Tuesday 11 April 2017

ARTICLE REVIEW: Freedom of Speech and the Internet - A Case Study of Malaysia

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?

Nadhir. F. (2008). The Doctrine of Rule of Law in Malaysia.
Vangie. B. (2014). Internet.
Retrieved on November 12, 2014 from http://www.webopedia.com/TERM/I/Internet.html

Vicky. S. (2010). Human Rights Violation.




[2] Universal Declaration of Human Rights
[3] Comments from Andrew Harding
[4] Document of Destiny by Prof Dr Shad Saleem Faruqi
[5] August, 2013.

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