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Friday, March 24, 2017

Report: Cyber law needs to be narrower, more clearly defined



Various provisions under the Communications and Multimedia Act 1998 (CMA) needs to be narrowed and more clearly defined, according to international advocacy group Article 19.
In a report launched in Kuala Lumpur today, the group said CMA contained content-related offences and investigatory powers that were too broad and lacked adequate safeguards against censorship.
CMA's investigatory safeguards are also at odds with the right to anonymity and did not allow journalists to protect their sources, it said.
“Article 19 calls on the Malaysian government to urgently review the act, introduce necessary amendments, and ensure it fully complies with international freedom of expression standards,” said the UK-based group in the report.
The group derived its name from Article 19 of the Universal Declaration of Human Rights, which stated that everyone had the freedom of opinion and expression.
The report was a legal analysis of the CMA, which was conducted last month as part of the group’s law programme. The 23-page report contained a total of 13 recommendations for the Malaysian government.
Recommendations for Malaysian government
In a statement, the group said it was particularly concerned about provisions under Section 233 of the CMA, which dealt with ‘improper use of network facilities’, which it noted had been used against human rights defenders and dissidents in the country.
It also noted that the government had announced plans to add ‘new elements’ to the CMA, and expressed concern that this might be used to further target social media users.
In its report, Article 19 urged for Section 233(1)(a) to be revised so that what constitutes ‘improper use of network facilities and services’ was precisely defined.
It also urged for what constituted ‘obscene’ communication under Section 233(2) to be precisely defined, as well as circumstances where anonymous speech could be penalised under Section 233(1)(b).
In addition, it wanted the threshold where online intermediaries (internet service providers, search engines, social media platforms, web hosts, etc) were held liable to be raised, so that they were only held liable under CMA only if they had actual and specific knowledge that their facilities were being used in an illegal manner.
Meanwhile at a forum held in conjunction with the launch of the report, human rights lawyer Edmund Bon said those accused of an offence under Section 233 of the CMA faced two problems in mounting their legal defence.
No statutory defence 
He said most laws in Malaysia had statutory defences, which an accused person could use in court to attack the mens rea (criminal intent) or actus rea (criminal action) held against him. Generally, most offences would require both mens rea and actus rea to be proven beyond reasonable doubt to secure a conviction.
However, Bon said this was not the case for Section 233 of the CMA. In addition, it lacked clear guidelines on what the law meant, and when should it be used.
“In essence, the next step would be to publish guidelines on what this really means. Otherwise, it would be open to abuse as has been complained […]
“For Section 233, it is not only wide, but it does not have any statutory defences. So you have accused persons facing a charge that is so wide and so overtly general, without any guidance on its use and without any guidance on how a defence can be mounted against Section 233,” said Bon, who is also Malaysia’s representative at the Asean Intergovernmental Commission on Human Rights (AICHR).
Another panellist, former Bar Council Human Rights Committee co-chairperson Firdaus Husni, said the principle of rule of law meant that laws must be clear and precise.
Vague laws open to selective prosecution
She said vague laws were open to interpretation and hence open to abuse, particularly in the form of selective prosecution.
“And that is what we see happening now. Instead, for example, being used against a speech that has a real risk of inciting violence, it is being used against forces of political dissent – forces that are critical of the government. 
“Is that the whole idea of 233(1)(a)? This should not be the case, because if that is the whole idea, then the CMA would not and does not encourage the freedom of speech and expression.
“Instead it can be seen as a political weapon, instead of protecting that space for freedom of expression,” she said.
At least three cases a day involving CMA
Meanwhile, human rights group Suaram’s project coordinator Dobby Chew told the forum that there were at least three cases a day involving the CMA, with many of them originating from complaints lodged in Johor.
This meant the accused may be arrested from all over the country, but they would have to travel to Johor regularly to attend their hearings.
In addition, unlike other draconian laws such as the Sedition Act 1948 that were often used against politicians and activists, Chew said the CMA was often used against ordinary folk as well.
“These (politicians and activists) are people who are well-equipped with the support and knowledge to protect themselves, but when it comes to CMA, there are also lay people.
“They can just be random people on the street, on the bus, on Facebook. So how do you protect these people? You can’t, not because they are nameless per se, but it is hard to identify who they are,” he said.
To a question, he said some of these are legitimate restrictions on the freedom of expression, such as when about 20 people were arrested for spreading false news about the flood situation in Kelantan in 2014.
Even then, however, the punishment for the offence may be disproportionate.
Disproportionate punishments
“People were sharing very false news about people drowning, and corpses floating around. So they used it (the CMA) and arrested about 20 people for spreading messages like that.
“In that sense, it is probably a more legitimate kind of arrest or control exerted via the CMA, but then the question is, is that the direction we want to go?
“I’m sure all of us have one or two people on WhatsApp groups who share random things that don’t make any sense at all. Yes, they should have read what they share, but should they be subjected to harsh criminal punishment? Or should they get a notice saying that this is false news and that they should clarify?” he said.
An offence under Section 233 of the CMA is punishable by a fine of up to RM50,000, by imprisonment for up to a year, or both. Offences that continue after the conviction are also liable to a fine of up to RM1,000 per day, for each day the offence continues.
Other highlights in the Article 19 report include:
  • Section 233 of the CMA and the highly similar Section 211 should be revised to conform with a three-part test laid out by the UN Human Rights Committee on when the right to freedom of expression can be restricted, namely: When the restriction is specifically provided by law, when the restriction is made in pursuit of legitimate goals (such as national security, public order, public health, and moral grounds), and when the restriction is both necessary and proportional;
  • The CMA should distinguish between private and public communication, and the former should be excluded from regulation under the CMA;
  • Online intermediaries should be given immunity from criminal liability for the content produced by others;
  • Several sections of the CMA dealing with investigatory powers should provide clear exemptions to allow journalists to protect their material and sources;
  • Section 252 of the CMA should be amended to allow surveillance only on specific grounds and circumstances, and only with the court warrant. Currently, the interception of internet communications only require the permission of a public prosecutor; and
  • Section 263 of the CMA, which allows the Malaysian Communications and Multimedia Commission (MCMC) to direct internet service providers to block access to certain websites, should be abolished. Instead, service providers should only be required to remove access to content following due process in court.

-Mkini

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