it is important to see the issue whether laws existed
could be extended to cover the issue of ‘obscene speech’ on the Internet. For
instance under section 292 and 293 of the Penal Code, the morality
argument can be used to restrict the freedom of speech and expression on the
Internet although the act does not directly cover the activity of pornography
on the Internet.
In term of privileges of parliament or any
legislative assembly, the parliamentarians, in performing their legal duties in
the parliamentary proceedings cannot charge or be charged for their words,
uttered in the parliamentary proceeding. However, such privileges only applied
for them in carrying out their formal duty, and not for personal account. This
is because such law was made to protect them from being charge under legal offence,
which may at some point obstruct the smoothness of their work. But, this
privilege is not available for them in the case where sedition takes place.
While that, through the civilian perspective, one’s freedom of speech is
hindered when it comes to the privileges of Parliament or any state legislative
assembly.
Another limitation where the government might impose
the restriction on the freedom of speech is when the issue of contempt of court
step into the picture. Here the question of whether the restriction of the
freedom of speech in traditional way, covers the internet or cyberspace arises.
Contempt of court happens when there are actions of writings published that
seems to dishonor or interferes the operation of law. Therefore it is suggested
that the Malaysian contempt laws in restricting freedom of speech and expression
is relevant in the context of ‘electronic speech’.
It must be noted that limitation also covers
defamation. Defamation refers to false or unjustified injury towards the good
reputation of another, by means of libel or slander. The jurisdiction such
offence lies on both civil and criminal area of law. There are a few Acts which
cover defamation in Malaysia for example the Defamation Act 1957 and section
499 of the Penal Code. In
another word, these are among the legal way to limits the freedom of speech. However,
it is to be made clear whether or not these laws have the jurisdiction on cyber
defamation. Looking at how the internet had developed the communications, it
will not be shocking if it will also evolve the tort of defamation.
Basically, the defamatory act is expressed through
words. At the same time, it may also be represented by images. That held any
the written speech containing defamatory words post in the cyberspace as liable
as the one conveys through traditional means. The law had not told apart
between the online and offline world. This can be seen when there are some
examples shows that even the keyboard warriors can be taken to stand in front
of the court for the offence made in internet. The sues issued against bloggers
like Raja Petra, Jeff Ooi, and Ahirudin Attan are the evidences that offence
made in virtual world is no excuse to the operation of law.
On the other hand, there is also the limit made on
freedom of speech in the event where sedative speech occurred[4].
Since there are cases where incitement was made online it is questioned now
that whether the penal code shall be made available to restrict the freedom of
speech in the internet. If the effect of delivering a speech is differentiates
through the way it was convey present, even when it delivers the same message,
injustice will occurs.
Apart from that, Article 10(4) of the Federal Constitution stated that the
parliament holds the power to make any law in order to safeguard the four
politically sensitive matters namely the right to citizenship, status of the
Malay language, the position and privileges of the Malays and the natives of
Sabah and Sarawak and prerogatives of the Malay Sultans. It is highly suggested
that this four sensitive issues can be used as a restriction free speech in the
internet. Therefore, it is expected from the people to avoid addressing those
matters even through the cyberspace.
In Malaysia, the prior restraints were made in the
state of license and permit requirement. Any expression which wishes to be published
will go through the government’s inspection before it is approved. However, it
should be noted that having prior restraint on freedom of speech will not come
handy while dealing with the internet. The robust nature of the internet made
it impossible to block access to information except in controlled
circumstances.
The laws used in restricting the Internet speech
could be subjected to some forms of challenges. In Malaysia, inadequacy of article 10(2)(a) turned out to be the
crucial factor. The maker of the constitution in Malaysia had put the
reasonableness, expediency or necessity of legislation on Parliament instead of
the court. Since the article in respect allows Parliament to enact such
restrictions as it deems necessary or expedient, it gives the notion that the
article is ineffective. In addition, some of the phrases used in the Acts could
hardly be defined as it have been given vast meanings that at the end of the
day nothing is left out.
Although some of these traditional laws limiting
freedom of speech could be extended to cover Internet speech or electronic
speech, these laws are not enough to cover all activities on the Internet.
There is a need for the government to rule out some specific laws to deal with
electronic speech on the cyberspace.
