Ordering The Removal Of Online Content: MCMC'S Illegal Exercise of Power

Introduction

The 16th of February 2018 imbued yet another black spot on the already tattered fabric of freedom of speech and expression in Malaysia. The Malaysian Communications and Multimedia Commission (“MCMC”) –– once again –– whipped two online news portals into submission. These were The Malaysian Insight and Malaysia-Today.

Both were respectively served notices by the MCMC to remove several news articles on their websites. In the notices, the MCMC made one allegation. That is –– that the news portals published several articles that allegedly infringed S. 233 of the Communications and Multimedia Act 1998 (“CMA”). Following this, the news portals were ordered to remove the “infringing” articles.

In this write-up, the writer will take to: (i) Explore and examine the scope and ambit of S. 233(1) CMA and; (ii) Scrutinise the legitimacy and legality of the MCMC’s actions in ordering the news portals to remove the “infringing” articles.

Content

I. The Scope and Ambit of S. 233 CMA:

[A] S. 233(1) CMA: What does it provide?

Simply put, S. 233(1) CMA provides that any person who uses any network facility (be it the Internet, cellular networks, or even an application), to amongst others; annoy, harass, or abuse another person –– commits an offence.

Such would constitute an offence regardless of whether the annoyance or abuse is made against the person directly; or indirectly, without the person’s knowledge of the matter at all.

[B] Judicial Commentary on S. 233(1) CMA

In the 2013 case of PP v Rutinin Suhaimin[1], the High Court made several comments on S. 233(1) CMA that are worth noting. First, the victim of the offence need not actually feel annoyed or abused. It is sufficient that the infringing act had the tendency to cause annoyance or abuse to any person.

Secondly, it was said that a single instance of network usage, or rather –– a single infringing act, is sufficient to be caught by S. 233(1) CMA. This is because the provision is worded so widely that the network usage need not be continuous. Thus, even a single remark made, that does not receive any reply: may well fall within the ambit of S. 233(1) CMA.

And thirdly, it is irrelevant whether or not the accused reveals his identity when the infringing communication was made. What does matter is that it be established beyond reasonable doubt that the communication was indeed made by the accused.

The High Court also sets out the two elements to be satisfied to fulfill S. 233(1) CMA. These are: (i) The accused made the communication in question through a network facility and; (ii) Communication was made “with an intent to annoy, abuse, threaten or harass any person”.

[C] Criticisms Lashed at S. 233(1) CMA

For the past several years, S. 233(1) CMA has been on the receiving end of brunt and harsh criticisms. This is for it has been employed time and again to curtail freedom of speech and expression. Particularly in the crosshairs, are the words “annoy” and “abuse” in the provision.

The wide ambit and vagueness of these two words has allowed the MCMC to employ S. 233(1) CMA at will against news portals, political activists, cartoonists, and opposition politicians alike.

One may thus be prosecuted under S. 233(1) CMA for any comment made that the MCMC deems to “annoy” or hurt the feelings of any person. This has sparked interest and debate amongst legal experts as to whether can annoying someone even be criminalised in the first place?[2]

The Malaysian Bar Council has also accordingly called S. 233 CMA unconstitutional, for it is a disproportionate fetter (given its wide ambit) on the freedom of speech and expression enshrined under Art. 10 of the Federal Constitution (“FC”).[3] Today, as it had coming, S. 233(1) CMA has been duly laid before the courts for a determination as to its constitutionality.[4]

[D] Punishment for Contravening S. 233 CMA

S. 233(3) CMA prescribes a punishment of a fine not exceeding RM 50,000 or imprisonment not exceeding 1 year, or both –– for committing an offence under S. 233 CMA. There is also an additional fine of RM 1,000 provisioned, for each day the offence continues.

II. The Legitimacy and Legality of MCMC’s Notices for Removal:

[E] Ordering Removal of Online Content: An Illegal Exercise of Power

To briefly recall, the MCMC ordered two online news portals to remove several of their news articles, as the articles allegedly infringed S. 233 CMA. Hereunder, it will be examined if the exercise of power in issuing such an order for removal: was legal.

In 1997, the Federal Court in R Rama Chandran v Industrial Court of Malaysia[5] adopted the dicta of Lord Diplock in Council of Civil Services Unions v Minister of Civil Services[6]. Whereby, the courts can interfere with an act (MCMC’s order for removal) of the executive (the MCMC), in generally 4 different circumstances.

One of these circumstances is known as –– Illegality. In the 2016 case of Choo Yeoh Jee v Pesuruhjaya Sukan[7], it was said that illegality is where an authority has been guilty of an error of law in its action. That is, when the authority purports to exercise a power it does not have, and/or acts ultra vires its conferred powers. As succinctly put by the Singapore Court of Appeal in the 2015 case of Tan Seet Eng v Attorney-General[8], illegality examines the source and extent of the authority’s power.

In short, an authority must act within the scope and ambit of its conferred powers. Should it exceed its scope, or exercise powers it does not have –– this would amount to an illegality, warranting intervention of the court to quash such ultra vires acts or decisions.

The punishment prescribed for a breach of S. 233 CMA is as discussed above in [D]. It is a fine, imprisonment, or both. Nowhere in the CMA has Parliament conferred MCMC the authority to issue notices ordering for the removal of online content. Such notices effectively tantamount to censoring the Internet, which S. 3(3) CMA itself expressly prohibits.

It hence becomes lucid that MCMC’s notices to the two online news portals were tainted with illegality. The notices were clearly ultra vires the CMA, as the CMA does not provision for even the existence, what more the issuance of such notices. By issuing the notices, MCMC has thus exercised a power it does not have –– rendering the notices issued, illegal.

Conclusion

Be that as it may on the clear illegality of the MCMC’s notices, both news portal removed the “infringing” articles from their respective websites. Such is the extent of the fear these laws have struck into the hearts of those whom express themselves online.

The response of the news portals in removing the articles is understandable. Although the notices did not specify the consequences of failing to remove the articles, it is likely that the news portals would have been charged under S. 233(1) CMA, as many have been before. At the risk of lengthy and costly legal battles, and subsequent appeals, illegality triumphed.

The continuous issuance of such notices, if left unchallenged, effectively renders MCMC the final arbiter of content deemed infringing S. 233(1) CMA. This would tantamount to usurping the Judiciary’s judicial powers, and is also a blatant disregard of an accused’s right to a fair trial under Art. 5(1) FC, before independent courts.

Such self-conferred executive discretion and powers may well only be the first frightening indicator of what lays in days ahead to come. The Judiciary must step in and act on this. And they must act now.

Click here for footnotes