Abstract

This study is about the issue of internet censorship in Malaysia. The issue arises because Malaysia has taken a policy not to censor internet for the encouragement of foreign investments and the development of local investments as well, via the Multimedia Super Corridor (MSC). It is also crucial to compare the position of Malaysia to other countries that have censored the internet and countries that do not censor their internet, together with their stand for backing up their policy. This is crucial because every countrys background differs socially, politically, and economically. Therefore the purpose is also to discuss whether Malaysia has made a right decision to further this policy.

Furthermore, this study also encompasses the law of internet censorship in Malaysia and whether it is effective. Apart from that some of the issues will be discussed are whether the government has discretionary powers to counter the no internet censorship in certain circumstances. The climax of this study is the issues that arise resulting from the no internet censorship policy, thus reflecting the advantages and disadvantages of this policy. Lastly

are recommendations that are practical for the Malaysian context and a conclusion.

Abstrak

Kajian ini adalah tentang polisi tiada batasan internet. Malaysia telah mengambil polisi ini bagi menggalakkan pelaburan antarabangsa dan tempatan selaras dengan misi Multimedia Super Corridor (MSC). Adalah penting juga bagi membandingkan posisi Malaysia dengan negara-negara yang memilih untuk membatas internet mereka dan yang tidak dan faktor polisi pilihan mereka. Ini penting kerana setiap negara mempunyai latarbelakang berbeza dari segi sosial, politik, dan ekonomi. Lantaran itu motif kajian ini juga mengetengahkan sama ada Malaysia telah membuat keputusan yang tepat dengan memilih polisi ini.

Tambahan lagi kajian ini juga membincangkan keberkesanan undang-undang polisi tiada batasan internet yang sedia ada. Selain itu isu yang akan dibincangkan juga adalah sama ada kerajaan mempunyai kuasa untuk mengecualikan polisi tiada batasan internet dalam sesetengah keadaan. Klimaks kajian

ini adalah di mana isu-isu yang timbul akibat daripada polisi ini dan kebaikan dan keburukan yang boleh dipetik daripada isu-isu yang timbul. Akhir sekali adalah saranan yang prakitikal bagi konteks di Malaysia dan penutup.

Introduction
Internet is arguably one of the best inventions of mankind. The advancements of the internet have enabled everyone to perform or conduct things that were unimaginable in the past. The convenience it offers has made the internet users, indebted. Since it has brought us such simplicity it can also be inferred that the world has been undergoing such significant changes in a lot of areas. In other words it is a system that everyone has to be apart of today in order to keep up with the present and the future. So after all that the internet has been serving people, why is there a need to censor the internet?

What is meant by internet censorship? Internet censorship can be defined as control or suppression of the publishing or accessing of information on the Internet. Some may censor or band only certain contents of it and some may ban to a greater extent, depending on the interest or agenda lies within. A government can try to block citizens by viewing these websites even if it has no control over the websites themselves. There are several types of internet censorship. Firstly is by partially blocking. Under this type, there are several methods that can be done. Firstly is IP blocking. In other words a certain IP address is denied. If the target Web site

is hosted in a shared hosting server, all websites on the same server will be blocked. A usual circumvention method is to find proxies that have access to the target websites, but proxies may be jammed or blocked, and some Web sites, such as Wikipedia (when editing), also block proxies. Some large websites like Google have allocated additional IP addresses to circumvent the block, but later the block was extended to cover the new IPs. Another common method is Uniform Resource Locator (URL) filtering. It will scan the requested URL string for target keywords regardless of the domain name specified in the URL. Other methods include DNS filtering and redirection, packet filtering, connection reset, and reverse surveillance. There are popular filtering software programs such as SmartFilter1.

In urgent circumstances, the government can fully block the usage of the internet. This is shown during the recent Egyptian protests on 27th and 28th January 20112. This is to prevent further chaos and anarchy in the cyber world.

1 2

McAfee Smartfilter, 19 March 2011 < http://www.mcafee.com/us/products/smartfilter.aspx> Kirk, Jeremy, With Wired Internet Locked, Egypt Looks to the Sky, IDG News, 29 January 2011, 23 March 2011 <http://www.webcitation.org/5w518Yu9B>

Lastly is by catch. It is an automatic censorship although it was not meant to be censored. For example are vulgar words being censored online to prevent children from viewing them? So briefly those are the types of censorship available.

With the internet, the world is now borderless. Business transactions, banking transactions, blogs, online articles, are only a few from what the internet has to offer. However, the internet is not all good. Although there are a lot of benefits but there are disadvantages that come along with the internet. Some contents may not be suitable to be viewed to some but to some the internet should be the medium where it should be limitless. During the 4th Prime minister Tun Dr Mahathir was still in office he was in favor of our country having limitless access to the internet, in other words, he was not in favor of internet censorship. His reason was because by doing this we can attract foreign companies for economical purposes thus making Malaysia a hub for international companies. This was the objective of MSC3.

The question to be asked here is whether by prioritizing the economy by this means, will other aspects such as social, political
3

Malaysia, Multimedia Super Corridor, Vision, 15 February 2011, <http://www.mscmalaysia.my/topic/12073050330739>

or culture be affected positively or negatively. A common example is how not having internet censorship affect us socially. Without having any limitations to the internet, this means that people may have access to unhealthy contents such as pornography. It was reported that office workers even visit pornography sites during their lunchtimes4. Furthermore a lot of pornography websites do not have a strict age limit to their access. Therefore underage youths can view them easily. A study conducted by Universiti Kebangsaan Malaysia Children and Youth Psychology specialist Dr Khaidzir Ismail generally revealed the extent to which girls in secondary schools had gone as far as sex was concerned. The irony is that most of the respondents were involved with pornography5. Therefore there is a cause and effect connection between those two.

A lot of countries have decided to favor internet censorship such as Saudi Arabia, China, and Indonesia and recently Australia jumped on the ship as well6. For example, China has internet

Mattzzx, Kakitangan Syariah Kerap Layari Web Lucah, 11 December 2011,19 February 2011, http://www.infomaya.net/v2/lofiversion/index.php/t63670.html 5 Study reveals extent of social problem, News Straits Times, 1 march 2007, 19 February 2011, <http://findarticles.com/p/news-articles/new-straits-times/mi_8016/is_20070301/study-reveals-extentsocial-problem/ai_n44354952/> 6 Australia, Electronic Frontiers Australia Inc., Internet censorship, law and policy around the world, 28 March 2002, 19 February 2011 <http://www.efa.org.au/Issues/Censor/cens3.html>

censorship for political and security purposes7. However, this does not mean that we should blindly follow their footsteps because their censorship laws are relating to their political background which is different from Malaysia8. Therefore a comparative study should be done between Malaysia and other countries to achieve a better approach.

Besides that the legal aspect of it must be considered. Are Malaysian laws sufficient enough to safeguard and regulate this internet dilemma while not having internet censorship? Or maybe the law is sufficient enough but the objective is not reached because there is a lack of awareness and the law made is not being at use. Although Malaysia is developing and urbanizing but we are still far behind in regards to internet usage compared to other countries. This is due to the fact that internet only arrived in Malaysia in 19959. Furthermore it was only in 2008 where the majority of the Malaysian population had access to the internet10.

