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The Malayan Law Journal Articles

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal Articles

2009
Volume 3

[2009] 3 MLJ xxxiv; [2009] 3 MLJA 34

LENGTH: 10346 words

TITLE: Article: Freedom of Speech and the Internet -- A Case Study of Malaysia

AUTHOR: Ahmad Masum Lecturer Faculty of Business and Law, Multimedia University,
Malaysia

TEXT:

Abstract

Freedom of speech is one of the most fundamental rights that individuals enjoy. It is
fundamental to the existence of democracy and the respect for human dignity. It is also
one of the most dangerous rights, because freedom of speech means freedom to
express one's discontent with the status quo and the desire to change it. As such, it is
one of the most threatened rights. Today, the development of electronic technology has
created a revolution in the way information is disseminated and communicated. The
Internet has now aggressively replaced the other mass media forms of expressing views.
Its unique feature captures the attention of many especially those who uphold to Art 19
of the Universal Declaration of Human Rights ('UDHR'). The Internet is a powerful and
positive forum for free expression. The Internet is the first medium that allows anyone
with reasonably inexpensive equipment to publish to a wide audience. It is the first
medium that distributes information globally at almost no marginal cost. The Internet
has 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. 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. In other words, the government
would be opposing the idea of individualism in society though Internet users may claim
the right to freedom of speech and expression. The study 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.

Keywords:Freedom of speech and expression, electronic technology, Internet,


electronic speech, censorship, cyberspace, cyber age.
INTRODUCTION

With the advancement in technology, the subject of freedom of speech has become a
topic of heated debate. The debate has ranged from questions as to whether
electronic/Internet speech should be treated just like any form of ordinary/traditional
speech because of the close proximity between the two. If so, should there be limitations
imposed on electronic speech just like the traditional free speech law that we have in
place? In other words, could it be argued that the traditional free speech laws are also
applicable to the Internet? Irrespective of what might be said about freedom of speech
and the Internet, it is inevitable to categorically state that this fundamental liberty is
vital to the existence of democracy and the respect of human dignity. For example,
freedom of speech is the life blood of a free society. In my view, freedom of speech is
more important than democracy, for democracy does not necessarily guarantee freedom
of speech (as evidenced by the many countries, which profess to practise democracy in
one form or another). Both history and current affairs teach us that the first step to the
creation or onset of greater democracy and equity is always the phenomenon of letting
the people's voice be better heard; by which I mean the voices of those who were
previously not heard or not sufficiently heard. Today, the Internet is a powerful and
positive forum for free expression in the form of electronic speech. It is an undeniable
fact that the development of electronic technology has created a revolution in the way
information is disseminated and communicated. Although not entirely new, the issue of
freedom of speech on the Internet has gradually become a larger and larger deal in
society and government as computer technology advances. As a medium of
communication, the Internet allows access to information that reflects the depth and
breadth of human speech.

In Malaysia, the right to free speech and expression is provided in the Constitution. For
example, art 10(1)(a) of the Federal Constitution states: 'Every citizen has the right to
freedom of speech and expression'. This right is only accorded to citizens and thus a
non-citizen has no claim against the violator of his or her freedom of speech and
expression. Like all other rights within the compass of art 10, the right to freedom of
speech and expression is severely limited, thus connoting that it is not an absolute right.
1
In the context of this study, it is important to admit or acknowledge that a Constitution
drafted in 1957 could not have anticipated the cyber age. 2 The advent of computers
has globalised the flow of information. 3 However, it must be borne in mind that one of
the biggest problems is that while the protection of free speech has been made clear in
verbal and print works, the protection becomes askew where the issue of the Internet is
concerned. For example, much as the Internet fosters freedom of speech, at the same
time it has facilitated abuse of free speech. 4 This article examines the issue of
limitations that might be imposed on free speech in cyberspace and whether such
limitations could be justified in a democratic environment especially if you believe that
there is an inherent value in truth. The basis of this line of argument is built on the
notion that human beings on average and over time recognise and value truth, and the
truth is best decided in a free marketplace of ideas and thus the ability of the Internet to
promote freedom of speech is of paramount importance in achieving this goal.

INTERNET AS A TOOL OF COMMUNICATION/SPEECH

The Internet has introduced a new form of speech, which we refer to as 'electronic
speech'. Electronic speech encompasses the traditional forms of speech, as in the display
of words or images on a computer, but it also includes new forms of speech, such as
Internet addresses, or domain names, etc. 5 This speech differs from traditional forms of
speech in a significant respect: One person's speech on a web site or bulletin board can
instantaneously be accessed by millions of users across the globe. 6

The Internet has now aggressively replaced the other forms of mass media expressing
views. The Internet fosters freedom of speech on a global scale ie it is the first medium
where information is distributed globally at almost no marginal cost. It is the first
medium that allows anyone with reasonably inexpensive equipment to publish to a wide
audience. It is a place where 'any person can become a town crier with a voice that
resonates farther than it could from any soapbox,' as the US Supreme Court recently
observed. 7 As a tool of communication, the Internet's potential is enormous, and the
stakes are high. The Internet can raise the quality of political debate, the quality of
education, the quality of life. It is precious and we must not take it for granted.