In referring the issue of prior restraint, it is not
a supported view that that it can be carries out effectively in the world
today. In addition, the promise made to the foreign investors during the
introductory stage of Multimedia Super Corridor (MSC) years ago had shown a bad
after-effect to the country when the government had agreed to deny the practice
of censorship on the internet in Malaysia. Looking at the war on cyberspace
that the country is facing nowadays, the government is overbearing a huge
tension from the people on its omission to carry out the censorship.
Apart from that, the jurisdiction on internet speech
is another challenge that needs to be overcome.
In the case where a person sends data via the Internet, is there a need
for him to stand before the court to defend him. Recently, our country had
provided some extra-territorial jurisdiction when the offence was either
founded in this country or spread through computers, data or programs in this
country. But, there are still restrictions to it. Hence, it is important to
note that although some of these traditional free speech laws may be used to
control or limit electronic speech, still we are bound to face the problem of
sovereignty and jurisdiction in cyberspace when it comes to electronic speech.
Although there is nothing certain as to whether or
not the government will carry out the limitation to the freedom of electronic
speech, it is to be noted that the government holds the power to regulate
speech in order to uphold the interest of the public. The power awarded by the
federal constitution to the parliament to regulate the freedom of speech has
made it worse as it made the parliament holds an exclusive power to control
people on that area. For that, regulation must be drafted as narrowly as
possible in order to avoid unnecessary restriction on speech that would not be
for the interest of the government. In addition, in regulating the internet
speech, law is not the only mean available. Educating the public can be another
way that can help controlling the internet speech.
5.0 ANALYSIS OF THE
ARTICLE
Due to the expansion of modern technology, specifically the
Internet, the issue of freedom of speech is becoming one of the most debated
topics among the people. The freedom of speech is stated under Article 10 of
Federal Constitution including the other two which are the freedom of assembly
and association. It stated that every citizen has the right to freedom of
speech and expression. However, the question that arises is that whether it
includes the speeches on the Internet? As the constitution is drafted long
before the Net has become one of the essential things in our life, it only
concerns about the traditional speech rather than the online speech.
With the advanced technology in today’s world, people can access
to so many information whether it is blog, websites, Facebook and etc. from
computers, television and of course the mobile phone. This makes the spreading
of any information is so much easier because it is not only to the citizens of
Malaysia but also to the whole world. The problem is that the convenience is
often misused by those who are trying to expose their own view to the world.
For instance, the hate speech that posted by blogger that is seditious and against
the concept of freedom of speech in Malaysia.
In light of Article 10, is the freedom of speech really imposed in
this nation? Are the citizens really having that freedom of speech as stated in
Article 10? If we look at the Clauses (2), (3) and (4), there is several
restrictions on the freedom of speech that is given to the citizen which are on
the grounds of safety and security, Parliament privileges, contempt of court,
public order, morality and also because of some sensitive matters. Due to these
restrictions, it is said that the freedom of speech that is given to the
citizens is not absolute and still under control of the authorities. This is
very much needed as the absolute power to speech will bring harm to the nation
and can cause riot among the citizens. That is why other statutes such as
Sedition Act 1948 really necessary in controlling the freedom in order to make
sure that the privilege is not to be misused by people.
Now,
other problem that exists is that whether Article 10 covers the speech on the
Internet? As the constitution does not anticipated the cyber age, there is no
provision specifically mentioning the restrictions on internet speech. For that
reason, in my opinion it is a necessary for the legislature to come up with new
provisions or statutes that specially made to control the freedom of speech on
the Internet. The rules and regulations on the use of Internet need to be
constructed in order to control the public interest and use so that it is
suitable with the cyber age.
Furthermore,
reviews on the freedom on using the Internet for the citizens are needed in
order to maintain the harmonious of surrounding and also the morality in the
nation. Authorities need to pay more attention in the incensement of Internet
usage and how it is used by the people. Every offence relating the Internet
usage need to be charged and controlled despite it might be difficult to do it
because of the nature of the World Wide Web itself. However, there have been few
cases where some people and bloggers being charged under Sedition Act 1948 for
making seditious statement for instance, controversial Alvivi couple which
presumed as making fun of the religion of Islam during Ramadhan[5].