James, Randy, Brief History of Chinese Internet Censorship, Times, 18 March 2009, 19 February 2011, <http://www.time.com/time/world/article/0,8599,1885961,00.html> 8 Heufers, Rainer, The Politics of Democracy in Malaysia, October 2002: 2, ASIEN, 19 February 2011, < http://www.quezon.ph/wp-content/uploads/2006/09/Malaysia2-2.pdf> 9 Paynter, John and Jackie Lim, Drivers and Impediments to E-Commerce In Malaysia, Malaysian Journal of Library & Information Science 6 (2001):1-19, 19 February 2011 <http://mjcs.fsktm.um.edu.my/document.aspx?FileName=173.pdf> 10 Internet World Stats, 19 February 2011, <http://www.internetworldstats.com/asia/my.htm>

Lastly, this controversial issue needs to be solved because as I mentioned earlier, almost everything is being conducted via the internet nowadays therefore there is no escape to it. Everything is connected especially the broadcast industry. Media corporations, marketing groups, and television channels and others rely a lot on the internet to run their business. For all these problems, issues, unanswered questions and debates we need a resolution for it. The purpose of this study is heading towards that way.

Scope The scope of this study shall cover the whole of Malaysia as the internet regulations are generally the same in every state of Malaysia. Doing a more focused and narrowed scope on this topic will be insufficient and impossible to get feedback considering the fact that it effects the whole population. However, this does not mean that research is going to be conducted in every state of the country but rather this study seeks the laws governing the whole state of Malaysia and the situation that we are in. Thus, problems and issues, advantages and disadvantages and mechanisms shall be discussed throughout this study. This means that past, present, government policies shall be discussed and maybe possible future government policies shall be discussed as well. This includes what

has been explained in the introduction, identifying the weaknesses, and how the government can improve.

Objective As explained in the introduction part, the internet dictates almost everything today. Therefore the first objective is to identify the advantages and disadvantages for every issue happening in Malaysia. Malaysia does not have internet censorship and of course again there are always advantages and disadvantages for it. The problem is that from the gain of profit from the internet, is it worth it to bear the unwanted consequences deriving from the policy. This brings to the second objective which is to compare the position in Malaysia with other countries. For example a country like Malaysia is bound by a lot of customs and religions. In other words, we are quite conservative in nature. Furthermore Malaysia is still young as it is less than 60 years old and it is still a third world country11. States like the United States and United Kingdom are socially and politically open minded and mature enough to accept such disclosure and transparency in the internet. Is Malaysia ready to take that approach? Shouldnt we consider the fact that they are very different from us in terms of mentality,
11

D-8 Organanisation for Economic Devlooment, Brief History, 19 February 2011 <http://www.developing8.org/about-d-8/brief-history/>

development, and customs? Opinions have suggested that we are already receiving the consequences of internet censorship and the worse part is it is already affecting the youths. Thirdly is to study whether the present law is sufficient to achieve its targets. This is important as the rule of law regulates our daily lives. This is the thing that makes internet censorship alive. Thus we can identify whether the current law does protect the people from this policy or whether the society has been taken for granted or being prioritized in the law making process. Fourthly is to come out solutions from this never ending dilemma. In other words this shall be the conclusion of this study

Questions from this study 1. What is meant by internet censorship? 2. What are the laws regulating internet censorship? 3. What are the aspects and examples of problems faced by our country believed to be the result of no internet censorship policy? 4. What are the benefits gained from internet censorship? 5. What can be improved in regards to the regulation of the internet?

Methodology Some of the methods used found suitable for the purpose of this study include:

1) Library research: this includes books, articles, journals, and previous project papers for the purpose of understanding and comparative study 2) Online research: this includes blogs, online articles, and posts

Limitations faced during the study There are several challenges faced in conducting this study. Firstly is the lack of reference from textbooks regarding internet censorship in Malaysia. Because it is quite an issue here in Malaysia therefore the bulk of references of this study come from articles from newspapers and from the internet. Secondly is limiting the number of words from exceeding the maximum number of words allowed which is 10,000. This due to the fact that there are too many sources and points that can be referred, therefore the writer has chosen the most relevant to the Malaysian context only.

Contents of research This study has five sections. The first section is the introduction section. It explains the meaning of internet censorship, an overview of the no internet censorship policy generally, the objective, The questions expected to be answered from this study, the methodology, and the problems faced while conducting this study.

The second section is the Malaysian position. In this section the Malaysian position and other countries will be discussed and a comparative study is made.

The third section is the law regulating internet censorship in Malaysia. The lacunas will also be discussed if they can be identified

The fourth section is the advantages and disadvantages that can be identified from internet censorship issues happening in Malaysia. In other words this section will identify whether to censor or not to censor the internet.

The fifth section is for the recommendations that can be suggested from the issues that have been discussed

The sixth section is for the conclusion. This section shall explain whether the objectives of this study have been reached and the overall summary for the whole study.

The Internet: The Malaysian Position

The internet age in Malaysia started in 1995 but the growth only started in 1996 when there were a lot of Internet Hosts in Malaysia emerging. According to the first Malaysian Internet survey conducted from October to November 1995 by MIMOS and Beta Interactive Services, one out of every thousand Malaysians had access to the Internet and it has ever been growing and according to the Internet world Stats, the number of internet users in Malaysia is inclining12. In 2000, the numbers are 3.7 million and in 2010 it is close to 17 million, with a population of approximately 26 million people. In other words internet users accounted for 64.6% of the population. And currently there are several types of internet connections provided by Internet Service Providers (ISP) include cellular broadband, DSL technology, fibre optic, wireless broadband, hotspot, leased line, VSAT, and WiMAX. This is proven that the internet usage in this country is has been booming and our people are no stranger to the internet. Furthermore for a developing country this growth rate is dramatic.

12

Ibid 9

The fourth Prime Minister, Tun Dr Mohamad did realize how the internet boom domestically and globally can benefit our country economically. He had an idea that would attract foreign investors into our country, this idea of his was made real when he introduced the Multimedia Super Corridor (MSC). MSC is a Government designated zone, designed to leapfrog Malaysia into the information and knowledge age. It includes an area of approximately 15x50 km which stretches from the Petronas Twin Towers to the Kuala Lumpur International Airport and also includes the towns of Putrajaya and Cyberjaya13. It aims to attract companies with attractive tax breaks and facilities such as high speed internet and proximity to the local international airport, Kuala Lumpur International Airport14. And the establishment of the MSC has proven to be successful economically, not only internationally but also domestically. According to the official website of the MSC, there are now 2520 MSC Malaysia Status Companies with 76% are owned by Malaysians and 21% are foreign owned. Furthermore, the company has generated over RM24 billion with exports via ICT reaching RM7 billion. Apart from that, 100 000
13

Malaysia, Multimedia Super Corridor, FAQs, 19 Feburary 2011 <http://www.mscmalaysia.my/article/12073058719954/12083310222444> 14 Malaysia, Multimedia Super Corridor, Bill of Guarantee No 1: To provide a world class physical and information infrastructure, 19 February 2011 <http://mscmalaysia.my/article/MSC+Malaysia+Bill+of+Guarantees/BoG+1+To+provide+a+worldclass+physical+and+information+infrastructure>

knowledge based jobs have been generated15. The concept of MSC is somewhat similar to the Silicon Valley in the United States, which will be discussed in detail later. This shows that MSC Malaysia has helped bridge the digital gap between the nation and its capability to conduct e-commerce.

The next question to be asked is that what does the MSC has to do with internet censorship? The answer is that the MSC has everything to do with internet censorship. The Bill of Guarantees are as follows.

