ARTICLE 19 calls on the Malaysian Government to urgently review the Communications and Multimedia Act 1998 (CMA) and bring it into full compliance with international freedom of expression standards in conjunction with the launch of our new legal analysis of The Communications and Multimedia Act today. The analysis is the first to be published since ARTICLE 19 set up a desk dedicated to freedom of expression issues in Malaysia late last year.
In February, ARTICLE 19 analysed the CMA, which in recent years has been invoked more frequently following the social media boom in Malaysia. The use of the Act by police and the Attorney General of Malaysia to arrest and charge individuals expressing progressive views and dissent sets a worrying trend on the boundaries of free speech in the country. At the moment, a constitutional challenge is being mounted on the Act at the Federal Court.
Freedom of expression is guaranteed under Article 10(1)(a) of Malaysia’s Federal Constitution, but in practice, draconian laws such as the CMA are frequently used to harass individuals and criminalise the right to freedom of speech and expression in the country.
The CMA has an expansive scope, ranging from spectrum allocation and consumer protection to content regulation and investigatory powers. The main subjects of regulation under the Act are applications services and network services. The Act further pertains to content applications services, which appear to include online intermediaries.
ARTICLE 19 is particularly concerned that Section 233 of the CMA, which deals with “improper use of network facilities or network service” has been used time and again to target human rights defenders in the country. In October 2015, student activist Khalid Ismath was charged with 11 counts under Section 233 of the CMA for posting comments on social media deemed offensive to the Johor royalty and in June 2016, graphic artist Fahmi Reza was likewise charged with 2 counts under Section 233 of the CMA for posting images on social media depicting Malaysian Prime Minister, Najib Razak as a clown.
In addition to this, ARTICLE 19 notes that the CMA is currently being revised by the Government to “incorporate new elements, including network security matters”, which we are concerned may be used to further target social media users in Malaysia.
From our analysis of the CMA, ARTICLE 19 concludes that the Act creates a number of overly broad content-related offences. In addition, the licensing schemes for network and applications services lacks adequate safeguards against censorship and introduce far-reaching investigatory powers which are at odds with the protection of journalistic sources and the right to anonymity.
ARTICLE 19 calls on the Malaysian Government to urgently review the Act, introduce necessary amendments and ensure it fully complies with the international freedom of expression standards.
We recommend that the Malaysian Government:
- Thoroughly revise content offences and ensure that all restrictions comply with international law;
- Make a distinction between private communications and content that is publicly available; the former should be explicitly excluded from the scope of the CMA;
- Clarify the liability of online intermediaries: service providers should not be held criminally liable for content produced by others; instead, they should be granted immunity from liability;
- Afford proper protection to legitimate whistle-blowing activities and those involved in journalistic activities who obtain and disclose information and data in the public interest;
- Review provisions on the licensing scheme;
- Provide clear and narrowly defined grounds for surveillance. Surveillance should only be ordered on the basis of a judicial warrant; and
- Revise provisions on blocking and ensure that hosting service providers are only required to remove access to content following a court order, respective of the due process principles.
The report will be launched at a forum at the Kuala Lumpur & Selangor Chinese Assembly Hall today, with the participation of Edmund Bon Tai Soon (AICHR Representative), Firdaus Husni (Co-Chairperson of the Bar Human Rights Committee), Jac Kee (Centre for Independent Journalism) and Khalid Ismath (Human Rights Defender facing 11 charges under the CMA).