The Internet is a common area, a public space like any village square, except that it is
the largest common area that has ever existed. 8 Anything that anybody wishes to say
can be heard by anyone else with access to the Internet and this world-wide community
is as large and as diverse as humanity itself. 9 Individuals can access the Internet
through a variety of sources including the Internet Service Providers ('ISP'), schools,
employers, local libraries and 'cyber cafes.' Also, individuals can now access the Internet
through cable lines and televisions or through wireless instruments such as cellular
telephones and personal data assistants. It should be noted that once users access the
Internet, they can send and receive information in a variety of ways. For example, a
user can transfer information through e-mail, list services, newsgroups, chat rooms,
bulletin boards and the web.

The Internet is an important tool in disseminating information by not only providing


universal access to free speech, but by 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, libellous material, and material
advocating illegal conduct. Because of this dilemma, it has prompted different countries
in the world to regulate the notion of free speech on the Internet. 10 Thus one must point
out that lately, the Internet, a technological masterpiece has been the subject of great
controversy. Certain individuals feel as though the Internet should be governmentally
regulated or censored in order to protect the youth of Malaysia and to curb cyber
defamation. 11 On the other hand, the regulation of material on the Internet would, in
fact, be viewed or seen by others as a violation of a basic fundamental right of freedom
of speech and expression.

Having briefly looked at the Internet as a tool of communication/speech, it is inevitable


to state that the Internet raises significant issues concerning the definition of 'speech' as
it reaches different countries around the world. This being the case, probably any
attempt to regulate the Internet must strike a constitutional balance between the need
to maintain the free flow of information and the need to limit the availability of certain
forms of speech.
FREEDOM OF SPEECH AND EXPRESSION: THE POSITION UNDER THE
MALAYSIAN FEDERAL CONSTITUTION

Before looking into the position of freedom of speech and expression under the
Malaysian Federal Constitution, it is important to first of all acknowledge the importance
of free speech or expression in a democratic society. It is through speech and expression
that ideas are articulated, arguments are advanced and support for causes
demonstrated. Speech is the outward expression of a free conscience. Unsurprisingly,
free speech is accorded pre-eminent status in many constitutions such as the American
First Amendment. 12

Turning now to the position in Malaysia, it is clear that freedom of speech and expression
is part of what is known as Fundamental Liberties in the Federal Constitution. In other
words, the right to freedom of speech and expression in Malaysia is provided in the
Constitution. For example, art 10(1)(a) of the Federal Constitution states that: 'Every
citizen has the right to freedom of speech and expression.' This is arguably the most
controversial provision compared to other provisions under the chapter on fundamental
liberties. As per the provision, the right to freedom of speech and expression is only
accorded to citizens. Also, as a general principle most of us agree that the right to
freedom of speech and expression is not absolute. 13

Furthermore, it is equally important to note that while addressing the position of


freedom of speech and expression under the Malaysian Federal Constitution there is a
need to look into how this right is construed differently from other jurisdictions. In some
jurisdictions such as in the United States such a provision is essentially beyond the reach
of the Legislature. However, the position in Malaysia is different. 14 Article 10(1) is
expressly qualified from the outset. In other words, art 10(1) suggests that the rights
are residual in nature. Though this may be the approach in Malaysia, judges in all
jurisdictions including Malaysia have to engage in the delicate process of balancing
speech rights against other competing interests. However, in Malaysia, the courts seem
to have made the situation worse by holding that:
Article 10(1) of the Federal Constitution guarantees the rights of
every citizen to freedom of speech, assembly and association. These
rights are, however, subject to any law passed by Parliament. 15

Based on the above statement by the court, Andrew Harding comments that art 10 is
remarkable for what it takes away rather than for what it gives. 16 All this is due to the
fact that Parliament may under art 10(2) by law impose restrictions on these rights ie
freedom of speech and expression, assembly and association.

Surprisingly the Malaysian Federal Constitution does not define the right of freedom of
speech and expression. However, it would be

logical enough to rely on the definitions formulated in other jurisdictions. 17 Hence


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; the right to impart information and ideas; etc.
It is also a shared view among scholars and judicial decisions as well that freedom of
speech and expression is not confined to oral speech. It includes communication by
signs, symbols and gestures, freedom of the press and freedom to propagate ideas
through advertisement. Even symbolic speech such as the manner of one's dressing and
grooming can be treated as part of one's freedom of speech and expression. Perhaps in
the context of this study and by way of viewing communication as the essence of the
Internet, it becomes relevant that the topic of freedom of speech and expression in
Malaysia today would also cover 'electronic speech' although a Constitution drafted in
1957 could not have anticipated the cyber age.

SCOPE AND RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION IN


MALAYSIA: DOES IT APPLY ON THE INTERNET?

Scope

Article 10(1)(a) states that 'subject to cll (2), (3) and (4) every citizen has the right to
freedom of speech and expression'. There is no elaboration of the exact scope of this
freedom or its constituent parts. Specifically, there is no mention of the Press or freedom
of the electronic media. 18 In other words, the issue to ponder upon is whether the scope
of art 10(1)(a) would also cover freedom of speech in the context of the Internet ie
electronic speech. It is important to note that in constitutional law, it is generally
understood that the right to freedom of speech and expression is a combination of many
rights in many forms and Malaysia is no exception. For instance it can refer to
communication by word of mouth, signs, symbols and gestures and through works of
art, music, sculpture, videos, etc. Thus, the article would also cover the issue of
'electronic speech' since the Internet is viewed as a powerful and positive forum for free
expression.

Restrictions

Like all other rights within the compass of art 10, the right to freedom of speech and
expression is severely limited. In the first place, this right is an acknowledged right only
of 'citizens'. The right conferred by art 10(1)(a) is also made expressly subject to various
limiting constitutional provisions, which make vast inroads into the general principle. The
effect of these limiting provisions is a substantial reduction in the scope and potential of
freedom of speech and expression. There are for example constitutional restrictions in
the form of art 10(2), which qualify the freedom of speech and expression in the
following terms:
(2) Parliament may by law impose --
Such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any pArt thereof,
friendly relations with other countries, public order 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.

