Section 211 and 233 of the Communication and Multimedia Act 1998: A Double Edges Sword.

You may want to be very careful on what you write and posting about others on the internet, It can be on  Facebook, Tweeter, Instagram or even Whatssapp. You may get yourself at the bad side of the law in the form of section 233 and section 211 of the Communication and Multimedia Act 1998 (“CMA 1998”). This is what happened in Johor Bharu recently when a man was arrested for sharing a crude photo insulting the Malaysian Prime Minister in a Whatsapp group. 

What is section 211 and 233 of the CMA 1998?

section 211 (1) provides that:

No content applications service provider, or other person using a content application service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

the punishments are fine up to RM50,000 or imprisonment not exceeding one year and further fine of RM1000 for each day that the continuance of that offence after the offender had been convicted by the court.

Section 233 (1)  further provides:

Improper use of network facilities or network service, etc. 233. (1) A person who— 

(a) by means of any network facilities or network service or applications service knowingly— 

(i) makes, creates or solicits; and (ii) initiates the transmission of, 

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or 

(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence.

(2) A person who knowingly— 

. (a)  by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or 

. (b)  permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a), 

commits an offence. 

Basically it says: do not post any negative remarks/photos/sign against any one in the internet. The prohibited remarks/photos/sign need to be obscene, indecent, or not true.

These sections intended to protect “any person”. Meaning, any one who has been hurt by any posting in the internet can seek protection under these sections. These sections serves as a reminder to those who have the tendency to abuse the ubiquitous effect of the internet to spread derogatory materials against another. Deterrent measures is essential as once the materials has been published in the internet, it will be accessible to the all and the good name of the victim will be tarnished, even if what has been published is not true. The false materials will cause irreparable damages to the image and good will of the victims.

These sections of the CMA 1998 promotes maturity, responsibilities and accountabilities for internet users. Internet users need to learn to check their facts before publishing anything and to use the internet for good purpose. We should deter irresponsible people from abusing the internet.

However, the problem lies in the interpretation and the usage of the these sections. For a start, what constitutes “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass”?

Let us look at the following cases which involves section 211/233 of the CMA 1988.

(1) Dato’ Zaid Ibrahim was charged on 3 December 2015 for publishing on his blog the transcript of a speech that he delivered at the Royal Selangor Club.  The blog post, entitled “Rally Behind Tun Dr Mahathir Mohammad”. The blog post also called for Datuk Seri Najib Razak to resign as the Prime Minister.

(2) Tan Sri Abdul Rahim Thamby Chik was charged on 5 October 2015 for a posting on his Facebook pertaining to the crown prince of Selangor;

(3) Shahbudin Husin, a political analysts was investigated on 29 September 2015 for posting his comment entitled “Kenapa lawatan rasmi Zahid ke Indonesia sama tarikh dengan majlis sanding anaknya di Jakarta?”;

(4) The Malaysian Insider (“TMI”) managing editor Lionel Morais, Bahasa Malaysia news editor Amin Shah Iskandar, and analysis editor Zulkifli Sulong were arrested on 30 March 2015. Chief executive Jahabar Sadiq and group CEO of The Edge Media Group (which owns TMI) Ho Kay Tat were arrested on 31 March 2015, for publishing a news report that claimed the royal institution had opposed the amendment of the Federal Constitution to enable hudud laws to be implemented; 

(5) Sarawak Report was investigated, and access to its website was blocked in July 2015 for publishing unverified information relating to the Prime Minister and 1MDB;

(6) Khalid Mohd Ismath, an activist was charged on 13 November 2015 for making seditious online posts regarding the Johor royalty; 

(7) S Arutchelvan, the Secretary-General of Sosialis Malaysia was charged on 23 November 2015 for criticising Court of Appeal's decision against Anwar Ibrahim in his FB post;

(8) Joe Haidy Facebook page administrator of “Letak Jawatan” was investigated on 4 December 2015 for allegedly defaming the Prime Minister.

(9) Radio journalist Aisyah Tajuddin and two of her colleagues were investigated on 23 March 2015 for her appearance in a video posted online, entitled “Hudud Isi Periuk Nasi? (Kupas)”;

Reading the wording of section 211 and 233 of CMA 1998, I do not have any qualms about indecent, obscene, and false materials. Of course when we want to post something on the internet, we need to be responsible to check the accuracy of the materials. As for obscene and indecent, although the wordings are ambiguous, we should be able to rely on the acceptable norms of Malaysian cultures. 

However, what constitutes “menacing” and “offensive” should not be allowed to have a wide interpretation. 

Should we stop a person from giving his opinion, or comments based on facts just because it is a menace or offensive to the other person? Truth hurts, but just because it hurts we should stop people from telling the truth?

A person giving a comments and opinions based on facts, tantamount to freedom of speech and expression which was guaranteed under article 10 of the Federal Constitutions. Article 10 provides that “Every citizen has the right to freedom of speech and expression”. Article 10 (2) provides that these freedom can only be restricted in the interest of security of the Federation, public order,  and morality. 

Prosecuting a person for his mere opinions and fair comments is a suppression of these rights which is against the sprit of our Federal Constitution. Fair comments and opinions is not a threat to the security of the Federation, public order, and morality.

Section 3 (2) (a) and (b) of the CMA 1998 stated that: .

(b)  to promote a civil society where information-based services will provide the basis of continuing enhancements to quality of work and life; 

(c)  to grow and nurture local information resources and cultural representation that facilitate the national identity and global diversity;

Prosecuting someone based on his or her fair comments and opinion is a ten steps backward in promoting a civil society. Do we intend to create a herd mentality in our society? or do we want to create a society that is able to appreciate differing views and perspectives?

Furthermore, the above said cases shows that section 211 and 233 of the CMA 1998 seems to be used to silence the critics and comments against the government. This if true, is a dangerous precedent. The society need to be mature enough to accept criticism, the same goes to the government.

Fair enough that Malaysian is a multicultural country and we should be mature enough not to touch on religion and racial sensitivity. religious and racial sensitivity has been an excuse to stamp out lot of discussions and matters in this country. However, the problem is that we became too sensitive until we cannot accept any form of comments and criticism until we subconsciously making the racial and religious gap wider and wider. We become too protective until we live in a racial or religious cocoon. Every comments is seen as an attack to ones' race and religion. 

I never blame the religion. I blamed the people who misinterpret the religion based on their regressive minds.

We need to cultivate a society that cherish honesty, open to criticism and comments, and celebrate differences. Think with open mind. Ask questions, query the obvious. 

If the subject matter is indecent,obscene, and false, by all means, we should go against these menace. However, as far as we do not want people to abuse the internet, we also do not want the regulations framework to be abused as well.

Fair comments and criticism is not a threat to the security of the Federation, public order, and morality but despotic, bigotry , irrational behaviour/thinking is.