In April, Malaysia’s lower house of parliament approved legal amendments making any "owner, host, [or] editor" potentially liable for content posted on their platforms by third parties. The move was part of an apparent attempt by the government to claw back control after the leading coalition suffered losses in the 2013 election.
The opposition’s near-victory was buoyed by independent online news platforms and digital mobilisation. The crackdown has centered on repressing online activities and led to the arrest of several politicians. But these changes to the legal framework undermine internet freedom for the entire population, regardless of their political views.
Developments like this are becoming common around the world. Altogether, 41 countries passed or proposed legislation to penalise legitimate forms of speech online, increase government powers to control content, or expand government surveillance capabilities between May 2013 and May 2014, according to Freedom on the Net, the annual comparative study I help edit. The report assesses national internet freedom in 65 countries based on degree of internet access, censorship, and legal protections for online activity, as documented by local researchers.
Of course, many laws have a much-needed positive effect on internet freedom, enabling police to prosecute cybercrime and counter terrorism. But even well-intentioned lawmakers have introduced vague or misguided restrictions on legitimate expression. Others, are explicitly seeking to extend existing controls on traditional media or political organisations to the online sphere.
Disproportionate intermediary liability is just one example of a legal measure which can be used to restrict the free and open internet, we found. Others banned dissenting content, often without legal oversight, or criminalised online defamation. Furthermore, 19 countries recently passed legislation that increased surveillance or restricted user anonymity.
Internet-specific laws that threaten legitimate activity are particularly prevalent in Asia, where more repressive bills are in the works.
In Cambodia, a cybercrime law written without input from civil society or business stakeholders leaked in draft form in 2014, and could criminalise a range of online content. The draft was much criticised, but instead of accepting feedback, news reports early this year have said that the government was considering a state secrets law to prevent future legislation from being leaked to the public.
A Prevention of Electronic Crimes Act is also pending in the legislature in Pakistan, despite criticism from local and international civil society and telecommunications experts who say their suggestions were ignored during the drafting process.
Who should be worried?
This trend should concern internet companies and content producers. It used to be that professional journalists or self-identified dissidents were most likely to fall foul of repressive authorities for exercising their freedom of expression. Now, ordinary internet users on social media platforms are open to prosecution under poorly-worded, or vague, legislation.
Problematic features can include allowing other citizens to report content that offended them to police, introducing scope for abuse from motives of personal revenge; or failing to differentiate between hate speech, which is acceptable to restrict under international law, and wounding somebody’s feelings, which isn’t.
Some intermediary liability laws require companies themselves to proactively monitor third-party comments across their applications, drawing resources away from innovation and development.
Many of the individuals on the wrong side of this move are young people—the future entrepreneurs and consumers of the networked age.
In May, 16-year old Singaporean Amos Yee was found guilty of wounding religious sentiment and for obscenity after 30 people filed police reports. The complaint were about a satirical online video and blog post he published about Lee Kwan Yew in March. His sentence has yet to be announced, but he faces up to three years imprisonment.
High-profile cases like these can have a chilling effect on the commenting, linking and interaction that sustain media and advertising, and can even drive consumers away altogether.
In October 2014, 400,000 South Koreans switched from domestic messaging application Kakao Talk to Telegram, an encrypted alternative based in Germany, after investigators sought to punish people who spread rumors about the government’s handling of the Sewol ferry disaster earlier in the year.
Harsh or ineffective laws are much harder to challenge once they have been passed. In March, the Indian Supreme Court struck down parts of the Information Technology Act that had been subject to abuse, a long-awaited improvement to a law last amended in 2008.
In the Philippines, the Supreme Court also struck down provisions of the controversial Prevention of Cybercrime Act in 2014, but only after sustained opposition across different sectors. Even that was a partial victory. The law still classifies libel as a cybercrime punishable with up to eight years in prison, compared to less than five years for the identical offense if it is committed offline.
It is much more effective to engage with governments during the drafting process, and act to prevent misguided legislation being rushed through in an attempt to keep pace with the internet’s dynamic growth.
Media and advertising professionals working in these markets should watch developing legal frameworks closely, not just to ensure their own compliance, but to advocate for laws that are clear, proportionate, and in line with international standards.