From the said cl (2) of art 10 of the Federal Constitution, it seems clear that they are
around eight 'constitutional restrictions' on the freedom of speech and expression. These
restrictions may sometimes be necessary on political rights such as freedom of speech
and expression is common place. This is due to the fact that just as free speech is an
avenue to the truth and an instrument of our highest intellectual, aesthetic and political
achievements, it is also an instrument of mischief. 19 For this reason, all legal systems,
including those of Western liberal democratic tradition, impose varying degrees of
restraints on this fundamental freedom. 20

Though these 'constitutional restrictions' may be justified, art 10, however, is unusual in
its failure to place any real restrictions on the restrictions. They are so widely drafted
that in practise there are likely to be very few possible restrictions which could not be
said to come within the kinds of restriction permitted by art 10, especially as there is
nothing in art 10 to suggest that the courts have any right to review the necessity of
legislation restricting one of these rights. 21 The result is therefore quite different from
that achieved in the Indian Constitution, which allows only such restrictions as are
reasonable, such reasonableness being a matter for the courts to decide on judicial
review. 22

Having briefly touched on the 'constitutional restrictions' imposed on freedom of speech


and expression as per art 10(2) of the Federal Constitution, probably what needs to be
pointed out in the context of this study is as to whether these 'constitutional restrictions'
could be extended to cover the issue of freedom of speech and the Internet in Malaysia.
In other words, are these 'constitutional restrictions' applicable to electronic speech
bearing in mind that today we are living in an era of information technology or the cyber
age? In other words, should we treat the Internet just like any other form of ordinary
speech because of the close proximity between the two? If so, should the traditional free
speech laws that we have in place be extended to cover electronic/Internet speech? It
would appear that the existing traditional free speech laws could be extended to cover
even electronic/Internet speech. This is because of the nature of the Internet ie being a
powerful and positive forum for free speech/expression. Hence one could not deny the
possibility or likelihood of these 'constitutional restrictions' being used as a basis to
restrict or control Internet speech.

Constitutional Restrictions

Having stated that art 10(2) of the Federal Constitution authorises Parliament to impose
such restrictions on free speech as it deems necessary or expedient on eight grounds, it
is therefore vital to address these eight grounds in the context of freedom of speech and
the Internet ie whether any of these eight grounds could be used to restrict or curtail
freedom of speech in the cyberspace or the Internet. The following are the eight grounds
or the constitutional restrictions on freedom of speech and expression:

Security of the Federation or any part thereof

Many laws impose restrictions on free speech but are legally justifiable by the security
grounds in art 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. Looking at some of these laws cited here, it is
crystal clear that if someone for example 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 Act 1948. 23

Friendly relations with other countries

There is no specific law to regulate or forbid free speech on this ground. But
administrative guidelines do exist. 24 However, in the context of this study probably
reference could be made to a situation where the Internet is used as a tool of
communication to disseminate information about a neighbouring country that might
create animosity or hinder bilateral relationship. For example, through the use of the
electronic media a journalist may report stating that Malaysians are being killed by
Indonesian soldiers. If this were to happen, the Indonesian government would protest
over such broadcast via the electronic media and this would prompt the Malaysian
government to come up with say a proposal to closely monitor news portal or web sites
and blogs in order to save face from future embarrassment as well as to maintain
friendly relations with other countries. As such, it is still possible for 'electronic speech'
to be controlled on this ground.

Public order

Under this heading, it is important to note that restrictions can be imposed on the
freedom of speech and expression on the grounds of public order. A restriction on this
grounds would apply even when dealing with 'electronic speech' or free speech on the
Internet. However, this brings to the fore the question: what would amount to public
order? Public order is something that is cherished by almost all the countries of the world
and likewise in multiracial Malaysia too. As Malaysian society is made up of many races it
becomes necessary to define public order in that context. However, reference could also
be made to some of the relevant laws under this head ie the Sedition Act 1948, the
Police Act 1967 and the Printing Presses and Publications Act 1984.

Still on the issue of public order as a ground for restricting freedom of speech and
expression, it is inevitable to make reference to the Sedition Act 1948. Under the Act,
the meaning of 'seditious tendency' has been extended far beyond its original meaning.
For instance the word 'seditious' is defined widely as any act, speech or words,
publication, or thing 'having a seditious tendency'. 25 'Seditious tendency' is then itself
defined as a tendency: '(a) to bring into hatred or contempt or to excite disaffection
against any Ruler or against any government; (b) to excite the subjects of any Ruler or
inhabitants of any territory governed by any government to attempt to procure in the
territory of the Ruler or governed by the government, the alteration, otherwise than by
lawful means, of any matters as by law established; (c) to bring into hatred or contempt
or to excite disaffection against the administration of justice in Malaysia or any State; or
(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan
Agong or of the Ruler of any State or amongst the inhabitants of Malaysia of any State;
or (e) to promote feelings of ill-will and hostility between different races or classes of the
population of Malaysia; (f) to question any matter, right, status, position, privilege,
sovereignty or prerogative, established or protected by the provision of Part III
(Citizenship) of the Federal Constitution or art 152 (National language), art 153
(Reservation of quotas for public service, permits, etc, for Malays, etc) or art 181 (Rulers
sovereignty of the Federation).'

