There is no god but Allah, and Muhammad is the messenger of Allah

Online Defamation Through Social Media:

An Attempt To Reconcile Conflicts Between

Free Speech & Cyber Harassment.

Md. Zubair Kasem Khan.LL.B (Hons); Master of Comparative Laws(MCL)

International Islamic University Malaysia.

Main Features. Defamation & Online Defamation. Why Internet for Defamation. Legislations related to defamatory. Freedom of Speech. Freedom of Speech under International

Conventions and its limitation. Freedom of Speech under Federal

Constitution of Malaysia and its limitation. Freedom of speech in Internet and Cyber

Harassment. Instances of online defamation. Internet Content Regulation and Censorship. Recommendation & Conclusion.

Defamation & Online Defamation.

Any kinds of Fake Statements made about someone or an association that Cause Damage to his Reputation.

False Publication, which makes someone To Be Shamed, Insulted, Ridiculed or makes him lower in the reckon of the Right-thinking Members of the society.

Communication through Internet that Discredits, Hamper someone's Prestige or causes shame to an Individual Or In His Profession.

DEFAMATION

The reasons for subscribing Internet as a safe and fruitful platform for making defamation are-

Why Internet for Defamation

IMMANENT TRANSNATIONAL

NATURE.

•Worldwide Connectivity of the Internet,•Speedy Communication with Massive Amount Of Information simultaneously to Manifold Destinations, and•Lacking of Conventional Respect for Domestic Boarders.

HETEROGENEOUS NATURE.

• Provides relatively Unlimited, Low Cost Capacity For Communication.

• Allows Individual content providers to Reach an Audience Directly, without the “filtering” role and thus it removes editorial intermediaries.

• Publication via the Internet may be Anonymous.

Legislations related to defamatory

Defamation

Criminal Defamation.

The Penal Code.

(section 499 & 500)

Sedition Act 1948.(section

3&4)

The Malaysian Communication and Multimedia Act 1998.(se 211&

233)

Civil Defamation

.

Defamation Act 1957.

The Rules of the High Court 1980.

(Order-78)

Freedom of Speech.

Freedom refers to ‘the ability of the individual to say or do what he or she wishes, or to avoid doing so, without violating the right of others, or the limits that are set by the law.

So, Freedom Of Speech, together refers to enable all people regardless of race, sex or ethnicity, the right to speak their mind and write down their ideas without fare of condemnation.

It is the absence of restraining upon the ability of individuals or groups to communicate their ideas to others, subject to the understanding that they do not in turn coerce others into paying attention or that they do not invade other rights essential to the dignity of the individual.

continuation

This Freedom of Speech and Expression is Not Absolute In Nature. It Must Be Under some Restrictions stated in the law.

This had been observed by the learned judge, In the case of Vivendra Vs. Punjab State [1957] AIR Pun 1, 4 which clearly stated that-

“Freedom of speech Does Not Mean that a person is at liberty to say what he pleases at all times and under all circumstances… that the right of freedom of speech cannot have been and obviously was not intended to give immunity for every possible use of language… a person were to indulge in the use of language which is so defamatory, insulting, inciting or provocative as to be reasonably likely to cause disorder and violence….”

Freedom of Speech under International Conventions Several international conventions and declarations guarantee these rights. These

are-

The Universal Declaration of Human Rights (UDHR); Article- 19 Says that,

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Article- 29 of the Universal Declaration of Human Rights restrict rights of enjoying freedom of speech absolutely for the mankind as-

“In the Exercise Of His Rights And Freedoms, everyone shall be subject only to Such Limitations As Are Determined By Law Solely for the purpose of Securing Due Recognition and Respect For The Rights And Freedoms Of Others and of meeting the just requirements of Morality, Public Order and the General Welfare in a democratic society”

Continuation

Article- 49 of the International Covenant on Civil and Political Rights (ICCPR) makes restriction in giving free speech by stipulating Four Grounds which are

The Rights or Reputations of Others National Security Public Order or Public Health Morality

Article- 10 of the European Convention On Human Rights(ECHR) clearly stated that, the following situations, the right to give free speech shall be restricted which are-

Necessity. Interests of national security. Territorial integrity or public safety. Prevention of disorder or crime. Protection of health, morals and The Reputation Of Rights Of

Others. Maintaining the authority and impartiality of the Judiciary.

Freedom of Speech under Federal Constitution of Malaysia

Article-10(1)(a) of the FC stated that-

“Every citizen has the right to freedom of speech and expression”.