* Provide a world-class physical and information infrastructure. * Allow unrestricted employment of local and foreign knowledge workers. * Ensure freedom of ownership by exempting companies with MSC Malaysia Status from local ownership requirements. * Give the freedom to source capital globally for MSC Malaysia infrastructure, and the right to borrow funds globally. * Provide competitive financial incentives, including no income tax for up to 10 years or an investment tax allowance, and no duties on import of multimedia equipment.
15

Malaysia, Multimedia Super Corridor, Facts and Figures, March 2008, 19 February 2011 <http://www.mscmalaysia.my/topic/12066956321774>

* Become a regional leader in intellectual property protection and cyberlaws. * Ensure no Internet censorship. * Provide globally competitive telecommunications tariffs. *Tender key MSC Malaysia infrastructure contracts to leading companies willing to use the MSC Malaysia as their regional hub. * Provide an effective one-stop agency

From the bill of guarantees16, it can be understood that the investors shall enjoy a lot of freedom, benefits, and incentives which shall include the the guarantee of no internet censorship. Furthermore the position of internet censorship has also been made clear by Tun Dr Mahathir in the media in 1999 such as an article titled Do Away With Internet Censorship: PM the Utusan Express17. Although it seems that it could not be any clearer that Malaysia does not have internet censorship but there still have been mixed messages. For example, the Communications Minister has occasionally announced that they are working on a nationwide filter, but each time such an announcement is made the Prime

16

Malaysia, Multimedia Super Corridor, MSC Malaysia 10 Point Bill of Guarantees, 19 February 2011 <http://www.mscmalaysia.my/topic/MSC+Malaysia+Bill+of+Guarantees> 17 Ibid 6

Minister makes a rebuttal to emphasize that there will be no Internet censorship18. In 2006 Deputy Science and Technology Minister Kong Cho Ha has announced that all Malaysian news blogs will have to be registered with the Ministry of Information. He justified this by stating the law was necessary to dissuade bloggers from promoting disorder in Malaysia's multi-ethnic society19. Some of the websites that has been blocked are certain porn websites, faithfreedom.org; which expresses critical views on Islam, and Wikileaks20. These websites seem to be fair enough to censor, however they are not fully implemented. For example, only a few porn websites have been censored. Furthermore, there are a lot of ways to break in the blocked websites and they can be obtained easily by merely googling them21. This shows that the security is not tight at all, therefore it does not make any difference.

United States of America (USA)

18

putik lada, Question of Internet Filtering Still Unresolved, The Star Online, 12 November 2009, 19 February 2011 <http://thestar.com.my/columnists/story.asp? file=/2009/11/12/columnists/putiklada/5087538&sec=putiklada> 19 Walker, Peter, Malaysias Mission Unbloggable, Guardian, 5 December 2006, 19 February 2011<http://www.guardian.co.uk/news/blog/2006/dec/05/malaysiablogb> 20 Kong, Lester , Parliament: 39 Websites, Blogs Banned (Update), The Star Online, 16 June 2009, 19 Feburary 2011, <http://thestar.com.my/news/story.asp? file=/2009/6/16/nation/20090616172622&sec=nation> 21 Streamyx Tips: DNS Alternative, Malaysiakini, 11 August 2009, 19 February 2011 <http://www.malaysia-kini.com/blog/2009/08/streamyx-tips-dns-alternative/>

Being an advanced country, USA has been familiar with the internet since the 1960s, although it was not being publicized22. It was created by the United States Department of Defense and it was called the ARPANET (Advanced Research Projects Agency Network). It was first developed by DARPA (Defense Advanced Research Projects Agency). The internet is a product of this project and made public during the 1990s. As the USA is much bigger and advanced than Malaysia, the figures are not surprisingly greater. By 2004 three quarters had internet at home. It was a necessity for every house23. In 2010, 266 million Americans were internet users and that accounted for 77.4% of the population24. The technology of internet connection in the USA is similar to us. With regards to internet censorship, technically there is no internet censorship by the government in the USA. However they do have laws regulating violation of rights to individuals. Intellectual property, pornography, and libel are still to be bound by certain laws. However freedom of expression is not blocked at all because of the Fist Amendment. The first amendment to the
22

Howe, Walt, An Anecdotal History of the People and Communities that brought about the Internet and the Web, Walt Howes Internet Learning Center, 24 March 2010, 19 February 2011 <http://www.walthowe.com/navnet/history.html> that brought about the Internet and the Web 23 Kim, Grace, Three Out of Four Americans have Access to the Internet, According to Nielsen/Net ratings, Nielsen//Net Ratings, 18 March 2004, 19 Feburary 2011,http://www.nielsenonline.com/pr/pr_040318.pdf, 24 Internet World Stats, 19 February 2011 <http://www.internetworldstats.com/stats.htm>

United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances25. Previously before the amendment the laws regarding civil liberty was very lacking so with this amendment civil liberties can be protected. In 1996, the United States enacted the Communications Decency Act26 and this act was struck down by the US Supreme Court because it was in violation of the First Amendment27. The sequel of the act, the Child Online Protection Act (COPA)28 was enacted in 1998 but this time the purpose is to protect the children from harmful materials online such as pornography. This means that the COPA required all commercial distributors to restrict their access by minors. Again, the United States Supreme Court has held that it goes against the constitutional protection of free speech; therefore it was null and void29.
25 26

US Constitution, Amendment 1 19 February 2011 <http://www.usconstitution.net/const.html> United States, Electronic Privacy Information Center, VOID! Declared Unconstitutional by the U.S. Supreme Court, 26 June 1997, 19 February 2011 <http://epic.org/free_speech/cda/cda.html> 27 Ibid 14 28 United States, Federal trade Commission, COPPA - Children's Online Privacy Protection Act <http://www.coppa.org/coppa.htm> 29 Ibid 6

Recently there was a chaos online when a website called wikileaks start publishing sensitive governmental, corporate, organizational, or religious documents, while attempting to preserve the anonymity and untraceability of its contributors. This news being published is not attainable by other sources and they are completely confidential. For example, they published nearly 90,000 classified military records, which gave an insight into the military strategy in Afghanistan. Another example is when they posted a video on its website that shows a US Apache helicopter killing at least 12 people - including two Reuters journalists - during an attack in Baghdad in 200730. the matters became worse when they do not only publish sensitive news about USA only, but a lot of other states including Malaysia31. Since Wikileaks first appeared on the net in 2006, it has faced various legal challenges to take it offline. Prior to the most recent leaks, it said it had fought off more than 100 legal challenges successfully. Wikileaks clearly is a threat to the US Government who wants to protect their interest. However, if the First Amendment were to be uphold, therefore wikileaks is protected by it.
30

International Internet Preservation Consortium , Webcite, Associated Press, Wikileaks to Publish New Documents, 7 August 2010, 19 Feburary 2011 <http://www.webcitation.org/5ukvPaEhj> 31 Jahabar Sadiq, WikiLeaks reveals Anwar walked into sex trap The Malaysian Insider, 12 December 2010, 19 February 2011 <http://www.themalaysianinsider.com/malaysia/article/wikileaksreveals-anwar-walked-into-sex-trap/>

On September 20th 2010 the Combating Online Infringement and Counterfeits Act32 was introduced, which if passed, would create two "Internet Blacklists" of Internet Domain Names, one that would be enforced by the Attorney General and the other would be optional33. These blacklists would directly and purposefully censor the Internet in the United States. The bill was rejected however by Senator Ron Wyden (D-OR), this effectively killed off the bill34 until 2011 when it could be resubmitted to the committee. However the US government in certain circumstances also somewhat censors the internet to protect certain interests. For example, the offices of White House of Management and Budget and the US air force blocks their personnel from viewing 25 news organization to reduce the exposure to classified information released by Wikileaks and published by the news organization35. This shows that they cannot stop the Wikileaks from publishing their news, but they can stop their own people from falling for it. Secondly is they
32