It would appear that although this Act was meant to deal with the traditional concept of
freedom of speech, its applicability could be extended to cover even 'electronic speech'.
For example, hate speech on the Internet. Today, a few charges have been made
against bloggers under this Act. 26 However, these cases have yet to be determined by
the court. In addressing the issue of hate speech, probably reference could be made to
the situation in the United States. According to the Simon Weisenthal Centre, in 1995
there was only one racist site and by 1999 that number had increased to 1,400. 27 In the
United States, speech that is commonly referred to as 'hate speech' is protected under
the First Amendment, while speech posing a 'clear and present danger' is not. 28 Hence
the probability in Malaysia is very high that based on the ground of public order, the
authority would not allow the Internet to be used as a tool of communication in
disturbing public order. For example, 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. 29

In addition to the above, in keeping with these aspirations, a content Code was recently
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. 30 This comprehensive Code seeks to identify what is
regarded as offensive and objectionable while spelling out the obligations of content
providers within the context of social values in this country. The Code, which is a
blueprint of self-regulation, enables the government to keep up with its promises to
steer away from intruding into the Internet. 31

Morality

Although the freedom of speech and expression is a fundamental aspect in a democratic


society, morality or moral values of the society need to be protected as well. Thus,
freedom of speech and expression can be restricted based on the morality argument. In
the context of this study, what is important is to look into the issue of whether the
traditional laws such as: Films (Censorship) Act 1953, Lotteries Act 1952, Indecent
Advertisements Act 1953, the Penal Code and many more could be extended to cover
the issue of say 'obscene speech' or 'obscene materials' on the Internet. In Malaysia, it
would appear possible that some of these laws could be used to restrict free speech on
the Internet. For instance under ss 292 and 293 of the Malaysian 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. The said sections provide that the distribution, exhibition, circulation and so
forth of obscene books, pamphlets, etc, is prohibited with penal consequences. These
restrictions are designed to restrict indecent or immoral publications. 32 Thus, in the
cyber age that would also include the electronic media or the Internet irrespective of
what has been said above about the Penal Code.

Furthermore, in addressing the morality ground as a case of limiting freedom of speech


and expression, reference could be made to the Malaysian Communications and
Multimedia Act 1998. The Act prohibits communications of pornographic materials over
the Internet and action would not only be taken against the content providers, but also
the service providers for allowing the transmission and the accessing of obscene
materials. 33 Also, the Printing Presses and Publication Act 1984 prohibits pornographic
materials under 'undesirable publication'. 34

Still on the issue of morality being used as a ground to suppress freedom of speech and
expression (both the traditional forms and electronic speech), probably apart from
looking at only the position in Malaysia reference could also be made to other
jurisdictions ie the United States. In the United States the court has allowed the
government to prohibit obscene speech without running afoul of the First Amendment.
But such prohibitions are allowed only if 'obscenity' is clearly defined. Hence in the case
ofReno v ACLU 35 the court held that the Communications Decency Act (CDA) was
unconstitutional. The court reached this conclusion in part because the statute did not
define the words 'indecent' or 'patently offensive' while dealing with indecency law on
the Internet or indecency online.

Privileges of Parliament or any legislative assembly

Members of Parliament shoulder very heavy responsibilities and as such, they need some
sort of protection while carrying out their duties as Parliamentarians. 36 The purpose or
objective of this privilege is to enable the Houses of Parliament to carry out their tasks
as effectively as possible, without any interference from those outside, or abuse of
position by those inside Parliament. In other words, the privileges are meant to free
members from harassment or intimidation of legal actions in discharging their duties as
Members of Parliament. Hence whether we talk of the traditional forms of speech or
electronic speech, it would appear that in Malaysia one's freedom of speech could be
curtailed or restricted if it were to involve the privileges of Parliament or any state
legislative assembly. 37 Thus, bloggers would not be allowed to argue on the basis of
freedom of speech while touching on issues raised by Members of Parliament during
parliamentary proceedings. Similarly, the public would not be allowed to use the Internet
as a form of expression to show their dissatisfaction or even to bring a legal action
against a Member of Parliament who raised an issue during a parliamentary proceeding
that might be viewed or construed by the public as defamatory. 38

From the above paragraph, it would appear that the privilege (s) can only be invoked
where there is a 'parliamentary proceeding' going on. It seems clear that the phrase is
wider than simply 'debates in Parliament' and would cover questions in the House,
remarks in committee, and statements during any parliamentary business in the House.
Thus, the privilege of freedom of speech and debate is not personal in nature. 39 Also, in
Malaysia, save for one exception relating to sedition, the privilege of freedom of speech
during parliamentary proceedings is absolute. 40

Contempt of court

The law of contempt can be summarised to mean restrictions imposed on those who
wish to comment on judges and judicial proceedings. Contempt of court can be defined
as any act done or writing published that tends to bring the authority and administration
of law into disrespect or interferes with litigation. Looking at the definition of contempt of
court, it would appear that it is wide enough to even cover cases of 'electronic speech'.
In other words, information may be published on a given web site that might be
construed as interfering with the administration of justice.
In the context of this study, probably what one must address is whether the current
Malaysian laws on contempt of court which seem to restrict freedom of speech and
expression could be extended to cover the Internet or cyberspace. Before addressing
this issue, it is vital to make reference to some of these laws. It is important to note that
the Malaysian contempt of court laws can be derived from some of the Articles in the
Federal Constitution, for instance, art 126, 41 Courts of Judicature Act 1964 with special
reference to s 13(2) 42 and finally under para 26 of the Third Schedule of the
Subordinate Courts Act 1948, Revised 1972, which can take cognizance of any contempt
of court.

