Friday July 24, 2015
Senior criminal lawyer Amer Hamzah Arshad said a clause in the Communications and Multimedia Act 1998 was of concern as it permits the commission to be “prosecutor, judge and executioner” when applying bans on websites even before an offence is committed.
“It’s just like ISA. It’s open to abuse,” he told Malay Mail Online when contacted, referring to the now-abolished Internal Security Act 1960 that had allowed the government to detain individuals arbitrarily and indefinitely without trial.
“The section is also open to abuse because of the word 'prevention'. As long as the authority is of the view that a website is a potential threat, it has the power and can block a particular website, despite the fact that no offence has been proven to have been committed,” he said.
Among the possible power abuses are selective enforcement against websites seen as critical of the government or even a “complete blackout” of the Internet and information, Amer Hamzah said.
The blocking of the Sarawak Report website despite an MCMC official’s admission that its content has yet to be proven false is also another example of the arbitrary use of Section 263 (2) of the Communications and Multimedia Act, he said.
On Sunday, the MCMC ordered internet service providers (ISPs) to block local access to Sarawak Report for carrying articles on the 1Malaysia Development Berhad scandal that it described as unverified news.
Under Section 263 (2), ISPs as licensees must comply with the MCMC or any other authorities that make a written request for their assistance in preventing an offence or the attempt of any crime listed under Malaysian law.
Civil liberties lawyer Melissa Sasidaran pointed out, however, that Section 3(3) of the CMA states that nothing in that Act “shall be construed as permitting the censorship of the Internet”.
“Basically the Act doesn’t allow for censorship of Internet. So MCMC has some explaining to do,” she told Malay Mail Online.
Lawyer Foong Cheng Leong, who is well-versed with cyber law, said Section 263(2) has a wide scope and could be interpreted “very liberally” to mean that MCMC can ask ISPs to block a website even when no complaint or police report has been lodged.
“You don’t have to wait for the court to convict the person to block the website,” the KL Bar Information Technology committee chairman told Malay Mail Online when contacted, adding that even prosecution was not a requirement for the section to apply.
Foong said there is “room for abuse” as the MCMC can cite the broadly-worded clause to block websites without reasonable basis, but noted that website owners could seek legal remedy by attempting to have unjustified blocks declared unlawful and beyond the MCMC’s authority.
Both Foong and Amer Hamzah said there appears to be no tribunal available for website owners to appeal to and it is unclear whether the CMA’s Section 82 on resolving disputes through negotiation covers such cases.
The two lawyers suggested safeguards to curb any possible power abuses by MCMC under Section 263 (2), with both saying that the regulator should notify the website owner when it makes a written request to the ISPs to block the websites.
“If you look at the Home Ministry’s website, there is a list of books being banned. Why can’t we have say a list what kind of website has been banned?” Foong asked, adding that a clear avenue for website owners to appeal to the MCMC decision must be provided.
Foong said, however, that some curbs were justifiable, citing as example Islamic State militants’ propaganda as well as existing restrictions on pornography, gambling and drugs.
Amer Hamzah said that unlike clear-cut cases like child pornography websites where censorship is needed, proper checks and balances are required to prevent power abuses when MCMC denies access to grey areas like news reports and information.
He described the MCMC’s move to block Sarawak Report as appearing regressive and an attempt to “stifle” the fundamental rights of freedom of information and expression, adding that those affected by the website’s articles could either rebut with information or sue instead.
“We don't want the perception that MCMC is being used to protect a particular party,” he added.
When asked about MCMC’s possible justification of national security for the blocking of Sarawak Report, he pointed out that no mob violence has been seen as a result of the website’s reports as opposed to the rumours spread online that resulted in the Low Yat Plaza riots.
On Sunday, MCMC said it had decided to block websites that can “threaten national stability”, including Sarawak Report for publishing information that “still cannot be verified and is being investigated”.
It also said the temporary blocking of Sarawak Report until the end of a special taskforce’s probe on the 1Malaysia Development Berhad, is done according to Section 211 and Section 233 of the CMA.