Mohamed Sharil Mohamed Tarmizi
IT has been more than a month since the Malaysian Communications and Multimedia Commission (MCMC) investigated Malaysiakini for putting up two video reports — one about the 28 Aug 2009 cow-head protest and the other depicting the home minister’s defence of the protesters in a press conference.
No charges have been brought against the online news portal despite the intensity of the investigations over several days in September. In the midst of the investigations, the MCMC had to fob off accusations that they were not abusing their power to clamp down on the new media.
To Malaysiakini‘s credit, they have refused to remove the two video reports despite the investigations, which have since stopped. Still, the probe into Malaysiakini over the two videos is not the first time the MCMC has taken action against websites and internet users. In August 2008, the MCMC instructed internet service providers (ISPs) to block popular website Malaysia Today due to “insensitive” comments that were posted.
In February 2009, the first conviction under the Communications and Multimedia Act (CMA) 1998 took place in relation to insulting comments directed at the Sultan of Perak following the coup in Perak. The offender pleaded guilty to a charge under Section 233 of the Act, which makes it an offence to post a comment which is offensive in character with the intent to annoy, abuse, threaten or harass another person. This is the same section that Malaysiakini was being investigated under.
Home Minister Hishammuddin
Hussein (Courtesy of theSun)Annoy? Yes, offenders can potentially be fined up to RM50,000 or jailed for up to one year or both for intending to annoy others through their online publication. Notwithstanding the fact that no charges have been brought against Malaysiakini, nor are any likely to be made, The Nut Graph spoke to Mohamed Sharil Mohamed Tarmizi, chief operating officer and acting chairperson of the MCMC, on 30 Sept 2009 about the commission’s role and powers.
TNG: What does the MCMC do?
Mohamed Sharil: We’re charged with the development of the communications and multimedia sector in Malaysia. We cover telecoms, broadcasting, internet, broadband, cellular services, radio frequency management, numbering and electronic addressing, as well as postal and courier services.
Our task is to create the right environment for businesses and online people such as yourselves to grow. In a way, we’re like gardeners tending to a garden of sorts; but at times, like a gardener, if there are weeds, you have to remove them. We do what we do in accordance with the law of the land.
Does the MCMC function independently? Is it supposed to be an independent commission?
We are as independent as the law prescribes. It’s very easy to fall into a false pretense of what independence means. We are based on the functions of the law. [The law sets out the functions of the commission and the minister, and there's a check and balance.]
Who initiates investigations?
We’re not very big. Typically, we act on public complaints. Somebody calls up, they say they’ve seen or heard something, they want to lodge a report. So we take in the report and then we investigate.
Section 211 and 233 [of the CMA] states that providing content which is offensive with the intent to annoy is an offence. The word “annoy” in Sections 211 and 233 — it seems so broad. What is your take on it?
I think this is something that the courts should decide. I can appreciate that there can be a situation where what is annoying to one person may not be annoying to another. [For the MCMC], if someone who is offended or annoyed makes a report, then we have to investigate.
We go and interview people, gather evidence and submit it to the Attorney-General [who decides whether or not to prosecute]. Sometimes we get told there’s no case, so that’s the end of the investigation. If they say proceed, then we have leave to prosecute.
Without going into any specific cases, if something offensive is done and it is filmed and published online, is that “just reporting”? Or can the online media also fall foul of the Act?
I cannot speak about the Malaysiakini case, so what I’m going to say is largely hypothetical.
What does “just reporting” mean? If something done is so heinous and it’s reported, it may be possible that the act of reporting may well be a crime in itself. If someone videoed something heinous and it is uploaded in the interest of reporting the news, where do you draw the line? Is that news? What about the victim? Isn’t the victim entitled to be protected?
It is difficult. That’s why we don’t try to be judge and jury — the courts and the law are there [to decide].
Is there a difference between video footage shown on television, photographs in the newspapers and video reports on the internet?
There’s a huge difference. In the case of television, there’s the editor, sub-editor, news editor, the journalists check and verify their facts, then only the report goes out. If any video has not been verified, they put a disclaimer. CNN does that — they qualify so you know what to expect.
(Pic by miamiamia / sxc.hu) I’m not talking about the Malaysiakini case. The problem with the internet, generally, is someone will take a video of something and then just upload it. Nobody can establish or defend the authenticity of the video, the image or the audio. It’s out there and it hurts and causes grief to someone. Are people just allowed to walk away, especially if it’s done by irresponsible people?
