Malaysia amends law to hold publishers responsible for user comments

Sedition Act now affects publishers like Facebook, LinkedIn, Twitter and Google, but many don't believe the Malaysian government is intent on targeting international or corporate players.

UN says laws greatly restrict human right to free speech
UN says laws greatly restrict human right to free speech

In a move The Economist has described as ‘thuggish’ the Malaysian government strong-armed a series of bills through in the past month that greatly impede the right to free speech for the country's citizens. The worst of the lot are arguably the Prevention of Terrorism Act, which allows subjects to be detained indefinitely, and amendments made to the Sedition Act.

For the marketing and communications industry, the changes that bring the biggest chill of apprehension are the those made to the Evidence Act and the Sedition Act.

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"The amendments to the Sedition Act are tremendously repressive and draconian," commented Ong Kian Ming, member of parliament for Serdang (a Malaysian town) and a member of the Democratic Action Party.

The United Nations has urged the Malaysian government to withdraw the amendments made to the Sedition Act as the laws "curtail human rights". 

Digital News Asia explains these changes as follows:

As noted by [Malaysian] lawyer and Digital News Asia (DNA) columnist Foong Cheng Leong last week, when read with the Evidence Act amendments – the infamous Section 114A – the Sedition Act amendments become more chilling.

 The Sedition (Amendment) Bill 2015 creates liability to ‘any person’ and "thus may include owner, host, editor and subeditor" of "online forums, online news portals, and even Facebook Page/ Group owners," he wrote.

Sections 3 and 4 of the Bill introduce the words ‘caused to be published.’ Under the newly amended Section 4(1)(c) of the Sedition Act 1948, a person who, among others, publishes or caused to be published any seditious publication is guilty of an offence.  

So what does ‘caused to be published’ here mean? It seems to cover a website operator who allows a comment to be published on his website (especially in the case where comments are moderated). This also covers a comment or a posting published on a Facebook page," he added.

Facebook, LinkedIn, Google and Twitter have been quiet on the subject. Requests for comment made to these organisations in the past few days have either gone unanswered, in the case of Google, or have found communication heads unable to comment.

PRWeek Asia emailed Foong Cheng Leong to pose a few more questions:

What power do these amendments give the Malaysian government against the tech giants?

Foong: Our laws may not reach foreign tech giants. However, with the new amendments to the Sedition Act and even under the Communications and Multimedia Act 1998, it is possible to block the websites of these foreign tech giants. 

What could it cost them potentially to keep operating in Malaysia?

Foong: Possible problems: being criminally liable, servers and other electronic devices being seized as evidence, and so on, during investigation. 

 What are their options? Self-monitor like Tencent?

A self monitoring practice is possible but it will be costly and time consuming. Unfortunately, we do not have takedown notice provision (other than under our Copyright Act) or laws to protect intermediaries, hence monitoring is required in Malaysia. 

One possible option is to have their operations moved out from Malaysia which is detrimental to our economy. 

Do you think lobbying will change these amendments?

Foong: Lobbying for laws to protect intermediaries would be recommended. Other than affecting the freedom of expression, it also affects our digital economy. Foreign investors will have to think twice before setting up their operation and putting their servers here in Malaysia. 

The impact to marketing and communications in Malaysia

Most agencies with a presence in Malaysia were unwilling to comment on the record. As one source puts it, "That’s just the problem, the government could choose to take issue with anything we say."

David Lian, general manager of Zeno Group Malaysia, however, was willing to speak on the subject. "Right now, we have clients asking about the implications of these acts, but without details on the government’s plans to implement, you just can’t plan. It is at present a statement of intent. We are advising clients to wait and see."

Lian pointed out that the bill had been tabled in the past, usually just prior to Malaysia’s elections when the government wanted greater control over dissenting voices. In 2008, the government arrested prominent political blogger Raja Petra Kamarudin for posting anti-government comments and in February 2015, the government arrested a cartoonist for a Tweet he made about the controversial Anwar trial.

"Wait and see", is the consensus of industry sources. Most are confident that even if the amendments raise a potential risk for clients, the Malaysian government will not use the law to act against corporate entities. Instead, it will be a weapon against political discourse.

"We’re advising our clients to tighten their policies around community moderation and to be upfront about it," said an agency lead.

"I actually don’t believe this legislation will have much of an impact on corporate communications behaviour in Malaysia," said Bob Pickard, chairman Asia-Pacific of Huntsworth. "The market already has a reputation necessitating calculated restraint in public relations and media relations."

The new laws, Pickard added, may however adversely impact the nation’s marketing industry. "Our craft is at its best when freedom of expression trumps even well-meaning efforts which may have the consequence of stifling creativity or squelching insights and, in so doing, holding back the development of a country’s marketing services industry. My best communications counsel for both clients and  governments is to proactively engage the online public as a source of new ideas to be openly shared."

 

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