Looking at the Malaysian laws on contempt of court, it would be inevitable to suggest or


conclude that these laws may be extended to cover instances where the courts are faced
with the issue of freedom of speech and the Internet. In other words, it is still possible to
use Malaysian contempt laws in restricting freedom of speech and expression in the
context of 'electronic speech'. For example, a blogger who keeps commenting on a case
that is before the court or being heard by the court could be charged for contempt of
court.

Defamation

Generally, the term defamation refers to a false statement made about someone or an
organisation that is damaging to their reputation. In other words, defamation is defined
as the publication of a statement, which reflects on a person's reputation and tends to
lower him in the estimation of right-thinking members of society generally or tends to
make them shun or avoid him. 43

Still on the issue of defamation, it is important to note that Malaysian law contemplates
both civil defamation and criminal defamation. Civil defamation is provided under the
Defamation Act 1957. Under this Act, defamation is established if the plaintiff is able to
show that the publication of the defamatory statement was done, and the defamatory
statement made, with malicious intent and/or the words in the defamatory statement in
their natural and ordinary meaning reflect defamatory intention. Further, the plaintiff
must show that the statement is not a fair comment or justifiable. On the other hand,
criminal defamation is provided under s 499 of the Penal Code. Under that section,
defamation is established once it is shown that the words either spoken or intended to
be read or by sign, or by visible representations, make or publish any imputation
concerning any person, intending to harm, or knowing or having reason to believe that
such imputation will harm the imputation of such person.

Having addressed briefly the operation of defamation, it should be noted that in Malaysia
one's freedom of speech and expression can be restricted under this ground or heading.
Thus, the Malaysian Defamation Act 1957 is derived from this constitutionally
permissible restriction on free speech. Apart from the Defamation Act 1957, they are
other Acts as well that provide for defamation as being an offence eg the Malaysian
Penal Code by virtue of ss 499 to 502. For example, s 502 deals with selling or offering
to sell any such printed or engraved defamatory matters.

Looking at the above laws it becomes necessary to consider the issue of whether these
laws could be extended to deal with the question of cyber defamation today. It must be
acknowledged from the very beginning that the Internet has revolutionised
communications, and has the potential to dramatically altering the tort of defamation. 44
That tort involves a clash between the societal interest in free speech and the individual
interest in reputation, and countries have chosen to strike the balance between those
interests. 45

In addressing the concept of defamation as a ground to limit free speech, one cannot
deny the fact that the opportunities for defamation on the Internet are numerous ie user
messages sent to all members of a particular Internet group or posted on a web site,
defamatory material contained in a database, postings on a bulletin or in a chat session,
or specific e-mail messages sent and forwarded to one or many recipients. 46
Defamatory material is generally in words, but may also be portrayed by images. With
this kind of trend in mind, bloggers could be said to be liable for defamation since the
definition of speech covers every form of communication in whatever form, written or
symbolic. Thus, speech written in any web site is inclusive of the definition of speech.

To show that in Malaysia there is a likelihood or possibility of restricting freedom of


speech (electronic speech) using defamation as a ground, reference must be made to
some few recent examples where defamation suits have been filed against some well
known Malaysian bloggers such as: Raja Petra, Jeff Ooi, Ahirudin Attan, etc. 47 With
these law suits, the truth is that there are no special safeguards for bloggers in Malaysia
or elsewhere. The law doesn't differentiate between online and offline world. Hence the
Malaysian Defamation Act 1957 and as well as other laws could be used to deal with the
issue of cyber defamation.

Still on the issue of defamation, it has to be acknowledged wholeheartedly that


defamation law is complex ie there is a need to distinguish whether a defamatory
statement is libel (written form) or slander (spoken words). In a case of libel, if it is
determined that the statement is defamatory then there are presumptions against the
author or the publisher. In the case of slander, there is often the requirement to prove
actual damages or special damages suffered due to the defamatory statement. Hence
slander law does not apply to blogs as it does not fall within the ambit of broadcasting
and slanderous words by means of radio or television. 48 However, it must always be
borne in mind that the publication in a web site or online is to the general public. The
approach is not to read an article from a negative or positive point of view, but according
to what an objective and reasonable reading of it would convey.

Incitement to commit any offence

Under the Malaysian Federal Constitution, restrictions on freedom of speech and


expression can be imposed for the sake of avoiding incitement to commit any offence.
Probably this limitation could be justified looking at the Malaysian population, which is
multiracial in nature. In fact, in the history of Malaysia, the country once experienced
racial riots on 13 May 1969 which prompted the amendment to the Sedition Act 1948
and a wider definition to the term 'seditious tendencies'.

Under this heading, we have offences like obscenity; or causing disharmony, disunity on
grounds of religion and many other Penal Code offences which are restrictive of freedom
of speech and expression and which are legally derivable from this limb of art 10(2)(a)
of the Federal Constitution. In other words, the Malaysian Penal Code may be used to
curtail or restrict freedom of speech and expression on the ground of incitement to
commit any offence. 49

Having identified some few issues that might be viewed or construed by the authority as
leading to an act of incitement to commit any offence and thus giving the justification to
restrict freedom of speech, perhaps in the context of this study what is important is to
look into the issue of whether the Penal Code could be used to restrict Internet speech
as well. It would appear that Internet web sites, bulletins board or e-mails sent
containing information or material considered by the authority as inciting others to
commit any offence be viewed or considered differently from the traditional forms of
speech. In other words, the Penal Code could still be used even if we were to be faced
with the issue of the Internet or cyberspace.

