In February 2017, ARTICLE 19 analysed the Communications and Multimedia Act of Malaysia (the Act) for its compliance with international human rights standards, in particular the right to freedom of expression.
The Act 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. The governmental actors involved in the administration of the Act are “the Minister charged with responsibility for communications and media” and the Malaysian Communications and Multimedia Commission, which is established under the Act.
In the analysis, ARTICLE 19 concludes that the Act creates a number of overly broad content-related offences. In addition, the licensing scheme for network and applications services lacks adequate safeguards against censorship. Finally, the Act introduces 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.
Key recommendations
- Section 211 should be thoroughly revised to more narrowly and precisely define what qualifies as prohibited content under the Act, in line with the three-part test under international law;
- Distinction should be made between private communications and content that is publicly available; the former should be explicitly excluded from the scope of the Act;
- The liability of online intermediaries under the Act should be clarified. Service providers should not be held criminally liable for content produced by others; instead, they should be granted immunity from liability;
- Sections 212 and 213 should clearly set out what the position of the content forum is vis-a-vis other enforcement mechanisms and define its powers in this regard. It should be made explicit that protection of the right to freedom of expression will be part of any self-regulation regime;
- Section 233(1)(a) should be thoroughly revised to more narrowly and precisely define what constitutes “improper use of network facilities or services” under the Act; Malaysia: The Communications and Multimedia Act, 1998 ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org +44 20 7324 2500 2
- Section 233(1)(b) should be thoroughly revised to narrowly define the circumstances under which anonymous speech can be penalised under the Act;
- Section 233(2) should more precisely and narrowly define what constitutes “obscene” communication and raise the threshold for liability of intermediaries to one of actual and specific knowledge of illegal use of their facilities;
- Section 234 should be redrafted to afford proper protection to legitimate whistle-blowing activities and those involved in journalistic activity who obtain and disclose information and data in the public interest;
- The licensing scheme should: o establish clear criteria for the awarding of licenses, as well as the grounds for their withdrawal, eliminating the discretionary powers of government (-appointed) actors in the process; o explicitly exclude online intermediaries from the licensing scheme; o create an independent regulatory body with full powers to implement the Act’s licensing scheme, as well as the ability to receive and resolve complaints about its implementation. Decisions from this regulatory body should be subject to an appeal to an independent and impartial judicial body;
- Sections 74, 75, 247, 248, 249, 254, and 256 should provide clear exemptions to allow for the protection of journalistic sources;
- Section 253 should be redrafted to include an exemption for journalistic material. The exemption should apply to collecting and storing data for the purpose of publishing information, ideas, or opinions believed to be of general public interest;
- Section 252 should be amended to provide clear and narrowly defined grounds for surveillance. Surveillance should only be ordered on the basis of a judicial warrant;
- Section 263 should be abolished. Instead, as a matter of principle, hosting service providers should only be required to remove access to content following a court order, respective of the due process principles.