Under Article-10(2) of the FCM, in the following grounds, the Parliament preserves the right to impose restrictions in observing freedom of speech, expression, assembly or association which are-

National Security.

Keeping Diplomatic Relations.

Public Order.

Public Morality.

Privileges of Parliament or of any Legislative Assembly.

Contempt of Court.

Defamation And

Incitement to any Offence.

Instance of Cyber Defamation

Cyber Defamation

By Blogging

Ex. Case:In re Philadelphia

Newspapers v. Vahan H. Gureghian ( June 26, 2012).

By Using Social Network(Ex. Facebook, Twitter) Ex. Case:

Journalist R. Nadeswaran Case

(2011). For Twitter publication.

By E-mailingBy General

Online DefamationEx. Case:

Perunding Alam Bina Sdn Bhd v Errol Oh & Ors.

[1999] 6 MLJ 101.Through online

News reporting.

Freedom of speech in Internet and Cyber Harassment

A Case Study.In Sessions Court KL, a private school lab assistant was Fined RM10,000 in default five months’ jail for posting offensive comments against the Sultan of Perak on the Internet in February 2009.

INSULT TO THE KING

Mr. Azrin Md Zain (33), who is attached to Kota Damansara school, became the first person to be convicted in the summons case under the Multimedia and Communications Act 1998. (The Star, 14 March 2009).

Continuation On 11 January 2007, two political bloggers, Jeff Ooi

and Ahiruddin Attan were sued by the New Straits Times Press (Malaysia) Bhd and its staff over alleged defamatory words posted in their blogs. The plaintiff successfully obtained court injunction to remove blog postings (The Star, 19 Jan 2007).

Another blogger, Syed Azidi Syed Aziz was on 17th September 2008 arrested under the Sedition Act 1948 for Publishing An Image Of The Malaysian Flag Upside Down in his Blog and for calling other bloggers to do the same as a sign of protest against the ruling government (The Star 19 Sept 2008).

Internet Content Regulation and Censorship

In order to affect those legal limitations, many governments have sought to address the problems posed by abominable materials on the Internet that are illegal under their offline laws and those considered harmful to or unsuitable for minors.

The nature of material of principal concern has varied substantially, such as:

Political speeches.

Speech promoting or inciting racial hatred.

Pornographic material

Hate against race & religion.

This initiative is popularly known as ‘Internet Content Regulations’ or more famously labelled as ‘Internet Censorship’

INTERNET CENSORSHIP IN MALAYSIA

In order to know the legal position in Malaysia, the following are necessary to understand:

The MSC Malaysia Bill of Guarantees(BoGs) No. 7 clearly stated that-

“No censorship of the Internet.”

Section 3(3) of the Communication And Multimedia Act 1998 states that-

“Nothing in this Act shall be construed as permitting the censorship of the Internet.”

Continuation

However, in Interpretation part, this BoGs clearly states that-

While the Government will not censor the Internet, this does not mean that any person may Disseminate Illegal Content With Impunity and without regard to the law. To the extent that any act is illegal in the physical world, it will Similarly Be Outlawed In The Online Environment.

Other Relevant Governing Laws in Malaysia

COMMUNICATIONS AND MULTIMEDIA ACT 1998Section 211(1): Prohibition on provision of offensive content.Section 233: Improper use of network facilities/service.Section 263. General duty of licensees.

INTERNAL SECURITY ACT 1960Section 8 (1): Power to order detention or restriction of persons.Section 22: Prohibition of printing, sale, etc., of documents and publications.Section 26: Importation in contravention of order under section 22

MALAYSIAN CONTENT CODE

Section 211 of MCMA Prohibits Content that is Undesirable To Local Malaysian Values. Hence, this provision allows industry to self-regulate themselves by agreeing on a common code of industrial practice.

The code, though is not binding, nevertheless it helps industry players to self-regulate themselves.

Indecent content. Obscene content. Violence. Menacing content. Bad language.

False content. Children’s content. Against family values. Against people with

Disabilities.

The categories of prohibited contents under the Content Code are:

Recommendation & Conclusion

The following points need to reconsider in Internet Governance paradigm

Specific Law for the Internet Defamation is needed to be enacted in Malaysia.

Internet “Content Code” should be applied in Malaysia for protecting Child Pornography, Online Defamation etc. to uphold high moral values.

Effective Punishment should be introduced and applied for the internet offender.

Up-to-date technologies should be introduced to the Judges so that they understand clearly the facts while dealing with the cyber crimes.

Awareness of the guardian is also necessary to control online defamation and cyber crime.