Sensitive Matters

This restriction on freedom of speech and expression falls under the 'constitutional
restrictions' addressed above. In other words, apart from the eight grounds under art
10(2)(a), art 10(4) provides that Parliament may pass laws prohibiting the question of
four politically sensitive matters. 50 These are the right to citizenship under Part III of
the Constitution; the status of the Malay language; the position and privileges of the
Malays and the natives of Sabah and Sarawak; and the prerogatives of the Malay
Sultans and the Ruling Chiefs of Negeri Sembilan. 51

Looking at these 'four sensitive' matters, the question or issue to address here is
whether these 'four sensitive' matters could be used as a ground by virtue of art 10(4) of
the Federal Constitution to restrict free speech on the Internet. It is arguable that the
probability is very high that the authority may resort to these 'four sensitive' matters as
a ground to limit Internet speech. Thus, in Malaysia, the Internet could not be used as a
communication tool to address or touch on the four issues. For example, you cannot use
the Internet or bulletin board to question the position of Bahasa Malaysia as the national
language, etc.

Prior Restraints

In the United States, prior restraints on speech are generally forbidden by the
Constitution. But subsequent, punitive measures against abuse of freedom are available
-- a situation which elicits the comment that there is freedom of speech but often no
freedom after speech. 52

In Malaysia and Singapore, however, a wealth of prior restraints in the form of licence
and permit requirements exist which enable the executive to determine whether, when
and where the constitutional freedoms of speech, assembly and association are to be
exercised. 53 Prior restraint is manifested in the form of censorship, licensing, and
registration. Expressions through certain forms are not allowed without having to submit
to the requisite government approval. For example, films are required to be censored
before exhibition under the provisions of the Cinematography Films (Censorship) Act
1952. Publications of a periodical nature require approval under the Printing Presses and
Publications Act 1984.

Although it may be possible to have prior restraints on freedom of speech as stated


above, it is equally important to note that it is not all that easy while faced with the
Internet. Because of the Internet's robust design, it is impossible to completely block
access to information except in very limited and controlled circumstances, such as when
blocking access to a specific site from a home computer, or when using a firewall to
block certain sites from employees on a workplace network. 54 For instance the
government's proposal to closely monitor web sites and blogs that have published
seditious content has received mixed response from the blogging community. It is not all
that easy to successfully impose prior restraint on the information supplied through the
Net. Take for instance the case of Internet pornography, how could the authority
successfully impose prior restraints? There are hundreds, if not thousands, of Internet
web sites with such pornographic material or information.

SOME CHALLENGES TO THE RESTRICTIONS IMPOSED ON FREEDOM OF SPEECH


AND EXPRESSION: A CASE OF ELECTRONIC OR INTERNET SPEECH

Although it has been stated throughout the study that some of these traditional laws
governing free speech in Malaysia are also applicable to 'electronic speech', it is
inevitable that when faced with this fundamental right or liberty in the context of both
traditional forms of speech and Internet speech, the laws used or to be used in
restricting this liberty could be subjected to some forms of challenges. This is due to the
fact that there are differences of approach in Asia on who draws the balancing line
between rights and restraints. In Malaysia, the root cause of the problem is art 10(2)(a)
because of its inadequacy. On the other hand, art 19 of the Indian Constitution permits
Parliament to impose 'reasonable restrictions' on free speech. This phraseology gives the
courts the ultimate power to accept or reject legislation on the ground of
reasonableness. 55 However, the framers of the Malaysian Constitution rejected this
approach. The reasonableness, expediency or necessity of legislation is for Parliament
and not the courts to decide. 56

Still on the above issue, because art 10(2) of the Malaysian Federal Constitution does
not contain the qualifying word 'reasonable' but allows Parliament to enact 'such
restrictions as it deems necessary or expedient,' it gives the impression that Parliament
is not controlled by the four corners of art 10 and the effect of the article itself may be
likened to giving with one hand and taking back with the other. Hence some of the
traditional laws like the Internal Security Act 1960, Sedition Act 1948 and many more
imposing restrictions on the freedom of speech could be viewed in a democratic
environment as going overboard. It is also important to take note of the fact that some
of the phrases appearing in the Acts like national security; public order; public morality;
seditious tendency; etc could not easily be defined. Some of the phrases have been
given wide meanings and thus at the end of the day nothing is left out. To Harding, art
10 is unusual in its failure to place any real restrictions on the restrictions. 57

Furthermore, one cannot deny the fact that though some of these traditional laws
limiting or restricting freedom of speech could be extended to cover Internet speech or
electronic speech, there is a also a possibility that some of these laws do not directly
cover activities on the Internet. For example, the Penal Code and the Printing Presses
and Publication Act 1984 do not directly cover the activity of pornography on the
Internet. Also, slander law seems not to apply to blogs as it does not fall within the
ambit of broadcasting the slanderous words by means of radio or television. Thus, to
some the argument is that probably we need some specific laws to deal with
electronic/Internet speech on the cyberspace. Personally, I am of the view that the issue
is not only about coming up with new laws or specific laws to address or tackle electronic
speech. There is also a need to look into the enforcement mechanisms of the existing
laws, which might be used to limit electronic speech and also the urgent need to educate
the society about the usage of the Internet.

