WEBSITES have become a popular channel for exchanging information and for conveying views and comments. Anyone who has access to the Internet can engage in such exchange.
Though we can take pride that our country was at the forefront of establishing the required infrastructure for multimedia development, yet there is a tendency not to appreciate all the legal aspects.
The recent blocking of websites by the Malaysian Communications and Multimedia Commission is a case in point. Some leaders in the country justify blocking as necessary to prevent continued publication of libel, slander and defamation which are in substance one and the same thing.
Appropriate action is always justified to deal with wrongdoings. But the issue here is not whether wrongdoings should be dealt with but how and the manner in which these should be dealt with, and who should deal with them. No sane citizen would approve of wrongdoings, whether the act amounts to defamation, sedition, breach of official secrets or other wrongs. And there are adequate laws to deal with them.
To say that websites ought to be blocked because they contain defamatory content or for that matter disclose the commission of an offence, shows that one does not appreciate the difference between wrongs for which action can be taken and acts that constitute prior restraint.
Where a wrongdoing or offence is committed, the existing laws apply with full vigour. In such cases, the publisher takes upon himself the responsibility and the risk of being prosecuted and punished, or held liable in other ways when the content breaches the law.
When this happens the matter is dealt with by the courts which will adjudicate on whether the wrong has been done or the offence has been committed. When this is done, everyone would have had his day whether it is a prosecution or a claim against the offender for the wrongdoing.
Restraint
However, prior restraint as a method of dealing with such situations is based on stopping the content from being published or continued to be published in the first place. This is because such content is perceived or believed to be offensive by those who are entrusted with censorship or by those who consider themselves affected by it.
This prior restraint can be said to come about in three ways. One is where such restraint is effected by an authority set up for such purpose or an authority that can act with similar effect.
The second would be a situation where an order is made by the courts. The third would be a situation where the restraint is self-imposed.
Thus the Board of Film Censors set up under the Film (Censorship) Act 1952 is an example of a body that has power to impose prior restraint with regard to films as defined. Then there are licensing bodies that can produce a similar result by direct or indirect acts.
Or a person who apprehends that publication of a specific content could cause damage to him or his interests can apply to the court for prohibition of its publication. The court will grant an injunction if it is satisfied that the content will cause irreparable loss for which damages are not the appropriate remedy.
Finally, the publisher of content that certain sections of the public may find offensive may on its own volition not publish the content. This may be out of either a fear of litigation or overwhelming adverse financial implications. This is also a form of censorship, though it falls into the category of self-censorship. Whilst all these situations involve prior restraint, the difference - leaving aside self-restraint - lies in the fact that in the former category, the restraint is imposed by administrative action while in the latter, through an order of court. It is the former that is referred to as censorship and is not preferred.
Websites
It is the first category that has been the subject of recent discontent. However, what is of interest is that many in position of authority have refrained from providing an immediate comment. Reference has also been made to the earlier declaration in the Bill of Guarantees that there will be no censorship of the Internet.
It is no doubt true that the Bill of Guarantees is not law but then the spirit of this assurance has also been incorporated into Section 3 (3) of the Communications and Multimedia Act 1998 which states that "nothing in this Act shall be construed as permitting the censorship of the Internet."
In this regard the point is not whether there should be prior restraint but the manner in which such restraint is effected. The argument against such restraint whether direct or indirect is that it is based on an administrative act. If such restraint were brought about through an injunction obtained in court, it would be more acceptable.
In the recent controversy, reference to Section 263 gives rise to the question of how the blocking came about. If section 263 is to be relied upon, it does not directly provide for an order to be made for any site to be blocked.
Section 263 is in the part entitled "General". It is about the general duties of licensees under Chapter Four which relates to "National Interest Matters". It has two subsections.
The first subsection provides that "A licensee shall use his best endeavour to prevent the network facilities that he owns or provides or the network service, applications service or content applications service that he provides, from being used in, or in relation to, the commission of any offence under any law of Malaysia."
The second subsection goes on to state that "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 the circumstances and in the light of the statements made and not made, it remains unclear to the ordinary citizen whether the much talked about blocking is a case of censorship or self-censorship. -- The Star