Tauberer, Joshua, S. 3804: Combating Online Infringement and Counterfeits Act, GovTrack.us, 19 February 2011 <http://www.govtrack.us/congress/bill.xpd?bill=s111-3804> 33 Petrou, Andrea, Senate Passes Combatting Online Infringement and Counterfeit Act, TechEye, 18 November 2010, 19 February 2011 <http://www.techeye.net/internet/senate-passes-combating-onlineinfringement-and-counterfeits-act> 34 Emspak, Jesse, Oregon Senator Opposes Bill that would Block Web Sites, International Business Times, 20 November 2010, 19 February 2011 <http://uk.ibtimes.com/articles/83999/20101119/oregonsenator-opposes-bill-to-block-sites.htm> 35 Ambinder, Marc Wikileaks: How Could One Person Leak so Much Classified Material, National Journal, 30 November 2010, 19 February 2011 <http://news.yahoo.com/s/yblog_exclusive/20101130/pl_yblog_exclusive/wikileaks-how-could-oneperson-leak-so-much-classified-material>

can block areas such as schools from viewing pornography and social websites. Schools that accept funds from the E-rate program of LSTA grants for Internet connections are required by Child Internet Protection Agency (CIPA) to have an "Internet safety policy and technology protection measures in place36. Many schools default to using Internet filters to meet these requirements. However, the federal government leaves the local authorities to define what information needs to be censored, not each pupils guardian. This arrangement has led many to question the censorship of Internet sites in the school system. At the same time these censoring programs can also block out a lot of useful information and limit students on what their research can get them. Some parents are also against many of the measures schools go to because they feel their children are being limited and their rights reduced. Some of the fears associated with Internet censorship in the school include: a predominant ideology, a specific view held by the filter manufacturer being imposed on the students, over blocking of useful information, under blocking of harmful information. So what we can sum up that USAs internet censorship policy is very nominal as they do not block the websites but they only stop certain people from viewing them.
36

United States, Federal Communications Commission, Children's Internet Protection Act, 22 September 2009, 19 February 2011 <http://www.fcc.gov/cgb/consumerfacts/cipa.html>

Saudi Arabia

Being an Islamic State, it is not surprised that they practice internet censorship. They have been censoring the internet since the first time the internet was made public which was since February 199937. The internet is single handedly controlled by the government so it is easier to be regulated. Saudi Arabia is a clear example of the conventional way of internet censorship. They censor Internet content deemed unsuitable for the country's citizens, such as information considered sensitive for political or religious reasons and pornographic sites. They are some rules determining whether a website should be censored or not. Some of the rules include anything contravening a fundamental principle or legislation, or infringing the sanctity of Islam and its benevolent Shari'ah, or breaching public decency, anything contrary to the state or its system, and anything damaging to the dignity of heads of states or heads of credited diplomatic missions in the Kingdom, or harms relations with those countries. This is clearly the opposite of the First Amendment. In 2001 a New York Times reported that

37

Ibid 6

over 7000 websites are blocked every month and this proves that the government policy they have proves to be moving clear38.

China

In China, they have been controlling their citizens from viewing the internet since September 1996 when they banned 100 websites using a technology called The Great Firewall39. This filtering device blocks websites that are claimed to be sensitive towards the government such as the idea of democracy and overthrowing communism. Furthermore they also censor pornographic sites, websites containing violent materials, and even social websites such as Facebook40. Apart from that, tens of thousands of government officers monitor blogs, chatrooms, and even emails to filter their content. They are so strict until you need to submit your photo in order to open a website.

38

Lee, Jennifer, Technology; Companies Compete to Provide Internet Veil for the Saudis, New York Times, 19 November 2001, 19 February 2011 <http://query.nytimes.com/gst/fullpage.html? res=990DEFDC103BF93AA25752C1A9679C8B63&pagewanted=all> 39 China, Ministry of Public Security of the People's Republic of China, about, 19 February 2011 <http://www.greatfirewallofchina.org/about.php> 40 Wauters, Robin, China Blocks Access To Twitter, Facebook, After Riots, Washington Post, 7 July 2009, 19 February 2011<http://www.washingtonpost.com/wpdyn/content/article/2009/07/07/AR2009070701162.html>

Their censorship policies are part of their Golden Shield Project41, which was introduced by the Ministry of Public Security of the People's Republic of China (MPS). This project was started in 1998 and begins processing in 2002 with the purpose of to construct a communication network and computer information system for police to improve their capability and efficiency. In September 2000, the State Council Order No. 292 created the first content restrictions for Internet content providers. China-based Web sites cannot link to overseas news Web sites or distribute news from overseas media without separate approval. This means that any news being delivered online require a license42. Only news that have been publicly released by the media are not required a license to publish online. Article 14 provides that the officials can have access to any kind of sensitive information they wish43. Article 15 provides the prohibition of content in websites. It states that IIS providers shall not produce, reproduce, release, or disseminate information that endangers national security, is detrimental to the honor of the state, undermines social stability, the states policy

41

Norris, Pippa and World Bank, Public Sentinel: News and Governance Reform, Page 976. Pippa Norris, World Bank Publications.2010 19 February 2011 <http://books.google.com/books? id=xzFVxDDhfnkC&pg=PA360&dq=#v=onepage&q&f=false> 42 Beijing, Mathew Forney, Chinas Web Watchers, Time 3 October 2005, 19 February 2011 <http://www.time.com/time/magazine/article/0,9171,1112920,00.html> 43 China, State Council, Measures for Managing Internet Information Service, 19 February 2011 <http://www.chinaculture.org/gb/en_aboutchina/2003-09/24/content_23369.htm>

towards religion other information prohibited by the law or administrative regulations44.

What we can understand is that the bulk of their internet policies are linked to political reasons. For example is the 20th Anniversary of the Tiananmen Square Protest where in 1989 people protested for democracy. The Guardian reported that in excess of 300 Chinese sites had "posted increasingly blas maintenance messages on the anniversary". A number of websites, such as Fanfou and WordKu.com, made a protest at state censorship by referring to the date sarcastically as "Chinese Internet Maintenance Day". A day before the incident, Chinese users of Twitter, Hotmail and Flickr, among others, reported a prevalent failure to access these services45.

Comparative Study

In a nutshell Malaysia does not practice internet censorship for economical purposes, the United States does not practice internet censorship because of economical reasons as well and

44 45

Ibid 32 Ibid 29

because of the First Amendment46 of their Constitution, Saudi Arabia applies internet censorship due to morality reasons, and China censors the internet it mostly because of political reasons. These three reasons are also the core reasons why the issue of internet censorship exists in the first place.

Clearly, there is no one state comparable exactly to another. It must first be examined the background of our own country and not simply apply the policies from a particular state. The MSC47 for example, is an inspiration from the Silicon Valley48 in United States. Clearly everyone knows that our background is much different from theirs. Although it should be noted that Malaysia must always strive for success and compete with advanced countries, we should consider whether such change is suitable for Malaysia. For example, the First Amendment was the ground for Communications Decency Act to be declared void49. If Malaysia were to uphold this principle, it may not be suitable. Furthermore the purpose is for the safety and benefit of the children which is considered morally worth it.
46 47

Ibid 14 Ibid 2 48 "Silicon Valley." Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica, 2011. Web. 28 Mar. 2011. <http://www.britannica.com/EBchecked/topic/544409/SiliconValley>. 49 Ibid 14

In regards to Malaysia s state of morality, it is comparable to Saudi Arabia as it is also an Islamic State and we share somewhat eastern values as well. Although it is agreed that culturally Malaysia is more liberal than them but how can pornography and violence be a benefit to anyone especially in our country where we are bound by religion and moral values?