As to the issue of prior restraint (s), it is arguable that in the cyber age it is unlikely that
the authorities or the government have greater success in blocking access to
information. This is due to the nature of the World Wide Web or the Internet. For
example, how could the authority successfully impose prior restraint in the case of
Internet pornography? There are millions of Internet web sites with such pornographic
material or information. It must be admitted wholeheartedly that prior restraint might
not work well when we are faced with electronic speech as opposed to traditional forms
of speech.

Another challenge is that of the perception that the Malaysian Government portrayed
under the Multimedia Super Corridor ('MSC'), which was conceptualised in 1996. Under
the MSC, one of the promises made by the government in order to open up the MSC to
foreign investors was to say no to censorship on the Internet. This assurance was
embodied in s 3(3) of the Communications and Multimedia Act 1998 stating: 'Nothing in
this Act shall be construed as permitting the censorship of the Internet.' The idea behind
why the provision of the act allowed for such thing in the first place probably could have
been as a result of trying to develop and advance Malaysia in the area of information
technology. However, with the current trend of events and the war on cyberspace, such
as the lawsuits on bloggers, intense scrutiny has been placed on the Malaysian
government's commitment not to censor the Internet, a pledge that was given 10 years
ago when the MSC was unveiled. For example, the recent block of the online news portal
Malaysia Today has indicated that the government still has control over cyberspace.

The other challenge is that of jurisdiction when faced with the issue of electronic or
Internet speech. The issue can be framed as follows: can a person who sends data via
the Internet properly be forced to defend himself or herself in court or in any forum in
which the data can be accessed on the Net? In Malaysia, some of our present laws
provide for extra-territorial jurisdiction in cases where the offence either originates in
this country or directed against computers, data or program in the country. 58 However,
there are still some limitations in the application of the said laws. For example, the
Malaysian Penal Code would apply subject to the Extradition Act 1992. 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 as far as electronic speech is concerned.
CONCLUSION

The Internet represents an unparalleled forum for locating information, establishing


contact with people from around the world engaging in discussion of virtually any topic
imaginable. In other words, the Internet has introduced a new medium of
communication and has greatly expanded the use of computer code as a form of speech.
However, its very openness also means it presents unequalled opportunities for
dissemination of speech which would be outlawed by various countries. Malaysia is no
exception when it comes to restricting electronic speech despite the assurance that the
government will not censor the Internet. This is by virtue of s 3(3) of the
Communications and Multimedia Act 1998 stating that 'nothing in this Act shall be
construed as permitting censorship on the Internet'.

Although many cyber-advocates argue that the Net represents a vast democratic forum
in which 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.

Much as it is agreeable that some of the traditional laws restricting freedom of speech
and expression are applicable or could be extended to cover Internet speech, the
restrictions that could be imposed on Internet speech are perhaps questionable based on
the fact that many of these traditional laws are extensive in their terms. 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.

Probably the restrictions on Internet speech especially the constitutional restrictions


need to be reasonable as in India. This would give the courts the ultimate power to
accept or reject legislation on the ground of reasonableness. In other words, government
regulation of protected speech must be content neutral, and must serve a compelling
government interest. Moreover, the regulation must be drafted as narrowly as possible
in order to avoid restriction on speech that is not necessary to further the government's
legitimate interest. Also, having laws (both existing and new ones) may not be the only
solution in controlling or regulating Internet speech. Perhaps we need to look into other
mechanisms as well such as educating the public about the usage of the Internet since it
fosters freedom of speech while facilitating abuse of free speech.

Return to Text

FOOTNOTES:

n1 See art 10(2)(a), which authorises Parliament to impose such restrictions on free
speech as it deems necessary or expedient on eight grounds ie security of the Federation
or any part thereof; friendly relations; public order; morality; privileges of Parliament or
of any Legislative Assembly; contempt of court; defamation; and incitement to any
office.

n2 Shad Faruqi, 'Cyber Challenge to Freedom of Speech', Sunday Star, 27 January


2002, at p 25.

n3 Ibid.

n4 For example, our private lives and reputations can be spectacularly violated by
any one who bears a grudge and has an e-mail account at his disposal; purveyors of
obscene materials flood the air waves with materials we can neither censor nor stop.

n5 Hiller, Janine S and Cohen, Ronnie,Internet Law & Policy, Prentice Hall, Upper
Saddle River, New Jersey, 2002 at p 49.

n6 Ibid.

n7 See the case of Reno v ACLU 521 US 844 (1997) where the court reiterated that
the interest in encouraging freedom of expression in a democratic society outweighs any
theoretical but unproven benefit of censorship.

n8 Internet Freedom of Speech, [lt]htpp://www.livinginternet.com/i/ip-speech.htm>


viewed on 25 June 2008.

n9 Ibid.

n10 For example, in 1996 the Communications Decency Act (CDA) was passed
prohibiting distribution of adult material over the Internet, even though the law was
widely believed to be unenforceable and unconstitutional. This Act was subsequently
found unconstitutional by the court in the case of Reno v ACLU.

n11 Anis Ibrahim, 'Bloggers Subject to Same Rules', New Strait Times, 25 January
2007.

n12 The First Amendment provides that 'Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof; or abridging the
freedom of speech or of the press; or the right of the people to peacefully assemble, and
to petition the government for a redress of grievances.'

n13 See art 10(2)(a) of the Malaysian Federal Constitution.

n14 Abdul Aziz Bari and Farid Suffian Shuaib, Constitution of Malaysia -- Text &
Commentary, (2nd Ed), Prentice Hall, Petaling Jaya, 2006 at p 36.