What about the Federal Constitution and the guarantee of freedom of speech?
What’s the issue about freedom of speech?
The Federal Constitution guarantees freedom of expression. There are exceptions where the government can legislate to restrict this freedom; for example, if it’s against national security…
Can you shout fire in a theatre? You can’t. It’s an offence.
Freedom of speech in the Federal Constitution is subject to whatever law that has been passed.
But the restrictions on this freedom are only in relation to certain exceptions — national security, public order, public morality, friendly relations with other countries…
And the law. Whatever Parliament has enacted.
According to the constitution, Parliament can only enact restrictions in accordance with specific exceptions.
I’m not an expert on constitutional law, so I don’t know. I have to go by the legislation. I would like to believe that Parliament would not have legislated anything contrary to the Federal Constitution. Again, let the courts decide.
There were reports that the MCMC asked the service providers to block Malaysia Today [last year]. Is that correct?
That is on a [specific] investigation, so I can’t really say. What I said to the press at the time was we believe that we were well within our powers under Sections 211 and 233 to take action because there were comments made which were offensive.
So the MCMC has the power to ask the service providers to block websites?
To take preventive action. Could be anything, it’s not just blocking. We could ask the site owner to take it down. And in many cases, actually, site owners do take it down.
Since existing laws apply on the internet, should the MCMC be focusing on offensive comments and things like that?
Well, Parliament passed the law. I have to do my job. If there’s a section here that says there’s an offence, does that mean I don’t take action? If someone does something which is in contravention [of] this law, the [Communications and] Multimedia Act makes it mandatory to take action. I have no choice in this matter.
There are things that people have done, like scams, spam, fraud — they’re also part of what we need to do.
[The MCMC] was never intended to [police the internet]. Never. That’s why the whole act is based on the principle of industry and user self-regulation. Our job is not to go catch people, we don’t catch people. We go and investigate and then once we’ve investigated, we submit the papers to the Attorney-General.
What about censorship of the internet?
The Act (under Section 3) says nothing in this Act shall be construed to permit the censorship of the internet. Read that very carefully. What does that mean? In the same Act, Sections 211 and 233 (on the offence of providing offensive content) exist. Basically, the Act says if I take any action under 211 and 233, it shall not be construed as censoring.
Or it could mean that if you take any action under 211 and 233, you cannot [do anything that amounts] to censorship?
No, no. I don’t think so. [The Act says], “Nothing in this act shall be construed as permitting the censorship of the internet.” So, if you read Section 211, you would think 211 means you can censor. Actually, you’re not [censoring]. Sections 211 and 233 mean you’re taking regulatory enforcement action. Otherwise why have 211 and 233?
(Pic by Winterling / Dreamstime)Does having Section 3(3) mean anything you do on the internet is untouchable? Cannot be also, kan?
Some say that the online media changed the landscape of the last general election and precipitated a shift away from the Barisan Nasional. Do you think the MCMC can be used or is being used to prevent such a shift, as in the last election?
To be honest, I don’t understand the question. Sincerely, I don’t understand the question. Because how can we be used?
Why do we tell people to take things down or don’t do this or don’t do that? Because we think an offence has been committed. We tell people if an offence has been committed, or if it’s offensive, please take it down. We are entrusted with enforcing the law even if all we can do is say, “Please take it down because someone has reported that this is offensive.”
Do you think the online media has a role to play?
I think the online media has a great role to play. It has a great and positive role to play. I sincerely believe in the power or strength of the new media, it’s a wonderful thing. But like anything, there’s always those who will abuse it and those who will misuse it. What we’ve been trying to promote for some time now is positive use of the online media.
Some of the comments I see online are very immature. Not all, some. Some cannot string a sentence without an expletive in between.
Shouldn’t people still be allowed to discuss?
Discussion is fine but if all that’s being said is a bunch of four-letter words, where’s the discussion?
People say ignorance breeds distrust. Maybe Malaysians have not had the chance to discourse and dialogue with each other, and now we’re just starting.
I am a big believer in discourse and dialogue, but do it civilly. Do it with civility.
[Many people are asking], how can a press conference (Home Minister Hishammuddin Hussein’s on 19 Oct 2009) be offensive? Is it possible for a minister to be annoying?
I can’t speak about anything that’s specific to the [Malaysiakini] case. All I can say is that it’s not all what it seems; we have the evidence. Of course, it’s up to the Attorney-General to decide whether the evidence we have is sufficient or not.
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