Politically, China is very different from Malaysia. They are a communist country and Malaysia is a democratic country and we have two distinct administration. Therefore what is harmful to their government may not be harmful to Malaysia. However they also censor harmful sites like pornography and violence, which has no link to political agenda but simply because they serve no benefit or morally corrupted. And this is what was meant earlier that no country is completely comparable to another but there sure is something that can be applied as long as it suits local circumstances.

The laws of Internet Censorship in Malaysia

The Communications and Multimedia Act 1998 is the only statute having a direct relevance to the issue of internet censorship. The preamble describes it as an Act to provide for and to regulate the converging communications and multimedia industries, and for incidental matters50. The converging

communications and multimedia industries, in the context of the preamble, refers to the telecommunications, broadcasting and online activities which fall under the purview of the Malaysian Communications and Multimedia Commission (MCMC), the appointed regulator of all communications and multimedia activities.

Section 3 states that nothing in the CMA shall be construed as permitting the censorship of the internet51. Apart from that, under the CMA, a licensee is required to prevent his own facilities and services from being used to commit any offence under Malaysian law52. A CMA licensee must, upon written request by the MCMC or any other authority, assist it as far as reasonably necessary to prevent the commission or attempted commission of an offence under Malaysian law or otherwise in enforcing the

50 51

Preamble of Communications and Multimedia Act 1998 (Act 588), preamble Section 3 of Communications and Multimedia Act 1998 (Act 588)act 588, section 3 52 Communications and Multimedia (Licensing) Regulations 2000 (Act 588)

same, including, without limitation, the protection of public revenue and preservation of national security53. These regulations have brought about CMA licensees with diverse business profiles including those engaged in public payphone facilities, radio and TV broadcasting, mobile content providers and even ISPs.

As has been noted, the MCMC is given rather broad powers over a wide range of CMA licensees when it comes to enforcing Malaysian laws, with particular emphasis on the protection of public revenue and the preservation of national security. In a surprising move by the MCMC in August 2001, ISPs in Malaysia were issued an order to block access to the controversial political news blog Malaysia Today, due to the allegedly seditious articles published in the blog. One of the infamous arrest includes the arrest of PKR webmaster Nathaniel Tan and the webmaster of popular political website Malaysia Today, Raja Petra Kamarudin. They were summoned to the police station following a police report by Umno information Chief Muhammad Muhammad Taib. Raja Petras wife was also summoned for questioning54.

53 54

Part 5 of Communications and Multimedia Act 1998 (act 588) part 5 A Year of Bull, Broken Promises, Aliran Online, 20 Feburary 2008, 19 February 2011 <http://aliran.com/653.html>

Another incident is in early September 2009 The Malaysian Communications and Multimedia Commission (MCMC) demanded online news portal Malaysiakini to take down two video clips related to an intimidating protest against the relocation of a temple in Shah Alam. One of the video clips was the footage of a press conference on 2 September held by Home Minister Hishamuddin Hussein, who defended the protesters. MCMCs Monitoring and Enforcement Division Senior Acting Director Abdul Halim Ahmad claimed that the videos contained offensive contents with the intent to cause rage in the Indian community55. On 8 September, MCMC quarantined 10 staffs of Malaysiakini for a long eight hours56. The government also warned that they would not hesitate to invoke the Sedition Act and Internal Security Act. Under the Sedition Act 1948, it is an offence to, among other things, publish, distribute or reproduce any seditious publication. The MCMC claimed that it was an offence to Malaysian law57. This brings to the next point. There are other laws that indirectly support internet censorship. These are laws that try to
55

Mr Admin, Stop Political intervention. Aliran Online, 10 June 2010, 19 February 2011 <http://aliran.com/1226.html> 56 Santiago, Charles, MCMC Should Stop Harassing Malaysiakini, Malaysian Bar, 9 September 2009, 19 February 2011 <http://www.malaysianbar.org.my/letters_others/mcmc_should_stop_harassing_malaysiakini.html> 57 Ibid 5

protect the interest of the government or national security. Previously the government has control over publications in newspapers, statements made in media channels, and actions in public. Now with the internet being the preferred medium, these acts control publications on the internet as well. These laws include the Sedition Act, the Defamation Act, and Printing Presses and Publications Act. The lacuna here is that although the internet serves as a media channel, but it is not viewed as a media channel, per se. That is the rationale of Section 3 of the CMA58. However, with these acts controlling the publication online, the government sort of has defeated the purpose of Section 3. In other words to rely on this provision that Malaysia does not practice internet censorship is clearly insufficient. This also shows the inconsistency Malaysia has in its laws. Typically, abuse of powers will also arise when wide discretionary powers are given to governmental bodies. They will tend to protect the interest of the government. This will result in a lot of information cannot be obtained no matter how important they are. Another issue is that there is a possibility that in offences although committed on the internet the CMA would not play a role. For example, on 24 September 1998, four people were charged
58

Ibid 2

with incitement under Section 505(b) of the Penal Code for scattering rumors on the internet about public riots59. They were tried separately in the year 1999. On 7 August 1998, the rumor appeared on the internet about the riots in the Chow Kit area of Kuala Lumpur. The riots were said to have involve Indonesian migrant workers armed with machetes attacking Chinese or Malays. Considering the situation during that time where Malaysian press to anti-Chinese violence in Indonesia, the rumor created chaos and panic in Kuala Lumpur and traffic jams happened as people were trying to escape. Although actually, there were no riots at all and the police detained the suspects. On 17 August 1998, after the four, all Chinese, had been arrested, the Attorney General stressed that anyone who circulated false information over the internet could be charged under a number of laws, including the Sedition Act, Defamation Act, Broadcasting Act as well as the new Communications and Multimedia Act. Furthermore, the police also had power to detain offenders under the Internal Security Act without seeking the Attorney Generals consent.

59

Mohd Syafizan Mohd Kassim, How Our Law Protect The Value of Information, 2002, 19 February 2011 <http://syafizan0.tripod.com/cyberlaw.htm>

The Internet service provider, Mimos Bhd, said that the four had pretended to be members of different ethnic groups depending on the ethnicity of the recipients of their messages. The government had asked Mimos to help police with their investigation into the source of the rumors, and Mimos did by providing confidential identification details of the four. It declared that it would not invade the privacy of its users without specific reasons, such as a "request by authorities". The offenders were sentenced to a maximum of two years imprisonment and fine. The Home Ministry could use the Printing Presses and Publications Act to restrict the circulation of any local publication. For example, on 1 March 2000, it restricted Harakah from two issues per week to twice a month, and prohibited it from newsstands. Furthermore, The Minister for Energy, Communications, and Multimedia stated that Harakah's online edition also would be limited to two issues per month60. This proves that the laws in Malaysia are irregular. While there are a lot of statutes that may override the CMA, they are also inconsistent with each other. For example, the application of Section 3 of the CMA61 is limited by the Penal Code and Printing Presses and
60 61

Ibid 10 Ibid 2

Publications Act mentioned above because these latter statutes regard a lot of online publications as offensive. Furthermore the government repeatedly said that they would not censor the internet but by the events mentioned earlier it is proven that they do62. The only difference between Malaysia and countries that clearly practice internet censorship is that the formers internet publication need not apply for a publication license from the government63. However, it does not make a difference considering the numerous numbers of laws the government can take action against the public. However, based on factual evidence, it can be inferred that internet censorship, if any, is only applied on statements and publications that are claimed to be a threat towards national security, or more importantly, those which are sensitive to the government. Hence a question following the need to internet censorship is whether is it for the protection of the society or completely political in nature. Bloggers are in fear to publish their opinions following the Raja Petra arrest.

