IN my previous column, I explored the idea of the government restricting or entirely locking Malaysians out from social media and the Internet. It seemed like a fortuitous article in light of the events to date, specifically the kangkung incident.
In early January, kangkung memes lampooning Prime Minister Datuk Seri Najib Razak hit social media. This prompted a BBC Trending article that resulted in a firestorm when DigitalNewsAsia broke a story about how certain ISPs were blocking users from accessing the article. The cabinet at that point reportedly contemplated “strong action” to stop the lampooning of the prime minister but decided instead to affirm the MSC Bill of Guarantees (BoG).
But the cabinet did not issue an official statement to the above effect. And let’s not forget, the BoG isn’t really law, it’s the equivalent of a mission statement or service commitment at best.
In this column, I want to float a provocative suggestion: that the cabinet has it wrong and the BoG cannot be used as a basis, legal or otherwise, to justify access to Internet content that is satirical or parodic in nature.
Back to basics: The MSC
In the United States, satire and parody are clearly protected under the First Amendment and, accordingly, are not subject to legal impediment except in limited circumstances.
Malaysia does not have a Bill of Rights and has a restricted free speech provision in the constitution. This means Malaysia is using the BoG provision on no Internet censorship as a stand-in to protect access to the Internet and, to a lesser degree, freedom of speech and the right to create parody and satire.
Yet, the origin of the BoG is very different from that of the US Bill of Rights. The BoG is inherently linked with the Multimedia Super Corridor (MSC), which was created in 1996 as a Special Economic Zone. The MSC is a strategic economic initiative, not a political one, and its BoG was designed with the economic emphasis in mind.
The preamble of the BoG states that it “reflects the government’s intention to provide an environment in MSC Malaysia that is conducive to the development of MSC Malaysia Status entities”. Aside from BoG #7, which relates to Internet censorship, the other nine relate to corporate or economic guarantees, from the freedom to source capital and workers to tax-free status and infrastructure commitments.
This strongly suggests that the BoG exists primarily as a statement of commitment to facilitate the growth of the technology industry. The guarantee on “no Internet censorship” can be argued to only apply in so far as it is required for the purposes of supporting a specific technology industry’s business needs or requirements.
Further, restricting access to the Internet is not entirely detrimental to developing a strong and vibrant technology industry. China is home to some notable Internet companies, from Taobao and TenCent to QQ and AliBaba. Its heavy-handed censorship of the Internet and social media platforms has not reduced its allure as a tech hub.
Singapore is the Asian headquarters for a large number of tech companies in the Internet media and social media space, from Yahoo! to Facebook. This is a country where users can only access the Internet via a proxy server. Censoring the Internet does not mean killing off the technology industry per se.
An activity that cannot be correlated to the MSC’s objectives arguably cannot avail itself of the protection of the BoG. The government could simply argue that the restriction of access to satirical content or parody is on the basis that such content has nothing to do with growing the tech industry in a meaningful way.
BoGs not universal
As the preamble of the BoG makes clear, only “qualified entities” are entitled to “a set of incentives, rights and privileges from the government of Malaysia, namely the MSC Malaysia Bill of Guarantees”.
It is quite clear that the guarantee on no Internet censorship also only applies to companies that have MSC status, or companies that fall within the various MSC Cybercities and Cyberzones. Anyone who does not use the Internet within these circumstances or geographical locations is technically not entitled to claim the “incentives, rights and privileges” of the BoG.
As such, a Malaysian accessing the Internet from his or her home technically cannot avail themselves to BoG #7. The BoG is not a universally granted set of incentives, rights and privileges. Most importantly, BoG #7 only extends to Internet censorship, meaning that the government agrees not to restrict access to content on the Internet. It does not protect the right to create satirical content or parody, a right that is currently being restricted through the use of sedition offences.
The government is paying more attention to satirical and parodic content than hard-hitting political analysis of late. While the BBC Trending article was swiftly blocked by ISPs almost within hours of its appearance, Bloomberg columnist William Pesek’s blog posing the question on whether Najib’s days are numbered experienced nary a glitch.
At the time of writing, Seputeh Member of Parliament Teresa Kok’s satirical Onederful Malaysia video, while not banned or restricted, has been on the receiving end of 40 police reports and might be investigated for sedition.
In floating the above idea, the intention is not to give the government ideas on loopholes in its sketchy legal position on Internet censorship or digital access. Rather, it is a clarion call to lawmakers on both sides of the political spectrum to take active steps to protect the broader rights of Malaysian digizens.
Relying on the BoG is simply not enough to protect not just our right to access material, even if it is satire or parody – we must also seek to protect the right to create content as well.
Bernice Low used to blog for CNET Asia but these days, she’s busy dreaming up Hollywood blockbuster movies in her other life as a screenwriter.