n15 Per Muhamad Azmi J inLau Dak Kee v Public Prosecutor[1976] 2 MLJ 229, at p
230.

n16 Harding Andrew,Law, Government and the Constitution of Malaysia, Malayan Law
Journal Sdn Bhd, Kuala Lumpur, 1996 at p 189.

n17 See art 10(1) of the European Convention on Human Rights (which was drawn up
in 1951) provides that: 'Every one has the right to freedom of expression. The right shall
include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.'

n18 Shad Faruqi,Free Speech and the Constitution (1992) Vol 4 Current Law Journal
64.

n19 Shad Faruqi, 'Life-blood of a free society,' Sunday Star, 20 January 2002, at p
23.

n20 Ibid.

n21 Harding, n 16 at 190. See also the case of Nasharuddin Nasir v Kerajaan
Malaysia & Ors [2004] 1 CLJ 81, where the Federal Court ruled that 'where matters of
national security and public order are involved, the courts should not intervene by way
of judicial review as these are matters especially within the preserve of the Executive'.

n22 See art 19 of the Indian Constitution, which permits Parliament to impose
'reasonable restrictions' on free speech.

n23 Yoong, Sean, 'Cyberspace freedom in Malaysia under limelight after authorities
threaten blogger,' AP Worldstream, 7 October 2004.

n24 Shad Faruqi, n 18 at 64.

n25 See s 2 of the Malaysian Sedition Act 1948. See also s 3 of the Act, which deems
intention irrelevant 'if in fact the act had ... a seditious tendency'.

n26 See the examples of the likes of Raja Petra Kamarudin, Syed Akbar Ali and Syed
Azidi Syed Aziz.

n27 Hiller, Janine S and Cohen, Ronnie,Internet Law & Policy, Prentice Hall, Upper
Saddle River, New Jersey, 2002 at p 55.

n28 Ibid.

n29 See 'Cyber Defamation - The Malaysian Legal Perspective of Freedom of


Expression v Protection of Reputations.' A conference paper present at the 5th Asian Law
Institute Conference, organised by National University of Singapore, Singapore, 2008, at
p 20.

n30 Ida Madieha, Content Regulation in Malaysia Unleashing Missiles on Dangerous


Web Sites, [lt]http://www.bileta.ac.uk/03papers/azmi.html> viewed on 18 July 2008.

n31 Ibid.

n32 See Abdul Hamid, Off the Bench, Pelanduk Publications, Petaling Jaya, 1995 at p
74.

n33 See ss 211 and 233 of the Act.

n34 Section 7 of the Act defines 'undesirable publication' as articles, photographs,


writing, sound, music and statements in any manner which is prejudicial to the order of
the society.

n35 521 US 844 (1997).

n36 See art 63(1), (2) and (3) of the Malaysian Federal Constitution.

n37 See art 72(1), (2) and (3) of the Malaysian Federal Constitution.

n38 See art 63(2) of the Malaysian Federal Constitution.

n39 See the case of Lim Kit Siang v Public Prosecutor[1979] 2 MLJ 37 -- where an
opposition MP was charged under the Official Secrets Act 1972 for receiving and
communicating secret official information relating to the purchase of fast strike crafts for
the use of the Royal Malaysian Navy.

n40 See the case of Mark Koding v Public Prosecutor[1983] 1 MLJ 111 -- where a MP
was convicted for sedition when he advocated in Parliament the closure of Chinese and
Tamil Schools.

n41 Article 126 of the Federal Constitution provides that 'The Federal Court, the Court
of Appeal or the High Court shall have power to punish any contempt itself'.

n42 Section 13(2) of the Courts of Judicature Act 1964 provides that provides that
'The High Court shall have power to punish any contempt itself'.

n43 Rogers, WVH, Winfield and Jolowizc on Tort, (13th Ed), Sweet and Maxwell,
London, 1990 at p 294.

n44 Weaver, Russell, Defamation Law in Turmoil: The Challenges Presented by the
Internet,[lt]http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000-3/weaver> viewed on
22 July 2008.

n45 Ibid.

n46 Hiller, Janine S, and Cohen, Ronnie, n 27 at 57.

n47 Bloggers suit in Malaysia, [lt]http://www.jeffooi.com> viewed on 22 July 2008.

n48 Sabrina Mohamed Hashim,Blogging -- Are You Exposing Yourself To Legal


Liabilities? (2007) Vol 2 Current Law Journal 1.

n49 See s 298 of the Malaysian Penal Code on wounding religious feelings, and s
298A causing disharmony, disunity, enmity, hatred.
n50 Shad Faruqi, 'Cyber challenge to freedom of speech,' Sunday Star, 27 January
2002, at p 25.

n51 Ibid.

n52 Shad Faruqi, 'Life-blood of free society,' Sunday Star, 20 January 2002, at p 23.

n53 Ibid.

n54 Internet Freedom of Speech, [lt]http://livinginternet.com/i/ip-speech.htm>


viewed on 25 June 2008.

n55 Shad Faruqi, n 53 at 23.

n56 Ibid.

n57 Harding, n 21 at 189.

n58 For example, the Malaysian Penal Code gives criminal jurisdiction to the courts to
try for an offence committed by a person beyond the territory of Malaysia provided such
a person is subject to Malaysian law. See also s 121 of the Malaysian Criminal Procedure
Code stating 'When a person is accused of the commission of any offence by reason of
anything which has been done and of any consequence which has ensued such offence
may be inquired into or tried by a Court within the local limit of whose jurisdiction any
such thing has been done or any such consequence has ensued'.