62

Kong, Lester and Zulkifli Abdul Rahman, No Censorhsip Off the Internet, The Star Online, 8 August 2009, 19 February 2011, <http://thestar.com.my/news/story.asp? file=/2009/8/8/nation/4484504&sec=nation> 63 Ibid 31

Unfortunately, the government seems to take lightly other important materials that are also important to censor such as pornography and violence. These are materials that are important to protect people from especially children. Although some of these pornographic websites have been blocked, however the security is very minimal. All that is required is by changing the ISP address, in which the guidelines are across the internet and easily obtained64. Unfortunately, there are no actions taken by the government to combat this issue. They have not done as much effort as they have done combating national security issues and seditious publications. This shows a lack of balance in how the security of the country operates. Social and criminal problems possibly resulting from pornographic and violent materials online should be taken into serious consideration as well. We are said to experience the result of not blocking pornographic and violent websites today, which will be explained further in the next chapter. What can be concluded based on the position of the law in Malaysia is that theoretically, it does not practice internet censorship as stated in Section 3 of the CMA65. However, in actual

64 65

Ibid 10 Ibid 2

practice, the evidences have proven contrary in certain circumstances.

To Censor or Not to Censor the Internet?

In this chapter the writer wishes to discuss some of the advantages and disadvantages that arise from internet censorship.

However, instead of approaching them directly it would be more suitable to discuss them indirectly while conferring the issues that happen in Malaysia. The purpose is to narrow the scope as to discuss the relevance of internet censorship in the Malaysian context, based on factual evidences. The first issue worth discussing is the protection of youth or minors. Under Section 2 the Age of Majority Act 197166, minors are defined as individuals below the age of 18. This group is a vulnerable group of people and there are opinions suggesting that they need to be protected from harmful and explicit materials online.

The United Nations Convention on the rights of the child67 which serves as the relevant international legal framework ratified by 192 countries, asserts that children too have a number of fundamental rights Article 13 confirms the childs right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the childs choice68. However this right has an
66 67

Section 2 of Age of Majority Act 1971 (Act 21) Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (Entered into force 2 September 1990) 68 Article 13 of Convention of the Rights of a Child, , adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (Entered into force 2 September 1990)

exception. Restrictions can be imposed if they are (1) prescribed by law, (2), introduced with a view to specified interests, such as the protection of health or morals and (3) necessary in a democratic society under article 10 ECHR (European Convention of Human Rights)69. Apart from that, article 5 of the former commission, which refers to the responsibilities, rights and duties of parents (or other persons legally responsible for the child), to offer, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance to the child exercising his or her rights70. Parents thus have a responsibility to (try to) support their children in their approach to new media. Opinions suggest that minors that are being exposed to harmful and explicit materials are often easily influenced and thus leading to social problems.

In Malaysia, being an Islamic state does regard certain issues as a social problem that cultures in the west consider not. For example is unmarried sex among minors. Dr Nor Asyikin, the founder and Chief Executive of PrimaNora Medical Centre, opined that a lot of pregnancies among minors happen because they
69 70

Article 10 of European Convention on Human Rights Article 5 of Convention of the Rights of a Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (Entered into force 2 September 1990)

started having sex at an early age71. She further added that they started having sex because it was in their surroundings including sex scenes on television or entertainment programs. Although she did not particularly mention online pornography but we can make an inference that online pornography falls under the surroundings mentioned as it is easily accessible and youths spend a lot of time on the internet. Apart form Dr Nor Asyikin, Hushim Salleh, a counselor who is also a Lecturer in the faculty of Psyhology and Education, Universiti Malaya opined that the main factor of unmarried sex among youths is online pornography72. A study conducted that out of 50 female teenagers, 20 of them have lost their virginity and their parents do not know it. He also added that a teenage boy admitted that he has been having sex since the age of 14 and he picked it up through pornography. Studies show that there is a public perception that Internet pornography is more accessible, more harmful and dangerous than pornography in its traditional form. Therefore, a high concern that exposure of children and adolescents to this material, can have a negative effect on their

71

Suzan Ahmad, Hamil Usia Muda, Berita Harian Online, 7 november 2010, 19 February 2011<http://www.bharian.com.my/bharian/articles/Hamilusiamuda/Article/> 72 Nor Afzan Mohamad Yusof, Perangi Bahan Lucah, Berita Harian Online 18 August 2010, 19 February 2011 <http://www.bharian.com.my/bharian/articles/Perangibahanlucah/Article/>

development motivating sexual aggression, sexual activity at an early age and distorting sexual attitudes, has been expressed73.

This leads to the second problem. Recently there was a trend of baby dumping among teenagers. According to the statistics of the Royal Police Commission of Malaysia, there were a total of 517 babies being dumped in the country in the past 6 years. The statistics further added that the reason why they happen is because the parties doing it particularly females are afraid their sexual activity will be disclosed and they have no one to turn to when such an incident happens. Malaysia is not as liberal as some other countries so these offenders are afraid that they will be shunned by the family and society. Its society is more judgmental and conservative in nature. Furthermore, out of the total babies, 230 were still alive while they were being dumped and in 2008 records the most babies being dumped which were 102. In January this year there were 19 cases of dumped babies and they are still happening now74.

73

Mesch, Gustavo S., Youth Pornographic Consumption: How Similar and Different are from other Internet Users, Safety and Security in a Networked World, Balancing Cyber Rights and Responsibilities at University of Oxford, 8-10 September 2005, Ed. Nash, Victoria ,(Oxford: University of Oxford), 1-2 74 Nor Affizar Ibrahim, Remaja Gadai Kehormatan Demi Cinta, Berita Harian Online, 19 February 2011, 21 March 2011 <http://www.bharian.com.my/bharian/articles/Remajagadai__8216_kehormatan__8217_demicinta/Arti cle/>

According to Prof Dr. Suradi Salim, a lecturer at the department of Pedagogy and Psychology, The Faculty of Education in University Malaya, generally there are three groups of affected teenagers here. Firstly are those who have no education or religious belief at all. Secondly, those who have religous education, knows the rules, but because of a frustrating event, they depart from the right way. Thirdly, those who have religious education, but still proceed with it anyway simply because of pleasure and ignorance. Furthermore, the female particularly will have a psychological effect when she is pregnant. It is expected for her to have hatred to the child upon knowing that she is pregnant and hatred towards the irresponsible partner which both result in an absence of the natural motherly feeling towards the child75. What Dr Suradi Salim has proven is that although religious education and awareness are important, however it is no doubt that minors are fragile and prone to be influenced by the pornographic content they view. Teenagers are naturally curious and rebellious. Furthermore during teenage years is the time when individuals start discovering themselves and their hormones start to develop. This also proves
75