It is a clear proof that people should not being given absolute right in term
of freedom of speech and expression even on cyber space.
On the other hand, the issue of censorship also becoming one of the
controversial issue as the government has implemented the no censorship rule in
the usage of the Internet. Do the people really using the Internet as how it
was supposed to be? It is certainly opposites the idea if we look back to the
recent case and the reality in the Net. Be it false rumors, hate speeches,
obscene materials and many others can easily be accessed as the government has
imposed no censorship on the Internet. Relevant actions need to be taken by the
government in order to control this in the name of social order.
Despite having
laws, be it the both or new ones, it may not be good enough to curb the
situation and regulating internet speech. Perhaps, the actions need to come
from the user itself. Other mechanism need to be developed in educating public
and foster the right way of using the Internet and also facilitating the abuse
of freedom of speech.
It must be noted
that, these kinds of restrictions are not violating human rights and also rule
of law as being stated by Dicey and also in Federal Constitution itself. The
Universal Declaration of Human Rights also allows government to give
restriction to the freedom of speech even though according to some activist, it
has violated human rights. Dicey stated about supremacy of the law and rule of
law should be followed to be an ideal government. Under article 4(1) of Constitution, any law passed after the Merdeka day
that inconsistent with the Federal Constitution shall be void to the extent of
the inconsistencies. This has made Sedition Act 1960, Internal Security Act
1948 and other provisions that restricting human rights including freedom of speech
seems as inconsistence with article 4(1) of the Federal Constitution. However, article 149 of Federal Constitution
given the rights for parliament to make laws that violates article 5, 9, 10 and
13 of the Federal Constitution for the welfare of public at large and to
prevent anything that might harm the peace of the nation. That is why Sedition
Act and et cetera are still being used and not void due to inconsistency
fundamental liberties as stated under Federal Constitution.
6.0 CONCLUSION
The right to freedom of speech trumps all government
rights to regulate it, others contend that the charm of the Net’s unique
communicative possibilities would be lost if governments were to regulate its
content. However, it is equally important to note that the government may
regulate, or censor speech if it has a compelling interest, is a public
concern, or threatens national security. Globally, it would appear that
democracies do not necessarily view an unregulated Internet as a more
democratic institution than a Net with particular speech restrictions. Rather,
democratic societies are almost certain to impose their existing speech regimes
on the Net precisely because they believe such restrictions will ensure the
Net’s positive role in their democracies.
This point is too often in the internet ‘freedom of
speech’ is used as a defense mechanism to deflect criticism, when in reality it
was framed in order to promote self-policing and self-criticism of communities
and governments by the people. In short, freedom of speech means everyone gets
to speak publicly, whether they agree or disagree.
The situation is made worse because the Federal
Constitution makes Parliament the repository of wisdom on the restraints needed
to curb free speech. It gives Parliament the exclusive power to draw the
balancing line between the might of the state and the rights of the citizens.
However, it must be made clear that laws enacted by the parliament which are
restricting human rights especially when it comes to freedom of speech and
expression are not violating Federal Constitution. That is how goverment is
trying to control society and to make sure no one will be given absolute rights
to speak and stirred the harmony of the nation. Even it may looks like a
violation to human rights, however, in the name of social order and for the public
welfare at large, these rights need to be restricted.
In the nutshell, since the internet has become vast in
promoting freedom of speech, then goverment can also restrict it even though
cyber space never stated under Federal Constitution. There is also a need for
parliament to enact new laws specifically for Internet usage since the whole
world is changing towards globalization.
7.0 REFERENCES
Joanna. L. (2009). Freedom
of Speech on the Net – An Illusion or Reality?
Retrieved
on November 12, 2014 from http://www.skrine.com/freedom-of-speech-on-the-net--an-illusion-or-reality
Nadhir. F. (2008). The Doctrine of Rule of Law in
Malaysia.
Retrieved
on October 26, 2014 from http://www.lawteacher.net/constitutional-law/essays/the-doctrine-of-rule-of-law-in-malaysia-law-essay.php
Vangie. B. (2014). Internet.
Vicky. S. (2010). Human Rights Violation.
Retrieved
on October 26, 2014 from http://www.humanrights.com/what-are-human-rights/violations-of-human-rights/slavery-and-torture.html
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