Haq Pembuangan Bayi Dalam Kalangan Remaja, Scribd 5 February 2010, 20 Feburary 2011 <http://www.scribd.com/doc/19744558/pembuangan-bayi>

that there is an insufficiency of protection and prevention from this social problem occurring. Clearly that self censorship, parental guidance, and religious education could not work without a complete block of the websites by the government. Apart form that, Malaysia cannot compare its situation with other countries as our conscience and moralities are different compared to them. Thus, so far as the protection of children is concerned, based on the evidences stated above those who favor the internet censorship argue that it should be done. However as mentioned before, the children enjoy rights. Besides the freedom to expression mentioned above, they also enjoy same things that an average individual would enjoy such as article 12, ensuring that the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child76 and article 1777 on good quality mass-media, guaranteeing children access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

76

Article 12 of Convention of the Rights of a Child, , adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 77 Article 17 of Convention of the Rights of a Child, , adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989

Equally important is the right of children to privacy, formulated in article 16 of the Convention. Children cannot be subjected to arbitrary or unlawful interference by state authorities or by others (e.g. private organisations) with their privacy, family, home or correspondence78. Moreover it is clearly stated that the law should protect a child against such interference. The right to privacy must apply to all children and is to be protected in all situations. The Convention thus explicitly acknowledges childrens rights to freedom of expression and privacy two fundamental rights that need to be kept in mind when setting up regulatory schemes to tackle harmful content. If we were to apply the approach of the ECHR, there would be limitations to the rights of these children. But the question is to what extent? We have learnt that once discretionary powers are given to the government, they can limit to whatever limits they desire. For example, the imposition of limitation and the right of children to privacy seem cannot work hand in hand. The right of privacy explains that there shall be no unlawful interference by the government. The keyword to mark is unlawful. Would it mean that if the law has legalized it therefore they can interfere no matter how severe the circumstance may be?
78

Article 16 of Convention of the Rights of a Child, , adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989

However if all these rights shall be recognized therefore children are allowed to browse pornographic websites too. The problem here is to draw an appropriate balance between their safety and their rights. A final noteworthy question is that is the government the right one to determine what is best for the children or can it be regarded these children mature enough to decide? A balance that is difficult to attain is also concerning the rights of adults. This is because by censoring certain contents, adults are deprived from their freedom of expression or freedom of information. Initially, they are supposed to have freedom to view any content. Thus this leads to a more complex form of protection where it involves technology matters and imposition upon the particular websites to further enhance their enforcement. This creates a hassle to the whole situation and also unfairness towards the website party because it can be argued because it is not their duty to further protect but it is the duty of the government to block their content. As far as they are concerned, they are providing service that is convenient for adults only.

Apart from the issue of protection of minors, another issue that constantly arises is regarding freedom of expression. Under

Article 19 of the Universal Declaration on Human Rights79 provides that everyone shall have freedom to expression. Our Federal Constitution also guarantees it under Article 10, subject to limitations80. Those who are not in favor of internet censorship will also argue that it deprives their constitutional rights.

Furthermore, with a power to censor has been given to the government, it would result in the government having power to censor anything that seems to them as undesirable. As mentioned in the previous chapter, the government tends to resort in banning materials that are sensitive towards them although the government countless times denies they are going to change the government policy. Therefore those who usually object to internet censorship are bloggers, writers and publishers who want their views and opinions to be heard. According to Aliran Online, Malaysia's oldest human rights, social reform and independent media group, there are a number of reasons why the government is choosing this option. For one, there are a lot of dissatisfactions within Malaysias blogging community, which results in political embarrassment and, to a certain extent, electoral losses for the government. The
79 80

Universal Declaration of Human Rights Art 19 Federal Constitution art 10

government is unable to engage the bloggers in a meaningful debate to counter their critical views. Apart from that, our government practically controls the mainstream media. Therefore they have an indirect power to control the publication and news being portrayed as they would not go against the government. Malaysia is in the worlds bottom 30% of countries in respect of press freedom, according to the Freedom Houses Freedom of the Press world ranking exercise released annually before the World Press Freedom Day. Furthermore we are far behind other ASEAN countries like East Timor, the Philippines, Indonesia, Thailand and even Cambodia all poorer than Malaysia81. With the presence of independent news portals, everything in reality can be disclosed and exposed including government flaws. This could defeat the confidence people have in the current government and question their actions. This phenomenon brings forth a situation where the credibility gap between the government and the people has grown wider. This is not good politically as it encourages unhappiness and grievances to fester82. This situation mimics the situation in China where the political party controls every action of their citizens and regards such actions as treason.
81

Mr admin, Stop Political Intervention, Self Censorship in Media Industry, Aliran Online,10 June 2010, 19 February 2011 <http://aliran.com/1226.html> 82 Mustafa K Anuar and Netto, Anil, Malaysian Government Should Not Resort to Internet Censorship, 7 August 2009, 19 February 2011 <http://aliran.com/64.html>

However there are drawbacks from absolute freedom of expression. While freedom of expression must be preserved, the government also has a duty to protect the public from people who have a possibility of misusing the internet. Again the problem here is drawing a balance between individual rights and public interest. The question to be asked is if a person publishes something on the internet that would cause chaos and anarchy are their rights protected under freedom of expression? A clear example is the earlier mentioned case when four people were charged for spreading rumors across the internet about the communal riot. In that case they were charged under the Penal Code83. With the government regulating the internet, they can have powers to take action against these offenders without people questioning whether there is an inconsistency of authority. The problem with that case was that the government claimed that they do not censor the internet but by bringing a case upon them already shows that they do censor the internet. Another problem nowadays is that people access to internet more often than before. The average Malaysian spends on internet has increased by 24% from three hours a day in 2006 to three hours and 46 minutes
http://syafizan0.tripod.com/cyberlaw.htm, HOW OUR LAW PROTECT THE VALUE OF INFORMATION, mohd syafizan mohd kassim, 2002
83

a day in 2008, and only 49 minutes on newspapers84. Therefore this shows that the main source of information among Malaysians is the internet. Therefore with no internet censorship there will be a lot of content unsupervised and some could be false. Hence people may fall for such false information such as defamation or simply an exaggeration of an issue. The result of it is mistrust among Malaysians because it is hard to differentiate on the internet since there is no regulation.

84

http://utusanairtime.com.my/v3/images/stories/content/FeaturedArticles/malaysian-newspaperconsumption-holds-steady-despite-internet.pdf 20 march 2011 emily tan, the edge financial daily, Malaysian newspaper consumption holds steady despite Internet

Recommendations and suggestions

The recommendations must be parallel and its important to find a delicate balance of the advantages and the disadvantages of internet censorship. Based on the issues discussed in the earlier chapter, there are several logical recommendations that can be

pointed out, some being suggested by experts in this field. Firstly is in regards to the issue of protection of minors against pornography. As stated earlier, it seems difficult to find a balance between their safety and the rights vested in them. In any approach taken one will outweigh the other. However, since Malaysia is in a position not only to prevent this problem but more to combat it, the interest that the country must have is for the protection of minors, without sacrificing their rights considerably. Furthermore as stressed throughout this study, there is no universal application for every state because every state is diverse from Malaysias background such as politics and culture. But what a developing state can do is by adopting an approach that has been adopted by other countries after critically analyzing the applicability of it in our situation. It is also crucial to apply a variety of methods possible to censor and regulate the internet.

It is clear that earlier there is an urgent need to protect minors and it has been discussed in the earlier chapter. So the solutions and recommendations that will be discussed are to provide a balance between the protection of the minors and the rights that they inherently have. Firstly is finding a balance towards minors rights to freedom of expression. A way to attain this is by

self censorship and co regulatory mechanisms. The former is at the lowest point of censorship, and the effectiveness is arguable. However, after preliminary heat enthusiasm for self-regulation, the concern is that self-regulatory initiatives regarding the protection of minors against harmful content could lead to private censorship, i.e. censorship by companies or private bodies. Currently, coregulation seems to be the preferred mechanism, as the involvement of the government as it can provide democratic guarantees in trying to achieve the goal of protecting minors, while at the same time respecting freedom of expression. A second method is technological solutions. Technology plays a crucial part as an alternative to regulatory strategy. A common method can be employed is filtering. Filtering has been criticized widely for its possibility over involvement and under involvement in the world wide web. Furthermore it does not quite ensure the freedom of expression of minors as well. However, it would be acceptable if the government leaves the power of filtering to the parents of the minors as they know what is best for their children. This minimizes the effect of the government acting arbitrarily.

The second balance that needs to be achieved is the privacy of the children. An approach Malaysia can consider adopting is the

position in Europe where they have Privacy Detectives85. The Data Protection Directive intends to encourage the free movement of personal data between Member States, while ensuring a high level of protection of the right to privacy provides a number of essential safeguards that need to be bound to when processing personal data. For example is Article 6 which requires that personal data must be: (a) processed fairly and lawfully; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes; (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; (d) accurate and, where necessary, kept up to date; and (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed86.

Whenever personal data is processed, for example as part of a regulatory scheme to protect minors against harmful content (see infra), it must be checked if these requirements are adhered. Again, technological solutions come into play. The right to privacy

85

International web Investigations, 19 Feburary 2011<http://www.detectivepi.com/europe/finland/private-investigator-detective-agency-helsinki.html> 86 EU Directive 95/46/EC - The Data Protection Directive art 6

can come into play when employing identification and age verification tools to protect minors against harmful (and illegal) content. In Belgium, an initiative has been launched which would provide minors over the age of twelve with a card reader in order for them to be able to access certain safe chatrooms by means of their electronic identity card87. This is an excellent example of using technology to achieve a certain normative goal. However, it is important not to outweigh the childs fundamental right to privacy. It would be unacceptable that children would be identifiable every time they log onto a certain chatroom. Therefore, it would need to be ensured that only one attribute of their identity, namely the fact that they are under a certain age, is used to allow access to the chatroom, this in accordance with article 6 of the Data Protection Directive. The Belgian Commission for the protection of privacy stressed the importance of using means to control age that intrude as little as possible in someones private sphere in their Recommendation on the protection of privacy of minors on the Internet88. It will be necessary to test each new age verification instrument against the requirement of article 6 Data Protection
87

Cock, Danny De, Christopher Wolf and Bart Preneel, The Belgian Identity Card(Overview), Department of Electrical Engineering{ESAT SCD/COSIC 19 Feburary 2011<http://www.cosic.esat.kuleuven.be/publications/article-769.pdf> 88 Belgium, Commission for the Protection of Privacy, Vision, 1 October 2009, 19 Feburary 2011 <http://www.privacycommission.be/en/commission/about/vision/>

Directive. The idea of using technology to identify an Internet user as a child is not restricted to chatrooms. A system of kids mode browsing, which would imply that each time the browser contacts a new site, it would also transmit a digital certificate announcing the user as a child, has been suggested with a view to preventing children to be confronted with harmful content. This feature would be set up as the default on the home computer, and adults would need a password to switch it off. Here again it is important for privacy reasons, that the certificate would not identify the user as a particular child, but simply as a child.

What we can see is that other states have done a lot of effort in recognizing these minors rights while protecting them at the same time. Paired with the recommendations, it is now fair that Malaysia censor contents that are harmful towards the minors. The damage that pornography has brought to the young generations is devastating. The government should take immediate action to prevent our children from continuing to be demoralized.

Another issue that needs to be solved is freedom of expression. There is not much that can be said on this issue because it has been an endless debate. What can be pointed out

is that the pros and cons on this issue as discussed in the previous chapter are hard to be balanced. Apart from that, the risks of overweighing on either side result in predictable consequences. If Malaysia were to limit too much the rights of individuals are deprived and on the other hand if we were to give absolute freedom of expression people may misuse it. It is not always easy to find a moderate medium between two sides of a coin. A factor that plays a significant role in this difficulty is our mentality itself. For example, Malaysias constitution recognizes the freedom of expression as stated in Article 10, subject to limitations by the government89. Theoretically, it is a fair and just position. But the problem is that our government tends to act arbitrarily. On the other side, even with limitations there are individuals defaming other individuals and spreading rumors affecting national securities online. This shows that mentality in this context does not only refer to the government but also individuals. To make the constitution similar to the first amendment in the United States90 is a big jump. Also, amending our laws wouldnt make things any better as the question of balance arises and it is difficult to word them in statutes.

89 90

Ibid Ibid

However, it must also be stressed that civil rights such as freedom to expression cannot be sacrificed by all means91. Therefore the government should be more careful in regarding such content as sensitive. An expression could be positive or negative, regardless of their frontiers. The government should respect that and should be open minded and be able to accept criticisms. Although different people convey their criticisms differently, the government must acknowledge them. In a press statement by our current Prime Minister Datuk Seri Najib, he said that Malaysia will not resort to internet censorship as we Malaysians are mature92. In relation to that, the government also should be more mature in respecting rights of its own people. The room of discretion for them to interfere should be very narrow. Although the question of how narrow is subjective and can only be decided upon events, the events that have occurred seem to suggest that it is just not narrow enough.

91 92

Universal Declaration on Human Rights preamble Kong, Lester and Zulkifli Abdul Rahman, No Censorship off the Internet The Star Online 8 August 2009 19 Feburary 2011 <http://thestar.com.my/news/story.asp? file=/2009/8/8/nation/4484504&sec=nation>

Conclusion

After discussing thoroughly in every chapter, it proves that the study of this topic has a lot of relevance in the Malaysian context. Malaysia is again proven different in terms of its background from any other country. Therefore adopting a conclusive approach from a particular state would not be practical. In regards to the legal position of internet censorship, it seems to

be proven there is an irregularity and inconsistency in our written laws in Malaysia, making some laws overlapping and redundant. For example a discussed previously, Section 3 of CMA93 provides that there shall be no internet censorship but there are other written laws that can override that provision94. However, it can only be reflected by previous government actions that contradict with what they have repeatedly promised, which is ensuring no internet censorship. The writer is not trying to be completely in affirmative with no internet censorship policy, but he concerns with the irregularity. This is because this shows that the government can always act arbitrarily, thus affecting the rights that they claim people enjoy.

However there are also drawbacks if we were to uphold a complete non internet censorship. That is the purpose of discussing first what are the issues arising from the adoption of the no internet censorship policy. Although there are a lot of issues that can arise from internet censorship but for the purpose of this study it would only be relevant to discuss the issues that have happened. Therefore this portrays the cause and effect of this policy and further illustrates to what extent this policy has effected
93 94

Ibid

Malaysia. For example the issue of internet censorship has affected the safety of children form pornographic contents and freedom of expression, which are the two major concerns normally. Therefore suggestions and recommendations have been narrowed down to be relevant to those two issues only. Malaysia should adopt and implement measures and methods that have been taken from other countries into its national law. As stressed earlier, finding a delicate balance is a challenge. However, what Malaysia can do is try its best to minimize the damage in whatever circumstances.

Although this study does not answer all questions that can be pointed arising from non internet censorship policy but this study seems to have answered the objective as far as the Malaysian context is concerned. This goes parallel with the scope that has been chosen in conducting this study. Lastly, what can be said that it seems this issue should be a great concern of the Malaysian Government and the public and it needs to be solved immediate.

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